although the rest of the writing complies with the statutory requirements in reference to such wills. Estate of Billings (Cal.), I, 140.

2. WHERE AN UNMARRIED PERSON HAS MADE A WILL, AND AFTERWARDS MARRIES, the marriage, whether followed by the birth of issue or not, operates by presumption of law, in case of the survival of the wife or children, as a revocation of the will, unless some specific provision has been made by the will itself, or by marriage contract for the wife, or by some settlement or provision for any surviving children. Such presumption of revocation depends upon the question of survivorship, and does not admit of evidence to the contrary unless provision has been made for the wife or children surviving. Sanders v. Simcich (Cal.), I, 868.

3. IN DETERMINING THE SPECIAL ISSUES SUBMITTED TO THEM, IN PROCEEDINGS FOR THE PROBATE of a will, the jury should not take into consideration family difficulties, except as bearing on the testamentary capacity of the deceased. Estate of Lang (Cal.), I, 773.

4. COURTS WILL NOT PRESUME, Because a Testator is a DruNKARD, that therefore he is of unsound mind. Id.

5. THE INTENT WITH WHICH A TESTATOR TORE HIS SIGNATURE FROM HIS WILL, while of unsound mind, does not constitute an element of revocation. Id.

6. A LEGACY WHICH THE TESTATOR DIRECTS TO BE PAID OUT OF THE FIRST MONEYS realized from his estate, after the payment of debts and funeral expenses, does not become due and payable, and consequently does not bear interest, until after such debts and funeral expenses are paid. Estate of James (Cal.), I, 775.

7. A DEVISE OF CERTAIN REAL ESTATE IS NOT VOID FOR RESTRAINING THE POWER OF ALIENATION beyond the time authorized by statute, where a testatrix gives the same to her two daughters "in common, for the term of their natural lives, and after their death, or the death of either of them, the share of the one dying to her children in fee simple, the children of each daughter to take one half thereof; or in case of the death of either of said daughters without issue, then the children of the other daughter to take all of the same;" provided that neither of such daughters could sell the same; and provided that no one of their children should have the power to sell his interest until after all of the children taking shall attain majority; and if any of said children shall die during minority, then the brothers or sisters, by my said daughters, of the child or children so dying, shall take all of the said property in the same manner as though the child or children dying had never been born; and upon the death of all the children of either of my daughters, after the death of their mother, the said property shall all be and become the property of the children of the other daughter in fee; and that all of the children of both my daughters who shall attain the age of majority, and none other, shall be and become, at such time as all living children of my said daughters shall attain to the age of majority, sole and absolute owners in fee simple of said property." Buchanan v. Schulderman (Or.), I, 685.

8. TESTATOR'S MENTAL UNSOUNDNESS, HOW ALLEGED.-A testator's mental unsoundness is sufficiently averred by an allegation that at the time of signing the supposed will he was not of sound and disposing mind, but on the contrary he was at such time of unsound mind. Estate of Crozier (Cal.), III, 377.

9. DEVISE-LEGACY CHARGED ON LAND-ELECTION.-A devisee, by accepting a devise charged with the payment of a legacy, becomes personally liable therefor; and although the will gives the devisee the option of discharging the legacy by conveying to the legatee land equal in value to the amount of the legacy, he will be presumed to have elected to pay the same in money, notwithstanding the estate has not been fully distributed, if for a long number of years he receives the rents and profits of the devise, without directly manifesting his election, and it appears that such devise is amply sufficient to discharge such legacy. Dunne et al. v. Dunne (Cal.), III, 426; Id., IV, 523.

10. WILL CONSTRUED TRUSTS-RECOMMENDATION AND REQUEST.-The will of David D. Colton contains this provision: “I give and bequeath to my said wife, Ellen M. Colton, all my estate, real and personal, of which I shall die seised or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best." Held, that this provision is not an absolute gift or bequest in trust for the mother and sister of the testator; that is, not an imperative command to make the provision for their support, but only a recommendation and request, leaving the matter to the judgment and discretion of his surviving wife. Colton v. Colton (U. S. Cir. Ct., Cal.), IV, 11, 18.

11. TRUSTS ARISING FROM PRECATORY WORDS IN WILLS.-The conditions necessary to raise a trust from words of recommendation and request in a will discussed. Id. 12. RULES FOR CONSTRUCTION ON WILLS under the civil code of California stated and applied. Id.

13. DEVISE-CONSTRUCTION OF Sale and REPURCHASE OF LAND DEVISED.-A testator devises to his son "all that portion of real estate he has inclosed and now has in his possession, supposed to contain one hundred and forty acres, more or less." By other provisions of the will an intention was manifested to dispose of all the property the testator possessed. Subsequent to the date of the will he sold a portion of the land devised, and afterward bought the same back. Held, that the portion so sold and bought back passed to the son under the foregoing devise. In re Estate of Hopper (Cal.), IV, 368.

14. IDENTIFICATION OF LAND DEVISED-EVIDENCE TO SHOW.-In an action by a devisee to recover the value of a tract of land distributed to him, but which had been lost to the estate of the testator by the inexcusable negligence of an executor, extrinsic evidence is admissible to identify the land described in the complaint by metes and bounds with that described in the inventory and decree of distribution. Wheeler v.

Bolton (Cal.), IV, 370.

See ESTATES OF DECEASED PERSONS, 7; EVIDENCE, 28; FINDINGS, 26; MEXICAN GRANTS, 6.

WITNESSES.

1. CHINESE WITNESSES.-Chinese persons are, under the constitution and laws of the United States guaranteeing to them "the equal protection of the laws," competent witnesses. In re Tung Yeong (U. S. Dist. Ĉt., Ĉal.), I, 647.

2. A CHINESE PERSON IS NOT INCOMPETENT AS A WITNESS WHO TESTIFIES ON HIS EXAMINATION, before being sworn, that he believed in the Chinese religion, and knew that he was to tell the truth, although the record does not show what such religion teaches in regard to the existence of a supreme being, or in regard to future rewards and punishment. Territory of New Mexico v. Yee Shun (N. M.), I, 666. 3. THE PARTY OBJECTING TO THE COMPETENCY OF A WITNESS for a want of religious belief must show such want by evidence aliunde. Id.

4. DEAF AND DUMB WITNESS-COMPETENCY OF.-A deaf and dumb child about nine years of age, who has no idea of the nature or sanctity of an oath, and who can not be made to understand questions asked him, is not competent as a witness. Territory etc. v. Duran et al. (N. M.), II, 274.

5. IMPEACHMENT OF WITNESS-FORM OF QUESTION.-For the purpose of impeaching a witness on account of his general reputation, the inquiry is not confined to the general reputation for truth and veracity, but may extend to his general reputation for truth, honesty, and integrity. Heath v. Scott (Cal.), III, 614.

6. SAME-RESIDENCE OF IMPEACHING WITNESS.—If an impeaching witness has knowledge of the general reputation of the person impeached in the community, the residence of such witness is matter for the jury to consider, and not the court. If he had any knowledge, he is entitled to speak, and it is for the jury to determine the value of his testimony. Id.

7. IMPEACHMENT OF WITNESS-LAYING FOUNDATION-HOSTILITY.-The same foundation must be laid for the impeachment of a witness, in showing his declarations hostile to the prisoner, as in showing his contradictory statements. State v. Stewart (Or.), III, 229.

8. IMPEACHMENT OF WITNESS-CONVICTION, HOW PROVED.-Under section 2051 of the code of civil procedure a witness may be impeached by asking him if he has been convicted of a felony. The conviction of a misdemeanor, however, must be proved by the record of conviction. People v. Schenick (Cal.), IV, 77.

9. MURDER-IMPEACHMENT OF WITNESS.-On a trial for murder a witness for the defense was asked in substance whether the prisoner had ever informed her that he intended to kill the deceased. She answered no. Subsequently the prosecution called a witness, who was asked whether the former witness had ever said anything to her about the defendant going to kill the deceased. The defendant objected to the inquiry: 1. Because the matter upon which it was sought to impeach the former witness was immaterial to the issues; and 2. Because a proper foundation had not been laid for the impeachment. The court overruled the objection. Held, that the evidence should have been excluded. People v. Bush (Cal.), II,

DIGEST I-IV 15

10. EVIDENCE OF THE GOOD CHARACTER OF A WITNESS CAN NOT BE GIVEN UNTIL after such witness's character has been attacked by evidence that his reputation for truth, honesty, and integrity is bad. Id.

11. AMENDED COMPLAINT IMPEACHMENT OF WITNESS.-By the verification of an orig. inal complaint the plaintiff makes its statements his own. After the filing of an amended complaint the original ceases to perform any office as a pleading, and its averments can not be used to disprove those of the amended complaint. But where the plaintiff testifies as a witness in his own behalf, the original complaint is admissible in evidence, for the purpose of impeaching him, when the statements contained therein are inconsistent with his statements as a witness. Johnson v. Powers (Cal.), II, 740.

12. COMPELLING THE ATTENDANCE OF WITNESSES.-Judgment will not be reversed for the refusal of the trial court to compel the attendance of witnesses who had been subpoenaed and had come to the place of trial, but who had afterwards refused to appear in court and testify unless their fees were first paid, especially where the affidavit used on the motion to compel such attendance failed to set forth what was expected to be proved, or even aver that their testimony would be necessary, pertinent, or in any way material in the case. People ex rel. Dean v. Comm'rs of Grand Co. (Col.), II, 112.

13. EXCLUSION OF WITNESSES ON TRIAL.-The exclusion of witnesses from the courtroom during the progress of a criminal trial is within the discretion of the court. It is not error for the trial court to permit the prosecution to call a witness who has inadvertently violated its order excluding witnesses. People v. O'Loughlin (Utah), I, 164.

See CONTINUANCE, 3-6; COSTS, 1; CRIMINAL LAW AND PRACTICE, 15; EVIDENCE; LACHES, 4; MURDER AND MANSLAUGHTER, 82; NEW TRIAL, 8.

WRIT OF ASSISTANCE.

1. TENANT FOR YEARS-PRIORITY OF, OVER SUBSEQUENT MORTGAGEE.-The assignee of an estate for years, claiming under a duly recorded lease, is entitled to priority over a mortgage executed subsequent to the date of the lease, although the assign ment of the lease was made after a decree foreclosing such mortgage. If a writ of assistance is asked for under such decree, and if, after the assignee of such estate for years had appeared and opposed such issuance, the court had nevertheless directed the writ to issue, and the assignee had been amoved thereunder, such facts would not have constituted an adjudication of his rights, which would have estopped his assertion of them in a subsequent action. Courts will not undertake to settle the conflicting legal or equitable rights of persons not parties to a foreclosure suit, upon an application for a writ of assistance. Enos v. Cook (Cal.), II, 733.

WRIT OF ERROR.

1. WRIT OF ERROR WILL BE DISMISSED WHEN THE RECORD FAILS TO DISCLOSE that a final judgment has been rendered. Stevens v. Solid Muldoon Printing Co. (Col.), I, 498.

WRIT OF REVIEW.

See CERTIORABI.