In Smith v. Allen, 161 N. Y. 478, [55 N. E. 1056], the appeal was from a judgment construing a will. By a residuary clause all property remaining after the death or marriage of the testator's widow was to go to those who would have been entitled to succeed in the event of his intestacy. One of the claimants asserted rights as an adopted child, and of her claim Mr. Justice Haight, writing the opinion of the court, used the following language: "Mrs. Greene claims to have been the adopted daughter of the testator, and as such to be his sole heir at law and next of kin and entitled to all of the residuary estate. It appears that Mrs. Greene was born in 1851; that she was placed in the Church Charity Foundation in 1856, and was subsequently taken therefrom by Mrs. Allen, the testator's wife. She continued thereafter to live with the testator in his family until her marriage and was treated in every respect as a daughter. The testator in both his will and codicil describes her as his adopted daughter, but it is not claimed that she was ever adopted by any instrument in writing, or that there is any written evidence of an adoption further than an entry in a book kept by the Church Charity Foundation, as follows: 'Sarah Frances was adopted by Captain and Mrs. Allen.' This, we think, is not sufficient to constitute an adoption under the statute of 1873, chapter 830, as amended by the Laws of 1887, chapter 703." Appellant seeks to distinguish. this case from the one at bar on the ground that the law of 1884, unlike that of 1873, gave the officers of eleemosynary institutions the right to place children by adoption. But the decision does not depend upon that distinction. It holds that a mere clerical entry of an adoption proves nothingthat there must be some proof of an instrument in accord with the necessary form of the law, executed with due formality by the proper parties. To be sure this case differs from that in that an attempt was made to show that some sort of a document characterized by the testatrix as "adoption papers" was in existence, but the evidence upon that point was not so strong as the reference in Mr. Allen's will to Mrs. Greene as his adopted daughter. The facts in this case were not so much in favor of the contestant as those appearing in the one just cited. Under that authority, and the others which we have discussed and referred to, we are constrained to affirm the decree of the probate court, as it relates

to the conclusion that Mrs. Fairchild was not the adopted. child of Helen McCombs. And this makes it unnecessary to discuss the other part of the court's finding that testatrix had Mrs. Fairchild in mind when she omitted to provide for appellant and that such omission was intentional.

The decree is affirmed.

Henshaw, J., and Lorigan, J., concurred.

Hearing in Bank denied.

[S. F. No. 7806. Department Two.-January 15, 1917.] In the Matter of the Estate of EDMUND ATWELL, Deceased. LOIS A. ATWELL, Appellant, v. ALBERT HASKELL, as Executor of the Will of Edmund Atwell, Deceased, Respondent.

WILL-DEVISE OF LIFE ESTATE-RESERVATION OF LEASEHOLD INTERESTS -DEED OF FEE TO DEVISEE.-Where a husband by his will devised a life estate to his wife in certain community property, "subject to the leases that may be in effect," and afterward conveyed the fec of the property to her, retaining certain leasehold interests therein which likewise were community property, the language of the devise should be construed as a reservation, and as a withholding from the life estate devised of such leasehold interests as the testator himself had in the property, and such leasehold interests passed under a provision of the will making disposition of the community property.

APPEAL from a decree of the Superior Court of Alameda County distributing the estate of a deceased person. William S. Wells, Judge.

The facts are stated in the opinion of the court.

John Yule, and Horatio Alling, for Appellant.

William C. Clark, and Cary Howard, for Respondent.

HENSHAW, J.-Lois A. Atwell, widow of Edmund Atwell, appeals from the decree of final distribution made and

entered in the matter of the estate of said Edmund Atwell, deceased.

The estate of Edmund Atwell consisted entirely of community property as declared by his will. That instrument, which was holographic, contained the following provisions pertinent to the appeal now before us:

"Should my wife, Lois A. Atwell, survive me, I give to her a life interest in my property situated at and fronting on San Pablo Avenue and known as Lots Nos. 8 and 9 and fractional parts of Lots Nos. 10, 11, 12 and 13 of the Kimball Tract, together with the use of the buildings and income to be derived from the same and the control of the same during her natural life, subject to the leases that may be in effect...

"Having been advised that the law gives to my wife onehalf of the property I may own, if she survives me, I consider she is amply provided for; and having no natural or adopted child, I give, devise and bequeath the remaining one-half, which I am entitled to dispose of, to be divided as follows": Here follows an enumeration of the other beneficiaries and the proportionate share of each.

Before his death Atwell had conveyed the fee of the property to his wife and had retained certain leasehold interests in the property, which leasehold interests were admittedly a part of the community property. In its decree of final distribution the court recognized the ownership of the fee in the wife, and, treating Mr. Atwell's leasehold interests as community property, distributed them one-half to the widow as of right; the other half to the named beneficiaries under Atwell's will. The widow appeals, contending that by the terms of the first quoted paragraph of the will she was entitled to have distributed to her all of these leasehold interests, herein invoking the familiar principle of construction, that where a testator does not own all that he attempts to devise or bequeath, so much as he does own will go to the beneficiary. Therefore it is said that as his attempt to convey a life estate failed for the indicated reason, it should be held that he did convey by this language whatever was in his power to convey, namely, the leasehold interests. But the terms of this particular devise do not warrant this construction. By those terms even the life estate which was conveyed was, and was to be, subject "to the leases that may

be in effect." This quoted language, if held merely to indicate that the widow was to take the life interest subject to the rights of the lessees, would be meaningless, since necessarily she would have to take the property under those burdens. It seems to be quite apparent that the language was used as a reservation and as a withholding from the life estate devised of such leasehold interests as the husband himself had in the property, under the testator's view that those leasehold interests should continue to be a part of the community property. This was the view adopted by the trial court, under which view the decree of distribution here complained of was given. For the indicated reasons it was correctly given, and the judgment is affirmed.

Melvin, J., and Lorigan, J., concurred.

[S. F. No. 7156. Department Two.-January 15, 1917.] J. J. DOWLING, Appellant, v. SPRING VALLEY WATER COMPANY et al., Respondents.

FRAUD-DECREE UNDER MCENERNEY ACT-PLEADING-ALLEGATIONS ON INFORMATION AND BELIEF.-A complaint to avoid a decree quieting title to land in a proceeding under the so-called McEnerney Act fails to state a cause of action, where it merely avers, on information and belief, that the plaintiff's predecessor in interest, the alleged owner of the land when the proceeding was instituted, was ignorant of the proceeding, and that the evidence therein relative to the defendant's ownership was known by the witness giving the same to be false.

ID. ALLEGATION OF FACTS ON WHICH BELIEF IS FOUNDED JUDGMENT IN REM. The fraud that would avail to set aside the judgment in rem of a court of record must be clearly pleaded and proven, and it is not sufficient to allege it or its elements upon information and belief, unless the facts upon which the belief is founded are stated in the pleading.

ID.-UNDESTROYED ASSESSMENT-ROLLS-ASSESSMENT TO THIRD PERSON -FRAUD OF CLAIMANT.-A mere allegation in such complaint that certain undestroyed assessment-rolls of the city and county of San Francisco, in which the land in question was situated, showed the assessment of the property to the plaintiff's predecessor, does not justify the allegation, on information and belief, that fraud was

committed by the agents of the defendant when they deposed in the proceeding to quiet title that they knew of no adverse claimants to the property.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.

The facts are stated in the opinion of the court.

H. M. Anthony, for Appellant.

McCutchen, Olney & Willard, and Heller, Powers & Ehrman, for Respondents.

MELVIN, J.-J. J. Dowling filed a bill in equity by which he sought to have the court set aside in part a decree quieting the title of the Spring Valley Water Company to certain land in San Francisco pursuant to a proceeding under the statute commonly known as the "McEnerney Act." A general demurrer to the second amended complaint was sustained and judgment was entered for defendants. From said judgment plaintiff appeals.

Among the allegations made by appellant in the second amended complaint are in substance the following ones: That from December 30, 1910, to July 14, 1911, and up to the time of a certain execution sale, one Alla J. Tyler was the owner in fee of the property in dispute; that by reason of certain street work performed by plaintiff as a contractor, after due authorization, he acquired a lien on said property amounting to $6.08; that on January 21, 1907, plaintiff began a suit against Alla J. Tyler to foreclose said lien, resulting in a judgment in his favor for $33.38 made a lien on the property; that execution issued; that plaintiff became the purchaser of the property at the sheriff's sale; that since October 9, 1911, the date of said sale, plaintiff has owned the land in fee and has been in peaceable possession thereof; that on December 30, 1910, the Spring Valley Water Company commenced its action under the "McEnerney Act" to quiet its title to certain land embracing the lot to which plaintiff here asserts title; that this complaint was verified and alleged the peaceable possession by the Spring Valley Water Company and the ownership by that company of the land described in its pleading; and that a lis pendens was filed ac