Department 1. Appeal from superior court, San Diego county; E. S. Torrance, Judge. Petition by Cave J. Couts for the sale of real estate belonging to the estate of Cave J. Couts, deceased. From an order granting the petition, contestants appeal. Affirmed. Trippet, Boone & Neale, for appellants. Conklin & Hughes, George J. Leovy, and Leovy & Palmer, for respondent. HARRISON, J. Upon the former appeal herein, (87 Cal. 480, 25 Pac. 685,) it was held that the petition for the order of sale was sufficient, and that determination is conclusive of the question upon the present appeal. The subsequent permission of the court below to allow Mrs. Dear to file objections to granting an order of sale does not give her any right to renew the objections to the sufficiency of the petition. By the proper publication of the order to show cause why the petition should not be granted, she was brought within the jurisdiction of the court, and was bound by its action as fully by her default for not appearing as if she had appeared and contested the sufficiency of the petition, and the determination by this court upon an appeal from that order was equally binding upon her. We do not, however, wish to be understood as intimating that the petition is in any respect defective, but to show that the question cannot be regarded as open for discussion. her account stated that the respondent herein, and some others, had claims against her as executrix, the validity of which, as charges against the said estate, she asked the court to determine. Upon proper notice therefor, this account was settled September 6, 1889, and in the order settling the account the court found that she had expended all the money that had been received by her as executrix, together with $315.03 in addition, for which she was entitled to credit, and also that the claim of the respondent herein for $1,240.57, mentioned in the report accompanying her account, was a legal charge against the estate, and she was directed to pay the same out of the moneys of said estate which might thereafter come into her hands as such executrix. At the hearing herein upon the petition for the order of sale, the contestants sought to show that the claim of the respondent had been paid and discharged prior to the filing of the foregoing account, but the court refused to allow any evidence to bé given in support thereof. This ruling was correct. It was said upon the former appeal herein: "The order settling the account was appealable, and the allowance of the claim is conclusive against every one interested, except those laboring under disability." The offer of the appellants was to impeach the correctness of the judgment after it had become final. The contestants offered in evidence an agreement entered into January 29, 1887, between all of the heirs of the decedent, for the division between themselves of a portion of the estate of the decedent, and for the sale of certain other property of the estate, and the disposition of its proceeds. This agreement provided that, of the proceeds of said sale, there should be paid "the sum of $6,000 to Ysidora B. de Couts, in the amount agreed to be due to her on the settlement of her accounts as executrix of the estate of Cave J. Couts, deceased." The contestants then offered to show by one of the parties to this agreement that at the time it was executed this sum of $6,000 was estimated as the prob It was not necessary for the court below, after our reversal of its former order, to again give the notice required by section 1539, Code Civil Proc. By the original compliance with the requirements of that section, it had obtained jurisdiction in the matter, and over all parties interested therein; and its subsequent action upon the petition was a movement within its jurisdiction, to be reversed only for some error in law which might be shown upon a direct appeal. After the remittitur had been filed therein, that court was at liberty to hear and dispose of the petition upon such notice as might be provided by its general rules, or as it might deemable cost of closing the administration, and reasonable in the particular case; and unless it should be made to appear that it had abused its discretion in this respect, or that the parties entitled thereto had been prevented from hearing, its action is not to be set aside. No claim of surprise, or inability to properly present their objections, was made herein, but the only objection to a hearing was the want of the statutory notice aforesaid, and this, as we have seen, was not required. May 29, 1889, the executrix filed her account of receipts and disbursements on account of the estate from the 29th of January, 1887, to the 9th of May, 1889, and of all sums of money belonging to the said estate which had come into her hands as such executrix, and in the report accompanying was accordingly inserted in said agreement, and also that at the time of the allowance of the respondent's claim there was $1,800 remaining in the hands of the executrix, and available for the costs of the administration. and that it was still in her hands, subject to disposal as the court might direct. This evidence was also excluded by the court, and its ruling is assigned as error. The agreement in question was executed more than two years prior to the filing of the account of the executrix, and that account, in its terms, purported to relate to matters "subsequent to the date of said agreement," and extending over a period of upwards of two years. The clause in the agreement itself, which the conte tants relied upon as the basis of their offer, had reference to a period anterior to the agreement, as it refers to an amount then agreed to be already due to the executrix on the settlement of her account; and the agreement also provides that, upon the coming of age of one of the heirs, she should take the necessary steps to have the administration of the estate closed. The items forming the claim of the respondent are not shown by the record, nor are their respective dates given; but annexed to the account of the executrix, which was filed in May, 1889, is a statement of her account with him, in which it appears that a balance was struck between the items June 1, 1888, and that on that date an entry was made in the account as follows: "Balance due C. J. Couts, $1,240.57." From all that appears from the record, therefore, the several items of this claim must be assumed to have been incurred subsequent to the execution of the agreement, and consequently not to have been included therein. Even if we could assume that the sum of $6,000 inserted in the agreement was intended to cover the future expenses of administration, it was incumbent upon the contestants, when the validity of this claim was brought before the court by the executrix in 1889, to show that that sum was intended to include this claim, and that it was sufficient therefor, and that enough to discharge the same then remained in the hands of the executrix. The judgment of the court that there was no money then in her hands belonging to the estate, and that the claim of the respondent was a legal charge against the estate, was a determination in her favor, that there was no money in her hands, and in favor of the respondent, that his claim was a valid charge against the estate, and must be treated as conclusive upon these points. The offer of the contestants to show that, at the time the court made this order, there was the sum of $1,800 in her hands, was an attempt to contradict the direct judgment of the court that at that time she had no money of the estate in her hands; and the offer to show that this amount of money still remained in her hands was equally an attempt to impeach the correctness of that judgment. It is not claimed, nor was any offer made to show, that she had received any moneys belonging to the estate since the settlement of that account. The offer to show that the claim of the petitioner had been paid by reason of his having had the use and occupation of a portion of the estate, for which he should account in a sum equivalent to the amount of his claim, was properly excluded. No issue of this kind was presented to the court, and the claim, if valid, was in the nature of a counterclaim, which should have been pleaded. Even if the facts had been admitted, it would not constitute a nayment. Borland v. Bank, 99 Cal. 94, 33 Puc. 737. The order is affirmed. J. We concur: GAROUTTE, J.; PATERSON, LETTERS OF ADMINISTRATION-TO WHOM GRANTED -FOREIGN WILL. Under Code Civil Proc. pt. 3, tit. 11, c. 2, art. 3, entitled "Probate of Foreign Wills," and providing that an authenticated copy of the will and of its probate in any foreign country or state "shall be produced by the executor or other person interested in the will, with a petition for letters," and that after proper notice and proofs, there shall be "letters testamentary, or of ad ministration, issued thereon," letters of administration must, in the absence of a petition by the executors, be granted to a person "interested in the will," who applies for them, to the exclusion of the public administrator. Department 2. Appeal from superior court, city and county of San Francisco; J. V. Coffey, Judge. Petition for Thomas I. Bergin for the admission to probate of the will of Daniel J. Bergin, deceased, and for letters of administration thereon. From an order granting the petition, A. C. Freese, public adminisAffirmed. trator, appeals. H. Choynski, for appellant. Thos. I. Bergin, in pro. per. MCFARLAND, J. Daniel J. Bergin, deceased, died in March, 1892, in the city of Dublin, Ireland, leaving a last will, which was duly probated in the proper court of that country. He left some personal property in the city and county of San Francisco, Cal. By said will certain persons were appointed executors, and the respondent herein, Thomas I. Bergin, who is a citizen and resident of San Francisco, in the state of California, was named as a devisee. The said respondent produced and filed with the superior court of the city and county of San Francisco an authenticated copy of said will and probate, together with a petition that the same be admitted to probate here, and that letters of administration with the will annexed be issued to him. Afterwards, A. C. Freese, public administrator of said city and county, also filed a petition for the probate of said will, and for the issuance of letters of administration to him. The court, after a hearing of both petitions, admitted the will to probate, ordered that letters be granted to said Thomas I. Bergin, and denied the petition of Freese; and from these orders Freese appeals. We are satisfied that the ruling of the lower court was correct. The part of the Code which governs this case is found in article 3, c. 2, tit. 11, pt. 3, of the Code of Civil Procedure, embracing sections 1322 to 1324, inclusive, under the head of "Probate of Foreign Wills." It is there provided that an authenticated copy of the will and of its probate in the foreign country "shall be produced by the executor or other person interested in the will, with a petition for letters;" and that, after proper notice and proofs, there shall be "letters testamen tary, or of administration, issued thereon." Said article 3 deals specially with the subject-matter of foreign wills, and it must prevail over all conflicting provisions “as to all matters and questions arising out of the subject-matter of such article." Pol. Code, 4483. By that chapter it is clearly provided that letters testamentary must be granted to the executor upon his petition, for letters testamentary could be granted only to an executor; and we think it also clear that under the provisions of said chapter letters “of administration" must be granted to a "person interested in the will" who applies for them, in the absence of a petition by the executors. None of the cases relied on by appellant involved in any way a foreign will, except Estate of Beach, 63 Cal. 458, and Estate of Garber, 74 Cal. 338, 16 Pac. 233; and the only matter passed upon in those cases was the general right of a nonresident to nominate an administrator. The very question involved in the case at bar was not before the court in those cases, because here the respondent, who applied in his own right, was a citizen and resident in California; and there was no reference in the opinions of the court in those cases to said chapter 3, or any discussion of the point at issue in the case at bar. We do not desire, however, to have this opinion taken as assuming that a public administrator would, under any circumstances, be entitled to let ters of administration in a case of a foreign will. That matter was clearly not in the mind of the court in any of the cases cited; and whether or not the general provisions of the Code about public administrators refer only to the estates of persons dying in their counties, and to domestic wills, must be considered an open question. Orders appealed from affirmed. defects in the stage, and concerning the duty of the injured party to exercise proper care in endeavoring to recover from the injury. Department 1. Appeal from superior court, San Luis Obispo county; V. A. Gregg, Judge. Action by William G. Knight and wife against the Pacific Coast Stage Company for personal injuries to the wife. From a judg ment entered on a verdict for plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed. Graves & Graves, for appellant. Wilcoxon & Bouldin and J. M. Wilcoxon, for respondents. HARRISON, J. The plaintiffs were being carried as passengers in one of the coaches of the defendant, on the night of December 30, 1891, from Santa Margarita to San Luis Obispo; and, while going down the slope of the mountain towards the latter place, and about three miles therefrom, the coach was upset, and Mrs. Knight sustained serious injuries, for which this action was brought. The jury rendered a verdict in favor of the plaintiffs for the sum of $1,000, and from the judgment entered thereon, and an order denying a new trial, the defendants have appealed. It was shown at the trial that it bad rained very hard on the previous night, and that on the night in question the road was muddy and slippery; that after reaching the top of the mountain, and while going down, after turning a certain bend in the road, the horses attached to the coach were frightened by a slide of rocks and earth, and ran about 100 yards before they were got under control, and were then driven along until they were frightened by another slide, after which the driver lost all control of them, and, after running about three-quarters of a mile, the coach was upset. It is contended We concur: FITZGERALD, J.; DE HA- by the appellant that the evidence in the VEN, J. - EVIDENCE OF NEGLIGENCE-INSTRUCTIONS. 1. In an action by a passenger against a stage company for personal injuries received from the upsetting of a stage in coming down a mountain road, it appeared that one of the horses had been inclined to run away; that the road was muddy and slippery; that the horses were going at "a slow jog," when they were frightened by a landslide; that they ran 100 yards before the driver regained control; that flying mud and slush made it hard for the driver to see, and tended to frighten the horses; and that the horses were going in a trot, when they were so frightened by another slide that the driver lost control, and they ran away, and upset the stage. Held, that there was evidence for the jury as to whether defendant failed to provide suitable horses and driver. 2. Where the only issues were as to the suitableness of the horses and driver, the court properly refused to instruct concerning latent case failed to show any negligence on its part, for the reason that the accident was the result of a casualty which could not have been foreseen or guarded against, and that for this reason the verdict should have been in its favor. There was, however, evidence before the jury tending to show that one of the horses attached to the coach had been inclined to run away; and, although the bill of exceptions does not show the speed at which the horses were driven down the mountain, the driver testified that from the top of the mountain down to the bend where the first slide was encountered he was going at a "slow jog," and that, after their first fright, they ran about 100 yards, when he got them under control, so that they went in a trot. He also testified that the road was slushy and wet, and that mud was flying, so that he could bardly see anything, and that this would have a tendency to scare the horses. The court instructed the jury very fully upon the propositions of law involved in the case, and left to them to de Geo. D. Collins, for appellants. Thos. F. Barry, for respondents. termine whether the injury to the plaintiffing it a lien on their interests, O'Neill and was caused through any negligence of the Connors appeal. Affirmed. defendant, or was the result of an unavoidable accident. Under the circumstances attendant upon the passage down the mountain it was incumbent upon the driver to exercise more than ordinary care, and we cannot say that there was no evidence before the jury in support of the plaintiffs' claim that the defendant was negligent in providing suitable horses, or in the manner in which they were driven. The court did not err in refusing to instruct the jury that the defendant was not liable for any latent defect in its coach which could not be discovered by the most careful examination, or by any known test. There was no issue of this nature in the case. The charge of negligence against the defendant in the complaint is in its failure to provide a suitable driver and suitable horses for said coach, and there had been no evidence introduced respecting the insufficiency of the coach. For a similar reason the court did not err in refusing to instruct the jury respecting the duty of Mrs. Knight to exercise proper care in endeavoring to recover from the accident. No evidence was before the jury tending to show that she had in any particular failed in this respect. The judgment and order are affirmed. FINNERTY et al. v. PENNIE et al. (No. 15,286.) (Supreme Court of California. Dec. 6, 1893.) EXECUTORS AND ADMINISTRATORS-DECREE OF DISTRIBUTION-CONSTRUCTION. 1. A decree, on petition of an administrator, for final distribution of an estate "subject to the claim of said administrator for the sum of $834.90," creates a lien for that amount on the property in his favor. 2. M. left as his heir C., who afterwards died, leaving defendants as his heirs. K. was appointed administrator of both estates, and on settlement of M.'s estate it was decreed that it should be distributed to K. as the administrator of C.'s estate, subject to K.'s claim for a certain amount found due him as administrator of M.'s estate. Held, that defendants took M.'s estate subject to the lien created by this decree. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge. Partition by William H. Finnerty and another against James C. Pennie, Margaret O'Neill, and Mary A. Connors, and Thomas Kirkpatrick. Judgment was entered that the property sought to be partitioned be sold, and that the interests of O'Neill and Connors were subject to a lien in favor of Kirkpatrick for services performed by him as administrator of their interests in such property. From an order denying their motion for a new trial on the ground that the court erred in allowing Kirkpatrick's claim, and declar BELCHER, C. In January, 1889, Matthew Connors died, owning an undivided onehalf interest in certain real property situate in the city and county of San Francisco, and leaving as his sole heir at law his father, Michael Connors. In June, 1889, Michael Connors also died, leaving as his sole heirs at law two daughters, Margaret O'Neill and Mary A. Connors. In November, 1889, Thomas Kirkpatrick was duly appointed administrator of the estate of each of the said decedents by the superior court of the city and county of San Francisco, and thereafter he duly qualified and entered upon the discharge of his duties as such. In May, 1890, the said administrator rendered and filed in court a full account and report of his administration of each of the said estates, and accompanied the same with petitions for the final distribution thereof. These accounts were settled and allowed by the court, and in the matter of the estate of Matthew Connors, on the 16th of September following, it was ordered, adjudged, and decreed that the undivided one-half of the said real property belonging to that estate be distributed to Thomas Kirkpatrick as administrator of the estate of Michael Connors, "subject to the claim of the said administrator for the sum of $834.90, as fixed by the order settling the said account" in the firstnamed estate. And in the matter of the estate of Michael Connors it was on the same day ordered, adjudged, and decreed that the undivided one-half interest in the said real property be distributed in equal shares to Margaret O'Neill and Mary A. Connors, "subject to the claim of said administrator, amounting to the sum of $271, as fixed by the order settling the said account herein." In January, 1891, the plaintiffs William H. Finnerty and Edward Finnerty, being the owners of the other undivided one-half of the said real property, commenced this action against Margaret O'Neill, Mary A. Connors, Thomas Kirkpatrick, and others, for a partition of the property, or, if a partition could not be made without injury to the owners, then for a sale thereof, and a division of the proceeds. The case was tried, and the court found, among other things, that the plaintiffs and the two defendants first named were the owners each of an undivided one-fourth of the said described property, and that the same was so situated and built upon that it could not be partitioned. The court further found "that the defendant Thomas Kirkpatrick, as administrator of the estate of Matthew Connors, deceased, has a claim, lien, and charge against the respective interests of said Margaret O'Neill and Mary A. Connors in said real estate, and there is now due and owing him thereon the sum of eight hundred and thirty-four and ninety one-hundredths dollars, with interest thereon," etc. And there was a similar finding as to the $271. Judgment was accordingly entered that the property be sold; that the interests of the defendants Margaret O'Neill and Mary A. Connors in the property were subject to the payment of the said sums of $834.90 and $271, which constituted liens thereon; and that the proceeds of the sale be applied to the payment and satisfaction of said liens. The said defendants moved for a new trial upon the ground that the court erred in allowing the claim of Kirkpatrick, as aforesaid, for the sum of $834.90, and declaring it a lien on their interests in the property described, and ordering the proceeds of the sale applied in satisfaction thereof, and their motion was denied. From the order thus made denying their motion they appeal. 1. In support of the appeal it is contended that the decree of distribution of the estate of Matthew Connors did not create any lien upon the property distributed, for the reason that a lien can only be created by contract or by operation of law. The language of the decree was that the property be distributed, "subject to the claim of said administrator for the sum of $834.90," etc. This was in effect declaring that the property was charged with the payment of the sum named, and, in our opinion, it created a lien on the property by operation of law. And that the court had the right and power to so charge the property was in effect decided by this court in the case of In re Moore, 96 Cal. 522, 31 Pac. 584. 2. It is further contended that when the property of the estate of Michael Connors was distributed to appellants they took it free and clear of all claims and liens declared against it in the distribution of the former estate, and subject to no other charge than such as was imposed by the last and final decree of distribution to them. In support of this position, sections 1666 and 1908 subd. 1, of the Code of Civil Procedure are cited. This contention cannot be sustained. Section 1666 makes the decree conclusive only as to the rights of the heirs, legatees, or devisees. It does not in any way relate to or affect the rights of adverse claimants. In re Rowland, 74 Cal. 523, 16 Pac. 315. And the other section cited has no bearing upon the question in hand. It declares that a judgment or order in respect to the probate of a will, or the administration of the estate of a decedent, is conclusive as to the will or administration. But no such question arises here. It follows, in our opinion, that the order appealed from should be affirmed. We concur: SEARLS, C.; VANCLIEF, C. PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed. Const. art. 11, 87, requires the members of board of regents of the state university to be "elected," and Act March 19, 1891, provides that "the board shall consist of three elective members, as now provided by law, and of the governor and attorney general, who shall be ex officio members of the board." Held, that the act does not inaugurate a new system of gov ernment for the university, but merely increases the number of regents, and that the attorney general in office at the time of the passage of the act is not entitled to act as a member of the board ex officio, since the act does not show the existence of an emergency at the time of its passage which requires the induction of the increased number into office prior to their election by the people. State v. Irwin, 5 Nev. 121, and State v. Arrington, 4 Pac. 735, 18 Nev. 412, followed. Appeal from district court, Ormsby county; Richard Rising, Judge. Quo warranto proceedings by the state of Nevada, on the relation of Charles E. Mack, against James D. Torreyson, as attorney general, to test the validity of respondent's claim and right to act as a member of the board of regents of the state university. From a judgment sustaining respondent's demurrer to the petition, relator appeals. Reversed. W. E. F. Deal, for appellant. Sardis Summerfield and Trenmor Coffin, for re spondent. MURPHY, C. J. This was a proceeding begun in the district court, in the nature of a quo warranto, to try the validity of respondent's claim or right to act as a member of the board of regents of the state univer sity. It is set forth in the petition that the respondent is now, and ever since the month of January, 1891, has been, the duly elected, qualified, and acting attorney general of the state of Nevada; that since the 19th day of March, 1891, said respondent, as such attor ney general, and by virtue of such office claims to be a regent of the state university. under and by virtue of an act of the legis lature; that he has never been nominated. elected, or appointed to fill said office of re gent; that Charles E. Mack, the petitioner. H. L. Fish, and J. W. Haines are the duly elected, qualified, and acting regents of the state university. To this petition respondent demurred, upon the ground that the complaint or information did not state facts sufficient to constitute a cause of action against the defendant, and that it appears from the complaint that the defendant is a duly qualified and legally acting regent of the state university. The demurrer was sustained, and, the relator failing to amend his pleading, the action was dismissed, and from the order sustaining the demurrer and dis missing the action the relator appeals |