In Benton v. Reid, 111 Cal. 487, [44 Pac. 167], it is said: "The statute has provided the instances in which the homestead may be taken on forced sale, and the right to so take it will be strictly limited to those instances." Since the sale would be without authority of law, it is entirely inconsequential that the property was transferred after the bringing of the action.

4. Complaint is also made by appellants because of the finding that "said action has been continued in the name of the original party plaintiff and no objection thereto was made by either party to this action." As a matter of fact, the finding is true beyond question. The course pursued also seems to be authorized by section 385, Code of Civil Procedure, providing that "In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." If the defendants desired the substitution, they should have made application therefor. They certainly have not been prejudiced because a righteous judgment has been secured against them in the name of the plaintiff rather than of her successor in interest.

5. Over the objection of defendants the court admitted in evidence the patent of the United States government to said Andrew Hersom, conveying the land in controversy. Appellants contend that this was error, since there was no issue as to ownership of the property, and it "was relied upon as evidence of respondent's residence upon the land in controversy." Respondent claims that it was introduced "merely to show that said Hersom had purchased the property under the homestead laws of the United States, and was some evidence of Hersom's intent with respect to the property." But, conceding that the ruling was technically erroneous, it could not have prejudiced appellants. The fact of respondent's residence was shown without conflict by other evidence, and as to ownership no one can complain of evidence in support of an admitted fact.

6. Under the decisions it cannot be held that the court abused its discretion in reopening the case for further evidence. The delay in the trial was great, but we cannot say it was inexcusable. The court, it is true, suggested the reopen

ing of the case. This may be rather unusual, but we must assume that it was in furtherance of a desire to reach a just conclusion upon the merits, and this certainly is not to be condemned. Appellants had the same opportunity to offer additional evidence as respondent, and an earlier judgment against them would hardly have been received with greater favor. Besides, it is at least doubtful whether the additional evidence strengthened plaintiff's case in any material respect, and if the judge changed his mind after the first submission, it cannot be made the subject of just animadversion unless it should be shown that it was occasioned by some improper influence or led to prejudicial error. Nothing of the kind appears, and we conclude that the court's action was justifiable and within the spirit of the following decisions: Preston v. Sonora Lodge, 39 Cal. 116; Miller v. Sharp, 49 Cal. 233; Clavey v. Lord, 87 Cal. 413, [25 Pac. 493].

7. In rendering his opinion the trial judge said: "I think it is a fact the court can take judicial notice of, that in these mountain counties there is hardly a home but what is built more or less in a hotel fashion, run as a hotel, stopping place for the purpose of accommodating the public; it is really a part of the history of Plumas county, so that every place you go on the road you find a hotel and farm, and the same in the other counties, where there are some with more extensive structures than others, some built like hotels, great two-story houses constructed." It is often difficult to determine what things come within the category of matters of common knowledge of which the courts can take judicial notice, but it is doubtful whether any case can be found where it has been held to include the manner in which buildings have been constructed and the purposes for which they have been used in any particular county. If the doctrine can have such an extensive application, little would be left in the average case to be established by evidence. It would seem absurd for us to hold that the courts will take judicial notice of how the houses are constructed in Plumas county when we actually have no knowledge of it nor any accessible means of ascertaining the fact.

The cases cited by respondent do not reach the point.

In Mahoney v. Aurrecochea, 51 Cal. 429, the time of harvest was involved. So, also, in Haines v. Sneidgar, 110 Cal.

18, [42 Pac. 462]. In People v. Mayes, 113 Cal. 61, [45 Pac. 860], it was held that the court would take judicial notice of the time when the moon arose on a particular night. Ex parte Berry, 147 Cal. 523, [109 Am. St. Rep. 160, 82 Pac. 44], was in relation to the meaning of the word "automobile." These were all cases within the provisions of section 1875 of the Code of Civil Procedure.

Edson v. Southern Pacific R. R. Co., 144 Cal. 189, [77 Pac. 897], is no nearer the mark, wherein it is guardedly said: "But we suppose a court may take judicial notice of facts of common knowledge, and, among others, of the fact that but a small percentage of those traveling between places of the relative situation of San Francisco and Fresno have any occasion to avail themselves of all or of any of the privileges which purchasers of limited tickets were compelled to stipulate away." It would, of course, be unnecessary to prove what is so obvious, that the continuous travel between two such cities would be vastly greater than the intermitted.

But notwithstanding the court's error in this regard, as we conceive it, we are of the opinion that if it had not figured in the case, the conclusion would and should have been in favor of plaintiff, and that there was no prejudice to the substantial rights of the appellants.

As we think the judgment is just, it and the order denying the motion for a new trial are affirmed.

Hart, J., and Chipman, P. J., concurred.

[Civ. No. 630. Third Appellate District.-November 13, 1909.]

In the Matter of the Estate of ALBERT HENRY WASHBURN, Deceased. JEANIE W. HIGGINS, Guardian of HENRIETTA HIGGINS and CHARLES HIGGINS, Minors, Appellant, v. E. P. WASHBURN, J. S. WASHBURN and J. B. COOK, Trustees Under Will of Said Deceased, Respondents.

WILLS-DEVISE IN TRUST INCOME DURING LIVES OF WIDOW AND DAUGHTER-CONTINGENT REMAINDER TO SURVIVING CHILDREN AND GRANDCHILDREN.-Where a will devised property to trustees in trust to pay the income to the surviving widow of the testator, and to his married daughter, and to the survivor of them during life, and devised the remainder upon the termination of the trust to the then living children of the married daughter, or her then living grandchildren by right of representation, such devise of the remainder is of a contingent remainder, which does not vest in any child or grandchild of the daughter until her death. ID.-UNCERTAINTY OF RIGHT OF ENJOYMENT. It is the uncertainty of the right of enjoyment, and not the mere uncertainty of the actual enjoyment, that makes such remainder contingent. The uncertainty of any of the children of the married daughter surviving her renders the interest of any of them contingent.

ID. DISTINCTION BETWEEN VESTED AND CONTINGENT REMAINDERS.A remainder is vested, when there is some person in esse known and ascertained, who by the instrument creating the estate is to take and enjoy the estate upon the expiration of the existing particu lar estate, and whose right to such remainder no contingency can defeat; but the remainder is contingent, when it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all.

ID.-VESTED AND CONTINGENT GIFTS TO CLASS OF PERSONS.-If there are words of present gift to a class of persons in existence, in remainder, the remainder is vested, though it cannot be ascertained until the determination of the particular estate who will ultimately take; but if futurity attaches to the gift, so that it is not intended to take effect until the determination of the particular estate, the remainder to a class of persons then existing is contingent.

ID.-PREFERENCE OF VESTED REMAINDER-LANGUAGE OF WILL CONTROLLING. Although the law prefers to consider future estates as vested, yet it also seeks to effectuate the will of a testator, and if the language used shows his intention not to create a vested

estate, but expresses a contingency as to who shall take, the language of the testator must control.

ID.-FAIR CONSTRUCTION OF WILL SHOWING CONTINGENT REMAINDER. Giving a fair construction to the will, and yielding to the intention of the testator, it is concluded that the remainder is contingent, and will only accrue to such children of the married daughter as may be living at the time of her death.

ID. CONVEYANCE OF LIFE ESTATE TO CHILDREN IN ESSE-MERGER NOT DISCHARGING TRUST.-A conveyance of the whole surviving life estate vested in the surviving married daughter to her children in esse does not create a merger discharging the trust, which muss be vested in the trustees until her death, notwithstanding such conveyance. ID.-CONDITIONS OF MERGER NONEXISTENT.-The whole legal and equitable title must exist in the same person to constitute a merger of a life estate in the fee. The legal title being in the trustees, and the children in esse having no existent legal estate, there could be no merger of the life estate in the fee. There can be no merger where a life estate and a contingent estate are united. ID. RULE IN EQUITY.-Wherever it would work injustice or defeat the intention of the donor to work a merger, the two estates will be kept alive, although they come together in one person. While merger at law follows immediately upon the union of a greater and lesser estate in the same ownership, it does not so follow in equity. There the doctrine is not favored, and the estates will be kept separate where the intention of the parties and justice require it.

ID.-MANIFEST INTENTION OF TESTATOR TO PRESERVE TRUST REGARDLESS OF CONTINGENT REMAINDER.-Even if it be conceded that the remainder was vested and not contingent, it is held that it was the manifest intention of the testator that the trust should be kept alive for the benefit of all parties concerned, and safely transmitted to the remaindermen, consisting not only of the children in esse, but all who should become the future issue of the married daughter, during her coverture, and to be transmitted to them upon her death.

ID. TRUST IN FAVOR OF ALL ISSUE.-Where a trust is in favor of the

children now living, or that may hereafter be born of certain parents, the trustees will retain the title so long as there is a possibility of issue, which, in the eye of the law, continues as long as the woman lives or coverture exists.

APPEAL from a decree of the Superior Court of Mariposa County distributing the estate of a deceased person. J. J. Trabucco, Judge.

The facts are stated in the opinion of the court.