may reject words and limitations, supply or transpose them to get at the correct meaning." Phillips v. Davies, 92 N. Y. 199; In re Miner, 146 N. Y. 121, 40 N. E. 788.

Alford v. Bennett, 279 Ill. 375, 117 N. E. 89, is a late case with similar misdescription in a will, and where the court construed the description in the will to be of the land that the devisor actually owned. The testator owned the northeast quarter of the northwest quarter of a section, but did not own any of the northeast quarter of the section. A devise to one daughter of the north 25 acres of the northeast quarter of the section, following a devise to another daughter of 15 acres "off the south side of the northeast quarter of the northwest quarter" of the section, was a devise of the north 25 acres of the northeast quarter of the northwest quarter, being remaining land in the estate undisposed of by the testator, and the will containing no residuary clause.

The trial judge in his memorandum decision says:

"(1) That clause which read as follows: 'Also 40 acres lying between my northeast corner and the south line of John Nuhse's property; also all property I own on the east side of the northwest quarter of section thirty-three, township thirty-one north, range six E. W. M.'-is extremely hard for me to construe.

"(2) I recognize the rule of law to be that the court should give effect to the intention of the testator if that can be gathered from the words employed by him in his will. In this case the testator describes property which cannot exist; for the reason that he could have possessed no land between his northeast corner and the south line of any other real estate. I have not lost sight of the fact that, according to the plat introduced in evidence, by construing the language used to read as follows:

"(3) 'I give and devise unto John Nuhse the northeast quarter of the southwest quarter; also all property which I own on the east side of the county road in the northwest quarter of the southwest quarter of section thirty-three, township thirty-one north, range six E. W. M.,' and if I should also construe the language with reference to the property conveyed to Mrs. Anna Peterson and Mrs. Mark Bartlett as fol

northeast quarter of the southwest quarter of said section but it would not include any part of the northwest quarter of the southwest quarter.

However, the same rule would apply, in my "(8) There is no residuary devise in the will. opinion, in the construction of the will that would were there a residuary devise, since all property not disposed of by the will descends to the heirs at law. The law makes a very equitable disposition of property where one dies without a will, and I think, before one should be permitted to change the descent of his property, by will, he should do so in a way that would enable the court to determine, from the language employed, how he intended to dispose of his property. He should also do so in a way that would indicate that he appre the testator in the case under consideration has ciated what he was doing. That, in my opinion, not done. Therefore I shall hold that he died intestate as to the north half of the southwest quarter of section 33, township 31 north, range 6 E. W. M."

Section 1339, Rem. Code, which was reenacted (Laws 1917, c. 156, § 45, p. 653), is as follows:

"All courts and others concerned in the exe cution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them."

We held, in Webster v. Thorndyke, 11 Wash. 398, 39 Pac. 679:

"If of two constructions of an instrument one will give effect to all the objects which it is evident were sought to be accomplished by its execution, and another will not, the one which will should be adopted, if the languge used can be so interpreted as to allow such construction."

[6] The right to dispose of one's property by will is a valuable right and will be sustained when possible. Points v. Nier, 91 Wash, 20, 157 Pac. 44, Ann. Cas. 1918A, 1046; Pond's Estate v. Faust, 95 Wash. 346, 163 Pac. 753; In re Murphy's Estate, 98 Wash. 548, 168 Pac. 175. While there are cases found in the books strictly construing such devises against the devisor for uncertainty and indefiniteness, we are disposed to as liberal a construction as possible to effect the carrying out of the intention of a testator, "(4) "The southwest quarter of the southwest when possible to determine it from all the quarter of section thirty-three, township thirty-surroundings and context of the devise. one north, range six E. W. M.; also all property lying on the west side of the county road in the northwest quarter of the southwest quarter of section thirty-three, township thirty-one north, range six E. W. M.,' the will would dispese of all real estate which the testator owned at the time of his death.

lows:

[7] From a reading of the will in this case the intent of the testator is apparent that he desired to dispose of all his property. It is our opinion that the will should have effect and be given that construction as set forth "(5) However, it occurs to me that the court in paragraphs 3 and 4 of the trial judge's would be practically making a will for the tes-memorandum decision above quoted. tator to give it the construction above suggested. If the testator was in a mental condition to dispose of his property, I can see no reason or excuse for his not giving a better description of it than he has.

Reversed, and remanded for entry of judgment as herein indicated.

MOUNT, CHADWICK, and MAIN, JJ.,

concur.

"(6) Under the evidence he owned no property in the northwest quarter of the section mentioned; neither did he own any property on the east side of the northwest quarter of said ELLIS, C. J. What the testator intended section. If, as a matter of fact, the court by the language used seems to me a matshould add to the description and make it read: ter of conjecture. It seems to me that the "(7) Also all property I own on the east side of the northwest quarter of the southwest quar-majority have rewritten, rather than conter of said section,' that would include the strued his will. I therefore dissent.

(102 Wash, 16)

EMPSON v. FORTUNE et al.
(Supreme Court of Washington,
1918.)

BOND-EFFECT OF REVERSAL.

(No. 14466.)
April 30,

bound cosureties will release the other at least to the extent that the right of contribution of the other surety against the one so released is impaired hereby, failure of obligee on supersedeas bond to properly present claim for liability therebond, resulting in the obligee's failure to recover on against estate of a deceased surety on the of such estate and the surviving surety, did not on such liability in action against the executors release the surviving surety where the action was commenced within the year for the presentation of claims to executors, since not only was there no release of the estate or the executors by any contract or understanding with them, but the surviving surety had ample time to present tribution which might result from recovery of to the executors his contingent claim for conjudgment against him for the whole amount of the bond, so that his right of contribution was not impaired. 1236-SUPERSEDEAS 9. APPEAL AND ERROR 1234(1) — SUPERSEDEAS BOND JOINT AND SEVERAL OBLIGATIONS.

1. Appeal and ERROR 1232-SUPERSEDEAS
Where the Supreme Court in form reversed
judgment for respondents, but directed the same
judgment, with other relief, to be entered in
their favor, the sureties on appellant's super-
sedeas bond were liable thereon for the payment
of the judgment directed to be entered, in view
of Rem. Code 1915, § 1722, requiring the
appeal bond to be conditioned that appellant will
satisfy and perform the judgment in case it shall
be affirmed "and any judgment or order which
the Supreme Court may render or make or or-
der to be rendered or made."
2. APPEAL AND Error
BOND-JUDGMENT.

Under Rem. Code 1915, § 1739, relating to the rendering of judgment against sureties on a supersedeas bond by the Supreme Court, that court has no power to render such judgment except when it affirms a judgment of the superior court for the payment of which the bond was given.

BOND-CUMULATIVE REMEDIES. Whatever statutory right a successful party upon appeal may have to a summary judgment against sureties on a supersedeas bond is mere ly cumulative of the common-law remedy and does not affect his right to maintain an inde pendent action on the bond in lieu thereof. 5. EXECUTORS AND ADMINISTRATORS 227(2) -PRESENTATION OF CLAIMS-LIABILITY ON SUPERSEDEAS BOND.

ther joint or several, providing that the principal A supersedeas bond, not in express terms eiand "K. and F., sureties, are held and firmly bound unto defendants," was joint and several.

Department 1. Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Alice Empson against John Fortune and Max Kreielsheimer and another, as executors of the estate of Jacob Kreielsheimer, deceased. There was a judgment for plaintiff against John Fortune, but in favor of Max Kreielsheimer and another, executors, and plaintiff and John Fortune appeal. Affirmed.

John F. Murphy, Andrew J. Balliet, J. W. Robinson, and C. H. Steffen, all of Seattle, for appellants. Jay C. Allen, of Seattle, for respondents.

PARKER, J. Alice Empson seeks recovery upon a supersedeas bond executed by As preliminary to an action on a supersedeas John Fortune and Jacob Kreielsheimer, as bond against the executors of a deceased surety, the requirement of Rem. Code 1915, §§ 1472- sureties, and Hayes & Porter, Incorporated, 1479, of presentation of the claim to the execu- as principal. Trial in the superior court tors, was not complied with by presentation for King county resulted in findings and merely of the abstract of the judgment against the principal rendered by the superior court by judgment in favor of Alice Empson, awarddirection of the Supreme Court, which abstract ing her recovery against John Fortune but was certified to by the clerk of the superior denying her recovery against the executors court; there being nothing on the face of the of the estate of Jacob Kreielsheimer, deabstract indicating it was a claim against the sureties or the executors of the estate of the de- ceased. John Fortune has appealed from ceased surety. the judgment rendered against him, and 6. EXECUTORS AND ADMINISTRATORS 227(3)| Alice Empson has appealed from the judg-PRESENTATION OF CLAIMS-VERIFICATION. ment in so far as it denies her recovery Under Rem. Code 1915, § 1473, a claim against the executors of a deceased surety on a against the estate of Jacob Kreielsheimer, supersedeas bond based on his liability on the deceased. bond must be supported by oath. 7. EXECUTORS AND ADMINISTRATORS 228(5), 431(2) PRESENTATION OF CLAIMS - ESTOP

PEL.

The controlling facts may be summarized as follows: On March 20, 1914, in an action pending in the superior court for King county, wherein Hayes & Porter, Incorporated, was plaintiff, and Alice Empson and Amos Wood were defendants, there was rendered upon the defendants' cross-complaint a money judgment in their favor against Hayes & Porter, Incorporated, for the sum of $1,500. Hayes & Porter appealed therefrom to this court and stayed execution Under the general rule that the release by thereon by causing to be executed and filed the beneficiary's contract of one of two jointly in the cause in the superior court a super

Under Rem. Code 1915, §§ 1472-1479, as to presentation of claims against a decedent's estate, the proper presentation of a claim is a fact to be proven essential to the cause of action, and the personal representative cannot waive such presentation so as to estop himself from defending on the ground of want of proper presentation.

8. PRINCIPAL AND SURETY 116-RELEASE OF COSURETY.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sedeas bond in due form as prescribed by section 1722, Rem. Code, which bond was executed by John Fortune and Jacob Kreielsheimer, as sureties. On March 26, 1915, Jacob Kreielsheimer died, and thereafter on April 16, 1915, Max and Simon Kreielsheimer were duly appointed and became the acting executors of his estate. On July 14, 1915, the case was disposed of by this court as follows:

disposition of the cause in this court was a reversal of the first $1,500 judgment rendered by the superior court, though there seems to be fair ground for arguing that it was a reversal not in substance but in form only, in view of the fact that this court in the same decision directed exactly the same judgment to be entered in favor of and against the same parties, with the granting of other relief. A number of the decisions of the courts of other states are called to our attention which hold in substance as stated in the text of 2 R. C. L. 270, as follows:

"When an order is entered in an appellate court reversing a judgment, it is forthwith vacated and no longer remains in existence."

This is a thought which counsel seeks to emphasize. But we think it is not controlSecling here in the light of our statute. tion 1722, Rem. Code, in so far as it relates to supersedeas bonds reads as follows: "An appeal shall not stay proceedings on the judgment or order appealed from or any part thereof, unless the original or a subsequent appeal bond be further conditioned that the aprepellant will satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court may render or make, or order to be made by the superior court. rendered or #99

"The judgment will be reversed, therefore, and the cause remanded with instructions to enter a judgment in favor of the respondents: (1) Canceling the contract of sale of the hotel property; (2) directing that the notes given to evidence the deferred payments be delivered up and canceled; (3) for a recovery against the appellant in the sum of $1,500; and (4) a judgment in favor of the appellant against the respondents confirming its possession of the hotel property. Neither party will recover costs in this court." Hayes & Porter v. Wood, 86 Wash. 254, 150 Pac. 1. This disposition of the cause, while in form a reversal of the $1,500 judgment rendered by the superior court, was a direction to that court to enter the same judgment and in addition thereto to grant other lief which had been prayed for by Wood and Empson in their cross-complaint. The only error of the trial court consisted in its failure to grant this additional relief, as is rendered plain by a reading of this court's decision. This court did not render any judgment against the sureties upon the supersedeas bond nor direct the superior court to render any such judgment. On November 22, 1915, the remittitur from this court having been transmitted to the superior court, that court entered its judgment and decree as directed by this court. Thereafter Amos Wood duly assigned in writing to Alice Emp son all his interest in the judgment rendered by the superior court by direction of the Supreme Court, she thereby becoming the sole owner of the judgment. Thereafter, Alice Empson being unable to collect her $1,500 judgment, or any part thereof, from Hayes & Porter, commenced this action on March 10, 1916, against John Fortune and the executors of Jacob Kreielsheimer, as sureties upon the supersedeas bond. Thereafter judgment in this action was rendered on February 7, 1917, as above noticed. Other facts will be noticed as may become necessary in connection with our discussion of the several contentions made by counsel.

[1] It is contended in behalf of appellant | Fortune that, because the decision of this court in the case of Hayes & Porter against Wood and Empson in form reversed the judgment of the superior court and directed another judgment to be entered in that cause by that court, the sureties upon the supersedeas bond are not liable thereon. The argument is, in substance, that no judgment can be rendered against sureties upon a supersedeas bond unless the judgment appealed from is affirmed by the Supreme Court. We

This language, it seems to us, renders it plain that a supersedeas bond secures something more than the mere payment of an affirmed judgment. If not, then we are wholly unable to assign any intelligible meaning to the concluding words of this quoted provision. This language seems peculiarly applicable to this case. Nothing could seem farther from the thought of this court when it in form reversed the money judgment in favor of Wood and Empson than an intent on its part to deny them recovery in that sum against Hayes & Porter, for in its same de cision it directed a judgment in that amount to be entered by the superior court in favor of Wood and Empson against Hayes & Porter, together with judgment for other relief as to which the superior court had erred in failing to grant, as held by this court. We conclude therefore that the sureties, to wit, Fortune and the estate of Jacob Kreielsheimer, were liable upon the supersedeas bond for the payment of the judgment so directed to be entered by this court.

It is also contended in appellant Fortune's behalf that he was released as surety upon the supersedeas bond because this court did not render any judgment against him as surety when it remanded the cause to the superior court and did not direct that court to render any judgment against him as surety, and also because the superior court did not render any judgment against him as surety when it entered the judgment against Hayes & Porter, which was directed by this court to The theory of counsel seems be rendered. to be that the failure of action of the courts

cata in his favor, upon the question of his li- | failure of this court and the superior court ability upon the bond.

[2] In so far as the failure of this court to render any judgment against the sureties is concerned, it seems plain from the language of section 1739, Rem. Code, relating to the rendering of judgments against sureties upon a supersedeas bond by this court, upon the final disposition of an appeal, that this court has no power to render such judgment except when it affirms a judgment of the superior court for the payment of which a supersedeas bond is given. That section reads: "Upon the affirmance of a judgment or (on) appeal for the payment of money, the Supreme Court shall render judgment against both the appellant and his sureties in the appeal bond for the amount of the judgment appealed from (in case the bond was conditioned so as to support such judgment) and for the damages and costs awarded on the appeal; and in any other case of affirmance the Supreme Court shall likewise render judgment against both the appellant and his sureties in the appeal bond for the amount recoverable according to the condition of the bond, in case such amount can be ascertained by the court without an issue and trial." No other statute authorizes this court to render a judgment against the sureties on such a bond, nor does any statute authorize this court to direct the superior court to render judgment against the sureties upon such a bond when rendering a judgment in pursuance of direction of this court. Plainly, we think, the failure of this court to render judgment against the sureties or to direct such judgment to be rendered by the superior court was not res adjudicata of Wood and Empson's rights as against the sureties Fortune and Kreielsheimer.

[3] In so far as the failure of the superior court to render such a judgment against the sureties Fortune and Kreielsheimer is concerned, it seems equally plain that a superior court has no power to render such a judgment in connection with a judgment it is by this court directed to render, because there is no statute authorizing a superior court to render such a judgment. Besides, as said in Richardson v. Sears, 87 Wash. 212, 151 Pac. 504:

"We have held in a long line of cases that the trial court, after an appeal and remittitur, has no power to enter any other judgment or decree in the cause than that directed by the appellate court."

And, as we have seen, this court did not direct the superior court to render any judgment against the sureties upon the bond.

[4] It seems to be well-settled law that whatever statutory right a successful party upon an appeal may have to a summary judgment rendered by the appellate court against sureties upon a supersedeas bond in connection with the final disposition of the case by the appellate court is a remedy merely cumulative of the common-law remedy, and does not affect the right of such successful parties to maintain an independent action upon such a bond in lieu of such statutory remedy. 2 R. C. L. 319. We conclude that the

to render judgment against Fortune and Kreielsheimer as sureties upon the supersedeas bond when the case of Hayes & Porter against Wood and Empson was finally disposed of did not in the least impair the right of Wood and Empson to seek recovery in an independent action upon the supersedeas bond.

[5-7] It is contended in behalf of appellant Alice Empson that the superior court erred in denying her judgment against the executors of the estate of Jacob Kreielsheimer who had executed the supersedeas bond as surety with Fortune. The superior court denied recovery so claimed, because there had not been presented to the executors any claim preliminary to this action, as required by sections 1472-1479, Rem. Code. The only thing done by Wood or Empson looking to the presentation of such a claim was the presentation to the executors of an abstract of the judgment for $1,500, rendered by the superior court against Hayes & Porter by direction of this court, which abstract was certified to by the clerk of the superior court. This abstract fails entirely to show or to suggest any liability on the part of Fortune and Kreielsheimer as sureties upon the supersedeas bond. Indeed, there is nothing upon its face indicating that it is a claim against the sureties or the executors of the estate of Jacob Kreielsheimer. Besides, it is not supported by the oath of any one as required by section 1473, Rem. Code. It is argued by counsel for Empson: First, that it is not such an obligation as is required to be supported by oath upon presentation to an executor or administrator; and, second, that these executors waived formal presentation thereof by writing Wood and Empson a note rejecting a claim but not designating this one. These contentions are both effectually answered by our holding in Barto v. Stewart, 21 Wash. 605, 59 Pac. 480; Ward v. Magaha, 71 Wash. 679, 129 Pac. 395; Seattle National | Bank v. Dickinson, 72 Wash. 403, 130 Pac. 372; Butterworth v. Bredemeyer, 89 Wash, 677, 155 Pac. 152; and Zuhn v. Horst, 170 Pac. 1033. By these decisions it has become the settled law of this state that the proper presentation of a claim is a fact to be proven essential to the cause of action, and that an executor or administrator cannot, because of the mandatory provisions of our claim statute, waive such presentation so as to estop himself from defending upon the ground of want of such proper presentation. This alleged claim, in its last analysis, was not presented in writing at all, but a paper was presented which it is claimed, supplemented by oral evidence, constituted a claim, but which upon its face was not a claim against the estate of Kreielsheimer. Presentation of the claim was denied, and one of the questions of fact tried in the case. Plainly, we think, the trial court did not err in denying recovery