resulting . . . by reason of any defect or insufficiency, duc to its negligence, in its cars, etc." The evidence has been sufficiently set forth. Wherein can it be said that that evidence shows that McFarling met his death by reason of a defect due to defendant's negligence in its car? The car, it was shown, had been regularly and duly inspected. The car, it was proved, was suitable and efficient for the character of work for which it was employed. The injury, it is established, did not arise, as indicated from the allegations of the complaint, by a collapse of the car while it was being switched. It arose as the result of a use to which it was never in contemplation that the car should be put. It arose as the result of a violent collision, for the occasion of which collision the deceased, and the deceased alone, was in fault. It was the deceased's own act of negligence which brought about his death. In the absence of some rule of law prescribing the character of a maintenance of way car, no negligence can be predicated upon the use of a car such as this, which was duly inspected, which was in continuous service, and which had always stood up under the work for which it was designed, and was wrecked by a collision brought about by the deceased himself. This case in principle is precisely that of Vizelich v. Southern Pacific Co., 126 Cal. 587, [59 Pac. 129], saving that in the latter case the collision was occasioned by a fellow-employee of the injured plaintiff, while in the case at bar it was occasioned by the injured man himself. In that case, by the faulty manipulation of a switch a switch-engine was thrown into collision. The water-tank of the engine became unfastened by the collision and injured the plaintiff. It was there held that the faulty manipulation of the switch was the proximate cause of the injury, notwithstanding whatever defect there might have been in the fastenings of the water-tank. There it was shown that the engine had been about the yard engaged in its ordinary duties, and from its ordinary employment no injury had ever resulted from the alleged insecure fastenings of the water-tank. The same

is equally true of the car which was here wrecked. The same principle was announced in the earlier case of Kevern v. Providence Gold etc. Mining Co., 70 Cal. 392, 394, [11 Pac. 740], where Wood on Master and Servant, page 812, is quoted to the effect that even where machinery is defective, so that otherwise a recovery might be had for an injury

received, yet if the promoting cause is the negligence of a fellow-servant, no recovery can be had. The same rule is laid down by Judge Cooley in the following language: "It is well settled that if injury has resulted in consequence of a certain unlawful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.' (Cooley on Torts, 2d ed., p. 73.) And that this rule finds universal acceptance will be sufficiently evidenced by the further citations to 4 Labatt's Master and Servant, 2d ed., pp. 47, 69; Rose v. Gulf C. & S. F. Ry. Co. (Tex.), 17 S. W. 789; Quinn v. Galveston, H. & S. A. Ry. Co. (Tex. Civ.), 84 S. W. 395; Norfolk & Western R. Co. v. Brown, 91 Va. 668, [22 S. E. 496].

It thus becomes unnecessary to consider any of the ad led propositions advanced by appellant upon its appeal. Thus, since the employer was not negligent, there is no question here of contributory negligence. The proximate cause was the sole negligence of McFarling. Equally unnecessary is it to consider rulings in the admission and rejection of evidence which are complained of.

The judgment and order appealed from are reversed.

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

Hearing in Bank denied.

[Sac. No. 2271. Department One.-December 19, 1916.]

HINE G. MONSEN, Respondent, v. MARY ANNIE MONSEN, Executrix, etc., et al., Appellants.

CONTRACT-AGREEMENT TO DEVISE PROPERTY SPECIFIC PERFORMANCE.A man may make a valid contract binding himself to dispose of his property in a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.

ID-STATUTE OF FRAUDS-ORAL CONTRACT MADE PRIOR TO CODE AMEND

MENTS-VALIDITY NOT AFFECTED BY.-The amendments to section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, bringing agreements to make provisions for persons by wills within the scope of the statute of frauds, have no application to an agreement made prior to such amendments.

ID. CERTAINTY OF TERMS OF CONTRACT-ESSENTIAL CONDITION.-The requirement of section 3390 of the Civil Code, that an agreement cannot be specifically enforced unless the terms thereof are sufficiently certain to make the precise act which is to be done clearly ascertainable, is applicable to contracts to dispose of property by will. ID.-EVIDENCE-INSUFFICIENT PROOF OF CONTRACT.-In an action for

the specific performance of an alleged oral contract to leave to plaintiff a child's share of an estate, evidence that the deceased and his wife agreed to take the plaintiff and treat him as their child, and that they indicated that he should succeed to their property, and at one time made a will, making him the sole beneficiary, which they showed to him, is insufficient to support the precise contract alleged and found. ID.-APPEAL-FINDINGS ON CONFLICTING EVIDENCE SCOPE OF RULE.— The rule that the findings of a trial court upon conflicting evidence are conclusive on the appellate courts, and that all reasonable inferences are to be indulged to support the findings, does not justify the sustaining of a finding when it has not the support of substantial evidence.

APPEAL from a judgment of the Superior Court of Colusa County. H. M. Albery, Judge.

The facts are stated in the opinion of the court.

U. W. Brown, and Frank Freeman, for Appellants.

Francis St. J. Fox, Thomas Rutledge, J. P. Langhorne, and N. J. Manson, for Respondent.

CLXXIV Cal.-7

SLOSS, J.-The defendants, claiming as executors and beneficiaries under the will of Friedriech Monsen, deccased, appeal from a judgment enforcing an alleged contract by which the decedent had agreed that the plaintiff should receive and inherit a child's share of the property which said decedent might leave.

The action is of a type familiar in this court, and illustrated by a line of decisions beginning with Owens v. McNally, 113 Cal. 444, [33 L. R. A. 369, 45 Pac. 710]. As was said in that case, there has been "from a very early date a general concurrence among the authorities upon the proposition that a man may make a valid contract binding himself to dispose of his property in a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract." Without referring to the numerous decisions in other jurisdictions, we make note of the cases in which the rule, as thus declared, has been recognized here. (McCabe v. Healy, 138 Cal. 81, [70 Pac. 1008]; Baumann v. Kusian, 164 Cal. 582, [44 L. R. A. (N. S.) 756, 129 Pac. 986]; Rogers v. Schlotterback, 167 Cal. 35, [138 Pac. 728]; Blanc v. Connor, 167 Cal. 719, [141 Pac. 217].) In the case at bar, as in those cited, the plaintiff relied upon a parol agreement. It may not be amiss to point out the manifest danger of fraud, perjury, and injustice that may inhere in a recognition of the right to alter, by parol testimony, the course of disposition of the property of a decedent. It was, no doubt, a recognition of this danger that led the legislature to adopt the amendments to section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, bringing agreements of this character within the scope of the statute of frauds. The agreement here relied upon was, however, claimed to have been made, and executed, on plaintiff's part, long prior to the changes in the codes, and its validity is not affected by them. (Rogers v. Schlotterback, 167 Cal. 35, [128 Pac. 728].)

While the cases which we have cited declare the propriety of an enforcement, in equity, of contracts to make a particular disposition of property upon the death of the promisor, they all agree that enforcement will not be decreed except upon the conditions applicable to all demands for specific performance. One of these is that the terms of the agreement

must be definite and certain. Section 3390 of the Civil Code, in enumerating the obligations which cannot be specifically enforced, concludes: "(6) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable." In Owens v. McNally, the court used this language: "Where a contract such as this, resting in parol and sought to be enforced after the death of the other party to it, comes before a court of equity for review, it is scrutinized, and should be scrutinized, with particular care, and only upon a satisfactory showing that it is definite and certain and just will it be enforced. The proofs `of the contract should be clear, and the acts of the claimant referable alone to the contract." McCabe v. Healy recognizes the same doctrine, although it was there held that the contract was sufficiently certain. In Baumann v. Kusian, we find in the opinion the statement that "it is well settled that to warrant specific enforcement of a contract of the character here alleged the contract must be definite and certain." In Rogers v. Schlotterback, the court says that a contract of the kind here alleged will be enforced "if such a contract may fairly be said to be clearly and satisfactorily shown, if it is clear, certain, and definite in its terms; and if specific performance would not be harsh and oppressive and unjust to innocent third parties. . . ." Finally, in Blanc v. Connor, 167 Cal. 719, [141 Pac. 217], the court, after reviewing the earlier cases, again emphasized the rule that "proof of the contract to make a certain kind of will must be definite and distinct before a chancellor will enforce specific performance."

Plaintiff was the son of Peter Grevie and Fredrika, his wife. The Grevies had two other sons, both older than plaintiff. The family lived on a farm in Colusa County. Friedriech Monsen and Magdalena, his wife, were a childless couple residing on a farm near that of the Grevies. Peter Grevie and Friedriech Monsen were brothers of the half blood. The plaintiff was born in March, 1883. His mother died in April. of the same year, and a few months later the plaintiff was put in charge of the Monsens. He remained with them during his childhood, receiving nurture and education at their hands. He took, or was given, their name, being known as Hine G. Monsen, and it is perfectly apparent from the evidence that the relations which grew up between him and the