Volume 7 — Washington Reports

<p> Original Application for Mandamus. </p>

<p>AGREEMENT FOR SALE OF LAND — INDEFINITENESS — SPECIFIC PERFORMANCE.</p> <p>A letter from the general land agent of a railroad company to a settler upon lands of the railroad, reciting that “answering yours of the 8th inst., I have to say that if you are the first settler upon [certain described land], and if you continue to reside upon and improve said land until it shall be offered for sale, the same being strictly agricultural in character, you will be entitled to the first privilege of purchase at the appraised valuation, which will be fixed without reference to your improvements. The mere fact that another party has written a letter applying for the purchase of said land does not in any way affect your rights iu the premises. No rights can be acquired to lands of the company not in market, except by settlement upon or improvement thereof,” does not constitute a valid contract for the conveyance of said land which can be specifically enforced, although the condition as to settlement and improvement may have been complied with.</p>

<p>Appeal from Superior Court, Jefferson County.</p>

<p>Appeal from Superior Court, Clarhe County.</p>

<p>APJPEAL — NOTICE — WEIG-HT OF EVIDENCE — STATUTE OF LIMITATIONS — PROSPECTIVE EFFECT —ADVERSE POSSESSION.</p> <p>Where notice of appeal is given in open court at the rendition of judgment, no other service of notice is necessary.</p> <p>The verdict of a jury based upon conflicting testimony will not be set aside on the ground of the insufficiency of the evidence.</p> <p>Where the period of limitation for the commencement of ah action is reduced by statute from twenty to ten years, the limitation does not begin to run as to accrued actions until the taking effect of the later law, unless the legislative intent to give a retroactive effect to the law clearly appears.</p> <p>Actual, uninterrupted and notorious possession under a claim of right, but without color of title, is sufficient to entitle the possessor to the benefit of the statute of limitations, and such possession need not be adverse as to all the world. „</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>Appeal from Superior Court, King County.</p>

<p>PRACTICE —SUPPLEMENTAL COMPLAINT — PLEADING — STATUTE OF FRAUDS —SALE OF STANDING TIMBER — PAROL CONTRACT FOR SALE OF LOGS — EXCESSIVE JUDGMENT — WARRANTY.</p> <p>Where an action, which is properly one of equitable cognizance, has been treated by all parties as an action at law for money, it is not error for the court to permit the filing of a supplemental complaint asking for judgment generally against the defendants, after their action has put it out of plaintiff’s power to secure equitable relief.</p> <p>An allegation in a complaint that plaintiff was the owner of certain property at the date he contracted to sell it to defendants is immaterial if he was the owner and able to make delivery of the property when the time for performance arrived.</p> <p>An executory contract for the sale of standing timber is valid when in writing, although not in the form of a deed, and such contract can be enforced by an assignee.</p> <p>A verbal contract by the owner of land, whereby he agrees to cut all the cedar timber on his land and deliver the logs for a certain price per thousand feet at the mill of another party, is a contract respecting the sale of chattels, and, where there has been part performance of the contract, it may be enforced against the owner, thoxxgh not in writing.</p> <p>Where a party contracted to sell “all the cedar timber now on sec. 27,” without any qxxalification or reference to any other contract, and had title to but 400 of the 040 acres thereof, a judgment in his favor for the value of all the timber upon such section, in an action to recover the price from a purchaser, should be reduced by an amount eqxxal to the value of the timber upon 240 acres.</p> <p>Where a contract for the sale of sawmill engines describes them as of certain horse power, and there is no covenant of warranty to do certain work in the contract, or representation as to their capability, an instruction by the court, in an action for damages for breach of warranty, that if the engines were less than the horse power mentioned in the contract the measxxre of damages would be the difference between the value of these engines and such engixxes as the contract called for, is not prejudicial to the party claiming a breach of warranty.</p>

<p>EIRE INSURANCE — ACTION ON POLICY — OWNERSHIP OP PROPERTY — PRAUD OP ASSURED — CIRCUMSTANTIAL EVIDENCE — INSTRUCTIONS.</p> <p>Where a policy of insurance provides that the entire policy shall be void if the interest of the insured in the property covered by it is other than unconditional and sole ownership, there can be no recovery for loss when one of the articles insured is held under a contract of conditional sale by the daughter of the assured, although the assured may have an insurable interest therein.</p> <p>In an action upon a fire insurance policy where one of the defenses interposed is that the plaintiff fraudulently caused the property to be burned for the purpose of securing the amount of the insurance named in the policy, and the only evidence tending to sustain the issue was circumstantial, .it is error for the court to refuse to instruct that the fraud charged may be inferred by strong presumptive circumstances.</p>

<p>TIDE LANDS —LOCAL BOARDS OE APPRAISERS — NOT SUPERSEDED . BY STATE LAND COMMISSION.</p> <p>The sections of the act of March 26, 1890, providing for local boards of appraisers, and defining their duties in relation to tide lands, are not repealed or affected by the provisions of the “act to provide for the creation of a state board of land commissioners for the management and disposition of the public lands of the state,” etc., approved March IS, 1898.</p>

<p> Appeal from Superior Court, Whatcom County. </p>

<p> Appeal from Superior Court, Eing Cownty. </p>

Action by A. E. Osburn and others, against James Dolan upon an alleged indebtedness of defendant to one L. G. Yan Valkenburg, upon a contract for the sale of real estate, in the amount of 8250, which claim had been assigned to plaintiffs. From a judgment for plaintiffs, defendant appeals.

<p> Ajjpeal from Superior Court, Wldtma/n County. </p>

<p> Appeal from Superior Court, Qhelialis County. </p>

<p>APPEAL — ORDER REMOVING RECEIVER — PROHIBITION.</p> <p>An appeal will not lie from an order .of the court removing one receiver and appointing another in his stead. (Stiles, J., dissents.)</p> <p>Where the court has removed oue receiver and appointed another, the giving of a supersedeas bond on appeal from such order will not be ground for the issuance of a writ of prohibition to prevent the court from carrying such order into effect.</p>

<p> Original Application for Prohibition. </p>

<p> Appeal from Superior Cowrt, King Comity. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from. Superior Court, Sleagit County. </p>

<p> Appeal from Superior Court, Thurston Coirnty. </p>

<p>ORDER VACATING JUDGMENT — RECORD ON APPEAL — NOTICE — BOND — EMINENT DOMAIN — JUDGMENT — MODIFICATION ON MOTION.</p> <p>On an appeal from an order denying a petition to vacate a judgment no bill of exceptions nor statement of facts is necessary, as all matters essential for a determination of the appeal appear in the record otherwise.</p> <p>Notice of appeal is not necessary to parties who do not appear in the action, though named as defendants.</p> <p>Insufficiency of the appeal bond is not ground for the dismissal of the appeal, but the remedy provided by § 1421, Code Proc., for the discharge of the bond and the filing of a new one should be followed.</p> <p>Where a judgment and decree of appropriation of land is irregular and erroneous on its face for the reason that it does not conform to the verdict of the jury and the statute in relation to the interest acquired by the petitioner in the premises appropriated in such proceeding, the court has authority to correct it upon motion or petition.</p>

<p>ACTION FOR DELINQUENT TAXES —INEQUALITY OF ASSESSMENT — WHEN MAY BE RAISED ■ — PLEADING-—PARTIES — JUDGMENT.</p> <p>In a proceeding under the revenue law of 1891 by the county to foreclose liens for delinquent taxes for the year 1890, the defendant may, under an order to show cause, establish by proof the unfairness and inequality of the assessment, without having alleged in his answer actual or constructive fraud on the part of the assessor; and, although the board of equalization has failed and refused to reduce the assessment, the defendant may, upon proof of over-valuation, have judgment by the court reducing the amount of his taxes.</p> <p>A complaint for the foreclosure of tax liens which contains no allegation of ownership in the defendant of the property assessed, but merely a statement that the list appended is a list of registered unpaid taxes assessed to defendant, is sufficient as against a demurrer, when nothing appears on the face of the complaint to show that any other person is interested in the property as owner or otherwise.</p> <p>The fact that parties to whom lands have been sold and conveyed have not been made defendants in an action to foreclose delinquent tax liens upon such lands, as required by the statute authorizing foreclosure, will not defeat the county’s right to a decree, where the defendant named was the owner at the time of the assessment, and it is not shown that the deeds proved to have been executed were of record.</p> <p>Although there is no personal obligation to pay taxes upon the grantor of lands conveyed prior to November 1st, of the year of assessment, suit for taxes may be prosecuted against the grantor alone unless the grantee records his deed.</p> <p>Where a great number of different tax liens are sought to be foreclosed in the same suit, because the property belongs to the same owner, judgment cannot be rendered against the defendant for the aggregate of all the taxes due, but the decree should be that each parcel be sold for a sum ascertained, including interest, penalties, costs and attorney’s fee, the latter item to be charged upon a percentage of the recovery against each parcel.</p>

<p>Appeal from Superior Court, Spokane Coicnty.</p>

<p>ROAP DISTRICTS — CHANGE OP BOUNDARIES —EPPECT UPON OPPICE OP OVERSEER.</p> <p>A duly elected and qualified road overseer does not become disqualified to hold his office by reason of the fact that the county commissioners have so changed the boundaries of the road district for which he was elected as to leave his residence outside thereof, such change in a road district being prospective in its operation as affecting the office of road overseer.</p>

<p>Appecil from Superior Court, Clallam County.</p>

<p> Appeal from Superior Court, King County. </p>

<p>Appeal from Superior Court, Spokane County.</p>

<p>NEGOTIABLE INSTRUMENTS — POSSESSION BY MAKER — PRESUMPTION — DISCHARGE OF SURETIES —EXTENSION OF PAYMENT — WHAT •CONSTITUTES.</p> <p>Possessiou by the maker of a promissory note, after it has been in circulation, is presumptive evidence of its payment, although the time allowed for its payment may not have expired.</p> <p>A note coming into the hands of the maker under such circumstances as to raise a presumption of its payment cannot be pledged by him as collateral so as to bind a surety, although the note may not have matured at the time of its re-issue.</p> <p>Where the principal of a note pays the holder the money due thereon and receives the note, the sureties are thereby discharged, although the principal and. holder may not have intended to treat the transaction as a payment and cancellation.</p> <p>Where, after the maturity of a note, the holder thereof takes from the principals thereon a new note extending the time of payment of the debt, without the knowledge of the sureties upon the original note, the sureties are thereby discharged. (Hovt, J., dissents.)</p>

<p> Appeal from, Superior Court, King Cou/nty. </p>

<p>CONSTITUTIONAL LAW — PAYMENT OP TAXES AS PREREQUISITE TO RECORDING OP DEED — DUE PROCESS OP LAW.</p> <p>The act of March 11, 1893 (Laws, 1893, p. 284), providing that the county auditor shall refuse to receive or record any deed of real property unless it is accompanied by a certificate of the county treasurer, that all taxes theretofore levied, and which have become a charge upon said property according to the records of his office, have been fully paid and discharged, is a violation of the constitutional inhibition that no person shall he deprived of his property without due process of law.</p>

<p>Appeal from Superior Court, Pierce County.</p>

<p>MUNICIPAL CORPORATIONS — PURCHASE 0E ELECTRIC LIGHTING PLANT —RECITALS IN ORDINANCE — SURPLUSAGE.</p> <p>The recital in an ordinance adopting a system of electric lighting for a city that it was passed in pursuance of the act of March 26, 1890, as amended by the act of March 9, 1891, is mere surplusage, and the fact that the ordinance was passed in pursuance of the act of February 10, 1893, which was a reenactment of said former acts with an immaterial amendment, is not ground for enjoining the issuance of bonds for the purchase of such lighting system.</p>

<p>STATE LAND COMMISSION — APPROPRIATION POE SALARIES — CONSTRUCTION OP STATUTE.</p> <p>The act (Laws, 1893, p. 386) providing for the state board cf land commissioners, the payment of their salaries and expenses the same as the salaries and expenses of other state officers are paid, and authorizing the auditor to draw warrants therefor, sufficiently shows the intention of the legislature to make an appropriation in compliance with constitutional requirements by the further provision that “the treasurer of state is hereby directed to pay the same out of any moneys in the state treasury not otherwise appropriated.”</p>

<p>Appeal from Superior Cou/rt, Klickitat County.</p>

<p>MUNICIPAL CORPORATIONS — VOID INCORPORATION —EFFECT OF REINCORPORATION— VOID STREET ASSESSMENTS — ESTOPPEL.</p> <p>A street assessment levied by a town which was illegally incorporated under the act of February 2,1888, cannot be validated by the re-incorporation of such town under the authority of the act of March 27,1890 (Laws, p. 133, §4).</p> <p>Although a person receiving the benefit of a street improvement, authorized by an attempted but illegal incorporation of a town, may be estopped by his acts from denying his liability as against those who actually did the work, the town cannot, by subsequent rencorporation, take advantage of such estoppel.</p>

<p> Appeal from Superior Court, Walla Walla Cownty. </p>

<p> Appeal, from Superior Court, SpoTcane County. </p>

<p>Appeal from Superior Court, Whitmcm Coirnty.</p> <p>Opinion on motion to modify judgment.</p>

<p>BOUNDARIES — CONFLICT BETWEEN FIELD NOTES AND MONUMENTS.</p> <p>The true corners for a donation claim are where the United States surveyor established them, notwithstanding their location may not be such as designated in the plat or field notes; but proof of such actual establishment at places other than indicated by the field notes must be clear and convincing.</p>

<p> Appeal from Superior Court, Kittitas County. </p>

<p>WEIGHTS AND MEASURES —PURCHASE BY AUDITOR —LIABILITY OF COUNTY.</p> <p>Under §3136, Gen. Stat., authorizing each county auditor to procure a full set of weights and measures for his county, at the expense of the county, when such weights and measures have not already been provided, the county is liable for a purchase of such weights and measures by the auditor, although the county commissioners may not have authorized, nor subsequently ratified, the purchase.</p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p> Appeal from Superior Court, Walla Walla Cou/nty. </p>

<p>Appeal from Superior Court, Yaldma Count/y.</p>

<p> Original Application for Mandamus. </p>

<p>MECHANIC’S LIEN — WHEN ATTACHES — LAND HELD UNDER CONTRACT OF SALE.</p> <p>Where labor is performed in erecting a building upon land at the instance of a person holding a contract of sale thereon, a mechanic’s lien can attach only upon the interest of the contracting party, and not against the owner of the legal title.</p>

<p> Appeal from Superior Court, Spókms County. </p>

<p>JUDGMENT OE SUPREME COURT — MODIFICATION BY LOWER COURT.</p> <p>The judgment of the supreme court upon appeal in an equity cause, which by our statute is required to be tried de novo in the appellate court, cannot be modified by the superior court after the cause has been remanded.</p>

<p> Appeal from Superior Court, Thurston Cou/nty. </p>

<p> Original Application for Habeas Corpus. ■ </p>

<p>Appeal from, Superior Court, Thurston County.</p>

<p>BILL OP SALE AS CHATTEL MORTGAGE — ATTACHMENT OP MORTGAGED CHATTELS — EVIDENCE — PAROL PROOF OF WRITTEN INSTRUMENT— JUDGMENT — TIME OF ENTERING.</p> <p>Parol evidence is admissible for the purpose of proving that an absolute bill of sale was given as a chattel mortgage.</p> <p>An attachment cannot be levied upon property held by a debtor as mortgagee under a bill of sale absolute on its face, although the officer may have had no notice of the true relation of the debtor to the property.</p> <p>The legal title to property does not vest in the mortgagee from the fact that he holds possession after the maturity of his debt.</p> <p>Failure to enter judgment until several days after a motion for a new trial is overruled constitutes no ground for error.</p> <p>Where the assignment of a debt is shown to be in writing, it is error to permit parol proof concerning the transaction until the absence of the writing is accounted for.</p> <p>Where the issue is as to whether a bill of sale absolute upon its face is or is not a mortgage, the fact that it was intended only as security for an indebtedness should be established by more than a fair preponderance of the evidence.</p>

<p> Appeal from Superior Court, Lincoln County. </p>

<p> Orig'kial Application for Habeas Corpus. </p>

<p>NATIONAL BANKS —WHEN MAY TAKE REAL ESTATE MORTGAGES — ASSIGNMENT OF SECURED NOTES — PRIORITIES.</p> <p>A national bank has authority to take an assignment of a note and mortgage upon real estate for money loaned the mortgagee.</p> <p>Where two notes executed at the same time but payable at different dates are secured by a mortgage upon real estate, the assignment of the notes to different parties does not give the assignee of the note first maturing a priority in the proceeds of the mortgaged premises, but the assignees are entitled to share pro rata therein. {Miller v. Washington Savings Bank, 5 Wash. 200, distinguished.)</p>

<p> Appeal from Superior Court, Thurston Cov/nty. </p>

<p>CONSTITUTIONAL LAW — APPROPRIATION OF W'AY OF NECESSITY — APPEAL — RECORD —BILL OP EXCEPTIONS.</p> <p>A special proceeding to appropriate a “private way of necessity” not being an equitable proceeding, but a legal one in the nature of a condemnation proceeding, no more of the record need be brought up on appeal under Code Proc., §1428, than in ordinary civil actions.</p> <p>When the only error assigned is the judgment of dismissal of a complaint, which is substantially the sustaining of a demurrer thereto, there is no necessity for a bill of exceptions.</p> <p>The provision of art. 1, §16 of the state constitution authorizing the taking of private lands for “private ways of necessity” is not ’self-executing, but before a right to such private ways of necessity can arise, the legislature must define what they are, authorize persons to apply for them, and prescribe the method by which the necessary land is to be taken.</p>

<p> Original Application for Mandamus. </p>

<p>PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE.</p> <p>In an action for damages by the conductor on a cable car for injuries received by him in pushing a trail car from the power house so as to attach it to the grip car, it was shown that the track outward from the power house was on a slightly upward incliue, requiring vigorous pushing to get a car out; that there was an open space under the track in the power house, and that the men pushed the ears by walking along a plank placed on the side of the track; that the doorway through which the cars had to pass from the house allowed but three aud a half inches between the car and the pier on the side; that plaintiff in pushing out the car took hold of one of the uprights on the side of the car, and, failing to let go when he eame to the doorway, was caught by the car and the walls of the pier, and was badly injured; that plaintiff had been recently employed, had never done this work before, and had not been informed of the clanger. Bald, That he was guilty of contributory negligence, as the clanger was apparent.</p>

<p>MUNICIPAL CORPORATIONS —STREET GRADING CONTRACT —BOND FOR PROTECTION OF LABORERS AND MATERIAL MEN.</p> <p>Section 2415, Gen. Stat.. requiring municipal corporations to take a bond from contractors doing work or making improvements for such corporation conditioned for the payment of all laborers, mechanics, material men and others employed thereon by such contractors, is not applicable to a street grading contract. (Dunbar, C. J., and Scott, J., dissent).</p>

<p> Original Application for Mandamus. </p>

<p> Appeal from Superior Court, King County. </p> <p>Opinion on motion to modify judgment Upon supersedeas bond.</p>

<p> Appeal from Superior Court, Lewis County. </p>

Action by Martin Lewis to recover from John McReavy the sum of §2,500, one-half of a policy of insurance which he had taken out upon a steamer, and had assigned under an alleged special contract to John McReavy, who held a note and mortgage on the steamer for §3,000, and asking the cancellation and surrender of said note. The steamer had burned, but payment of insurance had been resisted.

<p>Appeal from, Superior Court, Chehdlis Cou/ni/y.</p>

<p>Appeal from Superior Court, Pierce County.</p>

<p>ATTORNEY AND CLIENT — CONTROL OF SUIT — DISMISSAL OF AP-* PEAL.</p> <p>The guardian of a minor, who wages an action in court, has the same right to control the action that any other suitor has, and may stipulate for the dismissal of an appeal regardless of the objection of his attorney.</p>

<p> Appeal from Superior Court, Fierce County. </p>

<p>ENFORCEMENT OP TRUST — TRANSITORY ACTION — CHANGE OF VENUE.</p> <p>An action for the enforcement of a trust, and for an accounting thereunder, is a transitory one, irrespective of the fact that the action -will take effect upon real property.</p> <p>The fact that certain persons named as defendants in an action are proper, but not necessary, parties thereto, will not deprive the principal defendant in an action of a transitory nature from having the action transferred to the county of his residence for trial.</p>

<p>Appeal from, Superior Court, Whitman County.</p>

<p>LIMITATION OF ACTIONS — ACTION ARISING BETWEEN NON-RESIDENTS — WHEN DOMICIL OF HUSBAND AND WIFE NOT THE SAME.</p> <p>Where a married woman, after the removal of her husband to this state, remained in Dakota for the purpose of settling up the af-( fairs of her separate property, preparatory to following him, she cannot, under Code Proe., g 133, maintain an action in this state for the wrongful taking and detention of personal property in Dakota by a resident there, when such action is barred by the laws of that state, as, under the laws giving a married woman complete control of her separate property, her residence does not necessarily follow the domicile of her husband.</p>

<p>RES ADJUDICATA — JUDGMENT FOR BREACH OF CONTRACT NO DEFENSE TO ACTION FOR CONSIDERATION.</p> <p>W’here judgment in an action for damages for the breach of a contract was obtained, and no rescission of the contract was sought in the action, res adjudicata cannot be pleaded to an action on certain promissory notes which were given as consideration for the contract.</p>

<p>ACTION ON PROMISSORY NOTE — PARTIES — JUDGMENT —ATTORNEY PEES — EXECUTION OP NOTE ON SUNDAY — APPEAL — ERROR NOT RAISED BELOW.</p> <p>An endorser of a promissory note may, under § 146, Code Proc., be joined as defendant in an action against the makers.</p> <p>Judgment by default against the makers of a promissory note will not affect the issue joined with an endorser who is a party defendant to the action.</p> <p>The fact that the court rendered judgment immediately upon the filing of its findings of fact, and also that the court erred in rendering judgment for costs, cannot be raised for the first time in the appellate court.</p> <p>The execution of a promissory note on Sunday does not thereby render it invalid in this state.</p> <p>Where a note provides for reasonable attorney fees, it is not error to give judgment therefor in the sum of $100 when the amount of the note is but slightly in excess of $1,000.</p>

<p> Appeal from. Superior Court, Pierce County. </p>

<p>BREACH OF CONTRACT —PLEADING—DAMAGES — EVIDENCE — INSTRUCTIONS — JUDGMENT- — EFFECT OF NON-ENTRY.</p> <p>In an action for the breach of a contract to clear certain land of standing timber so as to fit it for seeding, an answer, which admits the contract but denies a breach thereof, and shows affirmatively that defendants were proceeding with due performance thereof according to its terms until requested by plaintiffs to desist from so doing, cannot be said to be either sham, frivolous or immaterial.</p> <p>Although testimony admitted on a trial may be of slight significance, yet where it is pertinent to the issues, it is not error to admit it and allow the jury to pass upon its weight.</p> <p>Where instructions are not as full and complete on some particular points as desired, the party objecting should ask the court to make them more specific, before he can except on that ground.</p> <p>Where a contract under seal is not fully performed by one party solely because the other party requested him to proceed no further, the party asking for non-performance is not entitled to damages.</p> <p>Although a judgment- may not be entered within the time provided by law, it is not thereby rendered void.</p>

<p>Appeal from Superior Court, jKing County.</p>

<p>PROMISSORY NOTES — DISCHARGE OF MAKER BY PAYMENT OF COLLATERAL SECURITY —ANSWER.</p> <p>Tn an action on a promissory note, sufficient facts are stated to constitute a defense when the answer sets up that the note was given by the defendant to a bank for money borrowed, and as collateral security a note executed by certain other parties to the defendant was indorsed, to the bank; that the collateral note falling due, suit was instituted upon it by the bank, and that the father of the makers, as their agent, and with money furnished by them, paid to the bank the money due on defendant’s note, and induced the bank to dismiss the suit against, his sons, and to deliver to him the defendant’s note together with the one held as collateral security.</p> <p>The transfer by a pledgee of a promissory note held as collateral security for a debt to the maker of the note is a payment pro tanto of the debt secured.</p>

<p>CRIMINAL LAW — CONTINUANCE — RIGHT OF ACCUSED TO BE PRESENT — CROSS-EXAMINATION OF ACCUSED — LARCENY — POSSESSION OF STOLEN PROPERTY — INSTRUCTIONS.</p> <p>The granting of a continuance, in a criminal prosecution, without the personal pi’esence of the accused, is not in violation of the constitutional provision giving the accused the right to appear and defend in person and by counsel.</p> <p>Where the accused in a criminal prosecution appears as a witness in his own behalf, and the whole purpose of his testimony is to show that he is not guilty, although he is not asked the direct question as to whether or not he is guilty, it is proper cross examination, as tending to affect the credibility of the witness, to question him relative to his flight soon after the crime was committed. (Stiles, J., dissents.)</p> <p>When the defendant in a criminal prosecution takes the witness stand, he assumes the character of a witness; and as such is subject to be contradicted, disputed, or impeached, the same as any other witness; and cross examination for that purpose is not prohibited by the constitutional provision that “no person shall be compelled in any criminal case to give evidence against himself.”</p> <p>Under §1189, Code Proc., abrogating the distinction between an accessory before the fact and a principal, a defendant may be convicted under an information charging him with the commission of a larceny as principal, although the evidence shows that he was not present at the time the taking was done, but advised and counseled it with the intention of receiving the benefits of the property taken.</p> <p>Where a defendant has requested the court to charge the jury that “the bare possession of stolen property, alone, is not sufficient to sustain a verdict of guilty,” it is not error, as being a violation of the constitutional prohibition against judges charging the jury with respect to matters of fact, for the court to give the instruction with the following addition: “It is only a circumstance tending to show guilt.”</p>

<p>Appeal fro?n Superior Court, Chehalis County.</p>

<p>APPEAL — SERVING NOTICE.</p> <p>Under Code Proc., §1405, and rule 26 of the supreme court, notice of appeal may be served by the appellant’s attorney by mail.</p>

<p>CRIMINAL LAW — CONVICTION OF DEFENDANT — DEDUCTION FROM TERM OF SENTENCE OF TIME PASSED IN .TAIL PENDING APPEAL. .</p> <p>Where a defendant in a criminal action has been sentenced to the penitentiary, and has taken an appeal from the judgment of conviction, he is entitled, under Laws 1893, p. 133, § 30, to have deducted from the term of his sentence the time during which he remains in the county jail pending the appeal, although his appeal may have been dismissed for want of prosecution.</p>

<p>APPEALABLE ORDER — DISMISSAL OE ACTION.</p> <p>An appeal will not lie from a judgment dismissing an action for want of prosecution.</p>

<p>MANDAMUS — CORRECTION OF STATEMENT OF FACTS.</p> <p>Under Laws 1893, p. 114, §§9, 11, where a statement of facts on appeal has been served on the respondent with notice of settlement on a day named, and the respondent makes no objection thereto until after the statement is settled and certified by the judge, mandamus will not lie for the purpose of compelling the judge to correct the statement as to omitted testimony, and amend his certificate to conform to the new statement.</p>

<p>SUMMONS — SERVICE BY PUBLICATION — SUFFICIENCY OF AFFIDAVIT— STATEMENT OF NATURE OF ACTION.</p> <p>Under §65, Laws 1877, p. 15, au affidavit stating that the defendant resides out of the territory is sufficient to authorize service by publication. (Stiles, J., dissents.)</p> <p>The cause and general nature of a foreclosure proceeding is sufficiently stated in a summons by publication when it specifies with particularity the note upon which the action is brought, and defendants are informed that the action is brought to foreclose a mortgage given to secure its payment.</p>

<p>Appeal from Superior Court, Pierce Country.</p>

<p>PRINCIPAL AND AGENT —UNDISCLOSED PRINCIPAL — EVIDENCE — NON-SUIT.</p> <p>Where it is sought to charge defendant as an undisclosed principal with liability for the purchase of certain mill machinery bought by one in possession of mill property under a lease from-the defendant, plaintiff should be non-suited, when there is no evidence showing that the mill was operated by defendant, or by the lessee as his agent, and the only evidence tending to show a promise to pay for thé' machinery was that “when they should get rid of Hight (the lessee), and get straightened out, they would pay all the bills, and that they should not want the mill incumbered by them.”</p>

<p>ADMINISTRATOR’S SALE OW REAL ESTATE — IRREGULARITIES — VALIDATION.</p> <p>The failure of an administrator to include certain lands in his inventory of the estate will not deprive him of authority to administer thereon, when a supplemental statement has been filed by him describing said lands and showing their value, although such statement is not filed as an additional inventory.</p> <p>Although a petition of an administrator for an order for the sale of real estate is defective and irregular, for the reason that it fails to describe all the decedent’s real estate, and fails to state the amount of personal estate coming into the administrator’s hands, and his disposition thereof, and does not set forth the value of the lands other than by a reference to their appraised value, such irregularities will not affect the jurisdiction of the court to order the sale.</p> <p>Lands of a decedent may be sold to pay expenses of administration and an allowance for the support of the family, although the petition for sale may state that the decedent left no debts.</p> <p>Under Laws 1889-90, p.82, §2, validating sales of real estate by administrators, such sales will not be disturbed, although irregularly made, where the court had jurisdiction to order the sale, and the lands were sold at public auction after due notice by the administrator of time and place, the sale confirmed by the court, and the lands are now held by purchasers in good faith.</p>

<p>Appeal from Supei'ior Court, King County.</p>

<p>Appeal from Superior Court, King County.</p>

<p> Appeal from Superior Court, Skagit County. </p>

<p>Appeal from Superior Court, STcagit County.</p>

<p>App>edl from Superior Court, Pierce Coimty.</p>

<p>MASTER AND SERVANT — RISK OE EMPLOYMENT — NEGLIGENCE OE SERVANT.</p> <p>Where a man employed to operate a trimmer saw is injured by the breaking of the rope which was attached to a weight to pull the saw back after being used, the saw and its attachments having been under his control and operated by him for a period of three months and a half, during which time he had never looked to see the condition of the rope, although it was plainly observable, his injury is due to his own negligence for failure to guard against an apparent risk of his employment.</p>

<p>PRACTICE — DISMISSAL OF ACTION — RIGHT OF PLAINTIFF — DEMURRER— -WAIVER OF ERROR.</p> <p>The filing by plaintiff of a motion to dismiss his action after the sustaining of a demurrer to the complaint is a waiver of any error of the court in ruling upon the demurrer.</p> <p>It is error for the court to deny plaintiff’s motion for the dismissal of his action and grant defendant’s motion for dismissal, after the" sustaining of a demurrer to the complaint, and such error will be presumed prejudicial unless the contrary affirmatively appears.</p>

<p>Appeal from Superior Court, King County.</p>

Action by William B. Hanna and wife against George M. Savage, Walter J. Thompson and Henry Drum, to recover the sum of §17,141, with interest.

<p> Appeal from, Superior Court, King County. </p> <p>Opinion on motions to dismiss appeal and strike portions of the record.</p>

<p>Appeal f rom Superior Court, King County.</p>

<p>CONTRACT TO CONVEY — VENDOR’S WANT OF TITLE — WAIVER OF STRICT PERFORMANCE — PLEADING — ASSUMPSIT — TRIAL.</p> <p>In an action for rescission of a contract to convey land on the ground that the defendant at no time during the life of the contract had title thereto, it is error to strike from defendant’s answer paragraphs alleging that defendant held a contract for the purchase of the land from a third party, who was absent from the state and had neglected to execute a deed, although payment had been made in full; that plaintiff, although he had solicited and obtained from defendant an extension of the time of performance of the contract for live months, sought to take advantage of the absence of defendant’s vendor and of defendant’s consequent inability to procure a deed from him by suddenly, and long before the time agreed upon, making a tender and demanding his deed, in order to find a pretext for the rescission of the contract because the land had depreciated in value.</p> <p>Money paid under a contract for the conveyance of land cannot be recovered in an action of assumpsit, unless it appears, upon the whole case, that the grantee had an equitable right to rescind the contract, and that the grantor should not, in good conscience, be permitted to retain the money paid.</p> <p>It is error to compel the trial of a cause as an action at law, when both the complaint and answer invoke the equity powers of the court.</p> <p>Where the holder of a contract for the conveyance of lands makes payments thereon after knowledge of his vendor’s want of title, he cannot take advantage of such fact, until after full payment or tender thereof.</p> <p>Although the time of deferred payments is made the essence of a contract for the conveyance of land, yet where strict performance thereof has not been required, and the purchaser does not make payments upon time but asks and secures extensions, he is in no position to require his deed on the last day, and the vendor has a reasonable time to convey after demand.</p> <p>(Dunbar, C. J., and Scott, J., dissent.)</p>

<p>Appeal from Superior Court, King County.</p>

<p> Appeal from Superior Court, Skagit County. </p>

<p>COSTS IN CRIMINAL CASES — LIABILITY OF STATE —CONSTITUTIONAL LAW —ACT DIMINISHING COMPENSATION BY FEES.</p> <p>The state is not liable to the county, upon the successful prosecution of a felony in the superior court, for such costs as clerk’s and sheriff’s fees, fees and mileage of jurors, stenographer’s charges, and expenses incurred for a plat of the scene of the crime, nor for the fees of defendant’s witnesses in the preliminary examination.</p> <p>The state is liable, in such cases, for the fees of defendant’s witnesses appearing and testifying at the trial, when the cost bill therefor has been certified by the clerk and approved by the judge.</p> <p>The constitutional prohibition against diminishing the compensation of any public officer during his term does not apply to officers who receive specific fees for specific services, and accordingly the fees of justices and constables may be reduced by a law passed subsequently to their election and qualification.</p>

<p> Appeal from Superior Courts Skagit County. </p>

Appeal from Superior Court, King County. Action for damages for the appropriation of gravel for the repair of a county road.

<p>CRIMINAL LAW — INFORMATION — DUPLICITY — FAILURE TO INDORSE NAMES OP WITNESSES ON INFORMATION — INSTRUCTIONS — NEWLY DISCOVERED EVIDENCE.</p> <p>An information charging an assault with a deadly weapon is not bad for duplicity on the ground that it alleges the assault was made “without considerable provocation, and with a willful, malignant and abandoned heart.”</p> <p>Where a defendant in a criminal prosecution does not seek a continuance on the ground that the names of certain witnesses for the state had not been indorsed on the information before trial, but proceeds with the trial without objection, the presumption is that he considered himself ready for trial, and was not injured by want of notice.</p> <p>Where the court in charging the jury reads to them the statute under which the information was drawn, the complete sense of which cannot be obtained without reading the whole section, it is not error for the court to read to the jury the penalty attaching to the offense.</p> <p>Where a defendant has been misled into not making proper preparation for Ms defense by the statement of the prosecuting attorney that he did not intend to further prosecute the defendant, the defendant will be entitled to a new trial upon a showing of newly discovered evidence.</p> <p>Where the testimony adduced at the trial of a criminal prosecution was exclusively that of Indians, given through the medium of interpreters, defendant is entitled, on a proper showing, to a new trial on the ground of newly discovered evidence, although cumulative in character, when the newly discovered evidence is shown to be that of a white witness.</p>

<p>Appeal from Superior Court, Whatcom County.</p>

<p>ACTION UPON ACCOUNT — ERRONEOUS INSTRUCTIONS — "WAGES — ISSUANCE OF ORDER IN PAYMENT — NOTICE OF NON-PAYMENT.</p> <p>In an action to recover for personal services in which the complaint alleged a balance of $180 was found to be due plaintiff upon a statement of account, for which sum an order or warrant had been issued to him, while the answer averred that a less sum was due, and there was proof sufficient to go to the jury in support of the facts alleged in the answer, it was error for the court to charge the jury “that the amount has been fixed by these warrants, by the parties themselves, and there is no other question before you on the question of amount.”</p> <p>An order issued in payment of wages directing a third party to pay the wage earner $180, is by its terms payable in lawful money of the United States, and does not violate the provisions of Laws 1887-8, p. Í134, forbidding the issuance in payment of wages of any order, check, etc., payable in whole or in part otherwise than in lawful money of the United States.</p> <p>An instruction that defendants would be liable for the amount of such an order issued to plaintiff, if the same was not paid, is erroneous, for the reason that the requirements of presentation by the plaintiff and seasonable notice to defendants of non-payment were omitted from the instruction.</p>

<p>Appeal from Superior Court, Skagit County.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>Appeal from. Superior Court, Whatcom County.</p>

<p>CORPORATIONS — UNAUTHORIZED ACTS OF AGENT — ISSUANCE OF NEGOTIABLE NOTES.</p> <p>A corporation is not bound ’by negotiable paper uttered by its agent, unless he has express authority to issue the paper, or there is an implied general authority arising from such frequent exercise of the power by the agent, followed by ratification, as to constitute a custom of the corporation, or a ratification of the particular act, or an estoppel to deny the agent’s authority.</p> <p>The fact that the president and manager of a corporation had executed negotiable notes in the corporate name, which they had taken care of without’ the knowledge of the board of trustees, will not render the corporation liable on other notes issued by such officers without the authority of the board of trustees, although the president and manager were two of the fire trustees.</p>

<p> Appeal from Superior Court, Thurston County. </p>

<p>APPEAL — FAILURE TO FILE TRANSCRIPT — EXCUSABLE DELAY.</p> <p>Where an appellant’s failure to file his transcript and briefs within the time required by statute is due to a misunderstanding between his attorney and the clerk of the superior court, and the appellant has at all times been endeavoring iu good faith to prosecute his appeal, and the transcript has been Hied and his brief served prior to the hearing upon a motion to dismiss his appeal, the motion will be denied. (Hoyt, J., dissents.)</p>

<p> Appeal from Superior Court, King County. </p>

<p>HOMICIDE — PROSECUTION BY INFORMATION — INDORSING NAMES OF WITNESSES — EVIDENCE — INSTRUCTIONS — NEWLY DISCOVERED EVIDENCE.</p> <p>Infamous crimes may be prosecuted in this state by information, as the constitution of the United States does not assume to regulate prosecutions under state laws.</p> <p>A preliminary examination on a charge before one justice of the peace, after the dismissal of a charge before another justice without an examination, is sufficient to found an information upon.</p> <p>A defendant who has been served with a copy of an information against him, with the names of witnesses indorsed thereon, is not entitled to another copy of the information, upon the indorsement of additional witnesses thereon, but notice of the addition of the new names is sufficient.</p> <p>The personal effects of every kind belonging to a prisoner may be taken from his person and used upon his trial for what they may he worth as criminating evidence.</p> <p>Where the evidence in a prosecution for murder tends to show that the person who committed the crime had worn a certain pair of rubber boots at the time, and the defendant testifies that he cannot get the boots upon his feet, and makes apparently extraordinary efforts to put them on in the presence of the jury, it is not error to allow a shoemaker to measure defendant’s feet and the boots and then testify that a foot of defendant’s size could wear the boots; nor is it improper to call other witnesses to put the boots on in the presence of the jury, and allow the shoemaker, after measuring their feet, to testify that he finds them as large as defendant’s.</p> <p>Where a defendant charged with murder attempts to prove an alibi by testifying that he was in a certain saloon on the night of the murder, and the state places the saloon keeper on the stand to rebut defendant’s proof, and, for the purpose of proving that the witness had a real recollection that the defendant was not there, rather than a mere absence of recollection as to whether or not he had visited the saloon, it is not error where there is no other objection than to the leading character of the questions, for the saloon keeper to testify that he knew on the day following the crime that defendant was suspected by the people of his locality.</p> <p>Where a defendant in a criminal prosecution appears as a witness in his own behalf, it is not error for the court to charge the jury that, “in the case of the defendant you have a right to consider the great interest he has in your verdict.”</p> <p>It is not error for the court to refuse to instruct that a failure to prove a motive for the commission of the murder charged would raise a strong presumption of the innocence of the accused.</p> <p>Where defendant had sworn on his trial that he could not get on certain rubber boots, he is not entitled to a new trial on the ground of newly discovered evidence showing that, while it was possible for him to get the boots on, he could not have worn them.</p>

<p>Appeal from Superior Court, Sl&agit County.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>APPLICATION OF PAl'MENTS— EVIDENCE — INSTRUCTIONS.</p> <p>Iii an action against co-partners, after the dissolution of partnership, to recover upon an account for services, where the evidence h£S shown that the business was continued by one of the partners, who assumed the firm indebtedness, and that the plaintiff had continued in the service thereafter, receiving payments of money from time to time, evidence is admissible that plaintiff had instituted a suit, which was afterwards dismissed, upon a balance of account against the partner continuing the business alone, for the purpose of showing that the plaintiff had made application of the payments to the partnership account.</p> <p>Where the record shows that the papers in such former suit were offered in evidence for the purpose of showing plaintiff’s application of the payments made, and were excluded by the court on the ground that they were immaterial and irrelevant, there is sufficient testimony'in the record for the court to take cognizance of the error alleged in rejecting such testimony. (Dunbar, C. J., and Anders, J., dissent.)</p> <p>In such case, where the theory of the retiring partner is that the plaintiff took from the partner continuing the business a due bill whereby he accepted the latter as his debtor for the demand, it is not error for the court to instruct the jury that “if a creditor takes a due bill, or anything of the kind, and agrees to release any other claim and looks to such due bill, he is bound by it and must stand to it.”</p> <p>Upon the question of the application of payments it is not error for the court to charge the jury: “ You are instructed that the law applicable to this proposition is that, if there be debts due from a person and he pays money to his creditor, the debtor has a right to have the payment applied to which debt he pleases. Rut he must make the application at the time he makes the payment, and he cannot make it afterward. If no specific application be made by the debtor at the time of payment, then this right of application is the creditor’s, and he may make it as he may prefer, and at anytime before’an account is settled between them or before action is brought; and, if neither creditor or debtor applies it specially, then the law will apply or credit it to the oldest aeeouut,”</p>

<p>Appeal from Superior Court, King Comity.</p>

<p>DIVORCE — ADULTERY — PLEADING — VERIFICATION OF COMPLAINT.</p> <p>A verification of the complaint in an action for divorce to the effect that the plaintiff believes the contents of the complaint to be true, is a sufficient compliance with the requirements of Code Proc., §760.</p> <p>A complaint for divorce on the ground of adultery is insufficient when it fails to allege that the last act of adultery was committed within one year before the commencement of the action and that it was unforgiven; but such defect is cured by judgment, where proof showing such facts has been admitted without objection.</p>

Action Upon promissory notes executed by defendant to plaintiff.

<p>Appeal from, Superior Court, Clallam Coumly.</p>

<p>HOMICIDE — CIRCUMSTANTIAL EVIDENCE — SUFFICIENCY.</p> <p>In a prosecution for murder, the defendant is entitled to a discharge where the evidence shows that, by reason of the relations of the defendant with the deceased, he had an opportunity to commit the crime, but that others also had an equal opportunity; that the hatchet with which the crime was probably committed had been used in the fruit stand formerly belonging to defendant, but at the time was in the actual occupancy of another; that defendant had stains, apparently of blood, around his finger nails, upon his arm and upon his shoes, but which were not proved to have been made by human blood; that his conduct on the day following the night of the murder, considered in the light of his personal peculiarities and the circumstances surrounding him, might be better explained upon the theory of his innocence than that of his guilt; and that a piece had been cut from his vest, not, as claimed by the prosecution, for the reason that it was covered with blood stains, but to serve as a patch for his trousers.</p>

<p>MECHANICS’ LIENS —SUFFICIENCY OF CLAIM — TERMS AND CONDITIONS OF CONTRACT.</p> <p>A claim of lien sufficiently sets forth the terms and conditions of the contract under which materials were furnished when it states that certain described materials were delivered to the owner of the premises upon which lien is claimed, upon his promise to pay certain prices therefor as soon as the materials should be delivered; and the failure of the claimant to deliver the materials within a specified time agreed upon is matter of defense not affecting the contract set up by the claimant until established by the defendant.</p>

<p>COUNTERCLAIM — UNLIQUIDATED DAMAGES — PLEADING.</p> <p>Under Code Proe., § 195, an unliquidated claim for damages may be a subject of counterclaim, provided it arises out of the contract or transaction upon which the plaintiff bases his complaint.</p> <p>In an action by an architect to recover the value of certain plans for a building, and for services superintending its erection, a plea of counterclaim sets up sufficient facts as against the purchase price of such plans, when it alleges that plaintiff represented to the defendant that he was a competent and skillful architect, and that a building erected in accordance with said plans would be well and properly lighted, and first class in every respect; that such representations were untrue; that the building erected in accordance with such |ilans was not well lighted and first class; and that by reason of the defects in the building, occasioned by the plans not being as represented, defendant had been put to great expense.</p>

<p> Appeal from Superior Court, Jefferson Comity. </p>

<p>Appeal from Superior Court, King County.</p>

<p> Appeal from, Superior Court, King County. </p>

<p>TRIAL — ADMISSION OF EVIDENCE — OBJECTIONS — JUDICIAL COMMENT— ERRORS NOT RAISED BELOW- — VERDICT-—SUFFICIENCY OF EVIDENCE.</p> <p>An objection to the admission of evidence is insufficient to raise any question over its admission unless it states the ground for such objection.</p> <p>The admission of irrelevant and immaterial testimony is harmless error, when the party objecting is not prejudiced thereby.</p> <p>Comment on the facts by the judge during the progress of a jury trial is harmless error, when not prejudicial to the party complaining.</p> <p>Where comment by the judge on the facts is not excepted to at the time, and is not called to the attention of the court thereafter, the error cannot be urged on appeal.</p> <p>The verdict of a jury in favor of plaintiff for logs furnished defendant is based upon sufficient evidence as to value, when it appears that by the terms of a contract introduced in evidence plaintiff was to receive a certain price per thousand for merchantable logs, and there was further testimony that they were of that value, although the proofs as to the merchantable quality of a large portion of the logs was conflicting.</p>

<p>Appeal from Superior Court, Snohomish County.</p>

<p>Appeal from Superior Court, King Coxmty.</p>

<p>CONTRACT FOIi SUPPORT —BREACH—RIGHTS OF PARTIES.</p> <p>Where, under a contract for the support of his parents, a son has been put in possession of personal property, with the agreement that it should be his upon the death of the parents, and the son has executed the agreement for support on his part for a period of more than ten years, he cannot be deprived of the possession, and inchoate right of ownership, of such property by the execution of a bill of sale to another by his parents upon their becoming dissatisfied with his manner of fulfilling the terms of the contract.</p>

<p>PRINCIPAL AND SURETY — DISCHARGE OP SURETY — POSTPONEMENT OP PROCEEDINGS.</p> <p>Where, in an action of unlawful detainer, the defendant in order to stay a writ of restitution gives bond with sureties, conditioned to pay plaintiff such sum of money as he may recover for the use and occupation of the premises, and all damages plaintiff may sustain by reason thereof, and all the costs of said action, the sureties upon such bond are not discharged by reason of a stipulation entered into between their principal and the obligee, providing that the trial of the cause should be deferred pending appeal to the supreme court of another action involving the same questions, and should be determined by the decison rendered on such appeal.</p>

<p> Appeal from Supei'ior Court, Spokane County. </p>

<p> Appeal from Superior Court, Pacific County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>TAX DEED--VOID ASSESSMENT —ACTION TO RECOVER LAND-STATUTE OB LIMITATIONS.</p> <p>Under the revenue law of 1871, the assessment of unoccupied land to one not its owner was unauthorized and void, and the presumption raised by a tax deed, that an assessment to a certain person had been properly made, is rebutted by evidence showing ownership in another.</p> <p>The statute of limitations (Code 1881, ch. 2) is not controlled or affected by §,§1294, 1683, Code of 1881, providing that “ when a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy has begun to run before this code takes effect, and the same or any limitation is prescribed in this code, the time which has already run shall be deemed to be part of the time prescribed as such limitation by this Code,” as such sections were parts'of laws on special subjects enacted in 1881, and were not embraced in the civil practice act of that year.</p> <p>Adverse possession of real property from August, 1878, to April, 1890, will not bar an action quieting title thereto either under the law of 1802-3, imposing a twenty-year limitation on such an action, or under the law of 1881, which reduces the time of commencing such actions from twenty to teu years.</p> <p>The entire revenue act of 1869 was repealed by the revenue act of 1871, although portions thereof may not have been in conflict with anything contained in the later law; consequently the three-year limitation upon the right to institute suits for the recovery of lands sold for taxes, which was contained in said act of 1869, had no application to tax sales under the revenue law of 1871.</p>

<p>WILLS — CHILDREN UNPROVIDED FOR — DISTRIBUTION OF ESTATE BT STATUTE — CONSTRUCTION OF WILL BIT PROBATE COURT — ESTOPPEL.</p> <p>Where the judgment of a probate court that a decedent died intestate as to his children for the reason that they were not named or provided for in his will, as required by § 1825, Code 1881, and its order of distribution of such decedent’s estate accordingly, have remained undisturbed and unappealed from for a period of ten years, other courts are estopped to construe the will upon that point.</p> <p>Although a will may, under the provisions of § 1335, Code 1881, be inoperative as to the testator’s children, and they entitled to share in the testator’s estate as if he had died intestate, yet the will is valid for all other purposes; and a devise of all the testator’s estate to his wife during her lifetime, with remainder to his heirs, will operate, where there are two children, to give the widow but a life estate in one third of the testator’s separate property.</p> <p>The power given probate courts by the legislature of Washington Territory to make distribution of a testator’s estate to his minor children when they were not provided for in his will, was not in contravention of the organic act (10 U. S. St. at Large, 172) creating such courts.</p>