Estate of Wells

This is an appeal from an order surcharging the executor’s final account the amount of- a claim against the estate of - the decedent.

On October 27, 1903, Asa E. Wells, the deceased, borrowed of the Hibernia Savings and Loan Society $7,000, for which he gave his promissory note, secured by a mortgage on certain premises in the city and county of San Francisco, known and designated as Nos. 1404 and 1406 Jackson street. December 29, 1903, the decedent conveyed the mortgaged premises to his wife, Eeba E. Wells, by a deed of gift which is silent as to the mortgage. The conveying words are “give, grant, alien and confirm.” A. little less than a week later, on January 4, 1904, the decedent made his will. The third clause thereof, which refers to the aforesaid deed, is as follows: “Thirdly—I do declare that I have by deed of gift conveyed, subject to the encumbrances thereon, to my wife, Eeba E. Wells, certain premises situated in the city and county of San Francisco, State of California, and designated and known as Nos. 1404 and 1406 Jackson street, and I hereby give, devise and bequeath to my said wife all the furniture, fittings and fixtures appertaining to and contained in said No.…