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liability, if any, attached as of the date of | The execution was the mere instrumentality the levy.

through which the creditor might reap the [1] The property sold by Quinn was of fruit of a seizure which had already been such character that it was deemed affixed to made by virtue of the judgment lien. In the mining claims (Rev. Codes, § 4428), and such a case the Code contemplates that the was real property. Section 4425. Section sheriff shall give the required notice and sell. 6828 provides that, before real property can Nothing more is required, and the references be sold on execution, notice of sale must be to a levy, in section 6827 and elsewhere, can given for 20 days by posting and publication. apply only to property of a character differSection 6829 provides: "An officer selling ent from that we are now considering. To without the notice prescribed by the last make a formal levy in a case of this kind section forfeits five hundred dollars to the would be an idle ceremony, without signaggrieved party, in addition to his actual cance, legal or otherwise. These views foldamages. ** It will be determined low the reason of the law, and are supportat once that in selling this machinery as per-ed by the authorities from states having simsonal property, upon five days' notice only, ilar statutory provisions. Wood v. Colvin, 5 Quinn violated the provision of section 6828 Hill. 228; Bagley v. Ward, 37 Cal. 121, 99 above, and subjected himself and his bonds-Am. Dec. 256; Tullis v. Brawley, 3 Minn. men to the penalty of section 6829.

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[4] To the contention of counsel for appellant that the wrong was done when the levy was made, it would seem sufficient answer to say that the penalty prescribed by the statute is affixed to a wrongful sale, not a wrongful levy. It appears that the Nickey judgment was rendered in Silver Bow county, where the property sold by Quinn was situated.

[2] Section 6807 provides that from the time a judgment is docketed it becomes a lien upon the real property of the judgment debtor in that county, not exempt, and continues for six years, unless the judgment is satisfied. While it does not appear from the complaint in this action when the Nickey judgment was rendered or docketed, evidence was admitted, without objection, which tends to show that the judgment was obtained some time in 1904 prior to the date the execution was issued. In the absence of anything to the contrary, it will be presumed that the clerk of the district court performed his official duty as prescribed by section 6807 above. It may be said, then, that it fairly appears from this record that at the time the execution was issued, and thereafter up to the time the sale of January 3, 1905, was made, the judgment was a lien upon the property sold. While counsel for appellant insist that Quinn's wrongful act was in making the levy, they have adroitly refrained from defining the term "levy" as applied to an execution issued upon a judgment, which is itself a lien upon the real property sought to be sold.

[3] The term "levy" has a well-defined meaning; but it cannot apply to an execution issued upon a judgment of this character. The object of a levy is to bring the property within the custody of the law and prevent the judgment debtor from disposing of it to the prejudice of the creditor before sale can be made. But in this instance the Nickey judgment was itself a lien upon the property to be sold. The property was already in the custody of the law and beyond the control of the judgment debtor, so far as

277 (Gil. 191); Folsom v. Carli, 5 Minn. 333 (5 Gil. 264), 80 Am. Dec. 429; Knox v. Randall, 24 Minn. 479. The principle here involved was recognized by this court in Holter Hardware Co. v. Ontario Mining Co., 24 Mont. 184, 61 Pac. 3, in holding that real property subject to a lien by attachment may be sold under execution without any further levy.

Our conclusion is that the sale made by Quinn constituted a wrongful act, which is the subject of plaintiff's complaint.

[5] 2. It is urged that in this action plaintiff failed to prove its corporate existence; but there was not any issue made upon that question. The complaint alleges that the plaintiff is a corporation orgaanized under the laws of Wisconsin, with its principal office in the city of Milwaukee. The denial in the answer is: "That as to whether or not the plaintiff, Britannia Mining Company, is now or at any of the times in said complaint mentioned was duly, or at all, organized or existing under or by virtue of the laws of the state of Wisconsin, or having its office or principal place of business in the city of Milwaukee in said state or elsewhere, this answering defendant denies that it has any knowledge or information thereof sufficient to form a belief." This is a negative pregnant, which does not raise any issue as to the corporate existence of the plaintiff, but rather admits that the plaintiff is a corporation organized under the laws of some state. Bourke v. Butte, etc., Power Co., 33 Mont. 267, 83 Pac. 470.

3. Apparently counsel desire this court to intimate in advance the extent of Quinn's liability for the wrongful sale. But we cannot anticipate that another trial will be had upon the pleadings as they are presented in this record, and any announcement of ours at this time would be obiter.

[6] Since upon the undisputed evidence

plaintiff was entitled to a verdict for some amount, the general verdict in favor of defendant was not supported by the evidence, and the order granting a new trial was clearly correct, and is affirmed.

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1. WILLS (§ 450*)-CONSTRUCTION.

A will should be construed by ascertaining the meaning of the words employed by the testator to disclose his intent; such interpretation being given as will give some effect to every expression rather than one which will render any of the expressions invalid, as provided by Civ. Code, § 1325.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 966; Dec. Dig. § 450.*]

2. WILLS (§ 527*)-CONSTRUCTION-DISTRIBUTION OF RESIDUE-HEIRS.

Testator gave a pecuniary legacy to M., whom he described as his niece, and then bequeathed the residue to his "heirs at law," according to the laws of succession, "including my niece above named, to share in this clause." Held that, though M. sustained no blood relationship to testator, the will should be construed as entitling her to take a share of such residue, as an heir; she being regarded as taking as the sole child of a deceased brother or sister.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1140; Dec. Dig. § 527.*]

Department 2. Appeal from Superior Court, Los Angeles County; James C. Rives, Judge.

Judicial settlement of the estate of Charles A. Robinson, deceased. From an order denying a petition for distribution of a part of the residue to Mrs. Teresa Martin, she appeals. Reversed.

Wal. J. Tuska, for appellant. Stutsman & Stutsman and Hammack & Hammack, for respondent.

HENSHAW, J. The will of Charles A. Robinson, deceased, was duly admitted to probate. That will gave "to my niece, Mrs. Teresa Martin of San Francisco, the sum of $1500.00." The residuary clause of the will is as follows: "Fourth, all the remainder of my estate I give, bequeath and devise to my heirs at law as they are entitled by the laws of inheritance and succession, including my niece above named, to share in this clause."

No difficulty arose over the legacy to Mrs. Teresa Martin, which she received in due course of administration. Under pending proceedings for the distribution of the residue of the estate Mrs. Martin petitioned for

distribution to her of one-fifth of that resi

due under the residuary clause above quoted. It was shown at the hearing that Mrs. Teresa Martin sustained no blood relationship to the deceased. She was not in law his niece, but was the niece of his deceased wife. Therefore Mrs. Teresa Martin was not an heir at law of deceased. It further appeared that the heirs at law of the deceased were a surviving sister and the descendants of two deceased sisters and of one deceased brother. The court in probate denied the petition of Mrs. Teresa Martin upon the ground that “the testator's attempt to make

said Teresa Martin an heir at law, and therefore entitled to share in said distribution, is void for uncertainty."

The correctness of the court's conclusion in this regard and the right of Teresa Martin to take under the residuary clause of the will above quoted is the question here presented for consideration. The question is a narrow one.

[1] It is to be resolved in the light of the familiar canons of construction that the inquiry of the court will be directed to the meaning of the words employed and the intent of the testator will be derived therefrom (Estate of Anna Young, 123 Cal. 337, 55 Pac. 1011), and that the words of a will are to receive an interpretation which will give to every expression some effect rather than one which will render any of the expressions inoperative (Civ. Code, § 1325).

[2] It is manifest that the testator designed that Mrs. Teresa Martin should share in the distribution of the residue of his estate, and that she should be treated as an heir at law, though not in fact one. The will itself answers the question as to the class or category into which she should go as such heir

at law. She is to be considered as a niece of the deceased. But, as a niece would not be an heir at law saving upon the death of the parent related by blood to the deceased, it follows necessarily that the testator meant Mrs. Martin to be regarded as an heir at law standing in the position of the child of a deceased brother or sister. As Mrs. Martin is alone mentioned in this connection, it also necessarily follows that she is to be regarded for the purpose of distribution as the sole child of such deceased brother or sister and that her distributive portion would therefore be one-fifth of the residuum of the estate.

It is therefore ordered that the decree of distribution be modified in conformity herewith.

We concur: LORIGAN, J.; MELVIN, J.

(159 Cal. 98)

In re DAVISON'S ESTATE. (L. A. 2,570.) (Supreme Court of California. Dec. 30, 1910.) HOMESTEAD ($$ 84, 151*)-JOINT OWNERSHIP

-PROBATE HOMESTEAD.

The court, in the administration of the estate of a decedent, cannot set apart land as a probate homestead, unless a homestead could dent's lifetime, and since neither the husband have been impressed upon such land in decenor wife, jointly or severally, could, during the husband's lifetime have made a valid homestead declaration upon his undivided interest in land held by them as tenants in common and jointly occupied by them, St. 1867-68, c. 138, providing that a homestead may be declared upon land of a cotenancy where the declarant is in thereon, not applying where the occupation is the exclusive occupancy thereof, and resides joint, the widow is not entitled to a homestead

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

115 P.-4

in the husband's undivided interest in such by them during his lifetime as tenants in property.

[Ed. Note.-For other cases, see Homestead,

Cent. Dig. §§ 121, 291; Dec. Dig. §§ 84, 151.*]
Department 2. Appeal from Superior
Court, San Diego County; T. L. Lewis,
Judge.

In the matter of John M. Davison, deceased. From an order sustaining a demurrer to the widow's application to have a probate homestead set apart to her, she appeals. Affirmed.

common.

in the administration of the estate of a decedent cannot set apart lands of the estate, as a probate homestead, unless they were lands upon which a homestead could have been impressed in the lifetime of the deceased. Estate of Noah, 73 Cal. 590, 15 Pac. 290, 2 Am. St. Rep. 834; Estate of Carraher, 107 Cal. 618, 40 Pac. 1032. So the question presented here is, Could either spouse during the

It is, of course, well settled that the court

Haines & Haines, for appellant. J. B. lifetime of the husband impress a homestead Mannix, for respondents.

LORIGAN, J. This is an appeal by the widow from an order sustaining an opposition and demurrer to her application to have a probate homestead set apart to her out of the estate of her deceased husband.

solely on his undivided interest in property held in common by both? If this could have been done, the court erred in refusing to make the homestead order asked by petitioner.

It has uniformly been held by this court, commencing with the early cases of Wolf v. Fleischacker, 5 Cal. 244, 63 Am. Dec. 121, and Giblin v. Jordan, 6 Cal. 416, followed by a number of other decisions, including the late cases of Schoonover v. Birnbaum, 148 Cal. 551, 83 Pac. 999, and U. S. Oil, etc., Co. v. Bell, 153 Cal. 781, 96 Pac. 901, that under both the early homestead acts, and the present Code provisions respecting homesteads, a homestead may not be created by one joint tenant in lands held in joint tenancy or as tenants in common, except as authorized by the act of 1868 (Stats. 1867–68, p. 116), which provides that a homestead may be declared upon land of a cotenancy, where the declarant is in the exclusive occupation of it and residing thereon. Under this act it was held in Higgins v. Higgins, 46 Cal. 259, that a wife might impress a valid homestead upon her husband's interest in a cotenancy where these conditions existed.

The petition stated that decedent died intestate and childless, leaving surviving him his widow, the petitioner; that at his death he was the owner of an undivided half, as his separate property, of two lots in the city of San Diego, the petitioner being the owner in her separate estate of the other undivided one half thereof; that on the premises were erected a dwelling house, barn, and other improvements made during the marriage, the cost thereof being paid, one half from the community funds, the other half out of the separate funds of the petitioner; that the undivided one-half of the realty owned by decedent was worth, without the improvement, $600; that the value of his undivided one-half of the improvements so made from community funds was $900, and that the undivided half of the land and improvements vested in the wife as her separate property was of the same value; that said improvements were placed on the property during the lifetime of the decedent, for the purpose of making the premises a home for himself and petitioner, which they occupied as such up to the time of his death, and which petitioner still occupies; that no written declaration of homestead was made in the lifetime of decedent by himself and peti-ancy (except where the conditions prescribed tioner, or either of them.

The prayer was that the interest of the estate of the decedent in the property be set apart by the court to the widow as a homestead-for life as to the realty, and as to the improvements absolutely. The demurrer and opposition to the petition was interposed by certain heirs at law of decedent, on the ground that the court had no power to impose a homestead on the undivided interest of the estate of the decedent in the property.

It will be noted that what the superior court sitting in probate was asked by the widow to do was to select and set apart to her, as a probate homestead, the undivided interest of her husband alone in lands held

The cases above cited, and others, including also the pertinent provision of the act of 1868, are considered and discussed in the recent case of Swan v. Walden, 156 Cal. 195, 103 Pac. 931, 134 Am. St. Rep. 118, and it is shown that the right of a cotenant to impress a homestead upon land held in coten

by the act of 1868 are met) is denied in the earlier decisions because, on account of the nature of the tenancy, there can be no segregation or delimitation of the boundaries of the particular estate, or interest in the property of the cotenancy sought to be impressed, whereby it can be determined as to what particular part of the land the homestead attaches; and that the rule so established by these decisions has been uniformly followed and is still adhered to.

It is insisted, however, by appellant that these cases only have application where a cotenancy exists between the husband or wife and third persons, and do not apply where, as here, the tenancy in common existed between husband and wife solely, and

relies upon the decision in this very case of Swan v. Walden, which, she contends, makes this distinction, and upon the authority of which she claims that she is entitled to have the interest of her deceased husband, as cotenant in the property, set apart to her as a probate homestead.

In the case relied on Walden and his wife were the owners in joint tenancy of two lots upon which they resided, and upon both of which Mrs. Walden made a declaration of homestead, and the question presented on the appeal there was whether such a homestead could be legally created by her as joint tenant in the property held in cotenancy. The court in deciding the question, after declaring that the rule denying the right of a cotenant to impress a homestead upon the land of the cotenancy, except under the conditions prescribed by the act of 1868, still obtained as a rule of property in this state, and after referring to the case of Giblin v. Jordan, supra, where it was held that under it the husband could not impress a homestead upon property held in joint tenancy by himself, wife, and daughter because as to the tenancy they were entire strangers to each other, said: "But the case which is here presented is different in this respect. Here the wife seeks to impress the whole land with the homestead characteristic. This she may do as to her own interest, which is her separate property, and this she may do as to her husband's interest, since she has the power to declare a homestead upon the husband's separate property, though he has no such power over hers. The homestead thus attempted to be declared is upon land, all of which is susceptible at the instance of the wife of having the homestead characteristics impressed upon it. There is no occasion for segregation or partition, or delimitation of boundaries, since the homestead attaches to all of the estate and all of the land. The reasons which, in the view of this court, make it legally impossible for the husband to declare such a homestead when there was a cotenancy between himself, his wife, or third persons, does not exist in the peculiar instance of the case at bar."

law which made it possible for her to impress the land in its entirety that took the homestead declared by her out of the general rule denying the right of a cotenant to create a valid homestead on cotenancy property. It is clearly pointed out in that opinion that, in the peculiar instance of the homestead there under consideration, as the entire interest in the tenancy was susceptible to the impress of a homestead upon it by the wife, the reason supporting the general rule denying the right of the husband to declare a homestead upon land held in cotenancy by himself or wife or third parties did not apply.

Here, however, an entirely different question is presented. We are not dealing with a selected homestead which the court is asked to set apart to the surviving wife. What was sought in the matter at bar in the superior court was to have that court select, designate, and set apart as a probate homestead, not the land of the cotenancy in its entirety, but the undivided interest of the deceased cotenant. If the superior court could do this, it could only do it because in the lifetime of the decedent, either he or his wife could have impressed a homestead on this particular cotenancy interest alone. Neither of the spouses, however, could do this. The husband under no circumstances could declare a homestead which would embrace, with his own interest, that of his wife in the cotenancy property, because he is prohibited under the homestead law from declaring a homestead on the separate property of his wife, unless with her consent, manifested by making or joining in the making of the declaration. Such a general declaration, as it would embrace the whole of the land and the entire interest in the cotenancy, would not be affected by the general rule.

But neither the husband nor the wife, jointly or severally, could in the lifetime of the husband have made a valid declaration of homestead upon his undivided interest in the cotenancy property, so as to affect that interest alone with the homestead characteristics, separate and distinct from the undivided interest of the wife therein. The right to do this, as we have seen, is distinctly denied by the decisions, except under certain conditions provided for in the act of 1868. That act, however, permits a valid homestead to be declared upon the undivided interest of a cotenant in the cotenancy property only when he is in the exclusive occupation of the property, having it inclosed, and in Higgins v. Higgins the right of the wife to declare a valid homestead to the extent of the husband's estate therein, though she had no interest in the property, was sustained under the act because the husband was in the actual occupation of the property to the exclusion of the other cotenants hav

It will be observed that in this Swan Case the court was dealing with a selected homestead, impressed by the wife upon land held in cotenancy solely by herself and husband, and her right to do so is sustained because, as she had a right to declare a homestead upon her separate property, and also upon the separate property of her husband, the effect of her declarations was to impress the entire land, and the entire interests therein held by them in joint tenancy, with the homestead characteristics; that within the spirit and intent of the act of 1868, authoriz ing a homestead to be filed where a cotenant was in the exclusive occupation of the landing interests therein. But the provisions of of the cotenancy, Mrs. Walden had such exclusive possession for such purpose. It was her peculiar position under the homestead

the act have no application under the facts recited in the petition at bar. During the lifetime of the husband both spouses were

in actual occupation of the property; there | Proc. § 343, for matters not thereinbefore prowas no exclusive occupation within the terms of the act which would have authorized the wife to declare a homestead on her undivided interest, or authorized either of them to declare it upon the undivided inter

est of the husband.

While it is claimed that the cases recognize a distinction in the application of the general rule precluding a cotenant from impressing a homestead on land held in cotenancy, where the cotenancy exists between the husband and wife, and between the husband and strangers, no such distinction has been pointed out by counsel. In fact, in Giblin v. Jordan, supra, the existence of any such distinction was expressly denied.

Undoubtedly, under the rule in Swan v. Walden, during the lifetime of her husband petitioner might have declared a valid homestead upon the entire cotenancy property, and on the death of her husband the superior court sitting in probate would have set such homestead apart to her. She, however, declared no such homestead, but asks the court now to do what neither she nor her husband could have done in his lifetime, namely, to impress the undivided interest of her husband in the cotenancy with a homestead, while her undivided interest has not been, and cannot be, so impressed. The general rule which made it legally impossible for the homestead to have been impressed upon the undivided interest of the husband alone in his lifetime makes it equally impossible for the superior court to do so, and it properly denied the application of the petitioner. The order appealed from is affirmed.

vided for, and not under section 337, providing tract, obligation, or liability founded on a cona four-year limitation for actions on any contract in writing, nor under section 339 placing a two-year limitation on contracts, etc., not founded on an instrument in writing.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 200; Dec. Dig. § 39.*]

In Bank. Appeal from Superior Court, Los Angeles County; Walter Bordwell, Judge. Action by Beauchamp H. Smith, for whom pending appeal his administrator, William T. McArthur, was substituted, against Hiram W. Blaisdell. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed.

J. F. Conroy, for appellant. E. A. Meserve, for respondent.

MELVIN, J. An action was brought by Beauchamp H. Smith for an accounting and for certain specific property under an asserted copartnership. Judgment was given in favor of the defendant. Plaintiff moved for a new trial, and this appeal is prosecuted from an order of the superior court denying said motion. After the appeal was taken, the appellant died, and William T. McArthur was duly appointed administrator of the estate of the deceased, and was substituted as appellant.

The amended complaint which appears in the transcript bases the right to the relief demanded upon the alleged existence of a copartnership between defendant and the assignor of plaintiff's intestate created about February 21, 1899, whereby the partners agreed to share equally in all profits and loss

We concur: HENSHAW, J.; MELVIN, J. es of said enterprise, and it is further aver

(159 Cal. 604)

MCARTHUR v. BLAISDELL. (L. A. 2,033.) (Supreme Court of California. March 28, 1911.)

1. ACCOUNT (§ 4*)-EQUITY-RIGHT OF PLAINTIFF-TRUST RELATION.

A contract between S. and defendant as to their performance of a contract to erect mining reduction works, etc., (1) stated an agreed valuation of the machinery, etc., contributed by each; (2) provided that each party might contribute half the expenses of the work, but that in default thereof the other party might contribute more than half, and should be credited with the excess with interest; (3) provided that the compensation for the work should be divided in proportion to the amounts advanced during the work, provided for the salary of defendant as manager, and as to his powers as superintendent, and the method of his paying for supplies. Held, that a trust relation was created, rendering defendant liable to account for the interest of S.

[Ed. Note. For other cases, see Account, Cent. Dig. §§ 13, 14; Dec. Dig. § 4.*]

2. LIMITATION OF ACTIONS (§ 39*)-LIMITATIONS APPLICABLE.

The statutory bar of an action for such an accounting is that provided by Code Civ.

red that the contract of copartnership was amended by a certain agreement dated March 1, 1899, a copy of which is made a part of the complaint. It is in evidence, however, that the case was partly tried under plaintiff's theory and pleading that the contract of March 1, 1899, itself created a copartnership, and the amendment to the complaint was made after the court had ruled that the agreement witnessed a joint enterprise not in the nature of a copartnership. The court insisted that proof of the existence of the copartnership must be made before the other evidence might be produced. Such proof was not forthcoming and nearly all of the rulings of which appellant complains were based upon the omission to show partnership. By the contract which as an exhibit is made a part of the complaint, S. Morgan Smith, assignor of plaintiff's intestate and H. W. Blaisdell, the defendant, for the purpose of fixing and determining their mutual obligations, agree upon the proper manner of carrying out the provisions of a certain contract which they are about to make with the "King of Arizona Company" (a corpora

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