17 and 18, required by the restriction to be clear of buildings. The same condition obtains with reference to the three lots occupied by four houses. The owner of the adjoining lot nearest the buildings of defendant is not a party to this action, and plaintiffs neither alleged nor proved any special or other pecuniary damage. As was said by the Supreme Court of Massachusetts:

"Where there has been no uniform observance of the restrictions, and substantially all the landowners have so conducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan, and where the enforcement will not tend materially to restore to the district the character impressed upon it by the scheme, and the infraction complained of does not diminish the value of other estates, then it would be inequitable and oppressive to compel at great loss a compliance with the restrictions." Loud v. Pendergast, 206 Mass. 122, 125, 92 N. E. 40, 41.

court to the portions of the record upon which appellant relies to sustain his point. Although appellant's attention was expressly directed by respondent's brief to his utter disregard of the rule, no effort has been made to correct the deficiencies in his brief, either by way of a reply brief or by application for relief to the court. Instead appellant has filed a stipulation submitting the cause upon the briefs on file. Upon the authority of Marcucci v. Vowinckel, 164 Cal. 693, 130 Pac. 430, O'Rourke v. Skellenger, 169 Cal. 270, 146 Pac. 633, and Williams v. Hawkins, 20 Cal. App. 161, 128 Pac. 754, the judgment is affirmed.

We concur: SHAW, J.; SLOSS, J.

(178 Cal. 544)

LIEMAN v. GOLLY. (L. A. 4498.)

See, also, Zelman v. Kaufherr, 76 N. J. (Supreme Court of California. July 18, 1918.)

Eq. 52, 73 Atl. 1048.

There was no miscarriage of justice in the decision appealed from.

The judgment is affirmed.

We concur:

(178 Cal. 553)

1. CANCELLATION OF INSTRUMENTS 53 FINDINGS OF FACT-SUFFICIENCY.

-

In suit to annul deeds as having been secured by fraud and undue influence, without consideration, finding that they were executed for a good consideration passing from defendLORIGAN, J.; MELVIN, J. to consideration. ant to the grantor was sufficient as a finding as 2. DEEDS 15 VOLUNTARY CONVEYANCE.

CRAMER. (L. A. 4622.)

CONSIDERATION

In suit to annul deeds as having been securFRANKFORT GENERAL INS. CO. et al. v. ed by fraud and undue influence, without consideration, finding that they were executed volwith intent to convey, obviated necessity of untarily, with knowledge of their contents and consideration, in view of Civ. Code, § 1040, making consideration unnecessary to validity of executed voluntary deed.

(Supreme Court of California. July 23, 1918.) APPEAL AND ERROR 766–Briefs-MaT

TERS TO BE INCLUDED.

For failure of appellant in brief or a supplement, on appeal by alternative method, on typewritten transcript, to give portions of record relied on, pursuant to Code Civ. Proc. 8 953c, or to try to correct deficiency on attention being called thereto, transcript being 120 pages, and insufficiency of evidence the contention, there will be an affirmance.

Department 1. Appeal from Superior Court, San Diego County; C. N. Andrews, Judge.

Action by the Frankfort General Insurance Company and another against A. Cramer. From an adverse judgment, defendant appeals. Affirmed.

A. T. Roark, of San Diego, for appellant. Clarence Harden, of San Diego, for respond

ents.

RICHARDS, Judge pro tem. The record upon this appeal justifies a strict application of the rule laid down in section 953c of the Code of Civil Procedure. The appeal is by the alternative method. The typewritten transcript embraces 120 pages. The appellant relies solely upon the point that the evidence is insufficient to justify the findings and judgment of the court. His opening brief contains no supplement such as is required by the rule, nor does it disclose any attempt at compliance with the rule by quotation, reference, or otherwise, directing the

3. COSTS 260(1)-APPEAL FOR DELAY. Where appeal from a judgment was wholly without merit and evidently taken for delay, damages should be imposed against appellant.

Department 1. Appeal from Superior Court, Los Angeles County; John W. Shenk, Judge.

Action by J. H. Lieman against Joseph Charles Golly. Judgment for defendant, and plaintiff appeals on the judgment roll alone. Affirmed.

Henry G. Bodkin and Irwin, White & Ros ecrans, all of Los Angeles, for appellant. G. Harold Janeway and Hunsaker & Britt, all of Los Angeles, for respondent.

SHAW, J. The appeal is from the judgment on the judgment roll alone. The plaintiff by his complaint sought to annul two deeds executed by his daughter, Annie M. Golly, to the defendant, at different dates, one on July 1, 1912, and the other on December 3, 1912, for the same parcel of land, and for a judgment declaring that the title to the parcel of land covered by said deeds, vested in the heirs of said Annie M. Golly; the plaintiff being one of such heirs. The grounds for the claim that the deeds are void or voidable are that Annie M. Golly at the time of the execution of said deeds was of unsound

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 174 P.-3

We concur: SLOSS, J.; RICHARDS, Judge charge of $87.40 for taking the deposition of

36, 52, 97 Pac. 10, 18 L. R. A. (N. S.) 1106. [ing that the failure to file it earlier was not We cannot say that the court abused its dis- fatal to plaintiff's right. cretion in deciding that question in plaintiff's favor on the facts before it.

We

concur: SHAW, J.; Judge pro tem.

RICHARDS,

(178 Cal. 523) In re KELLEY'S ESTATE. (L. A. 5432.) (Supreme Court of California. July 13, 1918.) 1. WILLS 475-CONSTRUCTION-CODICILS. Two codicils, made within a few days of each other, are to be read together. 2. WILLS

FOR LIFE.

614(5)—ESTATE GIVEN-ESTATE

Under a will and the sixth, seventh, and ninth of nine codicils thereto, held, that testator's widow took a life estate in all his property, real and personal, excepting minor bequests, and including & particular residence property claimed by her in fee.

Department 1. Appeal from Superior Court, Santa Barbara County; S. E. Crow, Judge.

In the matter of the estate of John G. Kel

3. The final objection is to the charge made for witness fees in the case of several wit[3] 2. The appellant objects to the allow-nesses, who, as appellant claims, were not in ance of an item of $220.60 paid the reporter attendance for the number of days covered for transcribing testimony. It appears that by the charge. The court reduced the items after the beginning of the trial the court in some particulars. Where it declined to made an order that the testimony be tran-interfere with the charge, we think the conscribed by the reporter, that the "transcript clusion that the charges allowed were proper of all the testimony be paid for by plaintiff," was not without support in the evidence. and that the charges therefor be taxed as No other points are made. costs in the action, if plaintiff should recover The order is affirmed. judgment. The order further provided that the transcript be filed. The grounds of objection to the item were that only a part of the testimony had been transcribed, and that the transcript had not been filed. The Code authorizes fees for transcripts "ordered by the court to be made" to be taxed as costs. Code Civ. Proc. § 274. The disputed charge falls within this description. The statute does not require that the transcript cover all the testimony. The appellant's claim is that this condition was imposed by the court's order. But we do not so read the order. Under section 274, fees for transcripts ordered by the court are to be paid by the parties in equal proportions, or either may pay "the whole thereof." When the court ordered that plaintiff pay for the "transcript of all the testimony," it was prescribing that the whole cost should, in the first instance, be met by one of the parties, instead of being divided. Apart from any limitation in the order, it was within the discretion of the trial court to say whether plaintiff should recover costs for a transcript of only a part of the testimony. The evidence indicates that the trial was a protracted one, and that, after plaintiff had paid the sum in question for so much of the transcript as had then been furnished, he was without funds to pay for more, and accordingly directed the reporter to cease further transcription. There may, no doubt, be cases in which it would be unjust to the losing party to charge him with the expense of transcribing isolated fragments. But on the record before us we think the court was justified in concluding that the plaintiff had reasonable grounds for stopping the transcription when he did, and that the defendant was in no way injured by the act of the adverse party in having only a part of the proceedings written up. In one aspect he was, indeed, benefited, since the charge would necessarily have been greater, if the entire testimony had been transcribed. [4] So far as the want of filing is concerned, it appears that, when the objection was made at the hearing of the motion to tax, the plaintiff did file the transcript. It was then available for the defendant's use in further proceedings looking to a new trial, or the preparation of a record on appeal, and we cannot say that the court erred in hold

ley, deceased. From a decree of distribution, Edith S. Kelley appeals. Affirmed.

Fred H. Schauer, of Santa Barbara, B. Rey Schauer, of Los Angeles, and A. Mitchell Palmer, of Stroudsburg, Pa., for appellant. Richards & Heaney, of Santa Barbara (A. C. Postel, of Santa Barbara, Charles L. Benoist, of Los Angeles, and Francis Price, of Santa Barbara, of counsel), for respondent.

RICHARDS, Judge pro tem. This is an appeal from that portion of a decree of distribution which purports to distribute certain real estate in Santa Barbara to the appellant for life. The contention of the appellant is that under the will and codicils of the tes tator she was entitled to have the said prop erty distributed to her in fee simple.

The testator, John G. Kelley, was a resident of Pennsylvania, but maintained a home in Santa Barbara upon the property here in question, and where he died on May 29, 1911. He left a will and nine codicils, which were admitted to probate in Monroe county, Pa., on June 28, 1911. Ancillary administration was had in Santa Barbara county for the purpose of disposing of the property there. The decedent left surviving him his widow, Edith S. Kelley, who was his second wife, and a daughter, whose name was Anna K. Hornbrook. He also left certain nephews and nieces, who were under certain eventualities

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to become his residuary legatees. In his will, | 1317 to 1327 of the Civil Code governing the dated January 31, 1905, after certain specific interpretation of wills. bequests, he used the following words:

"All the rest of my estate I give and bequeath to my dear wife, Edith S. Kelley, for life or so long as she remains my widow (except in the case of my Santa Barbara property corner Garden and Mission Street, which I give to her absolutely)."

The first, second, third, fourth, and fifth codicils to this will, executed at intervals within the period of about four years after its date, do not purport to make any change in the disposition of his property in so far as Edith S. Kelley is concerned. The codicil of June 21, 1909, does, however, purport to make a number of changes in his will, amounting practically to the making of a new will, in which he gives all of his real estate and one-third of his personal property to his wife, Edith S. Kelley, leaving the balance of his personal property, aside from specific bequests, to his daughter, Anna K. Hornbrook, or in trust for her benefit. Four days after the making of this important codicil the testator added thereto the following brief olographic codicil, viz.:

"June 25, 1909.

"It is my intention that my wife shall have all I am possessed of during her life, except in case of remarriage, when I wish it placed in trust for her free from interference of any one."

On May 26, 1910, he added another codicil, which is not material, but on September 2, 1910, he framed his final codicil, which was also olographic, and made, as he states, "to clear up any possible misunderstanding."

[1, 2] While it is true that in this codicil the testator had apparently the ultimate disposition of his money uppermost in his mind, he makes use of the following words:

"I have made my will providing for a share of my estate to go to Anna K. Hornbrook, but if she has no heirs and should predecease my wife Edith S. Kelley, I do not want a dollar of my money to go to any Hornbrook, but first I expect my wife to have and to hold during her life and then Anna K. Hornbrook, and failing her or her heirs of her body, Edward W. Kelley and his heirs, subject to all the provisions of my will."

This being our conclusion, it follows that the decree of distribution appealed from must be affirmed; and it is so ordered.

We concur: SLOSS, J.; SHAW, J.

(178 Cal. 566)

WALDECKER v. WALDECKER.
(L. A. 4493.)

(Supreme Court of California. July 25, 1918.
Rehearing Denied Aug. 22, 1918.)

1. DIVORCE 150(2)-TRIAL-FINDINGS.

Under Civ. Code, § 131, and Code Civ. Proc. $634, findings of fact are not required to be filed by the court on the denial of a divorce on evidence presented in a default case. 2. DIVORCE 184(5) REVIEW

TION.

DISCRE

such clear and satisfactory proof as to take Where the record does not present a case of away the discretion of the trial court, the denial of a divorce on the evidence presented will not be disturbed.

Department .1. Appeal from Superior Court, Los Angeles County; Fred H. Taft, Judge.

Action by Gertrude Waldecker against Carl R. Waldecker. From a judgment denying a divorce, plaintiff appeals. Affirmed.

Georgia P. Bullock, of Los Angeles, for appellant.

RICHARDS, Judge pro tem. This is an appeal from a judgment denying the plaintiff a divorce. The complaint in the action was in three counts, setting up, respectively, willful neglect, extreme cruelty, and desertion on the part of the defendant as grounds for a divorce. The defendant was served with process by publication and defaulted. After entry of such default, the plaintiff proffered her proofs to the court, which, after hearing them, denied the divorce. In so doing the court simply made and entered its decree to that effect, but filed no findings of fact. The plaintiff appeals, urging two points grounds for a reversal.

as

Her first point is that the failure of the court to make or file findings of fact was an error of procedure requiring a reversal under section 131 of the Civil Code and upon the authority of the cases of Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483, and Nelson v. Nelson, 18 Cal. App. 602, 123 Pac. 1099. Section 131 of the Civil Code reads, in part, as follows:

We are unable to escape the conclusion that it was the intent of the testator by the sixth and seventh codicils of his will to radically change his former disposition of his estate as expressed in his first will. These two codicils, made within a few days of each other, are to be read together, and when so read are susceptible of no other construction, without doing violence to their plain language, than that it was the testator's intention, as therein expressed, that his wife should have a life estate in all of his property, real and decision and conclusions of law as in other cases, personal (excepting minor bequests), but in- and if it determines that no divorce shall be cluding the Santa Barbara home. The tes- granted, final judgment must thereupon be entator's final codicil, while less clear as to tered accordingly. If it determines that the diits scope, is entirely consistent with this in- vorce ought to be granted, an interlocutory judgment must be entered, declaring that the terpretation, which is itself in entire har-party in whose favor the court decides is entimony with the letter and spirit of sections | tled to a divorce."

"In actions for divorce, the court must file its

The question here involved turns upon the meaning to be given to the phrase "as in other cases" in the above-quoted section of the Code. In the consideration of this question it is to be noted that the section above quoted is to be found in the Civil Code, which' Code is not ordinarily to be construed as regulating procedure in civil actions, but rather as declaring substantive law. The Code of Civil Procedure is the place wherein the procedure to be followed in such actions is to be found. Turning to the Code of Civil Procedure, we discover that findings of fact and conclusions of law in civil actions are only required to be filed in cases where issues of fact have been raised by the pleas and denials of the respective parties. Code Civ. Proc. 588–590. In the case of Foley v. Foley, 120 Cal. 33, 52 Pac. 122, 65 Am. St. Rep. 147, it was held that in an action for divorce the hearing required by law to be had before the court after entry of a default was not a trial of issues of fact within the meaning of these sections of the Code of Civil Procedure. In the case of Waller v. Weston, 125 Cal. 201, 57 Pac. 892, it was decided that, in an action to foreclose a mortgage where

the defendant had defaulted, findings of fact were not required to be filed. By the terms of section 634, courts are not required to make findings in cases where, though an issue has been joined by the pleadings of the parties, either of them fails to appear at the trial, or where by written consent filed with the clerk or oral consent in open court findings are waived. Reading section 131 of the Civil Code in the light of these sections of the Code of Civil Procedure with the construction placed upon them, we are constrained to regard the language of the section of the Civil Code as constituting rather a recital of the rule of procedure laid down in

the Code of Civil Procedure than the declara

tion of a different rule applicable to divorce cases. The phrase "as in other cases" can tuus be construed to mean that, in all actions for divorces where issues have been raised by the pleadings of the parties so as to require a trial thereon, findings must be filed unless waived by the parties as provided in section 634 of the Code of Civil Procedure.

[1] We do not give our assent to the meaning ascribed to that phrase in the case of Perkins v. Perkins, 29 Cal. App. 68, 154 Pac. 483, nor to the reasoning or conclusions either of that case or of the case of Nelson v. Nelson, 18 Cal. App. 602, 123 Pac. 1099, as to the proper construction to be placed upon section 131 of the Civil Code. On the contrary, our conclusion is that in divorce cases, as in other cases, findings are required only upon a trial of fact issues raised by the pleadings of the respective parties, and only then in cases where findings have not been

waived by the parties as provided in section 634 of the Code of Civil Procedure. It follows that in the instant case findings were not required to be filed by the court upon a denial of the divorce.

[2] The next question presented by the appellant is that the court erred in denying the plaintiff a divorce upon the evidence presented before it. We have carefully read the reporter's transcript of that evidence, and, without attempting to recite or review it, we are of the opinion that the record does not present a case of such clear and satisfactory proof as to take away the discretion of the trial court to determine whether or not the plaintiff was entitled to an interlocutory decree of divorce. This being so, this court cannot interfere with the action of the trial court in refusing to award her such a decree.

Judgment affirmed.

We concur: SHAW, J.; SLOSS, J.

(178 Cal. 606)

In re ROBINETT'S ESTATE. (S. F. 8578.)
(Supreme Court of California. July 31, 1918.)
1. APPEAL AND ERROR 1170(12)-REVERSI-
BLE ERROR-DECREE OF DISTRIBUTION.
A decree, proportionately distributing the
cash on hand, and any proceeds of the estate's
cause of action, without continuing the admin-
istration, pending suit thereon by the adminis-
tratrix, did substantial justice, and was not
reversible error, in view of Const. art. 6, § 41⁄2.
2. PARTIES 59(3) — SUBSTITUTION

Ac

WILBUR, J. This is an appeal by the administratrix of the estate of Robinett from a decree of distribution made in said estate on petition of the legatees, filed after settlement of appellant's final account. Appellant is the residuary legatee, and takes this appeal both in her capacity as residu ary legatee and as administratrix with the will annexed. The cash on hand was insufficient to pay the legacies of the petitioners. They waived claim upon any of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes