evidence, and no evidence which contradicted any part of said evidence, and that the said evidence was true; but that, notwithstanding the same, the register and receiver, and also the commissioner of the general landoffice and the secretary of the interior, "basing their decision upon the evidence aforesaid, and resting the same upon the proposition of law, that under the evidence and facts introduced before them on said application, as aforesaid, the said Throckmorton was not in law, or under the law, entitled to purchase the said land, denied the application of said Throckmorton to purchase the said land"; and that a patent for said land was issued to the plaintiff by reason of said erroneous construction of the law.

Upon these facts it is evident that Throckmorton brought himself within the provisions of section 7 of the United States statutes aforesaid, and was entitled to receive a patent for the land, and the demurrer to the answer and cross-complaint of the defendants concedes. the truth of these averments. The answer and crosscomplaint do not set forth the facts which were determined by the secretary of the interior, nor does it appear that he made any special findings of fact, or gave any conclusion with reference to the above facts, but upon the allegation that the purchase was, in fact, made in good faith, and for a valuable consideration, and that competent and uncontradicted evidence of such facts, as well as of the other facts, was presented to that officer upon the application for the patent, we must assume that his findings were in accordance with the evidence, and that his refusal to issue the patent to Throckmorton was by reason of his construction of the law that he was not entitled thereto. Whether Throckmorton did, in fact, purchase the land for a valuable. consideration, or whether after his purchase he used and improved, and continued in the actual possession of the same, according to the lines of his purchase, were questions of fact to be determined by the secretary of the interior. The good faith of Throckmorton in mak

ing the purchase, as well as his belief that the land he purchased was included within the original limits of the Mexican grant, were also facts to be determined by that officer from all the circumstances under which the purchase was made. Whether that officer properly considered the weight to which the evidence before him was entitled, or whether he drew correct conclusions from that evidence, his determination with reference to these facts, whether correct or erroneous, is conclusive upon the judicial tribunals. These tribunals cannot exercise a revisory jurisdiction over him in matters which are within the scope of the authority conferred upon him, but if, upon the undisputed facts, he made an erroneous application of the law pertinent to those facts, his action is open to review.

The judgment is reversed, and the superior court is directed to overrule the demurrers, with permission to the plaintiff to answer the cross-complaint, if he shall be so advised.

GAROUTTE, J., and VAN FLEET, J., concurred.

Hearing in Bank denied.

BEATTY, C. J., dissented from the order denying a hearing in Bank.

[S. F. No. 279. Department One.-May 1, 1896.]

ESTATE OF GEORGIANA HANHAM STRATTON, DECEASED. EUGENE F. SMITH, RESPONDENT, v. F. E. MORGAN ET AL., APPELLANTS.

CONSTRUCTION OF OLOGRAPHIC WILL-NAME OF HUSBAND APPENDED RESIDUARY LEGATEE.-Where there is no residuary legatee named in the body of the concluding portion of an olographic will, made by a wife, but underneath, and at the left-hand corner of the will, are written the words "my husband," with his name appended, the will will be construed as making him the residuary legatee, where the phraseology of the concluding part of the will is consistent with the intent to make him such legatee, and not consistent with the intent to make the legatee last named in the body of the will a residuary legatee.

CXII. CAL.-33

ID. -ORDER OF WORDS-TRANSPOSITION-SUPPLY OF OMISSION.-The order in which the words of a will are written is not determinative of the testator's intention, and the order will be transposed if thereby the intention of the testator can be ascertained; and a word that has been manifestly omitted, and is essential to an understanding of the intention of the testator, will be supplied.

ID.-SUBSCRIPTION OF OLOGRAPHIC WILL.-The statute does not require that an olographic will shall be subscribed by the testator at the end thereof; and it is sufficient if it be signed by him, and the signing may be at the beginning, or in any part of the document. ID.-EVIDENCE-UNFRIENDLY TREATMENT OF TESTATRIX BY HUSBAND.— Evidence of unfriendly treatment of the testatrix by her husband is not admissible, and cannot authorize a conclusion that she intended to exclude him from a share in her estate; nor is evidence admissible of his friendly conduct toward her. APPEAL-PROOF OF SERVICE OF NOTICE-MOTION TO DISMISS.-Where a motion is made to dismiss an appeal for failure of the transcript to show a service of the notice of appeal upon the administrator of the decedent's estate, a supply of proof of such service at the hearing of the motion is sufficient answer to the motion, and the ground of the motion is thereby obviated.

APPEAL from a judgment of the Superior Court of Santa Cruz County. J. H. LOGAN, Judge.

The facts are stated in the opinion of the court.

Spalsbury & Burke, for Appellants.

The evidence is insufficient to justify the finding "that it was the intention of said testatrix, Georgiana Hanham Stratton, that said Eugene F. Smith should be the residuary legatee thereunder, and none other." A word that has been manifestly omitted, and is essential to an understanding of the intention of the testator, will be supplied. (Mitchell v. Donohue, 100 Cal. 202; 38 Am. St. Rep. 279, and cases cited.) The grammatical sense of the words is not always regarded in construing wills, and words may be transposed if necessary. (Covenhoven v. Shuler, 2 Paige, 122; 21 Am. Dec. 73.) If the testatrix had intended the words "my husband, Thomas Stratton," as merely descriptive of herself, she would have written after her signature the words "wife of Thomas Stratton." The words of a will are to receive an interpretation which will give to every expression

some effect. (Civ. Code, sec. 1325.) In the construction of a will the court will look to the surrounding circumstances, the situation of the parties, the ties which connect the testatrix with the objects of her bounty, and the motives which probably influenced her in disposing of her property. (Colton v. Colton, 127 U. S. 300.) If there is a doubt as between a stranger to the blood and an heir, the court will resolve such doubt in favor of the heir. (Saylor v. Plaine, 31 Md. 158; 1 Am. Rep. 34; Peckham v. Lego, 57 Conn. 553; 14 Am. St. Rep. 130.) The court erred in admitting testimony as to the treatment of the testatrix by her husband. (Burlingame v. Rowland, 77 Cal. 315; Tait v. Hall, 71 Cal. 149; Largan v. Central R. R., 40 Cal. 272; Clark v. Fisher, 1 Paige, 171; 19 Am. Dec. 402; Cameron v. State, 14 Ala. 546; 48 Am. Dec. 111; Otis v. Thom, 23 Ala. 469; 58 Am. Dec. 303; Parker v. Mise, 27 Ala. 480; 62 Am. Dec. 776; Inland etc. Co. v. Tolson, 139 U. S. 551.)

W. A. Beggs, John G. Jury, and W. A. Beasly, for Respondent.

In the light of the circumstances surrounding the execution of the instrument, the intention of the testatrix was that Eugene F. Smith should be the residuary legatee, and that the words "my husband, Thomas Stratton," were used as descriptive only. (Bruck v. Tucker, 42 Cal. 346.) The will may be reconciled with the conclusions reached by the trial court as to the intention of testatrix; therefore the question of the intention of testatrix is at rest. (Davis v. Smith, 2 Cal. 423, 476; Rice v. Cunningham, 29 Cal. 492; Appeal of Piper, 32 Cal. 538; California Bank v. Sayre, 85 Cal. 102; Woody v. Bennett, SS Cal. 241; Clavey v. Lord, 87 Cal. 413; Roper v. McFadden, 48 Cal. 346; Mahan v. Wood, 105 Cal. 12; In re Sylvester, 105 Cal. 189; Soberanes v. Soberanes, 106 Cal. 1.) The questions asked witness Pierce, as to the treatment of testatrix by her husband, were properly allowed, as the opinion of a witness is admis

sible as to the appearance, conduct, and emotions of a person. (Sweet v. Tuttle, 14 N. Y. 465; Hardy v. Merrill, 58 N. H. 227; 22 Am. Rep. 441; De Witt v. Barly, 17 N. Y. 340; 1 Wharton on Evidence, secs. 510, 512, 513, 516; Commonwealth v. Sturtivant, 117 Mass. 122; 19 Am. Rep. 401; Leonard v. Allen, 11 Cush. 241; Irish v. Smith, 8 Serg. & R. 573; 11 Am. Dec. 648; Trelawney v. Colman, 2 Stark. 192; Robertson v. Stark, 15 N. H. 114; McKee v. Nelson, 4 Cow. 355; 15 Am. Dec. 384; Culver v. Dwight, 6 Gray, 444; Best on Evidence, 585; Nash v. Hunt, 116 Mass. 237; Taylor v. Grand Trunk R. R., 48 N. H. 309; 2 Am. Rep. 229; 1 Redfield on Wills, secs. 136-41; 1 Greenleaf on Evidence, sec. 440; 1 Phillips' Evidence, 290; 7 Am. & Eng. Ency. of Law, 492, note; In re Wax, 106 Cal. 343; Holland v. Zollner, 102 Cal. 636; People v. Lavelle, 71 Cal. 351.)

HARRISON, J.-The administrator with the will annexed of the above estate presented to the superior court a petition for the distribution of the estate, alleging therein that the residue thereof was bequeathed by the decedent to her husband, Thomas Stratton. This distribution was contested by the respondent herein, and, upon the hearing of the application, the court distributed the residue in the hands of the administrator to him. We are of the opinion, however, that upon a proper construction of the will, the testatrix intended that her husband should be the residuary legatee of her estate. The will is an olographic one, and the following is a copy thereof:

"CALIFORNIA WATSONVILLE SATA CRUZ Co
"March 8th 1893

"I, Mrs Georgiana Hanham Stratton

"My last will, is, Within Two monnths of my death I give to my Stept daghter Mrs Mary Ellen Hanham Smith now reside in Stockton Cal.

"My Largest Feather Bead Boilster and one Pair of the Best small Feather Pillows Her Uncle Thomas Hanham Picture and also mine Mrs. G. H. Stratton