Los Angeles herald., 1892-06-01
TWO DECISIONS.
Judge Clark Delivers Import
ant Opinions.
Brainard vs.. Eyraud and Remi Na-
deau's Estate.
Important Points in the Eyraud De
cision-The Nadeau Estate and
the Nadeau Vineyard
Company.

peing tnat where the entire subject mat
ter of an act of the legislature is intended
to be revised by subsequent act, the
latter or substituted act repeals the
former (62 CAL, 564; 72 CAL, 1922.
am OF the opinion that the act approved
February IA, 1872, entitled IAN act to
protect agriculture and to prevent the
trespassing OF animals upon private
property" etc., was repealed by the
act approved March 7, 1875, entitled IAN
act to protect and prevent the trespass-
ing OF animals upon private property, .
etc., when this latter act was made ap.
plicable to Los Angeles county as It was
on March 30th, Of the same year,
This latter act provides that it shall be
unlawful for any animal to enter upon
land in the lawful possession of any
person other than the ownerof such ami
NAL, and the person in possession of the
land trespassed upon may recover in q
court of competent jurisdiction from the
owner OF such trespassing animal dam
age sustained by reason of such tres
pass.
The act provides remedy by distress
and action in law against the trespass-
ing animals where the owner is un-
known, but that in all other respects the
course of procedure prescribed by the
code of civil procedure shall prevail
(Section 14.) The complaint clearly
states cause of action under
this act. 1t alleges, in sub
stance, that plaintiffs were entitled to
the possession, and were actually in
possession of certain land which is de-
scribed; that the defendant was tho
owner OF large band of sheep; that de-
fendant permitted some sheep to 60
upon said land and damage the pastur-
age, hay and grain belonging to said
plaintiffs. These allegations were,
think, supported by the evidence.
The fact that the pleader had in con-
temptation the act Of February 4, 1872,
supra and alleged that prior to the ex-
piration of ten days after the damage
complained Of was done the plaintiffs
caused the same to be viewed and es-
timated in writing, etc., is not material
and the allegation should be rejected as
surplusage. Nor do l think the fact
that plaintiffs were, under the terms of
their lease, to pay one-fourth of
the crop as rent, material.
The title thereto would remain
in plaintiff until delivered to the
lessor. But making allowance for that
fact and for exaggeration in the testi-
mony adduced by plaintiff, think the
evidence shows damages approximating
$485, and it is ordered that plaintiff
draw findings and judgment for that
amount. s'7'----@,-- -
In re estate Of Remi Nadeau, deceased
The said deceased in his lifetime gave
bond for the sale of certain property to
one William Lacy, and he in turn as
signed the same to the Nadeau Vineyard
Land company. Said last named COM
pany insured it's interest in the property
bonded with the petitioner, the South
ern California Insurance company, and
in payment of the premium gave it's note
for $3.50. This note was not paid in full.
The said Nadeau Vineyard Land COM
pany failed to make good the condition
of the bond, and the property bonded
returned to the estate of deceased
and came into possession of the
executors of his will, Thereafter
one of his executors, in q letter
to the agent of said insurance company,
said: I'm regard to your claim for in
surance issued to the Nadeau Vineyard
Land company, the estate is willing to
assume the payment of the same as q
demand due from the estate for the ex-
pense of administration. The said in
surance company now petitions for an
order directing the executors to pay the
balance due on said premium, and this
petition is contested. I am of opinion
that such an order should not be made.
It is undoubtedly true that an executor
has the power and it is his duty to pro-
tect the estate in his charge by insur-
ance, and that in the settlement of his
accounts he will be allowed credit for all
sums necessarily and properly expended
by him for that purpose. But
it is also true that an ex-
ecutor has no power to bind the
estate by contract, even though made
for the benefit of the estate, but such
contracts are personally binding upon
the executor. It would seem to follow
that If any controversy should arise
upon such q contract the proper form
under which to litigate the same would
be in the court sitting as q court of law,
and not in the court of probate, which
is not trial court but court OF special
and limited jurisdiction. Admitting,
however, the rule to be that where one
has, by reason of contract with an exec
utor, done some act or rendered some
service which is of benefit to the estate,
he can, notwithstanding the executor
denies the execution of the contract or
the rendition of the service, come
into the probate court and liti-
gate the matter and obtain
an order allowing the claim and
directing it's payment. Admitting the
decision Of the Judge in another depart
ment Of this court in case No. IA 745 to
have been correct, still it would not
damage the conclusion arrived at here.
The contract of insurance is but q per-
sonal contract. It is an agreement to
pay . person interested in the preserva-
ton OF the subject matter certain sum
to indemnify him in case his interest in
the subject matter should suffer diminu-
alton in value. The contract
lie not incidental to nor does
it run with the subject matter Of insur-
ance. The policy Of insurance was not
transferred to the executors of the
estate, nor was there any evidence show
ing that the loss, if any, was made pay
able to them. It is difficult to see,
therefore. how the estate was indemni-
fed against loss, or what benefit accrued
TO the estate. think the petition
should be denied and the rule to show
cause Dismissed, and it is 90 ordered.
TWO INc0RpnpArrnN