and purpose of this act to tax any and all transfers which are made in lieu of or to avoid the passing of the property transferred by testate or interstate laws." This amendment also served the purpose of elucidating without changing the law, by giving fuller expression to the legislative intent and meaning. With the law thus before us, we may come to the facts of the case. George N. Reynolds in his lifetime was a resident of the city of Riverside and was possessed of much wealth. He died testate in September, 1911. The cause of his death was sarcoma-a malignant tumorous growth which first made its appearance upon one of his hips. The excision of a sarcoma by surgical operation sometimes results in an eradication of the trouble. At other times it is recurrent. In the case of Mr. Reynolds the first surgical operation became necessary in 1904. Thereafter the tumor returned and he was obliged to submit to an operation about once a year. In the later stages of the affliction more frequent operations became necessary, the last three occurring three months apart. Mr. Reynolds was well advised of the character of sarcoma; knew from experience the danger of its recurrence, and that if not successfully eradicated it meant death. On the 3rd of September, 1910, about one year before his death, it was deemed necessary to perform one last drastic operation. That was the amputation of his right leg at the hip. This operation held out the only hope of checking his mortal disease. Two days before the operation was performed he made a gift of the Reynolds Hotel property to his wife, Laura T. Reynolds. He recovered from the effects of the operation, but in the spring of 1911 began to fail. The sarcoma returned and, as has been said, occasioned his death in September. On April 14, 1911, he made another gift of the Nevada Block in Riverside to his wife. One day thereafter he made his will leaving $10,000 to his wife, and the remainder of his estate, appraised in the probate proceedings at about $110,000, to his son Charles, the wife and son constituting his sole heirs at law. The inheritance tax appraiser valued the property thus 'deeded to the wife at $125,000. It was about six months after the last operation when Mr. Reynolds began to fail. He was confined to his home from June until his death. On May 26th he conveyed to his son Charles the property known as the Reynolds Department Store, valued by the inheritance tax appraiser at $100,000. and on the same day assigned and transferred to him the merchandise in the store. Under the transfer the son Charles assumed all the indebtedness of the business, amounting to about $30,000, and agreed to pay his father $600 per month during his life. The court in probate, after the taking of evidence, held that these transfers were subject to the inheritance tax and decreed accordingly. Whether or no the court's findings in this regard are supported by the evidence is the essential question upon this appeal. In passing upon such transfers the law which will direct trial courts and this court has been sufficiently indicated in the quotations already made. Little or no aid upon the question will be found in the adjudications of other states under their varying laws, and least of all from the courts of New York, which first gave an extremely narrow construction to a gift or transfer "in contemplation of death", holding their statute to mean a gift causa mortis, and to be applicable to no other kinds or characters of transfers. In re Price's Estate, 116 N. Y. Supp. 283, reviews the history of the decisions of that state. Nothing in our law compels us to adopt the restricted construction put by the courts of New York upon their own statute and everything in our law directs that a liberal construction should be placed upon it to the end that its provisions be not evaded. [1] Coming then to the testimony in the case, we have already spoken of the physical condition of the deceased and of his knowledge of the character of his ailment. The transfers to his wife were admittedly gifts, pure and simple. They were made prior to and following an operation "considered absolutely necessary to save his life". Mrs. Reynolds speaks of the transfers to her as gifts and says that they were made under Mr. Reynolds' promise to make provision for her. After his death she filed her election to take these gifts instead of the benefits under the will. All this was done under the agreement that she had had with Mr. Reynolds, that the property given to her was in lieu of all rights and claims which she might have against his estate. It would seem to be clear beyond peradventure that as to these transfers, they were made in that contemplation of death which the law designates, and that they were gifts in life substituted for gifts by will. [2] The transfers to the son stand upon a slightly but not an essentially different plane. If it can be said that there was any element of valuable consideration received back by the father for his transfer to the son, it was certainly not adequate from any commercial point of view. He was in failing health at the time the gift was made. It was known, and he knew, that his tumor had returned and that the days of his life were numbered, and the agreement to assume an indebtedness of $30,000 in consideration of a gift in value exceeding $100,000 and the further agreement to pay $600 a month during the donor's life (which agreement itself does not seem to have been observed) certainly do not measure up to the requirements of the law of a valuable and adequate consideration. Indeed, it seems to be quite plain that, as in the case of the widow, so in the case of the son, the father in contemplation of death was transferring by gift instead of devise the valuable business which he owned and had theretofore conducted. The judgment appealed from is therefore affirmed. We concur: MELVIN, J. HENSHAW, J. L. A. No. 3851. Department Two. March 12, 1915. In the Matter of the Estate of WILLIAM RICHARD BROOME, Deceased. [1] PROBATE LAW-DECREE OF DISTRIBUTION-APPEAL-CONSTRUCTION OF WILL-INSUFFICIENT RECORD PAPERS UNAUTHENTICATED BY JUDGE. The question whether or not a will is susceptible of a dif ferent construction from that put upon it by the decree of dis tribution cannot be considered on an appeal from the decree, where the transcript, apparently prepared under the new method, consists of a number of papers, records and documents, including the order admitting the will to probate, petition for letters of administration with the will annexed, order appointing administrator with the will annexed and stipulation of the parties, having for cer tification nothing further than the declaration of the clerk that the copies contained in the transcript are true and correct copies of the same "as they appear on file and of record in my office". [2] ID.-APPEAL-RECORD-AUTHENTICATION OF PAPERS.-It is axiomatic that papers not properly authenticated as having been used on a hearing resulting in a judgment, or order, or decree, can not be considered on appeal, saving those papers and those alone which may be considered as a part of the judgment roll.. [3] ID. APPEAL FROM DECREE OF DISTRIBUTION-PAPERS CONSTITUTING JUDGMENT ROLL.-The judgment roll on an appeal from a decree of distribution are the petition for distribution, the opposi tion thereto, if any written opposition is filed, the counter petitions filed, if any, or any other papers in the nature of pleadings filed at or before the hearing purporting to set forth the claims of the parties who appeared and claimed distribution, with the answers thereto, also the findings of the court, if any, upon the issue formed, any orders or other papers of like character to those mentioned in section 670 of the Code of Civil Procedure, and the decree of distribution itself. Appeal from the Superior Court of Santa Barbara CountyS. E. Crow, Judge. For Appellant-Houghton & Houghton (substituted for Annette Abbott Adams and Marguerite Ogden). For Respondent-Canfield & Starbuck. This is an attempted appeal by Frances Broome, widow of William Richard Broome, deceased, from a decree of final distribution given in the latter's estate. [1] It would appear that on this appeal a different construction of the will of William Richard Broome is sought from that put upon it by the decree, but the record presented to us forbids an examination of the question. [2] It is axiomatic that papers not properly authenticated as having been used on a hearing resulting in a judgment or order or decree can not be considered on appeal. Saving those papers, and those alone, which may be regarded as constituting the judgment roll, all others require authentication by the judge. [3] What may be regarded as constituting the judgment roll in an appeal such as this is set forth in Estate of Gamble, 166 Cal. 253. There it is said: "These would be the petition for distribution, the opposition thereto, if any written opposition was filed, the counter petitions filed, if any there were, or any other papers in the nature of pleadings filed at or before the hearing purporting to set forth the claims of the parties who appeared and claimed distribution, with the answers thereto, also the findings of the court, if any, upon the issue formed, any orders or other papers of like character to those mentioned in section 670 of the Code of Civil Procedure, and the decree of distribution itself." These papers, and these alone, are we permitted to consider upon this appeal. But the transcript brought upon support of this appeal, apparently prepared under the new method (C. C. P., § 953A). consists of a number of papers, records and documents, including the order admitting the will to probate, petition for letters of administration with the will annexed, order appointing administrator with the will annexed, and stipulation of the parties, bearing for certification nothing further than the declaration of the clerk that the copies contained in the transcript are true and correct copies of the same "as they appear on file and of record in my office". Therefore the will of William Richard Broome, deceased, upon which the decree of distribution is based, is not before this court for consideration. We do not mean by this to be understood as saying that if any of the papers and files which we are authorized to consider contained either an exposition of the will or such reference to it as to make it a part of the judgment roll, it might not here be considered. But such is not the condition of affairs presented by this appeal. The petition for distribution declares merely that the petitioner is the administrator with the will annexed, and asks that distribution be decreed, to this appellant one-third of the estate, and to the three named children of the deceased each two-ninths of the estate. The decree of distribution in precise terms follows the petition. The will is thus merged in the decree of distribution. It is merely a part of the evidence upon which the decree of distribution is based. (Wills v. Wills, 166 Cal. 529, 532.) "On appeal the presumptions of law are all in favor of the action of the court below. If error is claimed, the record on appeal must contain sufficient legal evidence of it or the claim must be disregarded." (Estate of Gamble, supra.) Such is the precise situation here presented, and for this reason the decree appealed from is affirmed. We concur: LORIGAN, J. HENSHAW, J. L. A. No. 3333. In Bank. March 13, 1915. AUGUSTA Z. NICHOLS, LOUISE D. F. FARRAND, WILLIAM CROTHER and W. H. LAREW, Plaintiffs and Appellants, v. W. F. McCULLOM and SILAS MCCULLOM, Defendants and Respondents. [1] PUBLIC LANDS-RESURVEY OF TOWNSHIPS IN SAN DIEGO COUNTY OBLITERATION OF MONUMENTS OF ORIGINAL SURVEY-EFFECT OF ACT OF CONGRESS OF JULY 1, 1902-LOCATION OF STATE SCHOOL LANDS. The effect of the act of congress of July 1, 1902, providing for the resurvey of certain townships in San Diego county, California, on account of the obliteration of the monuments referred to in the field notes of the original survey of 1856, was to make such resurvey binding upon all persons not then in occupancy of any of the lands in such townships, and the locations of sixteenth and thirty-sixth sections of such lands which passed to the state of California upon the approval of the survey of 1858, are governed by such resurvey. [2] ID.-RESURVEY OF PUBLIC LANDS-POWER OF CONGRESS.-The public lands are under the exclusive control of congress until title or a right to acquire title has, pursuant to some law, vested in some person or body corporate other than the United States, and until the happening of such event, congress has the power to provide for a resurvey of such lands and that the same shall be dís posed of according to the new survey. [3] ID.-STATE SCHOOL LANDS-CESSATION OF GOVERNMENTAL CONTROL NOT MAINTAINABLE. The contention that such sections passed to the state upon the approval of the original survey and that the power of the federal government over them thereupon ceased, can: not be urged against persons who rely upon such resurvey as accurately describing the land owned by them by others who do not claim under the state and who were not making a claim of any kind when the statute authorizing the survey was passed. [4] ID.-RESURVEY AFFECTING TITLE-LACK OF AUTHORITY-RULE INAPPLICABLE TO CONGRESSIONAL AUTHORIZATION.-The rule that the land department has no authority by means of a resurvey or otherwise to affect the title to land after such title has passed from the government to its grantees is inapplicable. Appeal from the Superior Court of Imperial County-F. J. Cole, Judge. For Appellants-Leroy A. Wright, W. H. Larew, J. S. Larew and Powers & Holland, Wright & Winnek. For Respondents-Eshleman & Swing, Conkling & Brown. This action was brought to recover possession of a tract of land in Imperial county, with damages for the withholding. There was a jury trial, which resulted in a verdict in favor of defendants. From the judgment entered pursuant to the verdict the plaintiffs' appeal, bringing up the evidence by means of a bill of exceptions. The land in controversy is described as fractional section 16, of fractional township 17 south, range 15 east, San Bernardino base and meridian, containing 441.96 acres more or less. The land thus described was originally public land of the United States, and being a sixteenth section, it passed from the United States to the state of California as a part of the school land grant. It is not disputed that the plaintiffs have acquired the state title as successors to the holders of a patent from the state, dated January 12, 1903. Nor is it questioned that the defendants are in possession of land which, according to the claim of plaintiffs, forms a part of the section granted by the state patent. The real point of contention is whether the plaintiffs have succeeded in establishing the identity of the land occupied by defendants with fractional section 16 of township 17 south, range 15 east, S. B. base and meridian. In other words, the defendants took at the trial and now take, the position that, while the plaintiffs are unquestionably the owners of that section, the proof fails to show that the land claimed and withheld by the defendants is within the section thus described. The jury, by returning a verdict for the defendants, determined this issue in their favor. The appellants attack the sufficiency of the evidence to support the verdict, and assign as error certain instructions of the court. The tract in controversy, with neighboring land, located in what is known as Imperial valley, was originally surveyed under the authority of the government of the United States in 1856. The survey was approved, and the approved plat filed in the |