the utmost affection, and exhibited the ex-, is substantiated by that of the sister of retremest jealousy of the attentions of other spondent, who was present at the meeting young men to her. He was a constant visi- between the parties. The appellant left this tor in her home, taking her frequently for meeting in an angry frame of mind, and auto rides and to the theater. The respond- subsequently declined to pay the hospital ent at this period was 16 years of age and bills of respondent. Appellant's son made Tom Jones was 21. After they had been no effort to visit or cohabit with his wife. thus intimate for about a year respondent She met him but once after the marriage. discovered in August, 1914, that she was She testified: pregnant. Tom Jones was apparently ignorant of this state of affairs until the father of respondent, in October, 1914, called him to the house and informed him of her condition. The respondent was hysterical at the time, and Tom Jones put his arm around her and told her not to worry, and everything would come out all right, saying: "The only right thing to do was to get married, but he had to speak to his father first, because he was in no position to support a wife" "My sister called Tom up and asked him to meet her, and she went and met him first, and then about five minutes afterwards I met him, because he refused to meet me at all; and he was awfully mad because I met him that way, and he said he couldn't talk to me: that his father had forbidden him to say anything; that he had put it in the hands of his attorneys, and I would have to talk to them. He said his father had forbidden him to say anything to me.' A child was born to respondent in January, 1915. The husband continued to live with his father until July, 1915, when he left his home to take a position in Alaska, without calling upon or communicating with the respondent. The only money he ever contributed to the support of his wife and child was the sum of $20. [1, 2] We think the motions challenging the sufficiency of the evidence were properly denied by the court, as there was sufficient evidence to warrant the submission of the case to the jury. These objections were based chiefly on the assumption that there was no proof of malice on the part of appellant. It is true the appellant testified there was none, but we think there were matters in evidence from which malice might be inferred. Malice, like other mental processes, is as well shown by conduct as it is by the testimony of the person whose condition of mind is the subject of inquiry. [3] An objection is made to the declaration -then kissed her good-bye and left. He went home and informed his father, who testified that he told his son that, if she was a decent girl and he loved her, he must marry her and take care of her. There is no further evidence of what passed between father and son at the time, but the fact is that the son never returned to the respondent to make good his promise. The respondent later began to threaten a criminal prosecution, and the appellant undertook complete charge of all negotiations, the son remaining passive. The attorney for respondent was insisting that marriage was the only alternative to prosecution. A meeting was arranged between this attorney and those representing the appellant, in which the appellant agreed to a marriage between his son and respondent. The marriage occurred about a week later in Everett; the appellant with his son and the respondent with her sister and father composing the party present at the ceremony of the son to the effect that his father had in the courthouse there. On their return forbidden him to talk to respondent; that from the marriage ceremony, respondent and their matter had been put in the hands of her family left the interurban car at Fre- attorneys, and she would have to talk to them. mont, appellant and his son going on down We do not find that timely objection town. It was in evidence that the appellant was made to this, but, conceding the fact promised to call at the home of respondent otherwise, such evidence was admissible unthe next day. He did not go there, how-der the authorities. In Nevins v. Nevins, 68 ever, until about a week later, and then in response to an insistent summons. On this visit appellant asked respondent about her condition, and suggested that she go to some other city until the baby was born. She declined, and then he told her to go to the hospital in Seattle and have the best of care and he would pay all of her bills. She testified that he asked her when she would release his son, and she told him that, with a small baby on her hands, she would not release him. "Well, he says, 'You can give the baby to Tom, and you can always get married again.' Then he got kind of mad, and he told me he absolutely refused Tom to live with me. He said he had another girl picked out for Tom and had other plans." This testimony, though denied by appellant, Kan. 410, 75 Pac. 492, it is said: "The declarations of the young husband, alto show the effect that his father's wrongful inthough not a party to the suit, were admissible terference and misrepresentations had upon his mind. It was competent, not only to show the active and persistent efforts of the defendant to alienate his son from Ella, but it was also both proper and necessary to show the effect of such efforts upon the son. For this purpose the testimony was competent." In Williams v. Williams, 20 Colo. 51, 37 Pac. 614, it is said: "Under the issue to be determined, and in connection with the testimony introduced, it was in our opinion, proper to admit in evidence the declarations of Edward, for the purpose of showing what influenced his conduct in separating from his wife. It is true his mere declarations were not admissible to show what his mother's conduct was, nor was it, of itself alone, material how bad his mother's conduct was towards plaintiff; for, no matter how bad her conduct was, she could not properly be held liable in this action unless the effect of her conduct was such as to cause Edward to become estranged from and desert his wife. From the record it clearly appears that the trial court was careful to place the declarations of the husband upon this ground. Thus limited, it was not error to admit proof of his declarations." regard for the maintenance of the marriage relation, and appellant's acts and conduct were in opposition to that policy. Under the circumstances we are loath to disturb the verdict of the jury as modified by the trial court. Errors are assigned relating to the admission and exclusion of evidence other than those above indicated, but we find none of [4, 5] Contention is made by appellant that them material. Objections raised as to sevit was error to exclude the testimony of the eral of the instructions given are not well husband purporting to show want of affection taken, even if the paragraphs complained of for his wife, and also the testimony of other be withdrawn from their setting as a part of witnesses as to declarations made by the the charge given. The instructions as a husband prior to any knowledge on appel-whole were proper statements of the law, and lant's part of the relations between his son presented the appellant's defense to the jury and respondent for the purpose of establish- in the clearest and fairest way possible. ing that the husband's feelings and conduct toward respondent were not influenced by his father. Under Rem. Code, § 1214, providing that one spouse shall not be examined for or against the other without such other's consent, we have held in Stanley v. Stanley, 27 Wash. 570, 68 Pac. 187, a suit by the wife against her husband's parents for alienating the affections of the husband, that the husband was not competent to testify over the objection of the wife. If the husband was incompetent to testify as to any matter, clearly the statute could not be evaded by admitting in evidence declarations made by him to third parties. . While the state of mind of the husband in this case was a material fact to be considered in determining whether there had been an alienation of the husband brought about by his father, it was a matter for proof by competent evidence, by evidence which would not fall within the inhibition of our statute. It was sought further to prove by the husband's testimony what his disposition toward respondent was at a period preceding the existence of the marriage relation. But his competency as a witness would depend upon his relationship at the time of the trial, and he would be precluded from testifying against his wife as to occurrences transpiring before marriage. Sands v. David Bradley & Co., 36 Okl. 649, 129 Pac. 732, 45 L. R. A. (N. S.) 396. [6] Appellant further contends that the verdict of the jury was so grossly excessive as to show passion and prejudice on their part, and that a new trial should be awarded in consequence. The verdict, as we have seen, was for $25,000, and was reduced by the trial judge to $12,500. The latter figure still seems large, but there is evidence justifying an award, and there is no showing other than the size of the verdict that the jury was influenced by prejudice. The jury was warranted in finding from the evidence that the appellant consented to the marriage for the purpose of avoiding a criminal prosecution against his son and with the ultimate idea of securing a divorce of the parties, and that he was the active agency in keeping his son away from his wife. Public policy has [7] Error is assigned upon the refusal of the court to grant a continuance at the close of the trial for the purpose of enabling the appellant to show that respondent had tried to place the paternity of her child upon another man prior to her claim on that score against the son of appellant. The court refused to grant the continuance at that stage of the proceedings, suggesting to appellant that the matter might be presented upon a motion for a new trial. The matter was presented upon the motion for new trial on the ground of newly discovered evidence, and affidavits pro and con were submitted, upon which the court ruled the showing made was insufficient. It was within the discretion of the trial court to grant or refuse a continuance, and we do not think there is any showing of abuse on his part. An examination of the affidavits clearly indicates their inadequacy to affect the issue of the trial. The judgment is affirmed. ELLIS, C. J., and PARKER and HOLCOMB, JJ., concur. (96 Wash. 110). In re SLOCUM'S ESTATE. DU BOIS v. DAUGHERTY. (No. 13868.) (Supreme Court of Washington. May 2, 1917.) 1. WILLS INTENT. 439-CONSTRUCTION-TESTATOR'S The primary object in construing wills is to determine the testator's intent. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 952, 955, 957.] 2. WILLS 820(4)—CONSTRUCTION-MAINTE NANCE OF WIFE. tate in both his separate and the community Where a testator gave his wife a life esproperty, with power to use for her maintenance, and provided that, upon her death, her property and his then remaining should descend, etc., maintenance expenditures by the wife should be deducted from the total of the husband's and wife's property, and not merely from that passing under his will. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 2116-2119.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Department 1. Appeal from Superior | separate and community property, should go Court, Clarke County; R. H. Back, Judge. to his legal heirs then living. If the testaIn the matter of the estate of C. W. Slo- ment ended with the words: cum, deceased. Proceeding by W. B. Du Bois, administrator of C. W. Slocum, deceased, against Alice Daugherty, administratrix of Laura Slocum, deceased. Judgment for plaintiff, and defendant appeals. Affirmed. McMaster, Hall & Drowley, of Vancouver, for appellant. Miller & Wilkinson, of Van--appellant's position could hardly be doubtcouver, for respondent. CHADWICK, J. C. W. Slocum, now deceased, left a will in which he provided, among other things, as follows: "One-third of my property is my own separate property owned by me before marriage, and the natural increase thereof; two-thirds of all my property is community property acquired by myself and wife. "I give, bequeath and devise all of my property, both real and personal, of every kind, nature and description whatsoever, of which I may die seised and possessed, unto my wife, Laura Slocum, during her natural life, to be used by her for her own comfort and maintenance as she may see fit. That upon her death it is my desire and wish that her one-third of the property still remaining descend as she may desire and my two-thirds then remaining descend to my legal heirs then living, share and share alike." The will was, in form, a nonintervention will. Upon the death of the testator, Laura Slocum, the surviving wife, took possession of the whole of the estate as executrix. Pending final settlement, Laura Slocum died. Respondent was appointed administrator cum testamento annexo of the estate of C. W. Slocum, and appellant was appointed administratrix cum testamento annexo, of the estate of Laura Slocum, deceased. Between the death of C. W. Slocum and the death of Laura Slocum, she had used for her own maintenance and comfort a large sum of money. It is the contention of the respondent that this sum-the parties do not agree upon the exact amount-should be deducted from the whole estate, including the share of Mrs. Slocum, while appellant maintains that it should be deducted from the property passing under Mr. Slocum's will to the exclusion of Mrs. Slocum's share. After a hearing, the court held that the expenditures made by Mrs. Slocum for her maintenance and comfort should be charged to the whole estate, and this appeal followed. "I give, bequeath, and devise all of my property, both real and personal, of every kind, nature and description whatsoever, of which I may die seised and possessed, unto my wife Laura Slocum, during her natural life, to be used by her for her own comfort and maintenance as she may see fit" ed. In gathering the intention of a testator, we are put to the added burden of considering each phrase, and in its setting with other phrases. Immediately following the clause quoted, we find the intention of the testator clearly manifested: "That upon her death it is my desire and wish that her one-third of the property still remaining descend as she may desire and my twothirds then remaining descend to my legal heirs then living, share and share alike.' The subsequent expression is not vague or general, nor is it repugnant to the first phrase. The gift is complete. All property passes. The doubt, if any, as to whether the charge for the comfort and maintenance of the survivor is to be made against the husband's share alone or the entire estate is not answered by reference to the first testamentary clause. Resort to the clause following discloses the thought that the remainder of the estate, after the death of the wife, would be that part of the whole estate remaining after deducting all sums used by her for her own comfort and maintenance. Affirmed. ELLIS, C. J., and MORRIS, MAIN, and WEBSTER, JJ., concur. (96 Wash. 178) (No. 13726.) May 8, 1917.) 47-LEASE-PAY COATES v. CARSE et al. MENT IN CASE OF SALE. Tenant, Cent. Dig. §§ 112, 113.] Department 2. Appeal from Superior [1, 2] We incline to the holding of the trial judge. We must admit that an attractive theory may be advanced by either side, but Action by F. R. Coates against William the first landmark in the construction of Carse and others. Judgment for plaintiff, Reversed and rewills is to ascertain the intention of the tes- and defendants appeal. tator. Under the laws of this state, the tes-manded, with instructions. tator might have disposed of his entire property to the exclusion of his spouse. Instead of doing so, he treated his whole property, separate and community, as one entity, subject to a charge for the support, maintenance, and comfort of his wife during her lifetime. After her death the remainder, if any, of his Clark & Lockhart, of North Yakima, for appellants. William M. Thompson, of North Yakima, for respondent. MOUNT, J. This action was brought by the plaintiff to recover from the defendants $276.82, under a lease. The case was tried to the court and a jury. At the close of the plaintiff's evidence, and at the close of all the evidence, the defendants moved the court for a directed verdict. These motions were denied, the case was submitted to the jury, and a verdict was returned for the full amount claimed in the complaint. The defendants have appealed. The facts in the case are not in dispute. It appears that on the 29th day of March, 1916, the appellants were the owners of 20 acres of land in Yakima county, which contained a bearing orchard. On that day they leased the premises to the respondent. He immediately took possession under the lease. This lease provided, among other things, as follows: "The said parties of the first part reserve the right to sell said land on or before August 1, 1916, and in case of a sale being made, the said parties of the first part hereby agree to pay to the said party of the second part the sum of two hundred dollars ($200.00), together with a just and equitable price or sum of money for labor and money expended on said land and orchard by said party of the second part, and upon said payment the said party of the second part agrees to surrender to said parties of the first part peaceable possession of said land." After the respondent had entered into possession of the land, and prior to August 1, 1916, the appellants sold and conveyed the land to one Rankin. At the time of the sale Mr. Rankin knew of the tenancy of the respondent. The respondent was not required to terminate the lease or surrender possession of the land. The respondent also knew of the sale to Mr. Rankin by the appellants. After the sale had been completed, and while the respondent was still in possession of the land, he made a demand upon Mr. Carse, one | of the appellants, for the sum of $200, and for labor and expenses which he had at that time put upon the land to the amount of $76.82. The appellant refused to pay, and this action was brought. the respondent in case he had expended mon. ey and labor upon the land, and, after such expenditure, was dispossessed by reason of a sale. The lease was executed in March. The appellants reserved the right to sell the land up to August of that year. The work of spraying the orchard, pruning it, irrigating it, and attentions of that kind, would all be done between March and August. The crop grown upon the orchard would not be gathered until after August. This provision of the lease required that the appellants, if possession was taken from the respondent before August, should pay him for his time and expense, and $200 in addition thereto, to remunerate him for his loss of the harvest in case of the surrender of possession. It was clearly not the intention of the parties to the contract that the respondent, in case of sale, would be entitled to retain possession of the land, harvest his crop, and, in addition thereto, receive pay for his work and expenses, and $200 additional. It is unreasonable to suppose that such a contract was contemplated. The terms of the contract are plain that the $200 and expenses incurred between March and August was for the surrender of the premises by the respondent to the appellants, and for no other purpose. Inasmuch as the respondent was not dispossessed of the premises, but was permitted to remain thereon, he was clearly not entitled to recover. The purchaser of the land knew of the tenancy, and therefore could not dispossess the tenant. The appellants could dispossess him only by complying with the terms of the lease, that is, by paying him for his labor and expense, and $200 additional. No effort was made, either by the appellants, or by the purchaser, to dispossess the respondent, and he was therefore not entitled to recover either his expenses, or for his labor, or the $200. He will be remunerated by his share of the crop under the lease. The judgment is therefore reversed, and the cause remanded, with instructions to dismiss the action. ELLIS, C. J., and FULLERTON, PARKER, and HOLCOMB, JJ., concur. (96 Wash. 156) DWIGHT v. WALDRON et al. (No. 13982.) (Supreme Court of Washington. May 5, 1917.) 1. TENANCY IN COMMON 19(1)-RIGHT OF COTENANT-PURCHASE OF ADVERSE INTER It is not claimed, either in the complaint or in the evidence, that the respondent surrendered possession of the land to the appellants, or that he was requested to do so. Under these facts it is clear that respondent was not entitled to recover, and it was the duty of the court to direct a verdict in favor of the appellants. The lease provides, as quoted above, that the appellants reserve the right to sell the land before August 1, 1916, and in case of such sale then the appellants agree to pay the respondent the sum of $200, together with a just and equitable price for labor and money expended upon said land, and upon said payment the respondent "agrees to surrender to said parties of the first part peaceable possession of said land." It is plain from this provision of the contract that the appellants agreed to pay the $200, and the expenses, only in case the land was sold, and the respondent required to surrender the possession of the land. The obA purchase by one cotenant of an outstandject of this provision clearly was to protecting title or claim against land owned in com EST. A tenant in common cannot by purchasing an outstanding adverse title to or incumbrance on the land deprive his cotenants of their common interest when the purchase is made for the benefit and protection of the common estate. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 55.] 2. TENANCY IN COMMON 19(2)-RIGHT OF COTENANT-PURCHASE OF OUTSTANDING TITLE OR CLAIM. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mon is as to the other cotenants voidable only; they having right to elect to share in benefit of purchase. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 56.] 3. TENANCY IN COMMON 19(2)-RIGHT OF COTENANT-PURCHASE OF ADVERSE TITLE OR CLAIM-SHARE IN BENEFITS. If a cotenant wishes to share in adverse title acquired by a cotenant, he must within a reasonable time tender payment of his share of the price necessarily expended in acquiring title; what constitutes a reasonable time depending upon the particular facts in each case, but must not be longer than is consistent with fair dealing. spondents to certain undivided interests in the property. A demurrer to the complaint was interposed and sustained, after which the appellant elected to stand thereon. From a judgment of dismissal thereafter entered this appeal is prosecuted. The ultimate state facts sufficient to constitute a cause of question therefore is: Does the complaint action? The facts stated in the complaint are substantially these: On October 16, 1890, the respondent R. P. Waldron, together with Arch Murray, Alex Miller, and Frank Mil [Ed. Note. For other cases, see Tenancy in ler, became the owners of the property in Common, Cent. Dig. § 56.] 4. TENANCY IN COMMON 38(5)—ACTION BY COTENANT TO QUIET TITLE-LACHES. In action by a cotenant to set aside a tax deed and quiet title to undivided interests in the land, 20 years having elapsed since plaintiff's predecessors made default in payment of taxes, and more than 12 years having elapsed since a cotenant, defendant's predecessor, acquired the land at the tax foreclosure sale, was barred by laches. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 111.] 5. TENANCY IN COMMON 19(2)-DUTY TO PROTECT COMMON TITLE. Equity does not oblige a cotenant to pay out his money to protect the common title, but permits him to do so and converts him into a trustee when he has done so. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 56.] 6. TENANCY IN COMMON 19(5)—PURCHASE OF ADVERSE CLAIM-FAILURE OF COTENANTS TO REIMBURSE-PRESUMPTION. Where a cotenant has purchased an adverse claim to the land, failure of the other cotenants to reimburse him within a reasonable time will be taken as an election on their part to allow him to take the title he has acquired for his individual use. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. § 59.] AMOUNT OF TAXES DUE. Under the procedure prescribed by our statute, that the property was sold for approximately 50 cents in excess of the amount of taxes due does not render void the tax foreclosure proceeding or the title acquired thereby. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1350.] Department 2. Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge. question by virtue of a warranty deed executed to them by the then owner of the property, the deed conveying to Frank Miller an undivided one-seventh interest in the land, and to the remaining grantees an undivided six-sevenths interest therein. These parties held the land until June 20, 1895, when R. P. Waldron conveyed his interest to one I. W. Walker. During the years the property was held by the original purchasers taxes were assessed against the property by the assessor of Chehalis county, the county in which the lands lie, in the name of the original purchasers up to the time of the transfer by Waldron to Walker, and from that date up to May 31, 1902, in the name of original purchasers, with the exception that the name of Walker was substituted for that of Waldron as one of the owners of the property. The owners of the property suffered the taxes to become delinquent, and on the date last named one M. E. Ross, then a stranger to the title, procured from the county of Chehalis a certificate of delinquency for the taxes for the years 1896 to 1900, inclusive. After procuring this certificate, and on Sep 7. TAXATION 667-FORECLOSURE PROCEED-tember 2, 1902, M. E. Ross acquired by quitINGS VALIDITY SALE IN EXCESS or claim deed from L. W. Walker his interests in the property. On September 13, 1902, Mrs. Ross began an action in the superior court of Chehalis county to foreclose her certificate. At this time both Alex Miller and Frank Miller were dead, and the plaintiff made parties defendant to the foreclosure proceedings the surviving owner Murray and the heirs at law of the deceased owners. Service was had upon Murray personally, and upon the other defendants by publication after a return of not found had been made by the sheriff in whose hands the summons was placed for service. Default was made in the proceedings by the defendants, and on December 18, 1902, a decree of foreclosure was entered on the certificate of delinquency, for the principal and interest due thereon, together with the costs of the proceedings, the total aggregating the sum of $81.73. Thereafter a sale of the property was had under the decree of foreclosure by the treasurer of Chehalis county, at which sale Mrs. Ross became the purchaser of the Action by W. G. Dwight against Ella Waldron and others. From a judgment of dismissal after sustaining a demurrer to the complaint, plaintiff appeals. Affirmed. Stewart & Tucker, of Aberdeen, for appellant. Bridges & Bruener, of Aberdeen, for respondents. FULLERTON, J. This is an action brought by the appellant, Dwight, against the respondents Waldron, to set aside a tax deed to certain real property situate in the city of Hoquiam, and to quiet the title of the re |