The herald., 1894-03-01
THE OGIER WILL CASE.
SUPREME COURT AFFIRMS JUDO.
MENT OF LOWER COURT.
The ExecutrIx Could Choose Her Own
Attorney-A Decision Against E.
j. Baldwin in an Ejectment
SuIt-Other Decisions.

1esterdaY an opinion WAS reColVeu az
the Los Angeles Office Of the supreme
court in the Ogier will case, which at
tracted some attention recently.
Mrs. Anna Ogier died in Los Angeles
March 16, 1898, leaving an estate, con-
sisting OF real and personal property of
the value of more than $50, ,000, and also
leaving duly executed will.
Amongst it's provisions Mrs. j. de
Barth Shorb WAS named as executrix,
with John M. Elliott in case she should
die or be unable to act.
Also she named as the attorney OF her
estate John w. Mitchell, esq, aud di-
rected her executrix to consult and en-
ploy him in all matters pertaining to its
distribution.
March Oath the will was fled for pro-
bate, accompanied by petition of Mrs.
/ Shcrb, by Messrs. Graves, O'Melveny q
Shanklapd, as her attorneys.
April 9TH John w. Mitchell filed a
! petition, alleging that he was interested
in the estate and that joint letters be
issued to Mrs. Shorb and himself, and
that he be declared attorney of record
for the estate in place OF Graves, o. Mel
veny & Shankland.
To this Mrs. Shorb filed an answer
denying that she had disregsrded Mr..
MitcnelPs rights. Both petitions were
heard together and May 18th the court
admitted the will to probate and ap-
pointed- Mrs. Shorb executrix, denying
Mr. MitchelPs petition. From this he
appealed.
In discussing the points raised the
supreme court says that the frat ques-
tion presented is, Was Mr.. Mitchell en-
titled TO be entered and recognized as
the attorney of record for the estate?
1t holds that there is no such Office
or position known TO the law as attorney
of an estate. and that it would seem to
be neither reasonable nor right to hold
that the executor Of will must neces-
sarily accept the services of an attorney
selected by the testator. It.is concluded
that the selection is not binding on the
executrix, but is simply an advisory
provision which che can disregard il
she chooses to do so.
The second and only other question
presented, continues the court, is, Did
the court err in refusing to direct letters
testamentary 70 be issued to Mr.. Mitch
ell as co-executor with Mrs. Shorb2
The court SAYS that it was not the in
tention of Mrs. Ogier to commit to ap-
pellant the execution of her will and
the administration of her estate.
By the paragraphs in which he is
mentioned, the court holds that the tes-
tatrix Intended simply to make him the
attorney and counsellor of the execu-
trix, and not to commit to him the sd-
ministrstion of the estate.
The order of the superior court is,
therefore, affirmed.
An opinion was also received in the
case of E. j. Baldwin, appellant, va.
John II. Temple, respondent.
The plaintiff brought an ejectment
suit and the defendant answered, also
fling q cross complaint to quiet title to
the demanded premises. The plaintiff
answered with cross complaint. The
findings and judgment were in favor of
the defendant.
The court says that no question is
made but that the plaintiff has the legal
title, nor is there any question but that
the defendant was in exclusive posses
sion of the demanded premises a suffi-
cient length of time to give him title.
The question controverted touching
the adverse possession of defendant was
as to whether the taxes were levied and
assessed upon the demanded premises
for the year 1878.
The finding of the lower court was
that the property was not assessed for
taxes for the year 1873, and after dis-
cussing the evidence the supreme court
holds that it was not justified by the
evidence.
The judgment and order appealed
from are reversed and a new trial is
granted.
Opinions were also received in the
case OF Ames ct al. vs. the city of San
Diego. affirming the Judgment of the
lower court; Grobstti Solari, respond
ent, va. J. P. Snow, appellant, an &C.
ton to quiet title, affirming the judg-
ment OF the lower court, and s. G. Rob-
lnson, appellant, We. John r. Dugan,
administrator of VIM. Robinson, affirm
ing the judgment of the lower court.