the demurrer. In the Schaake Case it was held that whereas the complaint stated a cause of action, and the demurrer was sus

tained on the ground of uncertainty, the court abused its discretion in forbidding amendment whereby the uncertainty might be cured. In the case at bar the special demurrer was properly sustained, and the court's order made no mention of amendment. Seventeen days later, upon motion which regularly came on to be heard, the order denying leave to amend was made. Plaintiff did not appear by attorney or otherwise at the hearing of this motion, and, as there is no showing that any request was ever made for leave to amend, she may not now complain of the court's action.

[5-7] While it is undoubtedly error for a court arbitrarily to refuse permission to a pleader to amend a complaint after sustaining a demurrer on the special ground of uncertainty or the like, it is not necessary, in making the order sustaining the demurrer, to say anything about leave to amend. Smith v. Taylor, 82 Cal. 541, 23 Pac. 217. Error will not be presumed where the record fails to show that leave to amend was asked and refused. Robertson v. Burrell, 110 Cal. 579, 42 Pac. 1086; Williamson v. Joyce, 140 Cal. 671, 74 Pac. 290; Prince v. Lamb, 128 Cal. 130, 60 Pac. 689; Durrell v. Dooner, 119 Cal. 413, 51 Pac. 628; Buckley v. Howe, 86 Cal. 605, 25 Pac. 132; Campbell v. Freeman, 99 Cal. 549, 34 Pac. 113.

dering services to the grantors, and the balance should be credited to them in final settlement.

[Ed. Note.-For other cases, see Attorney and

Cent, Cent. Dig. §§ 332, 333; Dec. Dig. §
144.*]
2. APPEAL AND ERROR (§ 1099*)-DECISION ON

PRIOR APPEAL-CONSTRUCTION ON WRITTEN
INSTRUMENT.

A decision on a prior appeal, construing a written instrument which is the basis of the rights of the parties, is the law of the case on a subsequent appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.*]

3. ATTORNEY and Client (§ 144*)—ContrACTS FOR SERVICES-INTEREST IN DEVISE-PAY

MENTS-ADVANCES.

An attorney having been appointed to represent certain German devisees under testator's in consideration of services past and future 3 will as "absent heirs," they conveyed to him, per cent. of their interest in the estate, the conveyance providing that whatever compensation should be allowed to him as attorney for "absent heirs" by the court of probate should be first applied to reimburse him for all outlays made for their benefit and the balance should be credited to them in final settlement. Held, that allowances, so made to him as attorney for absent heirs, were to be construed as advances on his share of the amount distributable to the various devisees for whom he was attorney in severalty, and as between them as a payment on the percentage conveyed to him, so that on final settlement he should receive property of a value or money in a sum equal with the amount already received to the full amount payable to him under the contract.

Client, Cent. Dig. §§ 332, 333; Dec. Dig. § [Ed. Note. For other cases, see Attorney and

144.*]

4. PARTITION (§ 87*)—ADVANCEMENT TO CO

TENANT-EFFECT-ACCOUNTING.

[8] A plaintiff who has declined to amend his complaint, after a demurrer sustained, which is both general and special, must The legal effect of advancement to a tenant stand upon his pleading as against both in common of a part of his estate is to give him that part in severalty prior to the general grounds of demurrer. Martinovich v. Wool-partition, when he will be required to account

ey, 128 Cal. 144, 60 Pac. 760.

The judgment is affirmed.

for the property so received, and be entitled to the proportion of the remainder to which he is equitably entitled.

We concur: LORIGAN, J.; HENSHAW, J. Cent. Dig. § 253; Dec. Dig. § 87.*]

[Ed. Note.--For other cases, see Partition,

(168 Cal. 120)

COOLEY v. MILLER & LUX et al.
(S. F. 6298.)

(Supreme Court of California. July 3, 1914.
Rehearing Denied July 31, 1914.)
1. ATTORNEY AND CLIENT (§ 144*)-CONTRACT
OF ATTORNEY-CONSTRUCTION.

5. ATTORNEY AND CLIENT (§ 144*)-CONTRACT FOR COMPENSATION-CONSTRUCTION.

Where a contract, employing an attorney to represent certain German devisees, granted to him an undivided 3 per cent. of the shares of such devisees in the estate, and provided that whatever compensation should be allowed by the court of probate to the attorney as attor ney for "absent heirs" should be first applied to reimburse him for all outlays made by him for their benefit and the balance should be Where nonresident devisees employed an at- credited to them in final settlement, it was not torney to represent them in the administration contemplated that there should be an adjustof the estate for a certain interest in their respective shares, and while a settlement of the German devisees according to value of the propment of interest between the attorney and the estate was pending an agreement was executed erty at each time when he received installments canceling the first and providing that, in consid-of allowance, but the contract should be ineration of the termination of the prior agree- terpreted as requiring a single adjustment when ment and the attorney's services past and fu- his services and outlays and payments terminture, the devisees granted to the attorney an ated. undivided interest in all the property of the testator equal to 3 per cent. of the interest therein devised to such devisees under the will, the later agreement constituted a present grant of such specific interest to the attorney, and was not a mortgage, though containing a further provision that, whatever compensation should be allowed to him by the superior court as attorney for "absent heirs" should be first applied to reimburse him for all outlays made in ren

[Ed. Note.-For other cases, see Attorney and. Client, Cent. Dig. §§ 332, 333; Dec. Dig. § 144.*]

6. ATTORNEY AND CLIENT (§ 166*)-CONTRACT OF EMPLOYMENT VALIDITY BURDEN OF PROOF UNDUE INFLUENCE.

The rule that the burden is on one, claiming under a contract obtained by him while acting as an attorney, to show that it was obtained

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The interest of a deceased partner in the property of a firm of which he was a member Suit by Mary A. Cooley as administratrix at death must be inventoried by his administra- of the estate of Thomas Ross Cooley, detor or executor, and must be appraised as a single item without reference to how exten- ceased, against Miller & Lux and others. sive and varied is the character of the firm's From a judgment for plaintiff, and from an property, and for the purposes of administra-order denying a new trial, defendants appeal. tion it must be deemed personalty, and may be sold as such, as provided by Code Civ. Proc. §§ 1445, 1524.

Edward F. Treadwell, of San Francisco (Gustav Gutsch, of San Francisco, of counsel), for appellants. Sullivan & Sullivan, The death of a partner dissolves the firm, Theo. J. Roche, and John J. Barrett, all of after which the surviving partners are author- San Francisco, for respondent.

[3] In the opinion on the former appeal in discussing the meaning and effect of this instrument, after stating that these allowances to an attorney for absent heirs, though paid to Campbell, were in the nature of a partial distribution to such heirs, and that the instrument evinced an intention to provide for an adjustment of the matter between them and Campbell, we said that the instrument in effect provided that he should deduct his outlays and "adjust the balance on final settlement of the estate, by considering the same as an advancement solely upon the

SHAW, J. [1, 2] The claim of the plaintiff | ment in favor of plaintiff. This is the subto an interest in the land is founded upon an ject of the present appeal. instrument, designated in the record as Exhibit B, purporting to be a conveyance from certain legatees and devisees under the will of Charles Lux, who died on March 15, 1887. These persons are referred to in the record as the "German heirs." They were represented in California by one of their number, Henry Lux, who was the attorney in fact for the others and as such executed for them the instrument in question. It was executed on July 14, 1890, to James H. Campbell, who was at that time the attorney for the German heirs, employed by them to represent them in the matter of the administration, three-hundredths going to him, or, as between settlement, and distribution of the estate of Charles Lux, and to protect their interests therein in the meantime whenever it became necessary to do so. Cooley afterwards obtained the Campbell interest. The same instrument was under consideration on a former appeal in this case, the opinion being reported in volume 156 Cal. at page 510, 105 Pac. 981. In that decision we held that the instrument was not a mortgage to secure Campbell in the ultimate payment of compensation for his services under said employment, but was a present grant of an interest in their part of the estate, and intended as payment for said services. This decision has now become the law of the case, and is conclusive upon us at this time. Upon further consideration we are satisfied that it is the correct interpretation of the instrument. The document is set forth in the previous opinion, but for convenience we here give the parts thereof which are important to our present consideration, substituting "German heirs" for "parties of the first part" and "Campbell" for "party of the second part":

final settlement.

"It is fully understood that the compensation herein provided for shall embrace all services rendered in the administration of said estate by Campbell up to and including the final distribution thereof."

The former appeal was from a judgment given before the great San Francisco fire of April, 1906, by which the records in the case were destroyed. It was presented in this court upon a somewhat meager restored record. After the reversal, amended answers were filed in the superior court, and there was a new trial, which resulted in the judg

him and them, 'crediting' the same to them." This, as we intended it to be understood, meant that upon the final distribution of the Lux estate, the sums paid to Campbell should be taken as having been advanced to the German heirs, and that, as between him and the German heirs, it should be considered as a part of his 3 per cent. given to him in advance, so that on the final settlement between them he should receive property of a value, or money in a sum, which, with the sums already received, would make up his full 3 per cent. of their shares of the estate. In a petition by the defendants for a rehearing, it was urged that the passage quoted might be understood as saying that the instrument constituted a grant to Campbell of an interest in the specific property of the estate, in kind; whereas they claimed the correct interpretation was that it was a grant of an amount equal in value to 3 per cent. of their shares of the estate, real and personal, a grant which would be satisfied by the receipt of either property or money, or both, equal in value to 3 per cent. of the value of their shares. In response to this, in denying a rehearing, the court said that if upon a new trial

"it should be claimed that the aforesaid instrument should be construed as a grant of a share in value only of the estate, and not of the specific property, and that Campbell has already received all or a large part, of it, thus satisfying the grant or a due proportion of it or if it should be asserted that he has elected to take the whole, or part of it, in money, by retaining such sums as he may have received under the orders of the court as attorney for absent heirs, and that the plaintiff is thereby estopped from now claiming any of it, or the ratable part of it, as a share of the real estate, there is nothing in the opinion rendered which precludes such inquiries."

Upon the trial from which the present appeal is taken, evidence of the circumstances leading up to and attending the execution of this instrument was introduced, and the defendants again claimed that it should be interpreted as above indicated. The court below held the contrary. It made the following findings of fact with reference thereto:

"It was not intended to be, nor was it in fact, his compensation for his services as the attoran agreement that Campbell should receive, as Ley for the German heirs, money and property

German heirs from the estate of Lux."

As to the money, the findings are that the allowances paid to Campbell by the estate of Lux as attorney for absent heirs amounted to $88,500, and that:

"The payments of said $88,500 were not in any sense payments on account of any amount to which Campbell was entitled under said instrument, as claimed by defendants. The only bearing such payments had on the rights of the parties to that instrument was that, on a final settlement between Campbell and the German heirs, the aggregate amount of such payments should be credited to said German heirs, and made a charge against said three-bundredths interest in said property and estate of Charles Lux, deceased, granted and conveyed to said Campbell by said instrument."

This

equal in value to three hundredths of the real and personal, which in his lifetime beshares of the German heirs in the said estate, longed to Lux and Henry Miller, as partand that he might receive the same from time ners under the firm name, Miller & Lux. It to time during the administration of the said estate, in cash, through the instrumentality of was a farming partnership carrying on the the probate court. The true intent and mean- business of farming the land owned by the ing of Exhibit B, the conduct of Campbell with firm and bought by it for that purpose. Prireference thereto, and the circumstances of its execution, were as in these findings set out." or to the death of Lux the partners had exElsewhere the findings state that the in-ecuted an agreement, which Lux incorporated in his will and confirmed thereby. strument was "an absolute present grant of an undivided three hundredths of the in- agreement provided that upon the death of terest of the German heirs in the estate of either partner, the survivor should continue Charles Lux, deceased, and derived under the business for the joint use of himself and the estate of the deceased partner, for such his will," and that "plaintiff, as the successor in interest of the said James H. Campbell, period of time as he deemed necessary to holds the title in fee to an undivided three- settle up the business without detriment or hundredths of the shares derived by the sacrifice, not exceeding seven years, during which time he was to have sole control and management, with power to sell and dispose of the same at his discretion, paying to the executor out of the rents and profits an allowance for the family of the decedent, and such part only of the remainder of the decedent's share thereof as he deemed not to be required for the business, of which Miller was to be the sole judge. Miller had control under this agreement, and 2 years and 4 months had passed after the death of Lux. The interest of Lux in the partnership was one-half. The will of Lux gave to the German heirs an undivided one-half of the residue of his estate after paying debts, expenses of administration, and about $250,000 in legacies. The widow, Miranda W. Lux, took the other half as community property. In January, 1888, the German heirs had employed Campbell as their attorney to advise and act for them throughout the administration of the estate until final settlement, bring and defend all actions relating thereto in their interest, and secure as speedy a settle. ment as possible. A written agreement, dated January 6, 1888, had been executed to that effect, and the German heirs had therein agreed to assign and grant to him, as compensation for such services, three-hundredths of their shares of the estate, upon the condition that if he failed to perform his covenants therein, the contract might be rescinded, and thereupon he should cease to be their attorney, the agreement should be annulled and he should release to them all benefits to be derived by him from its terms. He had been, in April, 1889, appointed by the court as attorney for the German heirs, they being designated in the order as "absent heirs," but he had received no compensation as such, nor any compensation for services under his employment. The estate had been appraised in May, 1890, the Buri Buri ranch being valued at $145,615, the interest of the estate in the Miller & Lux lands at $1,542,610, and the interest of the estate in the Miller & Lux personal property at $920,072.94. The Buri Buri ranch had been distributed on July 10, 1890. It was not community property, and it was devised to the widow

The judgment declared that Campbell was the owner in fee of the three-hundredths interest in the lands, and appointed a referee to take an account of the rents and profits of the lands received by the German heirs from and after the decree of distribution of the Lux estate on June 28, 1900, and of the shares of the German heirs received by them of the rents and profits of the estate of Lux on account of their shares therein from and after his death in 1887. It provided further that if, upon the report of the referee, it appeared that the share of Campbell in such rents and profits, that is to say, three hundredths thereof, equaled or exceeded $88,500, then the same should offset the $88,500 previously allowed to and received by him as aforesaid, and three-hundredths interest in the land should be set off to plaintiff, free from any charge against it for the reimbursement to the German heirs of the $88,500, or any part thereof; but that if Campbell's share of such rents and profits did not equal $88,500, the difference between that sum and his share of such rents and profits should be charged as a lien upon the lands finally allotted to plaintiff in the partition.

The circumstances leading up to and attending the execution of this instrument, as disclosed by the findings and the uncontradicted evidence now before us, are as follows: The estate of Lux, at his death, except the Buri Buri ranch and a comparatively small amount of personal property, consisted of

Lux. An agreement for its sale had been | ant in common of a part of his estate is to made, which was executed soon afterward. give him that part in severalty prior to a On July 10, 1890, Campbell had filed an application to the probate court for an allowance out of the estate to him as attorney for absent heirs, and it had been set for hearing on July 18, 1890. Under these circumstances, on July 14, 1890, the instrument Exhibit B was executed.

general partition, with the result that upon a general partition he must account for the property so received, and can have only the proportion of the remainder to which he is equitably entitled.

This is what was actually accomplished by the allowances in question. They were chargeable solely to the shares devised and bequeathed to the German heirs, of which he had an undivided 3 per cent. They constituted a receipt by him of that much of said shares in severalty, being to that extent a division thereof, and they reduced the amount to which he would be ultimately entitled, and correspondingly reduced his interest in what remained undivided of said shares. This would be the legal effect of the transaction even if the provision that they should be credited to the German heirs in final settlement had not been inserted in the grant. It follows that the findings are contrary to the legal effect of the evidence, and the judgment is erroneous. A valuation must be made of the interests of the German heirs as compared to that which Campbell received. After deducting his outlays, if any, the balance must be charged to him as property of the common estate received by him in severalty from the other tenants in common and as a satisfaction, pro tanto, of his interest. If such balance is equal to three-hundredths of the value of the shares of the German heirs, he will have received his full share, and will have no interest in the property in question. If it is less than a three-hundredths, it will not extinguish his interest entirely, but will reduce it proportionally. It will then be only such proportion of the property as the difference between such balance and the three-hundredths to which he was originally entitled bears to the value of the property remaining at that time.

[4] We perceive nothing in the extrinsic facts to change the meaning and effect of the instrument as we understood it and stated it to be upon the former appeal. On the contrary, they strengthen and confirm the interpretation then given. The grant was of an undivided interest "equal to" 3 per cent. of their shares. It was made to Campbell as compensation for his services. No debt from the German heirs to him on account of the services thereafter existed, otherwise it would have been a mere mortgage, carrying no title. Upon the former appeal this point was decided, and it has become the law of the case. It was a transfer by tenants in common of an interest in an estate consisting of real and personal property. If at any time Campbell received from the others, in severalty, upon his share, more than his pro- | portion of any one parcel, or more than his proportion of one kind of property, the result would necessarily be that his proportional interest in what remained would be reduced correspondingly. For illustration, if four persons own $1,000 acres of land in common, uniform in value, three having each threetenths thereof, equivalent to 300 acres each, and the fourth one-tenth, equivalent to 100 acres, and the fourth receives from the others a conveyance of 50 acres in severalty as part of his interest, he would not then be entitled, in partition, to one-tenth of the remaining 950 acres, but only to one-nineteenth thereof, that is, the proportion of 50 to 950. And if the acreage was not of equal value, a partition of the remainder could not be [5] The question arises whether, if this made without a valuation of the land so as principle is rigidly applied, this adjustment to give each his proportion in value of what of interest according to value should not be remained. So if the common estate consisted repeated every time Campbell received an of real and personal property and before a installment of the allowance. If this were general partition one tenant received from so, it would make the adjustment at this late the others a sum of money in severalty, to date well-nigh impossible, and extremely diffi be applied upon his share, the same result cult at all times. We do not think such follows; his interest in the remainder would repetition was contemplated or intended. It be reduced accordingly, and a valuation of is provided that his outlays must be first the remainder would be required in order to deducted. This implies that a completion of make an equitable partition. There is noth- his contract to perform the services was to ing in the instrument of July 14, 1890, or in precede the adjustment, since until that time that of January 6, 1888, which can be treated it could not be determined what his outlays as providing that the sums paid as allow- were. The most reasonable interpretation of ances to Campbell under the order were to the instrument upon this point is that the be considered as loans by the German heirs valuation should be made at the time that to Campbell, to be charged against his in- his services, his outlays, and the payments terest and made a lien thereon, upon a final under the order ceased. The adjustment partition, if not repaid by him previously. could then be made and his precise remaining The intent that they were to be advance- proportion determined. The valuation of the ments on his share of their interests is clear. shares of the German heirs should be made The legal effect of an advancement to a ten-as of the year 1896, and his remaining in