Spencer v. Van Cott

EmeksoN, J., delivered the opinion of the court: The respondent, widow of Daniel Spencer, deceased, filed her petition in the Probate Court of Salt Lalre County, to compel the appellants, as executors of her late husband’s will, to furnish the support for herself and her minor children provided for in the will. The Probate Court denied the petition, and an appeal was taken to the District Court. The case was then referred to a referee to report the testimony and findings of fact. The referee reported the testimony to the court, together with his findings of fact. In the report were certain findings which the referee reported he did not deem material, but had reported them at the request of the counsel for the appellants. Upon the hearing upon the pleadings, proofs and findings, the court adopted and approved of all the findings of the referee, reported by him as material, except the last, and ignored as immaterial all those reported at request of counsel. It follows that the only findings of fact that are now in the case are those approved and adopted by the court and which, therefore, become the findings of the court. It appears that the appellants excepted to the report of the referee, the exceptions overruled and the following decree entered: [342] It is ordered, adjudged and decreed by the court that the said defendants, John Yan Cott and Theron H. Spencer, as the executors of the last will and testament of the late Daniel Spencer, deceased, do, and they are hereby ordered, to pay out of the assets of the estate of the said Daniel Spencer, deceased, in their hands or to come into their hands as such executors, to the complainant or plaintiff, Emily T. Spencer, within thirty days from this date, the sum of forty-five dollars and thirty cents, to pay the indebtedness incurred by her for necessaries, as specified in the fourth finding of the referee herein, and that they also pay to the said plaintiff or petitioner the further sum of fifty dollars per month, from the 13th day of May, A. D. 1876, until the death or marriage of the said plaintiff, or until the further drder of this court; the payments to be made as follows, to-wit: The accrued sum of three hundred and thirty-nine dollars within thirty days from this date, and the said sum of fifty dollars.per month on or before the seventh day of each month hereafter. The appeal is from this judgment and decree. There are six assignments of error relied upon. As to the first and second it is sufficient to say that whether they were well taken or not depends upon the testimony, and that is not before this court. No motion for a new trial was made in the court below, and hence there can be no review of the testimony in this court. The only way this can be done is to bring it up by a statement on motion for a new trial. Reed v. Burns, 40 Cal. 628. And, it may be added as to the second assignment, that the subject of the request was not a material issue in the case. There was no error in refusing to find the conclusions of law mentioned in the third assignment. If there had been a non-joinder or defect of parties plaintifi: which was not apparent upon the face of the complaint, the appellants should have taken advantage of it by answer, and if it was thus apparent, then by demurrer, or it will be deemed waived. C. L. §§ 1265, 1269, 1270. [343] The court was satisfied that it could adjudicate upon the case made without affecting the rights of others. If the appellants thought otherwise, they should have invoked the power given to the court by § 1242, O. L., by a demurrer, and not by a request to so find as a conclusion of law. The right to demur was given to enable the court to carry out the provisions of this section. Warner v. Uncle Sam, 9 Cal. 697. As to the fourth assignment it is sufficient to say that the duty of caring for and providing for her minor children rested upon the petitioner as their natural guardian. It was eminently proper that she should petition in her own name for, and that the decree should be made to her for the allowance provided in the will for her and their support during their minority. The allowance found necessary for this purpose was properly decreed to her. The objection raised by the fifth assignment is not well taken. The decree followed the requirements of the will, leaving the order still subject to review and alteration by the court as circumstances might require. There is no point in the sixth assignment. The court was not called upon to place any such construction upon the will as is here indicated, and as counsel contended for in his argument. The condition, position and standing of the petitioner and her family in the community, and the former standing of the testator, and the condition and extent of the estate are all circumstances which should be taken into consideration in fixing the allowance necessary to carry out the purpose designated in the will. As all intendments and presumptions are in favor of the findings, in the absence of the testimony, we must presume that all these circumstanees were taken into consideration in fixing the amount found to be necessary for the support of the petitioner and her minor children. The judgment and decree of the court below is affirmed; the respondent to recover her costs in this court. Schaeffer, C. J., and BobeMAN, J., concurred.