him legal or just; third, by employing means in defense of an action which were inconsistent with truth; fourth, by misleading in an action in this state the judge of the court by artifice and by false statement of fact and law. Following this is a full narrative statement of the acts and conduct of the respondent claimed to constitute the misconduct above charged. (78 Cal. 477) In re SOHER'S ESTATE. (No. 12,747.) (Supreme Court of California. March 23, 1889.) WILLS-OLOGRAPHIC WILLS-REVOCATION. 1. A codicil, written entirely by testator, and signed by him, is a valid olographic codicil, though also signed by one person only, as a witness, without any formal attestation clause, as such witnessing does not indicate an incomplete execution of what was intended as an attested codicil. 2. An attested will, not written by testator, may be revoked by such an olographic codicil, though cannot be understood, as the will does not by such the latter refers to the former, without which it reference become such a part of the codicil that the latter is not "entirely written, dated, and signed by the hand of testator himself." Department 2. Commissioners' decision. Appeal from superior court, city and county of San Francisco; J. V. COFFEY, Judge. Chas. E. Wilson and Wm. A. Plunkett, for appellants. George A. Knight and J. A. Hosmer, for respondent. There is a demurrer to the accusation, which raises the only question to be determined. The demurrer is upon the general ground that the accusation does not state facts sufficient to constitute any offense or violation of the oath of said Lowenthal, as attorney and counselor at law, or any cause for disbarment. The demurrer also goes to that part of the accusation setting out the facts relied upon, upon the same ground. The further ground of demurrer is that the offenses charged are barred by the statute of limitations. The specific objection made to HAYNE, C. Lewis Soher executed before the allegation of facts urged at the argument two witnesses, in the form prescribed by is that the facts set out are not attempted to statute, a will which was in the handwriting be applied to any of the specifications alleged, of another. Subsequently he attached to said but are stated generally, leavir it for the re- will the following codicil: "Owing to the spondent and the court to apply them as best conduct of my son, Adolph, toward my wife they may. We must say that the accusation and myself since this will was made, I hereis not a model pleading in this respect. The by affirm the foregoing will, except in the facts stated, as we have said, are set out in ninth article of bequests, where Adolph is innarrative form, without any allegations con- cluded with my wife, and other children, necting them with one or the other of the which bequest to Adolph I hereby revoke. general charges of misconduct, and are un- Witness my hand this 29th day of April, 1886. necessarily long, but we think they are such Lewis Soher." Underneath were the words: as to show misconduct on the part of the re- "Witness: GEORGE PENLINGTON, 123 O'Farspondent, as an attorney of this court, suth-rell street." All except these latter words cient to put him upon his trial. As these is in the handwriting of the testator. The facts will necessarily have to be more fully considered upon the final hearing, we do not set them out here in full, cr comment upon them. As to the objection made that the offenses charged are barred by the statute of limitations, it appears that the acts complained of were committed some three years since. We do not understand that a charge of this kind can be barred by the statute of limitations, or that it should be, under any circumstances. The fullest opportunity should be given to investigate the conduct of an attorney who is charged with a violation of his duties as such, and while this court might not be willing to disbar or suspend an attorney if it appeared that there had been unreasonable delay in the presentation of the charges, so that a fair opportunity could not be had for procuring the witnesses and meeting the accusation, we are not prepared to say, as a matter of law upon this demurrer, that the accusation is barred either by the express terms of the statute of limitations or by analogy. For the reasons stated the demurrer to the accusation is overruled, and the respondent is allowed 20 days within which to prepare and file his answer. We concur: BEATTY, C. J.; PATERSON, J.; MCFARLAND, J.; SHARPSTEIN, J.; THORNTON, J. court below admitted the will to probate, but refused to admit the codicil. Two points are made by the respondent in support of the action of the court with reference to the codicil: 1. It is argued that the fact that the codicil was attested by one witness shows that it was not the intention of the testator to make an olographic codicil; that it must be presumed that he intended to make an attested codicil, and left the execution incomplete. We see no force in the argument. It will be observed that there is no attestation clause, such as is usual in attested wills and codicils; no statement that the testator signed the will in the presence of the witness, and declared, at the time of signing, that the instrument was his will. If there had been such a clause, signed by only one witness, or unsigned by anybody, there might be more force in the position, although we do not desire to be understood as expressing or intimating any opinion upon such a case. Here are simply the words, "Witness: George Penlington, 123 O'Farrell street." These words do not seem to us to indicate an intention to make an attested will or codicil. It may be that the testator caused them to be placed there for the purpose of supplying proof of his own handwriting, or, in other words, proof that the codicil was olographic. Many testators execute their wills long before death, and they may be persons who are not well known in the community. It may therefore be difficult to prove the handwriting of a document purporting to be a will, found among their papers after death. In view of this, it would be a natural and proper precaution to furnish means of making the required proof. And it seems to us that courts should presume that the intention of the testator was that of a reasonable and prudent man, under the circumstances, and should not adopt a somewhat strained construction to defeat what there is every reason to believe was the desire of the testator. The witness clause is not, under the circumstances, to be considered as a portion of the will, which is no more affected by it than any other document which does not require attestation, such as a deed or contract would be. The case of Power v. Davis, 3 MacArthur, 162, is not in point. There the testator appended a formal attestation clause in his own handwriting, but left such clause unsigned by anybody. There is no room here for the argument made in that case. 2. It is contended that an attested will cannot be revoked by an olographic codicil. The position of the respondent is based upon the fact that the olographic document refers to the other. The argument is that the olographic codicil cannot be understood without referring to the attested will; that the latter is, in contemplation of law, "a part" of the former; and that therefore it does not come within the definition of an olographic will, which is a will "entirely written, dated, and signed by the hand of the testator himself." This argument, if allowed to prevail, would have far-reaching consequences. It would exclude all reference to any document which was not entirely written, dated, and signed by the testator himself. For example, an olographic will which devised all the right, title, and interest of the testator under a will of his ancestor, or under a marriage settlement or other contract drawn by another hand, would be invalid. Pushed to its logical conclusion the argument would exclude all reference to deeds or other documents for descriptions of property, etc. A similar objection was at one time made to references in attested wills to documents which were not attested. Wills have always been required to be executed with formalities of some kind or other; and it was argued that documents which were not executed with these formalities could not be referred to. But considerations of practical convenience prevailed over technical reasoning; and it became well settled that an attested will could refer to documents which were not attested. See Newton v. Society, 130 Mass. 91; Baker's Appeal, 107 Pa. St. 381; Brown v. Clark, 77 N. Y. 377; Fickle v. Snepp, 97 Ind. 291; Fesler v. Simpson, 58 Ind. 87; Gerrish v. Gerrish, 8 Or. 351. And see Estate of Shillaber, 74 Cal. 144, 15 Pac. Rep. 453. Now, if an attested will can refer to a document which s not attested, we see no good reason why an olographic will may not refer to a document which is not in the handwriting of the testator. The only difference between an olographic and an attested will is in the form of the execution. The statute has prescribed two forms in which written wills may be executed. In each case the instrument must be signed by the testator. But the formality of witnesses is dispensed with if the instrument is all in the handwriting of the testator himself. One form is the precise equivalent of the other. Whatever would be good as an attested will or codicil is good as an olographic one, if written, dated, and signed by the hand of the testator. And whatever may be done in or by the one, may be done in or by the other. Therefore, if the formalities of attestation are not required in a document referred to by an attested will or codicil, the corresponding formalities are not required in a document referred to by an olographic will or codicil. The argument made for the respondent rests upon the proposition that a document referred to by a will or contract is, in contemplation of law, “a part" of the document making the reference. And if this be granted in the sense in which it is asserted, a very plausible argument can be built upon it. But as has been said in other connections, it is not true, as a matter of physical fact, that the two documents are one and the same. The law for some purposes-mainly of construction--regards one as a part of the other; but this fiction ought not to be extended to absurd or unjust consequences. See City of Napa v. Easterby, 18 Pac. Rep. 255; Bull v. Coe, Id. 809. And we think it should not be extended so as to cover the present case. The will which the statute requires to be attested by witnesses in the one case and written by the testator in the other, is the document signed by him. The documents referred to are for the purpose of explaining the meaning of the will, and aiding in its construction. The conclusion which we have reached is sustained by authority. The decision in Estate of Shillaber, 74 Cal. 144, 15 Pac. Rep. 453, does not quite cover the case; for although the language of the opinion sanctions the reference, the decision was that the document referred to could be rejected as unnecessary, and the will left to stand without it. But Estate of Skerrett, 67 Cal. 587, 8 Pac. Rep. 181, goes further than is required here. In that case the deceased in his life-time signed a deed purporting to convey certain property to his sister. This deed was never delivered, and therefore did not convey the property. It could not take effect as a will because it was not witnessed as such, and was not in the handwriting of the deceased. But a copy of the deed was found after the death, in an envelope, with a letter addressed to the sister, and written, dated, and signed by the deceased himself. This letter was insufficient standing by itself, as a will. But it referred to the deed, and stated, in substance, that said deed was intended to be a provision for the defendant was off," returned the papers to the sister in case of the death of the writer. the defendant; and that the plaintiff obtained The court held that, although neither docu- possession of the contract from defendant by ment, taken by itself, was sufficient as a will, asking to be allowed to look at it, and, upon yet both, taken together, should be admitted its being handed to him for the purposes of to probate as such. The point is not reasoned inspection, making off with it against the out at length, but the opinion is clear, and will of the defendant. It is contended for the decision proceeds upon the principle above the plaintiff, in the first place, that the finddiscussed. The courts of Louisiana, which ings are contrary to admissions in the pleadare governed by a similar statute, seem to ings. The argument is that the complaint act upon the same theory. See Miller v. Mil-alleges that the parties "entered into an ler, 32 La. Ann. 441. And we think that agreement under their hands and seals, the rule is a sound and salutary one. If testators are to be encouraged by a statute like ours to draw their own wills, the courts should not adopt upon purely technical reasoning a construction which would result in invalidating such wills in half the cases. We therefore advise that the judgment and order appealed from be reversed, with directions to admit the codicil to probate in connection with the will. HASKELL v. DOTY. (No. 12,772.) (Supreme Court of California. March 21, 1889.) SPECIFIC PERFORMANCE-APPEAL. whereby the plaintiff agreed to buy and the defendant agreed to sell," etc.; that this allegation was not denied; and that it imports a delivery of the paper, inasmuch as there can be no agreement without a delivery. But, assuming in favor of the appellant that such is the construction to be put upon the allegation, we think that the answer suthiciently puts the delivery in issue. It avers that, "at the time of entering into the agree ment aforesaid," the agreement was by the parties deposited with said Green upon the understanding that he should hold the same, and that plaintiff should pay the amount above mentioned within 30 days, and that if he should fail to do so "said trade should be considered off." This is not a very scientific way of pleading the non-delivery. But we think it will pass, especially in view of the fact that no objection to its sufficiency was made at the trial. But, in addition to the foregoing, the answer avers in a separate defense "that said agreement was never delivered to said plaintiff, and that he never had a right to the same, but obtained possession thereof in a forcible and surreptitious manner as aforesaid." And we think it would be straining this language to say that it re 1. Where a bill for specific performance alleges that the parties entered into an agreement whereby the plaintiff agreed to buy, and defendant to sell, and the answer alleges that at "the time of entering into the agreement aforesaid" the contract was deposited with one G., to hold for 30 days, until plaintiff made a payment, in default offers only to "the manner in which the apwhich "the trade should be considered off," and "that said agreement never was delivered to plaintiff," but that he obtained ". "possession thereof forcibly," the question of non-delivery is raised by the answer. HAYNE, C. Suit for specific performance of a contract to convey certain real property. Judgment for defendant. Plaintiff appeals. The question upon which the case turns is whether the contract was delivered. The court below found that it was not. The findings set forth facts which show that the contract was delivered by the parties to one Green in escrow, the condition being that plaintiff should pay the sum of $2,200 within 30 days; that he failed to do so, and did not tender the money for more than six months thereafter; that Green, "understanding that the trade between the plaintiff and pellant possessed himself manually of the paper upon that occasion, and has no reference to the delivery thereof at the time of its execution." It is contended, in the next place, that the evidence does not justify the findings. We think, however, that it very clearly appears that both parties did deposit the papers with Green at the time of their execution; that after a time Green returned them to the defendant; and that they were not subsequently delivered by the defendant to plaintiff, but that plaintiff obtained them against the will of the defendant in an improper and reprehensible way. The only point which, in our judgment, is open to doubt is as to why or on what conditions the papers were deposited with Green. Green does not recollect that anything was said to him by the parties or much about the transaction. The defendant's testimony is in substance as found by the court. He does not express himself with much formality, but he says: “Mr. Haskell and I went in there and made arrangements that Mr. Green should hold the contract for thirty days. At the expiration of thirty days Haskell was to pay $2,200 on the contract at that time, and he was to have possession of the place after the thirty days." "He was to pay the money to P. M. Green. He was the man who had the contract. There was an understanding that he was to hold the contract until Mr. Haskell had settled it." And there was evidence of a declaration by the plaintiff to a third party to the effect that "the whole thing was off," which could not have been true if there had been an absolute delivery to the plaintiff. The fact that the defendant offered in his answer to return the sum of $300 which he claimed was forfeited does not seem to us of much significance. Upon the whole case we think that the finding of the court as to the understanding upon which the papers were left with Green is within the protection of the rule as to conflicting evidence. The other matters do not require special notice. We therefore advise that the judgment and order denying a new trial be affirmed. PATERSON, J. We are unable to determine precisely from the record herein what is the nature of the action, who appeared as parties in the court below, or who were served with summons, or upon how many of those who did appear the notice of appeal was served. There is no judgment roll before us; no complaint, summons, answer, findings, or judgment. There is a document purporting to contain part of the findings relating to the matter of expenditures and costs, and another document purporting to be a portion of the final judgment relating to costs, but what matters are contained in other findings and other portions of the judgment not before us we cannot determine. It is asserted by counsel for certain respondents that there were 400 defendants in the court below. If this be true, there are over a hundred parties to the record whose names do not appear in the notice of appeal, and there is nothing to show that all of those named in the notice were served. The notice of appeal states that the appeal is "from that part of the final judgment made and entered in the above-entitled action on the 19th day of June, 1886, fixing the amount of costs, in so far as it refuses or fails to include therein counsel fees paid and incurred by the plaintiffs for the benefit of all the tenants in common, who are charged in said judgment with the payment of the costs of partition." But it is impossible to tell from the scrap of the decree designated in the transcript as "portions of the final judgment relating to allowance of costs, and to the question involved on this appeal," whether the court, in fixing the amount of costs, refused or failed "to include therein counsel fees paid and incurred by the plaintiffs for the benefit of all the tenants in common," etc. There are other objections to the transcript, but we have pointed out a sufficient number to show beyond all question, we think, that it would be useless to attempt an examination of the case on its merits. The appeal is therefore, dismissed. We concur: BEATTY, C. J.; WORKS, J. (78 Cal. 454) LEARNED et al. v. CASTLE et al. (No. 12,244.) (Supreme Court of California. March 22, 1889.) NUISANCE REMEDIES-FINDINGS-DAMAGES. 1. In an action for a nuisance for diverting water on plaintiffs' land, there was a finding that defendants' acts were not an obstruction of the free findings that none of the waters diverted by deuse of plaintiffs' property, but there were other fendants' works would flow on plaintiffs' land if allowed to take their natural course; that the waters diverted flowed on plaintiffs' land; and that defendants' embankment caused water to flow there, which would not do so were the embankment removed. Held that, the findings being thus contradictory, a judgment for defendants could not stand. 2. Where it appears that plaintiffs were largely and seriously damaged by water flowing on their land, a large part of which was caused to flow there by defendants, though a larger part of it came from other sources, a finding that plaintiffs' damage from the acts of defendants was but one dollar, cannot be sustained. ing to declare a nuisance, to prevent its continu3. But, in such case, the object of the action beance by mandatory injunction, the amount of damage is immaterial. 4. The acquiescence of plaintiffs' grantor in the acts of defendant is no defense to the action for an injunction. 5. Defendants having removed an embankment erected by plaintiffs to keep the water off, defendants cannot allege with respect thereto that they are not maintaining it, or keeping it up. It is an injury which keeps itself up. THORNTON, J., dissenting. In bank. On rehearing. 18 Pac. Rep. 872. Garber & Bishop, W. L. Dudley, and D. S. Terry, for appellants. J. B. Hall and J. C. Campbell, (A. P. Catlin, of counsel,) for respondents. MCFARLAND, J. This is an action for damages for an alleged nuisance, and for a mandatory injunction to prevent its continuance. The nuisance or nuisances charged consist in this: North-east of plaintiffs' lands there is a stream or slough called "Stone Slough" or "Bear River," and between that stream and plaintiffs' lands there are other (smaller) natural sloughs. Stone slough and there by the acts of defendants had not the other said sloughs run in a south-wester- been mingled with it, therefore the latter ly direction. Stone slough, at a point about should not be considered as having added three miles from plaintiffs' lands, is tapped much to the injury. (It may be remarked, by a canal, constructed by defendant Chris- however, that it is difficult to find the printian and others, which carries its waters ciple upon which damage done by comwesterly to and across the said other sloughs, mingled water, coming from two sources, in which obstructions were placed by defend- can be attributed to one of the original ants in order that the water might be pre-sources, rather than the other.) The thirvented from flowing down the sloughs, and teenth finding of the court is as follows: forced to follow the canal. It is averred in "That the said obstruction in the natural the complaint that, if the said obstructions sloughs is not an obstruction to the free use were not placed in the said sloughs, the of plaintiffs' property, and does not interfere water brought there by the canal would flow with the enjoyment thereof; and that the renaturally down the sloughs, and away from moval of said embankment across said canal plaintiffs' land; and that by reason of said in the Davis road does not prevent said plainobstructions and canal the water was caused tiffs from the free use and enjoyment of to low onto plaintiffs' land, to their great their said property." But in the tenth findinjury. Plaintiffs also aver that they (plain- ing the court finds "that none of the waters tiffs) put an embankment across said canal diverted by the canal would have flowed upat a point on a road called the "Davis Road," on the plaintiffs' land, if allowed without which was sufficient to protect their land interruption to take their natural south-west from said water, and that defendants wrong- course and direction to the river; and the fully entered upon said embankment and re- embankment on the south side of the canal, moved it, and thus allowed said water to run on Christian's and other lands, cause waters on their land, to their damage, etc. At the to flow upon plaintiffs' land which would not trial some issues were presented to, and flow there if the embankments were repassed upon by, a jury. These findings were moved." In the eighth finding it is found adopted by the court. Other findings were that in 1878 some of the waters of Stone then made by the court, and judgment was slough flowed through the canal onto plaingiven for defendants. Plaintiffs appeal from tiffs' land. the judgment, and from an order denying their motion for a new trial. The cause was heard here in department 2, and an opinion was delivered, atfirming the judgment. We adopt that opinion so far as it determines that the complaint was sufficient, and that the alleged acquiescence of plaintiffs' grantor, Yolland, did not constitute a defense to plaintiffs' cause of action for an injunction. The action was not barred by the statute of limitations. But upon a more thorough consideration of the case, after argument on rehearing, we are satisfied that the findings are fatally conflicting and contradictory; that they do not support the judgment; and that, in a material respect, they are not supported by the evidence. The jury, whose findings were adopted by the court, found, among other things, as follows: "(7) Question. What is the natural direction of the waters of Stone and the other sloughs east of the road, as they flow to the river? Answer. South-west. (8) Q. Would any of the waters which are diverted by the canal flow upon plaintiffs' land if allowed, without interruption, to take their natural courses to the river? A. No. (9) Q. Do any of the waters diverted by the canal flow upon the lands of plaintiffs? A. Yes. " "(13) Q. Were the waters diverted by the canal in 1878 the predominant and proximate cause of damages sustained by the plaintiffs from the water in 1877-78? A. No. (14) Q. Did other waters, or other causes other than the waters of the canal, materially contribute The action was commenced in August, as causes of the damages claimed by plain1878; and the first main damage to plaintiffs' tiffs? A. Yes. (15) Q. If the jury answer land, by the said alleged turning of the water Yes' to the last question, and find that the upon it, is averred to have taken place in damages claimed by plaintiffs were caused January and February of that year. There by the joint action of waters from the canal is no doubt that in those months a very large and waters from other sources, then the jury quantity of water was caused by said acts of will answer, if possible, how much damage defendants to flow upon plaintiffs' land. It was caused by the waters of the canal. A. happened, however, that at that time, owing|$1." "(18) Q. Do the embankments on the to unusual floods, other large quantities of south side of the ditch on Christian's and water also flowed upon plaintiffs' land from other lands east of the road cause any waters natural sources; and this coincidence seems to have been the cause of much of the confusion and conflict which appear in the findings of the court, and the answers of the jury to the issues presented to them. It seems to have been thought that, as the water which flooded the land from other sources would probably, or certainly, have caused the damage averred in the complaint if the water caused to flow to flow upon plaintiffs' lands which would not flow there if the embankments were removed? A. Yes." The court also further found (finding 9) that plaintiffs were not damaged by the said acts of defendants "to any extent greater than in the sum of $1." It is apparent, we think, that the findings above quoted are inconsistent and contradic tory; and that the contradiction thus present |