administrators of the estate of James G. Fair, deceased, with power and authority to collect and take charge of said estate in whatever county or counties the same should be found, to exercise such power as might be necessary in the preservation of said estate, and to preserve all the goods, chattels, notes, and effects of said deceased, all incomes, rents, issues, profits, claims, and demands of said estate, as well as to take the charge and management of, and enter upon and preserve from damage, waste, and injury, the real estate belonging to said estate, and for any such and all necessary purposes to commence and maintain or defend suits and other legal proceedings, as administrators, and to exercise such other powers and to do such other acts and things as should be directed or allowed by the further orders of this court; that thereupon, and on the last-named date, these plaintiffs, together with said Louis C. Bresse, duly qualified as such special administrators, special letters of administration were thereupon issued to them, which have never been modified, revoked, or set aside, and ever since said last-named date, and until the 16th day of November, 1896, said plaintiffs were the duly appointed, qualified, and acting special administrators of the estate of said. James G. Fair, deceased, the said Louis C. Bresse having in the meantime, and on the 22d day of April, 1896, died.

[Possession by special administrators, and their succession by executors.]

4. That immediately upon their appointment as such special administrators, these plaintiffs and Louis C. Bresse entered into and upon, and took possession of, all the estate of said deceased, including the real estate hereinbefore particularly described, and thereafter continued in the possession and management of the same until said 22d day of April, 1896, since which last-named date and until the 16th day of November, 1896, these plaintiffs, acting as such surviving special administrators, continued in the actual and peaceable possession of said premises and every part thereof, and during all of said times collected and received all the rents, issues, and profits of said premises, amounting to the sum of $4,000 per month, or thereabouts; that on the 23d day of June, 1896, this court, by its order duly given and made, authorized these plaintiffs, acting as such special administrators, to commence this action; that on the 16th day of November, 1896, and since the commencement of this action, an order and decree was duly given, made, and entered by said court

in the matter of the estate of said James G. Fair, deceased, wherein and whereby said last will and testament of said James G. Fair, deceased, was duly admitted to probate, and wherein and whereby these plaintiffs were duly appointed the executors of said last will and testament; that thereafter, and on the same day, these plaintiffs duly qualified as such executors, and letters testamentary were duly and regularly issued out of this court to them, and they have ever since been, and still are, the duly appointed, qualified, and acting executors of the last will and testament of said James G. Fair, deceased, and since the said 16th day of November, 1896, these plaintiffs, as executors of the last will and testament of James G. Fair, deceased, have continued in the possession and management of all the estate of said deceased, including the real estate hereinbefore particularly described, and have continued in the actual and peaceable possession of said premises and every part thereof, and during all of said times have collected and received, and are now collecting and receiving, all the rents, issues, and profits of said premises, amounting to the sum of $4,000 per month, or thereabouts.

[Claims of defendants under forged deed.]

5. That the defendants claim and pretend, and each of them claims and pretends, to have some estate, right, title, or interest in or to the said premises hereinbefore described adverse to these plaintiffs, as such executors of the last will and testament of the said James G. Fair, deceased, and adverse to said estate; that said claim of said defendants is based, as these plaintiffs are informed and believe, and therefore aver, upon certain false, forged, and simulated deeds, purporting to have been executed by said James G. Fair in his lifetime, on the 8th day of September, 1894, and by which said false, forged, and simulated deeds it is claimed by the said defendants the said James G. Fair conveyed the premises hereinbefore described, or a portion thereof, to the defendant Nettie R. Craven, and which false, forged, and simulated deeds were recorded in the county recorder's office in the city and county of San Francisco, state of California, on the 19th day of June, 1896; that the defendants other than defendant Nettie R. Craven have, or claim to have, some interest in said described premises under and in subordination to the claims of the said defendant Nettie R. Craven, and all of said defendants have, or claim to have, some other interest in said described premises

adverse to the said estate of said James G. Fair, deceased, and to these plaintiffs, as such executors, the nature of which claim is unknown to these plaintiffs.

[Injury resulting from defendants' claims.]

6. That the claims and pretensions of said defendants are, and each of them is, false and unfounded either in law or in equity, but these plaintiffs aver that the assertion of the same by the said defendants, and by each of them, tends to cloud the title of the estate of said James G. Fair, deceased, to said described premises, to impair the market value thereof, obstruct these plaintiffs in the management of said premises, as executors of said last will and testament of said James G. Fair, deceased, to harass and annoy them in the possession thereof, and in the collection of the rents, issues, and profits thereof belonging to the estate, to depreciate the market value of said premises, and thereby to inflict irreparable injury upon the said estate, and upon these plaintiffs, as executors of the last will and testament of said James G. Fair, deceased.

7. And these plaintiffs further aver that, unless restrained by the judgment and decree of this honorable court, the assertion of said false and fraudulent claim to said premises by said defendants will continue to harass and annoy these plaintiffs, as such executors, in the possession of said premises, will depreciate the market value of said premises, will obstruct, harass, and annoy these plaintiffs, as such executors, in the collection of the rents, profits, and issues of said described premises, and cloud the title of the estate to said premises.

[As to fictitious parties.]

8. That the real names of the defendants sued herein by the fictitious names of John Doe, Richard Roe, Jane Doe, and Mary Roe are unknown to these plaintiffs, but, when the same are discovered, these plaintiffs pray that said real names may be inserted herein in lieu of said fictitious names.

9. That heretofore, to wit, on the 23d day of February, 1897, and since the commencement of this action, by the order of this court duly given and made herein, the plaintiffs, as executors of the last will and testament of James G. Fair, deceased, were substituted for themselves as surviving special administrators of said estate.

Jury's Pl.-114.

[Prayer for cancelation, injunction, etc.]

Wherefore, these plaintiffs as such executors, pray the judgment and decree of this court: That said defendants, and each of them, be summoned to answer to the premises; that they, and each of them, set forth what claim they have or pretend to have to said described premises, or to any part or portion thereof; that the said deeds and the said certificates of acknowledgment and the aforesaid records of the aforesaid respective deeds be adjudged to be null and void, and that the same be canceled and removed as a cloud upon the title to said real property; that the said defendants be compelled to surrender up the aforesaid pretended deeds and certificates of acknowl edgment for cancelation, and that the same be canceled under the direction of the court; that the said estate of said James G. Fair, deceased, may be decreed to be the lawful owner in fee-simple of said described premises, and every part and parcel thereof, as against the said defendants and each of them; that defendants have not, nor has either of them, any right, title, interest, claim, or demand of any nature or description against said described premises or any portion thereof; that these plaintiffs, as executors of the last will and testament of said James G. Fair, deceased, are lawfully in possession of said described premises, and every part and parcel thereof, and lawfully entitled to collect the rents, issues, and profits thereof, as such executors, and that the defendants, and each of them, and all persons claiming under them, be forever enjoined and restrained from asserting or pretending to have any estate, right, title, or interest in said described premises, or any part or portion thereof, and from interfering with the possession thereof; and for such other and further relief, or both, in the premises as may be just and agreeable to equity.

Pierson & Mitchell,

Garret W. McEnerney,

Attorneys for plaintiffs.

[Verification.]

§ 456. ANSWER.

FORM No. 1081-Defense that instrument was executed under undue influ

ence.-Action to cancel deed.

(In Hemenway v. Abbott, 8 Cal. App. 450; 97 Pac. 190.)

[Title of court and cause.]

The defendant, for answer to the plaintiffs' complaint, denies and alleges as follows:

1-10. [The answer here specifically denies the allegations in the complaint, either directly or upon information and belief, as to plaintiffs being heirs at law of the decedent grantor to defendant; as to the infirmities of said decedent, his mental weaknesses, etc.; as to the alleged influence exercised upon decedent's mind and will in procuring a deed to his property; as to the consideration named in the deed being fictitious, and that the same was afterwards returned by decedent to defendant; as to any trust or trusts created thereby; as to exercise of undue influence, fraud, importunities, or duress; as to title in defendant being a mere naked legal title, "but on the contrary the defendant alleges that the defendant has a good title, legal and equitable, to said lands and premises, and every part thereof"; as to title of defendant being illegal or void.]

11. That the said deed was made, executed, and delivered by said. George W. Proctor, since deceased, on the 5th day of May, 1904, without any undue or any influence whatever being exercised by this defendant upon said George W. Proctor, and was made, executed, and delivered for the purpose of conveying to this defendant all of the property therein described in fee-simple absolute.

Wherefore, defendant prays judgment: That the plaintiff take nothing by this action; that the adverse claims of the plaintiff to the said real property described in the complaint be determined by the judgment of this court, and that by said judgment it be decreed that the said deed made by said George W. Proctor to the defendant is good and valid; that the plaintiff has no estate or interest whatever in or to the lands or premises described in said complaint, either as administratrix with the will annexed of the estate of said George W. Proctor, deceased, or otherwise, and that the title of the defendant thereto is good and valid, and that the plaintiff be forever enjoined and restrained from asserting any claim whatever in and to the said lands and premises adverse to the defendant; that the