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bernia S. & L. Soc. v. Lewis, 111 Cal. 519, 44 alone, clearly indicates that her design was Pac. 175.

to give her husband the $40,000 as fully and The petition to distribute the legacy was completely as the land which she had alnot premature. It was filed 20 months after ready deeded to him. He is clearly given letters testamentary were issued, and the full rein to do as he pleased concerning the subsequent proceedings, through which the realty. At his option he might keep it "as supplement was probated as part of the will, his forty thousand dollars," or any part did not operate to compel delay in presenting thereof, but he could not have the money and such petition. The law expressly provides real estate both. This idea is in accord with that any heir, devisee, or legatee may pre- the general terms of the will, and but for the sent his or her petition for the distribution two expressions "his use his lifetime" and "I of the share of the estate to which they are wish to give him the use of,” found, respecentitled at any time after the "lapse of one tively, in the second and third clauses of the year from the issuance of letters testamen- will, and the idea conveyed in the clause distary,” and, as this time had admittedly elap- posing of the residue which might remain at sed, the petitioner had a right to demand | the time of her husband's death, no other conthat his share be distributed to him. Code struction would be possible than that she Civ. Proc. § 1663. The will must be so con- intended that he should take the money abstrued as to effectuate the intention of the solutely. But the supplement, referring, as testatrix, and to this end all parts thereof it certainly does, to the bequest in the main must be construed in relation to each other, will, must be construed with the latter unso as, if possible, to make one consistent and less there is a clear repugnance, in which harmonious whole. Civ. Code, $$ 1317. 1324. case, the supplement must control. It is Another rule requires that words used in a therefore necessary to give some effect to will be taken in their ordinary sense, and the expressions and residuary clause above that effect be given to

given to every expression mentioned, and to consider the expression uptherein. Civ. Code, $$ 1324, 132. Taking on which contestant places great reliance, the will under consideration "by its four where it is said, "I direct that my husband rorners," and construing it in obedience to shall have the use of this money or the inthese rules, it seems clear that the testatrix terest of it.” Taking up the clause just intended that $40,000 should be paid to her quoted, and construing it in relation to the husband for his unrestricted use during his part immediately preceding it, we can hardly lifetime. We are thoroughly convinced that escape the conclusion that the words "or the will can be given no other construction interest of it” were used in line with her without thwarting the evident intention of evident purpose to give him his choice, and the testatrix. It contains the direction that, to consult his wishes in that and all other if her husband survived her, he "be paid, for particulars. A construction that would conhis use, his lifetime, the sum of forty thou- fine the bequest to the interest on $40,000 sand dollars." There is no room for con- would not only be repugnant to the precedstruction of this language, for it is too plain ing language, but in absolute conflict with to be misunderstood. If, however, further the supplement, which clearly expresses the light is needed touching the intention of the intention that he shall have the money. testatrix, it is suppled by the clause imme- We must adopt the only construction which (liately following the language just quoted, will give this expression some effect, and where she emphasizes her desire by saying that is that he could have the use of the “or if he wishes he may have that much in money or the interest on it, according to his value, whenever or wherever he may wish.” wishes, which are clearly manifested in the If this is not enough to bring conviction as petition herein. Any other construction to the dominant idea she was trying to ex- would give undue weight to an isolated press, cumulative evidence of her intention is phrase as against oft-repeated and later exfound in the third subdivision of the will, pressions of testatrix, and be tantamount to where she directs that "whatever there may making a new will. Clearly, her design was be left after my husband has the forty thou- to give him the money to use, according to sand dollars I wish to give to him the use his judgment and discretion, for his comfort of" shall be equally divided among her four and pleasure as long as he lived. Analysis children, who at the death of her husband of the will as a whole leads to the inevitable shall also have "every dollar that is not used conclusion that her dominant intention and for his comfort and pleasure," and then in idea was that her husband would be paid and the supplement, as if to clinch the proposi- would have the money, or that much in value, tion, she says with reference to the realty, according to his selection and pleasure, for "but in that I do not wish him to keep and his untrammeled use; or, of he so desired, use that as his forty thousand dollars or any he could retain the land already his, and part thereof unless he wishes to," and then thus forego the payment of the money, which adds, by way of preventing possible misap- he was evidently to use, with as little restricprehension, "but my husband is not to have tion as the land. This being the central, con. forty thousand dollars besides this real es- trolling, all-pervading, and oft-repeated intate.” The supplement, which must be tak- tention, her secondary or subordinate intenen as the latest expression of her will, taken tion or idea as to what should be done with it after her main intention had been accom- to make of the money by giving him the right plished cannot be allowed to impair, modify, to waive the cash, and "have that much in or nullify tlie dominant intention, perfectly value whenever or wherever he chooses." manifest in every line of the will, and par. These plain and oft-repeated expressions of ticularly in the supplement. The main pre- her intention and desire cannot be curtailed, cedent intention must be carried out, and ignored, or disregarded, and if he uses every then the secondary or subservient intention dollar of the money for comfort or pleasure, must be given such effect as the law may dic- according to his discretion, no right of contate. When a testator or testatrix gives posi- testant will be violated. As before stated, tive directions that money or other personal she is only entitled to share in what may reproperty shall be paid or given to a legatee, main, even if every clause in the will is given and then directs the disposition to be made

full effect, and hence she cannot complain, of it afterward, the latest direction is not

much less ask that he be deprived of his only performable subsequently, but its per- | plain rights, to the end that she may have formance is secondary and subordinate to, as

more than the testatrix intended. well as dependent upon, the performance of

In the case of In re Garrity, 103 Cal. 473, the precedent and primary direction. Here

38 Pac. 628, 41 Pac. 485, the facts were althere is no difficulty in determining what the

most identical with the facts in the case at intention of the testatrix was, and the only

bar. In that case the will gave the survivdifficulty suggested arises from the alleged

ing wife all of the property, consisting of effect of rules of law on the secondary and

land, money in bank, and chattels, for her subordinate intention if the main intention

use during her life, the remainder going to is given full effect. But this difficulty is

three children. The court distributed the more imaginary than real, for we are to ef

estate by awarding her the share to which fectuate the intention of the testatrix in se.

she was legally entitled as surviving wife, quential order, so far as rules of law will

absolutely, and the balance of the estate, inpermit. We cannot violate, modify, change, or nullify the plain direction that the money

cluding $1.831.47 in money, was distributed

to her for her use during her life. Upon apshall be paid to the petitioner for his use as long as he shall live, and that he shall

peal the very questions presented here were

fully and carefully considered, and it was have it, unless he chooses to retain land previously deeded to him, or selects that much

held that she was entitled to receive the corin yalue in other property, simply because he

pus of the money and other property, for the may use all or the greater portion in the pur

reason, among others, that the will implied

that the estate might be diminished while in suit of comfort and pleasure. The contest

her hands. And so it is here. The will ant, who is only entitled to her share of

clearly implies, and the testatrix evidently every collar that is not so used, cannot complain of such distribution or its possible re

contemplated, that the sum might be diminsults, for the very excellent reason that by

ished by petitioner, for only the unused porthe terms of the will she is only entitled to

tion remaining at his death is given to the share in what may remain at the time of pe

children. Therefore, the case cited applies titioner's death. Neither can we refuse to

with cogent force to the case at bar, and the recognize the positive direction that he shall

principles of law therein declared are conbe paid and shall have this money to use as

trolling here. “his forty thousand dollars” during life, be

The decree of the court below was in full cause the legal effect of such payment may be

consonance with the aforesaid principles and

with our construction of the will in every to confer upon him an absolute right to do as he pleases in expending all or any portion

particular save one. The court found as a

fact, and so decreed, that the full sum of of it for his comfort and pleasure. She has directed that he must be paid and have it.

$40.000 should go to contestant and her aunt She clearly contemplated that he would use

and uncles, in equal shares, upon the death it as he pleased, for she recognizes his full

of petitioner. This finding being nothing right to do so by only attempting to dispose

more than a conclusion of law, it is unnecesof what may he left after he has the unre

sary to send the case back for further prostricted and uncontrolled use of it for his ceedings. It is therefore ordered that the decomfort and pleasure during his lifetime. cree therein entered be modified by insertIn the very latest expression of her intention

ing before the words "said sum" on the fifth she places his right to use the money, and

line of the distributive clause found at folio the manner in which he shall use it as his, 74 of the transcript the words “the unused on a par with his right to use the land, by portion of," thereby distributing the portion placing the money in the scale with land

of said $40.000 remaining unused at petialready his, and giving him the selection of

tioner's death to the residuary legatees. either. And in the clause where she directs As so modified, the decree is affirmed. that it be paid to him, she again manifests her intention as to the use he will be entitled We concur: BUCKLES, J.; CIIIPMAN, J.


(4 Cal. App. 235)

sion fund of the city and county of San FranBURKE v. BOARD OF TRUSTEES OF PO- cisco. From a judgment for defendant, plain

LICE RELIEF & PENSION FUND OF tiff appeals. Affirmed.

Jordan, Treat & Brann and Jordan & (Civ. 200.)

Brann, for appellant. P. V. Long, City Atty., (Court of Appeal, First District, California. Aug. 15, 1906.)


In an action to recover a sum alleged to ILARRISOX, P. J. The appellant seeks by he due from a police pension fund, an averment this proceeding to obtain a writ of mandate, that there was in the official custody and sub

commanding the board of trustees of the poject to the official control of the defendant inore than sufficient money applicable to and with

lice relief and pension fund of the city and which to pay plaintiff's claim was but a legal county of San Francisco, the respondent hereconclusion, and was limited by the facts on

in to pay to her the sum of $596 from said which she based her claim and the provisions

fund. which she claims to be entitled to reof law applicable to such facts. Ed. Note.-For cases in point, see vol. 39,

ceive by virtue of certain provisions of the Cent. Dig. Pleading, $ 29.1

charter of said city and county. In her peti2. MUNICIPAL CORPORATIONS - POLI('E-PEX

tion therefor she alleges that she is the surSION FUND-CONTRIBUTIONS.

viving widow of John Burke, and that her Where two dollars a month was retained husband was appointed a member of the pofrom the pay of a member of a police department, under San Francisco (ity Charter, art.

lice department of San Francisco, February 8, c. 10, § 11, subd. 9 (St. 1899, p. 3:34, c. 2). 10, 1874: that on January 5, 1903, on his apdirecting the treasurer of the pension fund to plication to the board of police commissioners, retain from the pay of each member of the police and it having been made to appear to said force two dollars a month for the benefit of such fund, such money was not voluntarily contribut

board that he had become physically disabled ed to the fund. but was money of the state, ! by bodily injury received in the performance retained in its possession to create the fund. of his duty, he was retired from further serv

[Ed. Note.-For cases in point. see vol. 36, ice in the department; that in the resolution Cent. Dig. Municipal Corporations, $ 518.]

for his retirement it was provided that he be 3. SAME-STATUTES. San Francisco City Charter (St. 18.09, P.

paid from the police relief and pension fund 241. c. 2), went into effect January 1, 1900, and of the department a monthly pension, equal to {"reated the police relief and pension fund. one-half the amount of the salary attached to Article 8. c. 10, $ 6 (page 333), declares that the rank which he held in the department for when any member of the department shall,

the period of three years preceding the date after 10 years' service, die from natural causes, his widow, etc., shall be entitled to a sum equal

of his retirement: that after his said retireto the amount retained by the treasurer from ment he died from natural causes, February the pay of such deceased member, and paid into 26. 1903: that he was not paid any portion the relief and pension fund. Article 8, c. 10, $ 11, subd. 9 (page 331), requires the treasurer

of said pension fund, but that on March 31, to retain from the pay of each member of the

1903, the defendant audited and allowed a police force two dollars a month for the bene- demand on the treasurer of the city and counfit of such fund. Held, that the act was pro- ty for the sum of $99.66, payable out of said spective only, so that on the death of a police officer his widor was only entitled to recover

pension fund, as for his pension for the quara sum equal to the amount retained from his ter ending on that date. She also alleges that pay for the benefit of the pension fund after while her husband was a member of the police the act took effect.

department he paid into said fund out of his 4. MANDAMUS-RIGIIT TO WRIT-DENIAL.

Where, prior to the institution of manda- salary the sum of $2 each month, from April, mus proceedings to compel payment of a portion

1878. to and including January, 1903, amountof a police pension fund to petitioner, defending in the aggregate to $596. The superior ant had audited and allowed a demand in favor

court sustained a demurrer to the petition, of petitioner for an amount greater than she was entitled to, and it did not appear that peti

and from its refusal to issue the writ of mantioner had demanded such money, or shown any

date prayed for, the petitioner has appealed. reason why she had not received same, manda- The rights of the appellant are measured by mus was properly denied.

the provisions of the charter of San FrancisEd. Note.-For cases in point, see vol. 33,

co, and these provisions a lone can be considCent. Dig. Mandamus, $ 48.1

ered in determining whether she is entitled to 5. MUNICIPAL CORPORATION FREEHOLDERS' CITARTER.

any relief, and, if so, the extent of such reSan Francisco freeholders' charter. wlen lief. She bases her claim upon the provisions approved by St. 1999, p. 211, c. 2, became the of section 6, c. 10, art. S, of the charter (St. organic law of the city and county by the ex

1899, p. 333, c. 2), which declares: “When press terms of Const. art. 11, $$ 6, 8, and superseded the existing charter and ali laws incon

any member of the department shall, after sistent therewith, so that the city thereafter ten years' service, die from natural causes, was not subject to nor controlled by general then his widow, and if there be no widow laws.

then his children, of if there be no widow or Appeal from Superior Court, City and children then his mother, if dependent upon County of San Francisco: J. M. Seawell, him for support, shall be entitled to a sum Judge.

equal to the amount retained by the treasurer Action by Hettie T. Burke against the from the pay of such deceased member and hoard of trustees of the police relief and pen- | paid into the relief and pension fund; but the provisions of this section shall not apply to 1 months after the charter took effect, the treasany member of the department who shall urer could not have retained from his pay and have received any pension under the terms | paid into the fund more than $78. Prior to of this chapter.” Whatever money she is en- the institution of this proceeding by the aptitled to receive is to be paid to her out of pellant, the defendant had audited and allowthis fund, and only such amount of the fund ed a demand on the treasurer against the as the treasurer shall have retained from the fund of a greater sum than this; and, as it pay of her husband and paid into the fund. does not appear that the appellant had deThe fund itself is provided for by section 1 manded this money, or shown any reason in of said chapter 10, art. 8 (page 332), which her petition why she had not received the declares that “a fund is hereby created to be same, the court very properly denied her apknown and designated as the 'Police Relief plication. and Pension Fund.'” The moneys constitut- The act of March 4, 1889 (St. 1899, p. 57), ing the fund are enumerated in section 11 of is not available to the appellant. That the chapter, subdivision ) (page 331) of which act was a general law applicable to all coundirects the treasurer “to retain from the ties, cities and counties, and towns in the pay of each member of the police force $2 a state, whereas the charter of San Francisco month, which shall be forthwith paid into is a freeholders' charter, and when approved the police relief and pension fund.”

by the Legislature in 1899 became by the exThe averment in the appellant's petition press terms of the Constitution (article 11, that there is in the official custody and sub- $$ 6, 8) the organic law of the city and county, ject to the official control of the defendant and superseded the existing charter and all "more than sufficient money applicable to" laws inconsistent therewith, and thereafter and with which to pay her claim of $596 is the city and county was no longer subject to but a legal conclusion, and is limited by the or controlled by general laws. There is no facts upon which she bases her claim and the provision in the charter by which the fund provisions of law applicable to those facts created by the act of 1889 should be trans(Pennie v. Reis, 132 U S. 461, 10 Sup. Ct. 149, | ferred to or placed under the control of the 33 L. Ed. 426; Nichols v Police Pension Fund officers created by the charter. The fund was Commissioners, 82 Pac. 556, 1 Cal App. 494); at all times subject to legislative disposition and although the appellant has alleged in her (Pennie v. Reis, supra), and as section 14 petition that her husband, while he was a (page 60) of the act required the surplus member of the police department, paid out thereof to be transferred to the general fund of his salary the sum of $2 each month, yet, on the last day of June of each year, and as we said in the case of Nichols v Same declared that it should be "no longer under Defendant, supra: "The 'two dollars per the control of the board, or subject to its ormonth' which the petitioner alleges was re- der," there is no presumption that any portained by the treasurer from Nichols' pay as tion of the fund thereby authorized was a member of the police department, and paid transferred to, or is under the control of, the into said fund, was not a contribution to the respondent herein. See Nichols v. Police Penfund by Nichols, but, as was said in reference sion Fund Commissioners, supra. to a similar provision in the act of 1878 in The proposition urged in the brief on behalf Pennie v. Reis, 132 U. S. 164, 10 Sup. Ct. 149, of the appellant that she is entitled to the 33 L. Ed. 426, 'was money of the state re- sum claimed by her upon the ground that tained in its possession for the creation of her husband never "received” any portion of this very fund.'”

the pension awarded him does not require disThe charter of San Francisco went into ef- cussion. Whatever right she has to any porfect January 1, 1900, and the police relief tion of the pension fund depends upon the and pension fund created by it had its birth provisions in the first portion of section 6. at the same time. The provisions of the The concluding sentence of the section, upon charter, as well as the duties of the officers which this argument is based, instead of concreated by it, are prospective. It is only such ferring any rights, creates a limitation upon moneys as the treasurer should retain from the rights which otherwise might exist, and the pay of the appellant's husband after that whatever rights she has by virtue of the secdate that could be paid into the fund, and it tion she must establish under its other proviis only to such an amount of money so paid sions. into the fund that under the provisions of The judgment is affirmed. section 6 the appellant is entitled. As her husband died in February, 1903, less than 38 We concur: COOPER, J.; HALL, J.

(17 Ok], 580)

had in the district court, which resulted ST. LOUIS, E. R. & W. RY. CO. v. OLIVER , .

in a judgment against the railroad company et al.

for $1,573 and costs of suit. The company (Supreme Court of Oklahoma. Sept. 8, 1906.)

has appealed to this court and argue but 1. EMINENT DOMAIN-LAND NOT TAKEN

two points in their brief. COMPENSATION.

The trial court gave the following inWhere a railroad, in condemning a right struction to the jury: “In determining the of way, cuts in two a tract of land, the fact that the operating of trains over the line of

depreciation in value of this land by the road and across the particular land increases

construction and operation of a railroad the danger of fire to buildings and crops, and in- across said land, if any depreciation has creases the danger to stock, are not matters been caused, you have no right to include which constitute independent elements of damages for which a specific award may be made ;

in your estimate any damages from loss such facts, when proven, together with any by probable fires. The law requires the other inconveniences or dangers occasioned by railroad company

company to pay for all losses the building and operating of the road, may be occasioned by fires set out by it, and such considered by the jury in determining the value of that part of the land not taken.

losses cannot be recovered until they act[Ed. Note. For cases in point, see vol. 18, ually occur; nor can damages be allowed Cent. Dig. Eminent Domain, $S 236, 243, 271- for the probable loss for killing stock or 279.]

frightening teams. But if the mere fact of 2. JUDGMENT-ENTRY-AMOUNT OF RECOVERY operating trains across the farm, with its -INTEREST-VERDICT.

probable attendant danger of fires, killing In a case tried by jury, where it is clearly apparent that the prevailing party is entitled to

of stock, frightening teams, noises, etc., interest upon the amount found in the verdict, depreciates the salable value of the land and it is unquestionably clear that the jury al- and decreases its actual reasonable market lowed no interest, or where the court reserved the question of allowance of interest until after

value, then any such depreciation may be verdict, and it is clearly ascertainable from the

considered by you in assessing the damverdict or uncontroverted facts, the dates from ages to the remaining portion of said land.” which and to which interest should be allowed, It is contended by the appellant that and the rate is fixed, the court may make the

the jury had no right to consider in any computation, and add the interest so found to the sum found in the verdict and render judg

way possible fires or injury to stock, etc., ment for the aggregation amount.

as bearing upon the amount of damages. [Ed. Note.-For cases in point, see vol. 30, Let us consider the real effect of the inCent. Dig. Judgment, § 378; vol. 46, Cent.

struction. The first part of it tells the Dig. Trial, $$ 785, 799.]

jury that they cannot consider damages 3. EMINENT DOMAIN-APPEAL FROM AWARD

from loss by probable fires, etc., and in -TRIAL BY JURY-PROCEDURE. In a condemnation proceeding, where the

this statement the court had reference to landowner appeals from the award, and the such loss as an independent element of damcase is tried to a jury in the district court, it

ages; but in the latter part of the instrucis not proper to permit the jury to be informed

tion the court states that the jury may of the amount of the award made by the commissioners, and as the allowance of interest is de

take into consideration the probable dan pendent upon the question as to whether the gers of fires, and the killing of stock, the amount of damages awarded by the jury is

frightening of teams, noises, etc., in degreater or less than the award of the commissioners, the court may, where the question is

termining the detriment caused to the reuncontroverted as to the date from which in- maining portion of the land; and as to terest should be allowed, reserve the question of whether or not the operating of the cominterest for determination by the court and di

pany's trains would be attended by any rect the jury not to include interest in their verdict.

probable dangers or inconveniences from Burwell, J., dissenting.

these sources the jury were left to deter(Syllabus by the Court.)

mine. .But, if attended by dangers and in

conveniences, and their presence affected Error from District Court, Logan Coun

the value of the land, the court said they ty; before Justice C. F. Irwin.

might be considered in determining the deAction by the St. Louis, El Reno & West

fendants' (landowners) injury. ern Railway Company against James E.

It is argued that these inatters are too Oliver and Annie Oliver. From a judgment

remote and are not contemplated by the in condemnation proceedings, the railway

law, and section 1041 of Wilson's Revised company brings error. Affirmed.

and Annotated Statutes of 1903 is cited Dale & Bierer, for plaintiff in error. to support this position. That part of the Cotteral & Hornor, for defendants in er- section which is applicable is as follows: ror.

“The commissioners shall be duly sworn to

perform their duties impartially and justBURFORD, C. J. The St. Louis, El ly; and they shall inspect said real property Reno & Western Railway Company com- and consider the injury which such owne menced proceedings to condemn the right may sustain by reason of such railroad; of way for its line of road over the lands and they shall assess the damages which of the defendants in error. After the said owner will sustain by such appropriaaward was made by the commissioners, tion of his land; and they shall forthwith a trial by jury was demanded, and a trial make report thereof in writing to the clerk

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