The record-union., 1899-11-25

period that most of the expressions of
deceased, such as He could not get
along without her. He would have
been dead but for her nursing etc..
were used.
During his last sickness which ex-
tended over several months, she was
his constant companion and nurse. AS
counsel for plaintiff we'll said, "she was
to him mother, daughter and wife, She
nursed him when he was sick,
sometimes with assistance, and during
the years OF her stay with him he was
sick. He was fond of the
plaintiff, and she was fond of him, and
did for him all those services which
are only prompted and suggested by
womanly love.
What was the value of the services? :?
1t was decided during the course of
the trial that, owing to the peculiar re-
lations and situation of the parties and
the nature of the services performed,
the opinion of witnesses as to value
could not assist the court: that with
all the facts before it the opinion of
the court or jury as to value was as
witnesses.
The deceased told many witnesses
that he expected or intended to pay
plaintiff well-that she would be rich
woman when he died Some witnesses
testified that he named the amount she
was to have. Some, that he said the
money in the safe was to be hers or
was hers. etc. Counsel for plaintiff
claimed that the court should accept
these declarations of the deceased as
his estimate of the value of her SER
vices and look no farther This posi-
ton I think cannot be maintained. AS
stated the declarations have their
value as tending to show the deceased
did not expect the services to be graf
uitous but they go no farther.
IT, in 1879, before plaintiff came to
California, deceased had said at his
death he would leave her $5O, 900, $780,
900, or any other definite sum and she
had entered upon the service relying
upon this statement, different case
would be presented. But this was not
done. All the statements were made
long after she came here, and there is
nothing to show that any service was
performed other or different by reason
of them.
If the deceased had told every man
in California that at his death he in
tended to give or leave the plaintiff
100000, or $500, 900, she still could not
have legally claimed it, For the pro-
lection of estates, the law has wisely
provided that the only way an inten-
ton or desire to bestow property on
another at death, is by written will,
executed with all the formalities of
law.
Even if the deceased had put his in
tentions to give the plaintiff a large
amount of property in the form of a
written will, executed with all the for
malities of law. he could have changed
such intention at any moment before
his death and left her nothing.
1t would certainly be a dangerous
condition of the law if a mans oral
statements as to what he intended to do
with his money or property at his death
should be held to create any claim or
liability against his estate lie may
have intended at times in his life to
leave the plaintiff by will a large
amount of property. But the fact is he
did not. He may have intended to give
her the safe and it's contents. To do
so it would have been necessary for him
in his lifetime Gn absence of will de-
vising it to herr to have put her in
absolute possession or control Of it.
He did neither. But on the contrary,
in 1895, years after some of the wit
nesses testify that he said the safe and
the money in it were plaintiffs, he
wrote out and gave to George Will
coxson the combination to the safe. He
wrote letter concerning this act, and
said he ought to have attended to it
before, etc.
This evidence is in the handwriting Of
deceased, and is not contradicted. The
plaintiff was with his daily, and if
as far back as 1885 he had put $150, 600
in the safe for her and kept it intact all
those years-which is not at all Prob
abic-if the safe and everything in it
Wee hers and no one else had any in
te-est in it, it is incompreh aDsihle why
he did not give her the combination in
stead Of giving it to George Wilcoxson.
The deceased may have intended to
leave a letter in the safe for The plain
tiff. If he had done so, do not see
how it could have helped her case. But
the fact is, he did not So, if deceased
ever had an intention to leave plain
tiff by will $150,00O, or to give her the
safe or its contents. or to leave a letter
in the safe for her, the fact is he did
none of these things, all of which either
shows that when talking to the wit
nesses he was not expressing the de-
liberate, settled purposes of his mind
or that he subsequently did what he had
a legal right to do-changed his inten-
tions.
This leaves the question of the plain
court, by conscientious exercise of
what sense and judgment it may have,
upon careful consideration of all the
circumstances and relations of the par
ties. their conditions in life and accus-
toned modes of living
The plaintiff was well provided for
during the life of the deceased as al
ready stated, and several years before
his death deceased gave her in money
and property about 5000. The contract
was that he would amply provide for
her at his death. 1 think if the plain
tiff, in addition to what she has had
is allowed an annuity for life of 1000
she will be amply provided for. The
cash value of such an annuity I find
to be, in round numbers, SIS, 200. This
computation is based upon her expec-
fancy of life and considering money
worth per cent per annum.
This opinion is already much longer
than I intended have only briefly
referred to few Of the points in the
case, and while have not discussed all
the suggestions made by counsel, I have