defendant's attorney was to the effect that he had mistaken the day of service, and that he prepared a demurrer to the complaint. The Court held that when the affidavit shows that the defense rests on matters appearing on the face of the complaint, (by which, of course, is meant matters of defense,) which except for the interposition of a demurrer, would be deemed to be waived,) the defense is merely of a technical character, and the affidavit is insufficient. But here an answer was prepared, and the advice of the attorney, that defendant had a good and perfect defense, was based on a full and fair statement of all the facts of the case. (See defendant's affidavit.) We think the default should have been set aside. Judgment and order reversed and cause remanded.

San Francisco Probate Court.

THE CUNNINGHAM WILL CASE.

REPORTED FOR THE LEGAL RECORD BY ROB'T. ASH, ESQ.

Mary Cunningham, having the title to lot on the corner of Dora and Harrison streets in her own name, died July 9, 1876, when H. P. Gallagher, a Catholic priest, filed a paper as her last will which gave to him $1,000 in trust for the Catholic Orphan Asylums of this State, and the rest to be divided among her nephews and neices residing in the Eastern States. This paper was not dated. She signed her name by mark, and made two different marks to the paper; the attesting witness wrote part of his name, then crossed it out, and then wrote it again. The clause appointing Gallagher executor waived bonds, gave him full power to sell, manage and dispose of her estate as fully as though he owned it.

Her husband contested this will on the ground that she never signed it; that it was not legally executed; that she was incompetent to make or revoke a will by reason of intemperance; and that she was unduly influenced to make it by H. P. Gallagher and Bell alias Eliza Coughlin,—and filed a will dated December 14, 1870, which gave the entire estate to him, perfectly executed, and claimed it was his wife's last will, which was also contested by H. P. Gallagher. The case was tried first on August 22, 1876, and the Court directed a verdict in favor of the last will, and the contestant, the husband, appealed to the Supreme Court.

The case was No. 5385, and on October 30, 1877, the Supreme Court filed its opinion reversing the judgment and ordering a new trial on the instruction concerning undue influence. (Opinion published in the number of Nov. 3 of the Journal-bound volume page 150.) The Court awarded costs to appellant. The contestant then filed a petition for re-hearing, asking the opinion of the Court on the admissability of the declarations of the wife concerning undue influence, sound mind, etc., as detailed by the husband, but this question was not decided by the Court, and the case was again tried in the Probate Court, March 22, 1878. On the first trial contestant offered the will in contest in evidence, as evidence of undue influence and mental incapacity.

One of the attesting witnesses was dead, and the only living witness fixed one date and a witness present another and later date; and a witness who saw the deceased on the occasion, another date still later. The husband produced over thirty witnesses, and proved that his wife, at the alleged date of the will, April 29, 1874. was, and for more than a year previous, and up to the time of her death, incapacitated from making a will, by reason of intemperance; that on the last three weeks of April, 1874, she was on a spree and scarcely drew a sober breath; that in August of the same year, she was sent to the Inebriate Asylum with Delirium Tremens. The attesting witness swore she was sober on the day she executed the paper, and that he had never seen her drunk, and defined drunkenness as follows: When a person "is drinking under the influ"ence of liquor, as long as they can walk gay and happy"when the entire sidewalk is necessary for their use in walk"ing, they are boozy; and when they get down in the street, fall down and cannot get up, they are drunk."

"

All the tenants who lived on the property, testified that she was incompetent to transact business when drunk or under the influence of liquor. That she neglected her house entirely; would fall down stairs, and roar and fall down in the street, and keep her neighbors awake nearly all night. Police officers were called often to keep her quiet under threats of arresting her. Many of her neighbors saw her drunk in the street, and assisted her to get up stairs in her own house. She kept a bottle of medicine constantly in the house to take when she could not sleep from liquor. She could not eat when she was on a spree, and was wild, foolish and rambling in conversation. She had disputes with tenants about the payment of rent, many transactions being forgotten by her entirely. Many of

them would wait until she sobered down a little to pay her

rent.

The doctor told her if she did not quit drinking she would not live three months longer. About May, 1876, she asked the doctor for a certificate that she was sober so she could get a will Father Gallagher had; that she had asked him for it, and he always said, "Go and get sober and then come; that she made it when she was under the influence of liquor and did not know what it contained; that she had made a will and gave the property to her husband, and wanted it to remain so. The doctor suggested that she make another will, but she declined, saying that would make three, and if she could destroy the last will she could be satisfied. There was evidence that Bell alias Eliza Coughlan, had taken her from home when she had collected rent, telling her she had dreamed she was killed the night before by her husband, and after her death she declared to the husband she had fixed him, as he would never get a cent. It was found that the attesting witness and this woman were cousins: that on the day the paper was executed, she took Mrs. Cunningham first to Father Gallagher's. house, then to his attorney, then went about ten blocks for her cousin to witness the will; also, that one of the persons who was named as legatee in the will was dead before the date of the same, and that she knew it.

The contestant rested his case. The proponent offered evidence of women across the streets who had seen her every day for several years but never saw her drunk, not even once in seven years. They testified to recent conversations with the deceased in which she complained of her husband, and only on one occasion did any of them see her husband with a lamp in one hand and the other raised as if to strike his wife, but they did not see him strike her once. After an elaborate charge by the Court and instructions submitted by counsel the following issues were submitted in questions and answers as follows:

Did Mary Cunningham, the deceased, sign the paper dated December 14, 1870, as and for her last will? The answer was: yes.

Was, she, then, of sound and disposing mind and free from restraint, undue influence, menace, duress and fraud? Answer: Yes.

Was the paper filed in this Court, July 12, 1876, signed by the said Mary Cunningham? Answer: No.

If not signed by her, was it signed by any person for her

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in her presence and by her express direction? Answer: No. If not signed by her, was it signed by any person for her in her presence and by her express direction? Yes.

When was that paper signed? April 29, 1874.

Was said Mary Cunningham, at the time of the execution of said paper, of sound and disposing mind? No.

If of unsound mind, from what cause? Habitual intemper

ance.

Was said paper signed in the presence of two witnesses, and did she publish the same as her last will and request them to sign as witnesses, and did they sign in the presence of each other? Yes.

If said alleged will was signed by said Mary Cunningham, did she sign the same under the restraint, undue influence or fraudulent misrepresentations of any one? Yes.

If yes, who was the person? Eliza Coughlan.

Verdict then rendered, declaring the last will offered by H. P. Gallagher, void; and giving the entire estate to the husband, under the will of December 14th, 1870, as offered by him for probate.

Robert Ash, attorney for contestant.

J. F. Sullivan, for proponant.

Recent U. S. Land Decisions.

Proposed Change in the Pre-emption Laws.

The Committee on Public Lands in the United States Senate, reported on the 11th of April, a bill making an important change in the Pre-emption Laws, which, if it becomes a law, will prove or great benefit to settlers on the public lands.

The bill provides, that every pre-emption settler, or his widow or children, if still in possession of the land, shall be entitled to repayment of the difference between the price paid and the Government minimum price of said land; provided, that it would, if vacant at the time of application for repayment, be subject to sale or entry at the minimum rate of $1.25 per acre. The bill also allows homestead settlers who have been restricted to 80 acres to enter an additional tract of 80 acres adjoining the land embraced in the original entry; or if they or their widows or orphaned children so elect, they may

surrender the original entry for cancellation and thereupon be entitled to enter 160 acres under the homestead laws elsewhere without payment of additional fees, and their residence and cultivation under the original entry shall be credited upon the new or additional entry; provided that in every case there shall be at least one year's residence and cultivation required before the issuance of patent for the second entry. It also provides that the benefits of the Act shall not extend to parties who have sold or in any way attempted to alienate the land embraced in their original entries, or to any person who has attempted to alienate his rights under the Act of 1872 relative to additional homestead för soldiers and sailors.

Interesting Decision in a California Land Case.

WASHINGTON, April 28th.-The Secretary of the Interior has just rendered an important decision in the case of Sullivan et al. vs. Walter O'Mara et al., involving title to certain lands formerly within the limits of the Stockton and Copperopolis railroad grant, and establishing a precedent which substantially decides forty or fifty similar cases now before the Department on appeal from various parts of California. This railroad grant was declared forfeited by Congress in June, 1874, and the lands were restored to pre-emption, and homestead entry September 4th, under instructions from the Interior Department. based on an executive order issued by President Grant, July 9th. Prior to September 4th, however, Sullivan and various other parties, executed declaratory statements dated ahead, and alleging settlement as of September 4th, and left these papers with the Register of the Land Office to be filed on that day. They then procured timber and teams, and started for the lands, arriving there at sunrise, and commenced to build houses before twelve o'clock noon. The General Land Office, in successive decisions of March, 1876, and June, 1877, held that these filings were valid. Secretary Schurz, in an elaborate opinion, reverses both of these decisions. He holds that the declaratory statements were executed before settlement, and at a time when the land was in a state of reservation; that the executive order of restoration prohibited the local office from allowing any filings or entries prior to the day of restoration, and that its action in receiving declaratory statements prior to that time, and afterward placing them on record, was contrary not only to the spirit and intent of his instructions, but to a just and proper administration of the law of Congress. Secretary Schurz emphasizes his opinion by the following emphatic language, applicable to all registers and receivers: These officers have no authority to receive applications to file or enter lands which are in a state of reservation, and to hold such filings until the reservation is removed, and then place them on record, in order to advance the interests of any individual. Such an act of favoritism is contrary to a proper administration of the public land system, and cannot receive the sanction of this Department. These filings must therefore be canceled. The Secretary then proceeded to discuss the conflicting claims of various other claimants, and finally awards all the land in contest in this case to Walter aed O'Mara, represented before the Department by Joseph Towsowski of Washington.