Appeal from the Probate Court, City and County of San Francisco.

In December, 1869, M. S. Webb obtained from the North America Life Insurance Company an endowment life policy for $4,000, payable to himself in fifteen years, or to his personal representatives, upon his earlier death. May 12, 1870, he married, and died April 15, 1872, intestate. Deceased left, surviving him, his wife in San Francisco, and his father and three sisters residing fix Massachusetts. Edward G. Stetson was appointed administrator of the estate; and, on the 29th of August, 1873, as such administrator, presented a petition to the Probate Court, stating that the estate was ready for distribution, and asking that it be distributed, three fourths to the widow, and one fourth to the father. The principal part of the property in the hands of the administrator for distribution was money received by him from the company on the insurance policy. The matter came up for hearing before the Probate Court on the 15th day of September, 1873, when George W. Tyler appeared on behalf of the father and sisters, and claimed that the money in the hands of the administrator, which had been received on the life insurance policies, was not the property of the estate, and read in evidence extracts from two letters written by the deceased to his sisters. The first was written May 22, 1870, and was as follows:

“I have got an insurance on my life of four thousand, which I shall try and keep up for father and you girls, and shall have an extra amount for Dude besides.” By “ Dude” he meant his wife.

The second was written from Salt Lake in July, 1870, and was as follows:

* * “By the way, tell father I have my insurance papers in Marsh, Pillsbury & Co.’s safe for $4,000, in the North America Life Insurance Company, made out in my name, but intended for you all at home.”

Mr. Tyler claimed for the father and sisters:

1. That the letters above mentioned were an assignment of the policy to the father and sisters, and that they thus became, and thenceforth were the owners of the policy and its proceeds; or, failing that: 2. That the letters were a declaration of trust, and that decedent thenceforth held the policy in trust for them, and that the proceeds, when collected, were in trust for them.

It appeared that the deceased had, after his marriage, obtained a life policy payable to his wife for three thousand dollars, on which she had received the money after his death. The Probate Court held that the facts that the deceased had insured his life for the benefit of his wife, and the letters, showed that the deceased did not reserve to himself any act to be performed to create a trust, and that the money received on the policies was not assets of the estate to be distributed, but belonged to the father and sisters. The wife appealed.