EMPLOYER AND EMPLOYEE (Continued).

act either directly or indirectly connected with the business of his employer or incidental thereto, where the same occurred after he had finished the job of putting up signs for the day and after he had gone home and while on his way down-town for supper.-Id.

9. ACT OF SERVANT-LIABILITY OF MASTER-EVIDENCE-PRIMA FACIA CASE. In an action against a master for an injury committed by his servant, a prima facie case is not made out by mere proof of the relationship between them, but it is also essential that it be shown that the act was committed within the scope of the employment.-Id.

See Contracts, 2; Money Had and Received, 1; Public Officers, 3; Workmen's Compensation Act, 11, 12, 14, 15, 17, 18, 20-24, 27.

ENCUMBRANCES. See Vendor and Vendee, 3, 4.

EQUITY.

JURISDICTION-CRIMINAL CASE-STAY OF JUDGMENT REMEDIES. - It is not within the power of a court of equity, nor of a judge of the superior court, upon an ex parte affidavit, to stay or set aside the execution of a judgment of conviction of murder, upon which a sentence of death has been pronounced, after a trial before a jury. The only remedy is an application to the Governor for proper relief.-People v. Superior Court, 624.

See Contracts, 20; Wills, 18.

ESTATES OF DECEASED PERSONS.

1. HEIRSHIP-SUFFICIENCY OF EVIDENCE.-On this appeal from a decree denying distribution of an estate to an alleged brother, sister and children of a deceased sister of the intestate and distributing the same to the state under the provisions of section 1269 of the Code of Civil Procedure, the testimony of the neighbors of the deceased as to statements made by him as to his boyhood and family relations and the depositions of the alleged brother and sister were sufficient to establish their heirship, in the absence of any indication or intimation of collusion between the two sets of witnesses, who were separated at all times by the width of the continent, although the claimants were informed before their depositions were taken as to what facts could be shown by the other witnesses.-Estate of Sullivan, 229.

2. SUCCESSION-PROPERTY RECEIVED FROM PREDECEASED SPOUSE-CONSTRUCTION OF CODE.-Where a woman who had been married three times died intestate and without issue by either her second or third marriages, but left children by her first marriage, her

ESTATES OF DECEASED PERSONS (Continued).

surviving third husband and her children by her first marriage were entitled under subdivision 8 of section 1386 of the Civil Code to her entire estate to the exclusion of a son of her deceased second husband, notwithstanding a portion of her estate was received by her upon distribution of his estate.-Estate of Underhill, 233.

3. SUCCESSION-PROPERTY INHERITED FROM MOTHER-HALF-SISTER ON FATHER'S SIDE-CONSTRUCTION OF CODE.-Under subdivision 5 of section 1386 of the Civil Code a half-sister of the deceased father of a person dying intestate and in the third degree of relationship is entitled to succeed to the portion of the estate which such intestate inherited from his mother in preference to cousins of the whole blood of a more remote degree, since the exception in section 1394 of such code excluding kindred of the half blood in favor of kindred of the whole blood, where the former are not of the blood of the ancestor from whom the estate came by descent, devise or gift is operative only when there are kindred of the whole blood of the same degree as the kindred of the half blood.-Estate of Belshaw, 278.

4. HALF-SISTER OF FATHER OF INTESTATE - KINDRED OF THE HALF BLOOD.-A half-sister of decedent's father, having one ancestor in common with decedent, is a kindred of the half blood.-Id. 5. WILL CONTEST BEFORE PROBATE-EFFECT OF JUDGMENT.-A judg ment in a will contest before probate is only conclusive with respect to the question of the admission of the will to probate, and is not a final adjudication of the validity of the will.-Estate of Dorn, 343.

6. CONTEST BEFORE PROBATE NONPARTICIPATING HEIRS — RIGHT OF CONTEST AFTER PROBATE.-In view of sections 1327 and 1333 of the Code of Civil Procedure, a will which has been admitted to probate after contest by certain heirs may be contested at any time within one year after such probate by other heirs who did not participate in such contest.-Id.

7. MONEY IN STATE TREASURY - DISTRIBUTION

- REMEDY.-An appli

cation for a writ of mandamus to compel the superior court to proceed and hear a petition for distribution in a case where money has been paid to the state treasurer under provisions of section 1737 of the Code of Civil Procedure will be denied on the ground that petitioner's remedy is by proceedings in the superior court of Sacramento County under the provisions of section 1272a of the Code of Civil Procedure (Stats. 1917, p. 254). In re Kehr, 401.

8. DECREE OF DISTRIBUTION APPEAL BY HEIRS. Where an administrator refuses to appeal from a decree of final distribution in an

ESTATES OF DECEASED PERSONS (Continued).

estate in which his intestate is interested, the heirs may
tain the appeal.-Estate of Clark, 354.

main

9. ACCEPTANCE OF DISTRIBUTED PORTION RIGHT OF APPEAL. - The acceptance by heirs of the portion of an estate distributed to them does not preclude them from maintaining an appeal for the purpose of establishing a greater claim, where they are entitled to the accepted portion in any event.-Id.

10. SUCCESSION AS STATUTORY HEIR-CHARACTER OF PROPERTY

JUDGMENT ESTOPPEL.-A judgment for the defendant in an action by the administrator of the estate of a husband against the administrator of the estate of the wife to recover property wherein the sole and only issue raised by the pleadings and adjudicated in the action was whether or not the property was the separate property of the husband at the time of his death, or had become prior thereto the separate property of the wife, is conclusive upon the sister of the husband claiming the right upon distribution of the wife's estate to succeed to such property as statutory heir under subdivision 8 of section 1386 of the Civil Code on the theory that it came to the wife by descent from her deceased husband. Id.

11. JUDGMENT AGAINST ADMINISTRATOR EFFECT UPON HEIRS. An adverse judgment in an action prosecuted by an administrator to recover the possession of property alleged to belong to the estate is not only binding upon him but also upon the heirs, since a judgment concludes not only the adverse party but all those claiming under the title which he represents.-Id.

12. DECREE OF DISTRIBUTION DISTRIBUTION TO DEAD PERSON INVALIDITY OF.-A decree of distribution in the estate of a deceased person is in the nature of a judgment and where it distributes property of the estate to a deceased person it is absolutely void. Estate of Parsell, 454.

13. DISTRIBUTION JURISDICTION NOTICE.

The law provides the method of acquiring jurisdiction of all claimants of the estate of a deceased person upon distribution and in the absence of the prescribed notice distribution cannot be made.-Id.

14. DISTRIBUTION TO DEAD PERSON

ATTEMPTED MODIFICATION OF DECREE-LACK OF JURISDICTION. Where distribution of part of the estate of a deceased person has been made to one who it was afterward discovered was dead at the time of the decree, the court has no jurisdiction upon application of the executor of the estate, for a modification of the decree, on the hearing of which application the attorneys for the executor and the attorneys for the residuary legatees of the deceased distributee only appeared, to modify the decree by distributing the property to the residuary legatees of the decedent in the first estate, as the original decree

ESTATES OF DECEASED PERSONS (Continued).

was void and the court had jurisdiction to make a new distribution only after proper petition for distribution and notice.-Id. 15. PROCEEDING TO REVOKE WILL UNDUE INFLUENCE CONFLICTING EVIDENCE-APPEAL-In a proceeding for the revocation of the will of a deceased person upon the ground of undue influence, where the evidence is conflicting and there is sufficient evidence to sus tain a finding against the petition, the finding cannot be re viewed on appeal.-Estate of Parkinson, 475.

16. EVIDENCE-PROPERTY IN NAME OF ANOTHER. - In a proceeding for the revocation of the will of a deceased person upon the ground of undue influence, evidence is inadmissible to prove that property standing in the name of the one alleged to have exercised the undue influence was in fact the property of the deceased. Id.

17. OBJECTION FIRST MADE ON APPEAL.

A claim made on appeal for

the first time that such evidence was admissible to show a trust relation between the parties will not be considered.-Id.

18. CONTRACT FOR CUSTODY AND CARE OF MINOR-HEIRSHIP-ADOPTION. Where the father of a minor child, whose wife had died, entered into an agreement with a husband and wife by which the former committed to the latter the legal custody and care of the child and they agreed to nurture, maintain, provide for, and educate it according to their ability, means, standing, and position in life, and that in case of the death of the wife the child's father should have the right to retake it upon reimbursing the husband for moneys expended and expenses incurred by him for all reasonable costs in caring for the child, and it was further provided that in case of the death of the father, the husband and wife, or survivor, would adopt the child, and the child lived with and was cared for by the husband and wife until after she reached her majority and neither her father nor the wife died until after that time, and no formal statutory adoption existed, the child was not entitled to any part of the husband's estate under the claim that she was an adopted daughter and heir at law or on the theory of estoppel in pais, notwithstanding she was allowed to believe until the husband's death that she was an adopted daughter.-Estate of Taggart, 493.

19. WILL CONTEST EXECUTION OF HOLOGRAPHIC WILL- CONFLICTING EVIDENCE-APPEAL.-In a will contest, a verdict finding the will to have been entirely written, dated, and signed in the handwriting of the testatrix will not be disturbed on appeal, where there is a substantial conflict in the evidence on this ground of contest.-Estate of Newhall, 709.

ESTATES OF DECEASED PERSONS (Continued).

20. UNSOUNDNESS OF MIND-INSUFFICIENCY OF EVIDENCE- NONSUIT.In this will contest, upon the ground, among others, of unsoundness of mind of the deceased, it is held that the evidence was not sufficient to warrant the inference that the deceased was not of sound mind at the time of the making of the will, and, therefore, a motion for nonsuit was properly granted as far as this ground was concerned.-Id.

21. UNDUE INFLUENCE- INSUFFICIENCY OF EVIDENCE. The evidence in this case is not held sufficient to warrant and support the inference that the testatrix was induced to make the will in question as the result of the undue influence of the chief beneficiaries named therein.-Id.

22. DEFINITION OF UNDUE INFLUENCE. - Undue influence is defined to be the exercise of acts or conduct by one person toward another person by means of which the mind of the latter is subjected to the will of the person seeking to control it.-Id.

23. MEANS AND METHODS OF UNDUE INFLUENCE.

As applied to a ground of contest of the will of a decedent, undue influence has reference to the means and methods resorted to and employed by a person for the purpose of affecting and overcoming, and which ultimately do affect and overcome, the free and unrestrained will of the testator.-Id.

24. UNDUE INFLUENCE-FRAUDS-DISTINCT GROUNDS OF CONTEST.-Undue influence and fraud as a ground of contest are not, as a matter of law, identical. Theoretically they constitute two separate and distinct grounds of contest.-Id.

25. DECEPTION. — In cases where fraud alone is relied upon as a ground of contest it is the theory of the law that the testator, even though acting, in a manner of speaking, of his own free will, was, nevertheless, deceived by false data into doing that which he would not have done had he not been fraudulently imposed upon.-Id.

26. FALSE REPRESENTATIONS

- EFFECT OF. It is the general rule that for false and fraudulent representations to enter as an element into undue influence it is necessary that the misrepresentations be shown to have been intermingled with or made the basis of importunities and mental pressure upon the testator. On the other hand, such false representations, even in the absence of proof that they were used as pressure upon the mind of the testator, have been held to constitute fraud if it can be shown that they were designed to and did deceive the testator into making a will different in its terms from that which he would have made had he not been misled.-Id.