which Mr. Loomis derived the money which he put into the purchase from the Pachecos. The written declaration also supports the conclusion that at the date thereof all matters relating to the purchase price had been settled. Acceptance of the deed to the property with knowledge of the purpose for which it was made to her and of the agree ment between her husband (who was her agent) and C. M. Arnold implied a promise on Mrs. Loomis' part to reconvey. It was a voluntary trust, not, as appellants contend, an involuntary one against which the statute of limitations begins to run immediately upon its creation. It was not merely a constructive trust, but it was one voluntarily assumed and intended by the parties to be a continuing one. Against such a trust the statute of limitations does not begin to run until the trustee repudiates it. (Butler v. Hyland, 89 Cal. 581; Odell v. Moss, 130 Cal. 359; Taylor v. Morris, 163 Cal. 722.) No other alleged errors require consideration. We concur: HENSHAW, J. MELVIN, J. S. F. No. 6498. Department Two. April 27, 1915. JAMES OTIS, as Surviving Trustee under the Trust Created by the Last Will of A. C. Whitcomb, Deceased, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO (a Municipal Corporation), Defendant and Appellant. [1] TAXATION-ACTION TO RECOVER ILLEGAL TAXES-REJECTION OF DEMAND BY SUPERVISORS-WHEN UNNECESSARY-INACTION UPON DEMAND. An action to recover illegally collected taxes may be brought under the provisions of section 3804 of the Political Code, where demand upon the board of supervisors therefor is seasonably made, and the board fails to take any action thereon for a period exceeding six months, as such an unreasonable delay amounts to a rejection of the demand. Appeal from the Superior Court of the City and County of San Francisco-Geo. A. Sturtevant, Judge. For Appellant-Percy V. Long, City Attorney; Jesse H. Steinhart, Assistant City Attorney. For Respondent J. R. Pringle, Rufus Hatch Kimball; Edwin H. Williams, of Counsel. This is an action to recover moneys paid on account of certain taxes assessed by the city and county of San Francisco, which taxes, it is alleged, were illegal. The taxes are the same as those whose validity was considered in Josselyn v. City and County of San Francisco, 48 Cal. Dec. 282, where they were decreed to be illegal. There is left for consideration in this case the sole remaining question of the remedy pursued by plaintiff. He brought his action against the city and county of San Francisco, basing it upon the provisions of section 3804 of the Political Code. That section in the case of the taxes therein described relieves from the necessity of a protest at the time of payment and declares that moneys so irregularly collected on account of such taxes "may by order of the board of supervisors be refunded by the county treasurer". The complaint here shows that seasonably after payment plaintiff made demand upon the board of supervisors by verified claim for an order for refund of the moneys so paid. Plaintiff followed this demand by many letters repeating the same request and appeared personally before the board and argued the merits of his demand. The result of all this was simply non-action upon the part of the board. Formally, it neither allowed nor rejected the demand. Appellant contends under the authority of such cases as Reed v. Omnibus Railroad Co., 32 Cal. 212; Smith v. Omnibus Railroad Co., 32 Cal. 212; Smith v. Omnibus Railroad Co., 36 Cal. 231; Keller v. City of Corpus Christi, 50 Tex. 614; Heiser v. Mayor of New York, 104 N. Y. 72, that, as this is a remedy created by statute the precise steps of the statute must be followed to obtain relief, that the treasurer is not entitled to act except on the order of the board of supervisors and that the proper procedure for plaintiff to have adopted was that by mandate directed to the board of supervisors to compel them to make the proper order. Appellant recognizes that actions against counties upon claims such as this have frequently been sustained, as in Hayes v. County of Los Angeles, 99 Cal. 74; Pacific Coast Co. v. Wells, 134 Cal. 471, and Stewart etc. Co. v. County of Alameda, 142 Cal. 660, but distinguishes these from the case at bar by pointing out that in each one of those, and in the other similar cases, the action was brought after the rejection by the board of the disputed claim. We have no disposition to criticize any of the cases cited by appellant. The principles enunciated in each and all of them are perfectly sound. Where a right is thus created by statute and the method of securing that right pointed out, in all essentials the legislative directions must be followed. [1] But here, after repeated requests, demands and arguments we have inaction upon the part of the board of supervisors for a period exceeding six months. This is certainly a reasonable time within which action should have been taken by the supervisors. If they may delay matters of this kind for this period, where would the line be drawn that demarks reasonable from unreasonable delay? We hold the delay in this case to be so unreasonable as to amount to a rejection by the supervisors of the claim and thus to authorize the prosecution of this action in its present form. The judgment appealed from is, therefore, affirmed. We concur: LORIGAN, J. S. F. No. 6758. Department Two. April 27, 1915. THE CREDIT CLEARANCE BUREAU (a Corporation), Plaintiff and Appellant, v. THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. Appeal from the Superior Court of the City and County of San Francisco J. M. Seawell, Judge. For Appellant-Edwin H. Williams, L. S. Melsted. For Respondent-Percy V. Long, City Attorney; Jesse H. Steinhart, Assistant City Attorney. BY THE COURT. In this action the court sustained a general demurrer to plaintiff's complaint, which complaint is in all essentials the same as that considered in Otis v. City and County of San Francisco, S. F. No. 6498. For the reasons therein given the court erred and the judg ment is reversed and the cause remanded with directions to the trial court to overrule the defendant's demurrer. S. F. No. 7172. Department Two. April 27, 1915. In the Matter of the Estate of VICTOR H. WASSERMAN, Deceased; SOPHIA F. WASSERMAN, Plaintiff and Respondent; HORACE C. JONES, Defendant and Appellant. In ref [1] PROBATE LAW-TESTAMENTARY CAPACITY-INSANITY. erence to the question of mental capacity requisite to the making of a valid testamentary disposition of property, the rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld. [2] ID. WILL CONTEST-MENTAL INCAPACITY-VERDICT SUPPORTED BY EVIDENCE. It is held in this contest to the admission to probate of the olographic will of a suicide, that the evidence was sufficient to support the verdict of the jury against the validity of the will upon the ground of mental incapacity. [3] ID. INSANITY-EVIDENCE-UNNATURAL DISPOSITION OF PROPERTY. The fact that the testator left his property to a friend instead of to his aged mother and brothers from whom he had not been estranged is a proper matter for the consideration of the jury in such a contest. [4] ID.-SUICIDE AS EVIDENCE OF INSANITY.-The fact that the testator was a suicide is likewise a proper matter for the con sideration of the jury. Appeal from the Superior Court of the City and County of San Francisco-Marcel E. Cerf, Judge. For Appellant-Nowlin, Fassett & Little. For Respondent-Joseph P. Lucey. This is a contest over the admission to probate of the will of Victor H. Wasserman, deceased. At the time of his death he was forty-five years of age. He had never married and left surviving him his mother, two brothers and one sister. He had been employed as a railway freight clerk in the offices of the Southern Pacific Company, but some time prior to his death was obliged to cease his employment on account of ill health. He invested his savings in a six-acre tract of land in Santa Clara county and devoted his time to planting this land to orchard trees. Before his death he was despondent over his lack of money. In March, 1914, he committed suicide by hanging. His body was found in a barren spot near the reservoir on Twin Peaks in the city and county of San Francisco. While his death was caused by the strangulation of hanging, he had also stabbed himself. In his hat, found alongside his body, was an olographic will in language as follows: "Being of sound mind, I will my in Santa Clara county to Horace C. "San Francisco, Cal. "Mar. 9 '14. (61-5) six and one fifth acres Jones of Berkeley. "Victor H. Wasserman." Its date was the day preceding the testator's self-destruction. The beneficiary under his will and the proponent thereof, Horace C. Jones, was a friend of the deceased of several years' standing and had been engaged with him in the same general em ployment in the Southern Pacific Company, had interested himself in the deceased's affairs and made many week-end visits to the deceased's property in Santa Clara county. The deceased was not an infrequent guest at the home and at the table of the proponent. The contest of this will instituted by the mother of the deceased was based upon the mental incapacity of the deceased to execute a will by reason of his insanity. The issue was tried before a jury which returned its verdict against the validity of the will upon the ground indicated. From the decree which followed and from the order denying his motion for a new trial, Horace C. Jones, the proponent, appeals. In the consideration of this appeal we have in mind the principles of law and the decisions upon them governing the question of the mental capacity requisite to the making of a valid testamentary disposition of property, such principles as that declared in Estate of Chevallier, 159 Cal. 169, where it is said: [1] "The rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld," and the language of In re Redfield, 116 Cal. 655, where this court say: "A man may be of unsound mind, and his whole neighborhood may declare him so. But whether that unsoundness amounts to incapacity for a discharge of the important duty of making a final disposal of his property, is a question which the court must determine upon its own responsibility." [2] The contention of the appellant is that while the deceased labored under certain delusions or hallucinations, they were not such, nor of such character, as to impair his capacity to make a will, that the evidence did not establish a general mental unsoundness (as distinguished from the mere indulgence in one or another form of delusion) which was sufficient to justify the jury in its conclusion that there was such a complete breakdown and destruction of the mental faculties as to preclude the idea that the will was the product of a disposing mind. The following was shown: There was insanity in the family. A sister had been confined in the state asylum for the insane at Agnews and had died there. From the year 1912 the deceased entertained strange beliefs, delusions and hallucinations; the waiters in the restaurant were endeavoring to poison his coffee, the saloon keepers to poison his beer, wireless electricity was shooting violet rays through him instigated by his enemies; the Southern Pacific Company, his former employer, sought to destroy him; it had detectives pursuing him; the detectives entered his house and stole a can of condensed milk and a can of corn; the Southern Pacific also instructed its engineers to blow off steam as they passed Cupertina (in the neighborhood of which his little property was situated) and "the steam would be carried by electric waves in the atmosphere and give him a shock"; a neighbor gave him a lemon and he discovered that the skin |