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residue, the portion of his property not theretofore disposed of under the previous paragraphs in his will; that by mistake or inadvertence he omitted to supply the necessary words to state his intent correctly. There are many reasons which lead to this conclusion, and overcome any presumption that he had changed his mind when he wrote the tenth paragraph, and intended by it to cancel or annul the nine paragraphs preceding it.

equally divided between my eight children," | is, to "the remainder, the balance, or the and wherein the word "all" is relied upon as creating a repugnancy, to which the court states: "If the testator had said, 'All my remaining property,' no one would doubt but that the devise under the first clause was absolute, and that it carved out of the estate one-third. That is, I think, its true construction. * The last clause of the sentence, that which directs division of the property, is made coherent and intelligible by applying it to such property as had not been before disposed of. So construed, there is no repugnancy. ** So considered, the provisions of the will harmonize, and each has full effect. The residuary clause is not repugnant to the prior gift, and the devise may take effect according to its terms. We thus follow the rule which requires a will to be so construed as to avoid, if possible, all repugnancy, and give effect to all its language. We have here no occasion to depart from it. The two clauses are not irreconcilable; and there is no occasion, therefore, to reject one in order to uphold the other-a desperate remedy, and to be resorted to only in case of necessity-" In the case of Davis et al. v. Boggs et al., 20 Ohio St. 550, the words "in trust only" were stricken or given no effect in the construction of the will; it being held in their ordinary technical sense that they were repugnant to the general scope and tenor of the will, and for which reason were not given legal effect in its construction.

In the case of Hellerman's Appeal, 115 Pa. 120, 8 Atl. 768, the words "per annum" were inserted in the will in which case the court held that a word may be supplied when there is a clear inference from the whole will that it was omitted by mistake.

In the case of Kellogg v. Mix, 37 Conn. 243, the court supplied the words "the net income of my estate."

Having reached this conclusion, we justified, by reason and from the authorities, in reading into the will the necessary language in order to effectuate that intent. For instance, it is quite proper to assume that, having made certain specific bequests of certain amounts of money to specific persons and other articles to other persons, when he was writing the tenth paragraph he had in mind that the property covered by the previous bequests was then disposed of, out of the way, and by the tenth paragraph he intended to give his wife all the property which he had not then disposed of in the preceding paragraphs. This seems to be borne out by the use of the word "said" in the eleventh paragraph, wherein he states, "Should my wife die before I do, then the said property will become the property of my son, William Henry Bacon." Had he changed his mind, as contended, and intended to disinherit the other relatives, and had he intended the word "all," in the tenth paragraph, to be accepted in its literal sense, we think he would have used the same word in the eleventh paragraph, and stated, "in case of the death of my wife before I die, then I give all my property both real and personal to my son."

Other reasons which could be legitimately inferred are those stated by Judge Lacy in a similar case-that of Price v. Cole's Ex'x In Wheable v. Withers, 16 Simons, 504, et als., supra-wherein he states: "The the court supplied the words "under twenty-first section of the will, standing alone, gives one years of age."

In Doe, on the Demise of Sam. Cotton, v. Stenlake, 12 East, 514, the words "during their lives" were rejected, thus making a life estate an estate in fee simple.

In Holmes v. Williams, 1 Root (Conn.) 335, 1 Am. Dec. 49, the court supplied the words "before he arrived at full age," in order to effectuate the evident intent of the testator. In Glover et al. v. Condell et al., 163 Ill. 566, 45 N. E. 173, 35 L. R. A. 360, the words "of the income" or "of the interest" or "of the dividends" were supplied to effectuate the intention of the testator.

the land therein mentioned to the nephew. The second section, standing alone, gives everything the testator possessed to the sister. Standing together, they are conflicting and contradictory. The will, however, must be construed as a whole." It was further stated: "If the second was intended to dispose of everything he possessed, and revoke the first, no hint is to be found of any such intention to revoke, and the specific devise is not again mentioned. The very use of the designation 'second' indicates that it is not all, but that something has gone before; a second part is a distinct recognition of Applying these principles to the case at the first part. And, obviously, the meaning bar, when this will is considered as a whole, of the testator is: 'Second-that is, after with a view of ascertaining the intent of first-I give,' etc.; 'I have given in the first the testator, in the light of his circumstan- place, and I now give in the second place.' ces and the property which he is disposing The will is upon the same piece of paper, of in his will, we are led to conclude that and written apparently upon the same day, he intended the words used in the tenth and in this case it would be, as is observed

than sound to undertake to say that the testator had changed his mind since writing the first part of the will. The testator must be held to mean, as he doubtless did: 'Having regard to the first provision in my will, I now, secondly, provide,' etc. It is reasonable to suppose that if he had so suddenly and so radically changed his intention that he would not have left the fact to an inference so vague and irrational."

It is conceded that Mr. Bacon was not learned in the law and that he had evidently written the will himself. Outside of the construction which the law places upon conflicting provisions in an instrument, if accepted in its literal sense (which it must be conceded he intended as to all of it, if any), he intended thereby to take away not only the gold watch and chain bequeathed to the husband of his niece in the fourth paragraph, but also the gold watch and all his diamonds bequeathed to his son in the ninth paragraph of the will, and give them all to his wife under a principle that he had changed his mind. In commenting upon this principle the Chancellor, in Covenhoven v. Shuler, 2 Paige (N. Y.) 122, 21 Am. Dec. 73, states "a principle which I consider more fanciful than sound."

In writing the tenth paragraph he may have had in mind the reservation in the original deed to his son, in which case there may have been a doubt in his mind as to the reservation therein passing the title to the possession, use, rents, and profits of said property to his wife during her lifetime, after his decease, should she him survive, and in this manner, without raising any suspicion concerning the doubt in his own mind, he would thereby, under the will, cover the question beyond any doubt, so that in case the $600 per month rental was not lawfully reserved to her under the deed executed to his son, but became part of his estate during her natural life, it would, under this clause of the will, go to his wife, and be covered, beyond any doubt. As stated, while the deed shows it was executed by both Mr. and Mrs. Bacon to their son, it is stipulated in the record that Mrs. Bacon had no interest in the land mentioned in this deed prior to its execution. So far as the record shows Mr. Bacon himself was the absolute owner of it. The question as to the effect of the reservation in the deed upon the possession, use, rents, and profits of the property, during the life of the wife, after his death, while not involved in this contention, might readily be raised in the mind of one not learned in the law, but Mr. Bacon by using this language in the will may have thought he would thus place the matter at rest in his own mind.

that he would have stated in it that he so intended? We think so. As stated by the court in Claflin v. Ashton, supra: "Such a purpose, if entertained, would naturally have been expressed in direct language." If he had intended when he wrote the tenth paragraph to annul everything preceding it, would he not have simply torn the instrument up and drafted a new one? This would have consumed no more time, would have been much shorter than the paragraphs preceding the tenth, and by a few short sentences like those in the tenth, eleventh, and twelfth paragraphs of this will he could thereby have conveyed his entire intentions and relieved any questions concerning it. Any of these conclusions we think are far more rationable than the one that he intended to revoke all former bequests, or intended the language used in its literal sense, unless he omitted to insert therein the words above indicated, or similar ones, which would clearly express his intentions. It is more reasonable to indulge in these presumptions than to suppose that he designedly made the tenth paragraph repugnant to the other provisions of the will so they could not be harmonized or all carried into effect.

This disposition of the principal question answers the other-that the will should not be held void for uncertainty.

For the reasons stated, the judgment of the district court should be affirmed, and it is so ordered.

Affirmed.

MUSSER, J., not participating.

GABBERT, J. (dissenting). The court has made a will for the testator instead of construing the one he did make. It is not our province to bend, twist, or shape the text of a will, or add or eliminate words until at last we may succeed in forcing it into the mold of our preconceived ideas of what the testator intended, but simply and solely to ascertain its true legal sense from the language employed, whatever that may be, by the application of the rules of law which must control in the exposition of a will. There is an irreconcilable conflict between the paragraphs involved. No specific property is charged with the payment of the bequests preceding the one to Mrs. Bacon. They are not to be paid out of any particular fund, and, if paid, must be satisfied from the general estate of the testator. The bequest to Mrs. Bacon is also general, for thereby the testator bequeaths to her all his real estate, and all his personal property of every description, and all his moneys, notes, bonds, or stocks, possessed by him at the Again, in case he intended by the tenth time of his death. The several general beparagraph of the will to revoke all the for- quests cannot be satisfied because the one mer bequests therein made, according to its made to Mrs. Bacon cannot be carried into language construed, as contended for by coun- effect and those preceding paid, for the obsel for appellants, thereby annulling every-vious reason that the latter would have to

testator, and Mrs. Bacon would only receive | bequests were satisfied. This is mere conwhat was left. In other words, according jecture. He did not say so, nor can we

to the provisions of the will, the testator has bequeathed the same property to different persons. Such a disposition, it is manifest, cannot be made or carried into effect. Where an irreconcilable repugnancy exists between different clauses of a will, the posterior clause prevails. 30 Ency. 685; 2 Woerner, § 415; 1 Jarman on Wills, 473; 1 Redfield on Wills, *p. 451; Covert v. Sebern, 73 Iowa, 564, 568, 35 N. W. 636; Rogers v. Highnote, 126 Ga. 740, 744, 56 S. E. 93; Martley v. Martley, 77 Neb. 163, 108 N. W. 979; Frank v. Frank (Tenn.) 111 S. W. 1119, 1121; Murfitt v. Jessop, 94 Ill, 158, 163; Foster v. Stevens, 146 Mich. 131, 139, 109 N. W. 265; IIoward v. Howard, 4 Bush (Ky.) 494, 497; Armstrong v. Crapo, 72 Iowa, 604, 607, 34 N. W. 437; Heidlebaugh v. Wagner, 72 Iowa, 601, 604, 34 N. W. 439; Schouler on Wills, p. 546, note 1, subd. 7; Schouler on Wills, 478; Underhill on Wills, § 357; Covenhoven v. Shuler, 2 Paige, 122, 129, 21 Am. Dec. 73. Redfield, above cited, says that this rule is generally adopted by the American courts; and Jarman, on Wills, says that it is unsparingly applied even when thereby the prior devises are defeated in toto. The generally accepted reason for the rule is that, in construing a will, the intent of the testator at the moment of the execution of the will is to govern; hence, the posterior clause in case of repugnancy prevails, because it expresses his later testamentary intention, and therefore furnishes the only safe guide by which to determine his intention. Underhill on Wills, § 357; Howard v. Howard, supra; Murfitt v. Jessop, supra; Foster v. Stevens, supra; Armstrong v. Crapo, supra. When conflicting and repugnant clauses of a will are plain and unambiguous, words cannot be supplied for the purpose of expressing the supposed intention of the testator; or, in other words, a court cannot make a will for a testator by supplying words supposed to have been omitted by him, in order to indicate an intention which the will itself does not express. 2 Woerner, § 414; Pickering v. Langdon, 22 Me. 413, 429; Simpson v. Smith, 33 Tenn. 394, 396; Underhill on Wills, 361. Neither, in such circumstances, is extrinsic evidence admissible to add to, or substract from, its meaning. Arthur v. Arthur, 10 Barb. (N. Y.) 1, 16; Bulkeley v. Worthington, etc., Society, 78 Conn. 526, 534, 63 Atl. 351, 12 L. R. A. (N. S.) 785; St. Paul's Sanitarium v. Freeman (Tex. Civ. App.) 111 S. W. 443, 444; 2 Woerner, § 421.

The court has either ignored or misapplied these rules. There is no ambiguity in any of the clauses involved. They are plain and unambiguous; but, notwithstanding this fact, the court has assumed to supply words in paragraph 10 for the purpose of making it express his supposed intention, which, the court says, was to bequeath Mrs. Bacon all of his property after the preceding general

gather from the language employed in the preceding paragraphs of the will, or any part of it, that he intended to say so, in the face of the explicit expressions employed in paragraph 10. We may think it probable that such was his intention, but that is only conjecture, and contrary to the clear and unmistakable language of the will itself. The intention of the testator expressed by the words he has employed to express it must govern in the construction of his will. Martindale v. Warner, 15 Pa. 471, 480; Quincy v. Rogers, 9 Cush. (Mass.) 291, 295. This is the only safe rule. Unless this salutary rule is followed, the result will be, as in the case at bar, that courts will assume the prerogative of making a will read so as to express what they imagine the testator intended to say, or ought to have said. The duty of courts is to execute a will as made, and not to make one for the testator (Elliott v. Topp, 63 Miss. 138, 142); and in the interpretation of a will the true inquiry is, not what a testator meant to express, but what do the words used express (Couch v. Eastman, 29 W. Va. 784, 3 S. E. 23). 2 Woerner, at section 414, succinctly states the law relative to ascertaining the meaning of wills clearly applicable to the case at bar, by saying: case at bar, by saying: "The question in expounding a will is not what the testator meant, but what is the meaning of his words." As was well said in Sherrod v. Sherrod, 38 Ala. 537, at page 545: "Certainly, the court cannot resort to conjecture when the terms of the will are of intelligible import. To do so would be to make a will conforming to what it is supposed the testator intended, not to search for the intention in the construction of what is said.” We can well say, as was said in St. Paul's Sanitarium v. Freeman, supra: "There was no ambiguity in the language of the will, and in such case it must be construed according to the legal import of the language of the will, and the intention of the testator must be drawn therefrom, not the will to be drawn from the intention." The observation of Lord Mansfield, quoted in Pickering v. Langdon, supra, is certainly pertinent: "A court of justice may construe a will, and from what is expressed necessarily imply an intent not particularly specified in the words; but we cannot, from arbitrary conjecture, though founded on the highest degree of probability, add to a will or supply the omissions." The will construed in Gilmore v. Jenkins, 129 Iowa, 686, 688, 691, 106 N. W. 193, 195, presents an excellent example of when words will not be supplied for the purpose of expressing the probable intent of a testator. By the fourth paragraph of the will, the testator says: "To my five daughters [naming them] I give and bequeath the undivided one-fifth of lands particularly described]." The question

arose as to whether he intended to devise to his daughters one-fifth each in the land described, or to all of them one-fifth of such land. Any one glancing at the paragraph would unquestionably say that it was altogether probable he intended to give each a one-fifth, and yet the Supreme Court, in discussing the contention that for the purpose of expressing the intention of the testator there should be inserted in the fourth paragraph the word "each" or "all" or "several" or "joint," in order to make it intelligible, said: "We have gone as far as any court in permitting extrinsic evidence to aid in the construction of wills, but have never yet held that such evidence is admissible for the purpose of changing a will, or to aid in the making of a new one, one which the testator intended, but did not in fact, make." The deed cuts no figure. The testator refers to it merely for the purpose of explaining why he bequeathed to his son only his watch and diamonds, and hence, it does not aid in the slightest degree in curing the irreconcilable repugnancy of the paragraphs involved. Aside from this, except in case of ambiguity, the intent of the testator is to be gathered from the will itself. Augustus v. Seabolt, 60 Ky. 156, 159; Gilmore v. Jenkins, supra. 2 Woerner, at section 414, says, in substance, that as the statute requires wills to be in writing, it obviously precludes courts from ascribing to the testafor any intention not contained in the written will; and, continuing, says: "It follows that evidence which, in its nature and effect, is simply explanatory of what the testator has written may be admitted, while none is admissible which, in its nature and effect, is applicable to the purpose of showing merely what he intended to have written." In Bulkeley v. Worthington, etc., Society, supra. it was said: "If the expressions of the will are free from ambiguity, they unalterably disclose the intent of the testator, and no extrinsic disclosure of it is in such case permitted."

The main opinion purports to adopt the cardinal rule that-in construing a will the whole instrument is to be considered. That rule has not been followed, but the will has been changed by adding words assumed, upon conjecture, to have been omitted, with the result that the will construed is one which the court has made for the testator. Paragraph 10 and those prior which are involved are irreconcilably in conflict. None of these paragraphs are ambiguous; on the contrary, they are as explicit and clear as it is possible for the English language to make them; and hence, words supposed to have been omitted cannot be supplied, nor can extrinsic evidence be resorted to for the purpose of reconciling the conflict, on the theory that the testator intended something he did not express.

From this conclusion it follows that the general bequests made by the paragraphs of the will preceding paragraph 9 are nullities, and that the legatees therein named take nothing thereby. The judgment of the district court should, therefore, be reversed and the cause remanded, with directions to enter judgment in accordance with the views expressed in this opinion.

CAMPBELL, J., concurs in this opinion.

TAGGART v. FUGEL. (Supreme Court of Colorado. Oct. 4, 1909. Rehearing Denied Dec. 6, 1909.) JUDGMENT (§ 501*) - CONCLUSIVENess—ColLATERAL ATTACK.

however erroneous, not appealed from, or quesA judgment by a court having jurisdiction, tioned in the manner and time provided by law, is nevertheless conclusive on all parties affected thereby, and cannot be attacked collaterally. Cent. Dig. § 941; Dec. Dig. § 501.*] [Ed. Note.-For other cases, see Judgment,

Appeal from County Court, City and County of Denver; Charles McCall, Judge.

Action by George Fugel against F. D. Taggart. Judgment for plaintiff, and defendant appeals. Affirmed.

F. D. Taggart, pro se.

WHITE, J. The appellant, with others, executed a statutory appeal bond, removing a cause to the county court from a judgment rendered against certain defendants in a suit tried before a justice of the peace. Upon the trial of the case so appealed, judgment was rendered against the parties appealing. The defendants in that case failing to satisfy the judgment, this suit was brought to recover the penalty designated in said bond. The only attempted defense is based upon certain alleged irregularities occurring in the trial of the original case in the county court on appeal from said justice of the peace.

Counsel argue that by arbitrary action of the county court in the original case, in exacting certain alleged illegal fees as a condition precedent to further appearance, the appellant there was not heard on his motion for a new trial, and was not allowed to take any exceptions to certain other alleged irregularities, nor appeal from the judgment there rendered to this court. It appears from the record here that the case in which the appeal bond was given was regularly brought before the justice of the peace, and the subject of the action, as well as the parties, was within the jurisdiction of that court, and that after trial there the case was properly appealed to, and lodged in the county court. Thus the latter court had jurisdiction, and the judgment by it rendered must be respected, until reversed, set

ING QUESTIONS-TIME.

objections to depositions to be disposed of beUnder Mills' Ann. Code, § 353, requiring fore trial, an objection to questions in a deposition as leading cannot be made at the trial.

[Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 309, 311; Dec. Dig. § 107;* Trial, Cent. Dig. § 189.]

5. APPEAL AND ERROR (§ 970*)-DISCRETION OF LOWER COURT-ORDER OF PROOF.

The admission of testimony not strictly in rebuttal is within the discretion of the court, and not reviewable, unless the court's discretion is abused.

aside, or annulled, as provided by law. A 14. DEPOSITIONS (8_107*)-OBJECTIONS-LEADjudgment by a court having jurisdiction, however erroneous, not appealed from, or questioned in the manner and time as provided by law, is nevertheless conclusive upon all parties affected thereby, and cannot be attacked collaterally. Cochrane v. Parker, 12 Colo. App. 169, 54 Pac. 1027; Harter v. Shull, 17 Colo. App. 162, 166, 67 Pac. 911. If the judgment was erroneous, if the trial court was arbitrary, and made unlawful exactions of the defendants, or did anything prejudicial to their substantial rights in the [Ed. Note.-For other cases, see Appeal and progress of the trial, an appellate court-Error, Cent. Dig. § 3851; Dec. Dig. § 970.*] and in that case, or one of a reviewing or 6. APPEAL AND ERROR (§ 701*)-INSTRUCTIONS supervisory nature-was the place and the way to correct it. The defendants in that case, who are principals in the bond here sued on, suffered judgment to go against them. They failed to appeal therefrom, or seek in any way to relieve themselves of its effect. Not only they, but certainly this appellant, cannot now question its regularity. McCarthy v. Strait, 7 Colo. App. 59, 63, 42 Pac. 189; Black on Judgments, § 245.

Perceiving no error in the record of this case, and being precluded, by rules of law, founded upon reason and the soundest principles of public policy, from inquiring into the procedure resulting in a judgment in a case never brought into this court, the judgment here appealed from must be, and accordingly is, affirmed.

Judgment affirmed.

STEELE and BAILEY, JJ., concur.

-REVIEW-RECORD-EVIDENCE.

Instructions will not be reviewed on appeal, where the evidence relating to the matter intended to be covered by the instructions is omitted from the abstract.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2933; Dec. Dig. § 701.*]

Appeal from La Plata County Court; Chas. A. Pike, Judge.

Action by W. H. Chambers against the Greenlaw Lumber & Timber Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Pulliam & Lane, for appellant. P. G. Ellis, for appellee.

MUSSER, J. This action was brought to recover for labor performed by the appellee and his two assignors, Ferguson and Collins, in hauling railroad ties for the appellant.

The first assignment of error relates to the admission of the testimony of Ferguson, who testified that Collins hired him. This is answered by the testimony of Collins, who

GREENLAW LUMBER & TIMBER CO. v. testified that the defendant's general mana

CHAMBERS.

(Supreme Court of Colorado. Dec. 6, 1909.) 1. MASTER AND SERVANT (§ 80*)-ACTION FOR

SERVICES EVIDENCE.

The admission of evidence of one of plaintiff's assignors, in an action for services in hauling ties, that he was hired by C. was rendered proper by the subsequent testimony of C. that defendant's general manager authorized him to employ men to aid in hauling the ties. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 116; Dec. Dig. § 80.*] 2. APPEAL AND ERROR (§ 203*)-RECEPTION OF EVIDENCE-OBJECTIONS-SUFFICIENCY.

An objection to the reading of a deposition cannot be reviewed, where no ground or reason for the objection was stated at the trial.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. 203;* Depositions, Cent. Dig. $339.]

3. MASTER AND SERVANT (§ 80*)-ACTION FOR SERVICES EMPLOYMENT QUESTION FOR JURY.

Where the evidence was conflicting as to whether plaintiff and his assignors were hired to work for defendant by some one having authority, the question was for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 121; Dec. Dig. § 80.*]

ger authorized Collins to employ men to aid in hauling the ties. In the second assignment complaint is made of the admission of a deposition. The abstract recites that the defendant objected to the reading of the deposition, but states no ground or reason for the objection. The third assignment complains of the action of the court in overruling defendant's motion for a nonsuit, and the sixth assignment is that the court erred in rendering a judgment on the verdict. These assignments are based upon the alleged insufficiency of the evidence to sustain plaintiff's cause of action. It would not be profitable to review the testimony. It is enough to say that there was sufficient testimony to show that plaintiff and his assignors were hired to haul the ties by the defendant, or by some one authorized by the defendant to hire them, that the ties were hauled by the plaintiff and his assignors, and that defendant failed to pay for such hauling. True, there was evidence to the contrary, but it was for the jury to determine the question upon conflicting testimony.

In the fourth assignment it is said that

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