Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-03-02
JUDGMENT MODIFIED.
OPINION OF THE SUPREME COURT IN
THE STEVENS ESTATE CASE.
The Widow Entitled to the 81 900 Gift
Mrs. Hubbard Not Intentionally
Omitted From the VIII.

The appeal of Mrs. Lydia NJ Stevens
widow of the late A. ]. Stevens, from the
judgment of Department Two of the Su-
perior Court of this county, in the matter
of the settlement Of the accounts of the es-
tate of deceased, of which she is the execu-
trix, has been decided by the Supreme
Court, which yesterday filed its opinion in
the Office of the Clerk of the Sacramento
District. The facts of the case are as fol-
lows:
The testator died on February H. 1888.
and Mrs. Stevens was appointed and quail
| fed as executrix of the last will of her hus-
band on March 18th following. The testa-
tor was for many years prior to his death
in the employment of the Southern Pacific
Company as its General Master Mechanic,
at salary of $500 per month. He had
drawn his salary for the month of January,
1888, and his full salary for the month of
February was paid in the usual mode,
without any deduction on account of his
death on the 18th day of that month. On
June 18th the sum of 81 900 was paid Mrs
Stevens by the company. On application
of May S. Hubbard cher daughter) Mrs.
Stevens was charged with this sum as part
OF The estate of her husband. This is as
signed as error. The Supreme Court says:
1--WE are of the opinion that the point is
well taken. 1t was paid to Mrs Stevens on
a voucher. The language of the voucher
indicates Enthusiastically an allowance by
the company. There was no obligation on
the company TO pay it. 1t was clearly gift
by the company. The allowance is clearly
to Mrs. Stevens. The language use is: To
Mrs. A. ]. Stevens, Dr. aud not to Mrs.
Stevens, executrix, or as executrix of her
deceased husband. 1t does not purport to
be for salary. We see nothing in the other
evidence changing this purport of the
voucher. 1t was intended by the company
as a grateful recognition of the services of
one who had served it long and faithfully,
to whom its representatives had no doubt
been strongly attached, and was with great
propriety made to the one, of all the world.
who most felt his loss 1t makes no differ
ence that Mrs. Stevens did rot know
whether it was a gift to her or not. 1t was
all the more gracefully done, in that the
fact that it was a gift was yelled from her 1t
was made to her in the mode employed, that
she might feel no embarrassment in accept
ing it. 1t thus shocked no feeling of the
recipient, and the gift was enhanced in her
estimation when she regarded it as tribute
to the worth of one who had for long been
to her the cherished object of honorable
pride and devoted affection.
1--WE think the Court erred in charging
Mrs. Stevens with the sum. In fixing the
allowance to the widow, the sum of 5000
month for twelve months was designated.
1t appears from the bill of exceptions that
Mrs. Stevens lived in a hired house, for
4 xxbi oh oh tho |, L., 1f
and that she had, during the period for
which this allowance was made, rented out
rooms in the house for which she received
the sum of $500. With this last-named
sum she was charged SIS executrix by the
Court below. 1t is urged that this charge
was erroneous, and we are of that opinion.
The widow is entitled to a reasonable pro-
vision for her support, to be allowed by the
Superior Court, or a Judge thereof. In
making this allowance the Court must take
into consideration all the circumstances
bearing upon the reasonableness of the
amount to be allowed. Regard should be
had, and no doubt was had, to the mode in
which she lived during the lifetime of her
husband. The Court, having considered
| the many facts, made the order of allow
ance.
There is also an appeal in this case from
| the judgment distributing one-fourth of
| the estate to Mrs. May S. Hubbard. Mrs.
| Hubbard's claim is based on the fact that
| she was unintentionally omitted from the
will of her father, the decedent above
named. The will, which was Geographic,
is as follows:
considering the uncertainty of life, being
OF sound mind and enjoying good health,
| make this, my will. / will to my wife, Lydia
| M. Stevens all OF my property of every kind
and nature; also all moneys that may become
due at my death, as insurance policies held by
me in any life insurance company or associa-
ton. She is to collect for her sole use and bene
| fit all moneys that may become due at my
death. or that may become due thereafter. I
request, however, that she will set aside and
cause to be invested in some good and safe
stpaying securities, 81 000 for the benefit
of my grandson, William A. Stevens both prin-
cipal and interest accumulations to be paid to
him when he shall have arrived at the age Of
twenty one years; but in this matter my wife
may use her own Judgment. / appoint my wife,
Lydia N. Stevens, sole executrix of my estate,
to act without bonds.
"'ANDREw JACKSON STEVENS.
" Sacramento, September 90 1885,
1.-THE decision of this Court in Garrauds
case (35 CAL, $500 has stood too long with
out challenge to be overruled without very
strong reasons. 1t is sustained By very
powerful reasoning in the able opinion of
| Justice Crockett. We think it our duty to
| follow it, and in accordance with the rule
| there declared we must hold that the Court
| below did not err in excluding the offered
declarations of the testator. 1t is further
argued that the will itself shows on its face
| that the omission of Mrs Hubbard In the
will was intentional. We do not think
| that we can say with any reasonable GER
tainty that the words used in the will indi-
cate that Mrs. Hubbard was in the mind of
| the testator when he wrote his will, and
| that he Intentionally omitted to mention
| her. We think the correct rule is that the
| words of the will must show, as above
pointed out, that the testator had the person
omitted in his mind, and, having her so in
his mind, had omitted to make any men,
ton of her. We are of the opinion that the
| Court below did not err in holding that the
will itself did not show on its face that the
omission of Mrs. Hubbard was Intentional.
Another point remains to be considered.
| In 1878 Andrew D. Billings, the son of May
s. Billings Qhe May s. Hubbard party to
this case, and her then husband, A. D. Bill
| ings), was, with all the forms of law re-
quired, adopted by the testator and his
wife as their child. The adoption was
| made before Hon. r. G. Clark, County
Judge of Sacramento county. 1t is here
contended that the statute under which
| this adoption was made is unconstitutional.
| 1t is said that the adoption of the child
was an official act, and therefore must be
done by Court, and can not, by the Con-
stitution, be done by Judge, as was the
case here.
1.-THE adoption of children is purely a
matter of statute pertaining to the Legisla-
ture, with which Judge or Court has
nothing to do, unless the power is conferred
on them by statute. The matter of adop-
| ton belongs to the Legislature, and not to
the Judicial Department of the Govern
ment. We know of no rule of law which
eyer enabled any person or tribunal,
whether Notary Public, Clerk of Court,
Judge or Court to perform the ceremony of
adopting child, unless such authority was
conferred by the Legislature. As the Leg
islature has full power over this matter. it
may prescribe what the ceremony shall be,
and it may make the ceremony so simple
that its celebration only requires the con-