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to the enactment of chapter 106, Sess. Laws | thereafter dealt with Vins, they would have 1893, p. 253, conditional sales of personal been in no better position as to constructive property retaining title in the vendor were notice than they now are. The 1903 statute, valid in this state. not only between the without referring to the location of the propvendor and vendee, but also as against sub- erty, provides that the memorandum shall be sequent bona fide purchasers, incumbrancers, filed in the office of the auditor of the counor creditors. De Saint Germain v. Wind, ty where the vendee resides, and section 2 3 Wash. T. 189, 13 Pac. 753; Dodd & Co. provides that the county auditor "shall enV. Bowles, 3 Wash. T. 383, 19 Pac. 156; ter in a suitable book to be provided by him Quinn v. Parke & Lacy Machinery Co., 5 at the expense of his county, with an alphaWash. 276, 31 Pac. SC. To obviate the hard- betical index thereto, and exclusively for ship of this rule, the Legislature passed the that purpose, ruled into separate columns act of 1893, supra, which was afterwards with appropriate heads, "The time of filing, amended by chapter 6, p. 6, Sess. Laws 1903. Name of vendor,' 'Yame of vendee,' 'Date of Section 1 of the last-mentioned act provides instrument,' 'Amount of purchase price,' and “that all conditional sales of personal prop- ‘Date of release.'” This contemplates that erty, or leases thereof, containing a condi- any person desiring to purchase personal tional right to purchase, where the property | property from one in possession thereof may, is placed in the possession of the vendee, for protection, examine this book and index. shall be absolute as to the purchasers, in- Had the respondents done this, they would cumbrancers and subsequent creditors in have learned of the memorandum of condigood faith, unless within ten days after tak- tional sale, indexed in the names of appeling possession by the vendee, a memorandum lant as vendor and Nims as vendee. of such sale, stating its terms and condi- firmatively stated that the vendor was a tions and signed by the vendor and vendee, Seattle corporation, and that the vendee was shall be filed in the auditor's office of the a resident of Whatcom county. Respondents county, wherein, at the date of the vendee's as intending purchasers could have applied taking possession of the property, the ven- to either for information. By doing so, they dee resides." This statute did not invalidate would have ascertained that Nims had no conditional sales as between the original ven- mill other than the one located near Bellingdor and vendee, or as to third parties not ham, and that the engine they were about bona fide purchasers or incumbrancers, where

to purchase was the identical engine menno memorandum was filed with the auditor,

tioned in the memorandum of conditional or where the description in any memoran- sale. By prosecuting inquiries suggested by dum duly filed was indefinite. This being

the memorandum on file, they would have ol)true, the written agreement was competent tained all information necessary for their proevidence as tending to sustain the appel

tection. The description should not be held lant's allegation of title in itself. The re

insufficient as a matter of law. In Willey spondents contend that the description of the

V. Snyder, 31 Mich. 60, Mr. Chief Justice engine contained in the memorandum was

Cooley, in commenting upon the sufliciency of insufficient to give constructive notice of ap

descriptions in chattel mortgages, said: pellant's title; that it described the engine

"But if a stranger is to be sent out to seas being located at Lynden; that it never

lect property mortgaged, with no other means was located or kept there; that the respond

of identification than such as are afforded by ents first saw it in Sims' possession and ar

the written description, and without being parent ownership near Bellingham ; that the

at liberty to supplement that information description in the written memorandum

by such as can be gainell in the mortgagor's woulil apply to any one of numerous engines neighborhood by inquiry of those who know located in Whatcom county; that the appel

what property the mortgagor was possessed lant had failed to mention the name of the

of which would answer the description in manufacturer stamped on the engine; and

the instrument when it was given, and by that the description was so imperfect as to

possessing himself of such other circummake the memorandum void for the purpose

stances as persons usually avail themselves of giving constructive notice to respondents,

of in applying written descriptions to the who claim to be subsequent holders as bona

things intended, it is much to be feared that fide purchaser and mortgagee. We are un

the stranger would be so often at fault that able to agree with this contention. The prop

chattel mortgages, if their validity depended erty when sold was in Snohomish county,

upon his success in identifying the property, and was to be thereafter delivered to Nims, would seldom be of much value as securities. who was to locate it at Lynden, in Whatcom Written descriptions of property are to be county. This he never did. Assume, how- interpreted in the light of the facts known ever, that he had done so, and that thereaft- to and in the minds of the parties at the er, without the knowledge or consent of the time. They are not prepared for strangers, appellant, he had removed it to Bellingham, but for those they are to affect-the parties where the respondents first saw it. appellant and their privies. A subsequent purchaser or would not have lost its title by reason of mortgagor is supposed to acquire a knowl. such removal. Yet, if the respondents bad edge of all the facts, so far as may be need

As

ful to his protection, and he purchases in view of that knowledge.” Had respondents examined the index and files of the auditor's office, they would have learned of the conditional sale of an engine to Nims by appellant. As Nims resided in Whatcom county, this fact would have been sufficient to place a cautious business man on inquiry for the purpose of ascertaining what engine had been so sold. The evidence, however, fails to show that respondents either examined the records or made any investigation. against Nims and all third parties not bona fide purchasers or incumbrancers, appellant was the owner, and respondents can only secure their alleged rights by showing tuat they were obtained from Nims in good faith. They severally alleged themselves to have been innocent holders, one as purchaser and the other as incumbrancer, without notice of appellant's title. These allegations being denied, the burden of proof to sustain them rested on respondents. No such proof was offered or made. A party seeking to avail himself of rights as an innocent purchaser must affirmatively plead and prove such rights. 2 Abbott's Trial Brief, p. 1634, 8 43; Diemer V. Guernsey, 83 N. W. 1047, 112 Iowa, 393; Wilhoit v. Lyons, 98 Cal. 409, 33 Pac. 325. Under statutes of other states providing for the filing or recording of written memoranda of conditional sales, this rule has, in well-considered cases, been especially applied to defendants in replevin actions, who claimed to have purchased in good faith from vendees in possession of personalty under such conditional sale contracts. Crumrine v. Reynolds, 78 Pac. 402, 13 Wyo. 111; Singer Mfg. Co. v. Nash, 70 Vt. 434, 41 Atl. 429. The honorable trial court erred in refusing to admit in evidence the memorandum of conditional sale, with proof of its filing with the county auditor.

The respondents appeared by the same attorney, but answered separately. In their separate cost bills they each taxed a statutury attorney fee. The appellant moved the court to retax costs by allowing them but one fee. This motion being overruled, it assigns error, contending that respondents were entitled to one fee only. Assuming the respondents to be entitled to costs, this contention cannot be sustained. One respondent answered, claiming title by purchase, while the other pleaded a mortgage. These defenses were based on different contracts, and were properly presented by separate answers.

The fact that both respondents were represented by the same attorney is immaterial. Koyukuk Mining Co. v. Van de Vanter, 30 Wash. 385, 70 Pac. 966.

For error in refusing to admit the written memorandum in evidence with proof of its filing, the judgment is reversed, and the cause remanded for a new trial.

(47 Wash. 117) STATE ex rel. AMALGAMATED REPUBLIC MINES CO. V. NICHOLS, Secretary

of State. (Supreme Court of Washington. Sept. 6, 1907.) 1. CORPORATIONS - FOREIGN CORPORATIONS RIGHT TO DO BUSINESS-POWERS.

Ballinger's Ann. Codes & St. $ 4291, providing that no foreign corporation shall be permitted to transact a real estate or brokerage business, and that the provision shall not extend to any other business for the transaction of which such corporation may be organized, does not permit foreign corporations to do business or to file articles of incorporation prohibited to domestic corporations. 2. SAME-EFFECT OF FILING.

The mere filing of articles of incorporation with the Secretary of State authorizes the corporation to do all the business named therein not expressly prohibited by law. 3. SAME-REAL ESTATE AND TRUST BUSINESS.

1 Ballinger's Ann. Codes & St. § 291, provides that any foreign corporation incorporated for any of the purposes for which a domestic corporation may be formed shall have power to transact every kind of business in the state, in the same manner as domestic corporations, by complying with the provisions of the act, provided that such foreign corporation shall not transact business within the state on more favorable conditions than are prescribed for a similar domestic corporation, and that no foreign corporation subsequently organized empowered to deal in real estate or to carry on a real estate brokerage business shall transact such business in the state, etc. II cld, that a foreign corporation organized after the passage of such act to buy and sell real estate and do a brokerage agency and trust business not organized under Laws 1903, p. 367, c. 176, providing for the organization of trust companies, was not entitled to file its articles of incorporation in the state and do business therein, such powers not being granted to domestic corporations not organized under that act.

Mandamus by the state, on relation of the Amalgamated Republic Mines Company, against Sam H. Nichols, as Secretary of State. Writ denied.

Geo. W. Belt, for plaintiff. A. J. Falknor and Cutts & Dorety, for respondent.

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MOUNT, J. Action in mandamus to con.pel the Secretary of State to file in his office a certified copy of the articles of the Amalgamated Republic Mines Company, a corporation organized under the laws of the territory of Arizona. The Secretary of State refused to file the articles, because, among the many powers of the corporation as defined by its charter, were contained powers to deal in real estate, do a brokerage and agency and trust business. The corporation avers that the only business it desires or intends to transact in this state is to acquire mines and to establish and operate mills for the treatment of ores. It disavows any intention of performing, or attempting to perform, any powers enumerated in its articles of incorporation, which powers are prohibited by the laws of this state.

It is conceded that the relator has complied with all the provisions of the statute relating to the filing of articles of foreigu cur

HADLEY, C. J., and RUDKIN, FULLERTON, MOUNT, and DUNBAR, JJ., concur.

porations, and that it is entitled to have its case some of the proposed powers of the corarticles filed here, unless the Secretary of poration were powers for which the corpoState may refuse to file the same because ration might have been formed under the the articles enumerate the powers to do a general incorporation laws, but most of the real estate, brokerage, agency and trust busi- powers named were trust or agency powness. If these were the sole powers of the ers. The formation of the corporation for corporation, it is clear that the writ would those purposes was in violation of the trust not issue, because foreign corporations or- company act, which provides that "hereafter ganized after 1890 are prohibited from doing no corporation shall be organized for the pura real estate or brokerage business in this pose of carrying on a trust company busistate, and this corporation, which was or- ness in the state of Washington except unganized in Arizona on May 6, 1907, is con- der this act." Section 1, p. 367, c. 176, Laws cededly not organized in pursuance of the 1903. In other words, we refused to permit provisions of the act of 1903 relating to trust a domestic corporation to be formed with companies. Laws 1903, p. 367, c. 176. Sec- trust powers among its other designated powtion 4291, 1 Ballinger's Ann. Codes & St., ers, where such corporation had not complied provides that any corporation incorporated with the act relating to trust companies. under the laws of any state for any of the It is clear, therefore, that, if the relator were purposes for which domestic corporations are a domestic corporation, the writ would not authorized to be formed under the laws of issue to require the respondent to file the arthis state shall have power to transact every ticles. It seems to follow, from this decision kind of business in this state, in the same and from the provisions of the statute and manner and to the same extent as domestic the Constitution, to the effect that foreign corporations, by compliance with the condi- corporations shall not be allowed to transact tions prescribed by succeeding sections, “pro- business within the state on more favorable vided, however, that this chapter shall not conditions than domestic corporations, that be so construed as to allow such foreign cor- the writ ought not to issue in this case. poration to transact business within the state

It is true the relator recites in the petion more favorable conditions than are pre- tion for the writ that it disavows any intenscribed by law for a similar corporation or- tion of doing any business prohibited by the ganized under the laws of this state, *

laws of this state, but there is no provision provided, further, that no foreign corporation of law by which such disavowal may bewhich is bereafter organized which has

come a public record, so that persons, dealing among its other powers the business of deal- with the corporation might be informed of ing in real estate, and buying and selling the

the powers of the corporation outside of the same, and for the purpose of carrying on a recorded articles. It is also true that the real estate brokerage business, shall be per- statute provides, at section 4291 (Ballinger's mitted to transact such business of buying Ann. Codes & St.), that no foreign corporaand selling and dealing in real estate, and tion shall be permitted to transact a real escarrying on a brokerage business therein,

tate or brokerage business, and that “this in this state; but this probibition shall not provision shall not extend to any other busiextend to any other business for the transac

ness for the transaction of which such cortion of which such corporation may be or- poration may be organized.” This provision ganized.” The State Constitution also pro- cannot be construed so as to permit foreign vides, at section 7 of article 12, that "no cor

corporations to do business or to file articles poration organized outside the limits of this of incorporation prohibited to domestic corstate shall be allowed to transact business porations. The mere filing of articles of inwithin the state on more favorable condi

corporation may not be the transaction of tions than are prescribed by law for similar business within the meaning of the Consticorporations organized under the laws of this tution, but the filing of the articles apparentstate.” In the case of State ex rel. Osborne, ly authorizes the corporation to do all the Tremper & Co. v. Nichols, 38 Wash. 309, 80

business named therein not expressly proPac. 462, where a domestic corporation sought | bibited by law. A trust business is not de to amend its articles so as to change its name nied to either foreign or domestic corporafrom "Osborne, Tremper & Co., Inc.," to tions. Either may do such business, but be“Seattle Trust & Title Company,” without fore doing so the corporation must be formed complying with the act of March 17, 1903,

under the provisions of the trust act. Where relating to trust companies, we held that

the articles designate trust powers and the mandamus would not lie to compel the Secre- act relating to such powers is not complied tary of State to file the amended articles. with, the articles are misleading upon their And in State ex rel. Gorman v. Nichols, 40 face. Neither a foreign nor a domestic corWash. 437, 82 Pac. 741, where it was sought | poration can do business in this state without to form a domestic corporation to do a trust first filing its articles with the Secretary of or agency business, where the corporation State. If a foreign corporation is permitted was not formed in accordance with the act to file articles which a domestic corporation of 1903 relating to trust companies, we re- cannot, it would seem apparent that the forfused to compel the Secretary of State to mer is shown a preference. For the purposes file the proposed articles. In this last-named of business in this state, a foreign corporation is "organized” by the filing of a certified without issue. H. B. Petridge filed in the copy of its articles. To allow the relator to probate department of the superior court in file its articles with trust powers would be and for King county a petition for his apin effect to permit its “organization" in der- pointment as administrator, alleging that the ogation of the act of 1903, and upon more will above mentioned had been revoked by favorable conditions than are allowed to do- subsequent marriage of the testatris. T. II. mestic corporations. This would be opposed Kolderup, on behalf of Emil Nelson, also to the public policy of the state as evidenced filed a petition for the probate of the will by the trust statute and the Constitution, cit- and his appointment as administrator cum ed supra.

testamento annexo; the will having named We are of the opinion, therefore, that, no executor. From an order admitting the when a domestic or a foreign corporation will to probate and appointing T. II. Kolderij designates trust or agency powers in its arti- administrator cum testamento annexo, 11. B. cles of incorporation, it is required by the Petridge has appealed. act relating to such powers to be incorporat- The only question on this appeal is whethed in a particular way. The Secretary of er the will of Alexia Caroline Halvorsen was State ought not to be compelled to file arti- revoked by her marriage. At common law cles which do not conform to the law in that the subsequent marriage of a feme sole rerespect.

voked her will, for by such marriage she The writ is denied.

was deprived of testamentary capacity, her

will ceased to be ambulatory in its nature. HADLEY, C. J., and FULLERTON, CROW, and was therefore void. Subsequent marROOT, RUDKIN, and DUNBAR, JJ., concur. riage of a man did not revoke his will, for

the common law made sufficient provision

for his wife by her right of dower. But a (47 Wash. 77)

subsequent marriage and birth of a child, In re PETRIDGE'S WILL.

taken together, revoked his will. 2 GreenPETRIDGE v. KOLDERUP.

leaf on Evidence, 8 681; 4 Kent's Commenta(Supreme Court of Washington. Sept. 6, 1907.) ries, $$ 321–527. The first Legislature of WILLS-REVOCATION-FEME SOLE-MARRIAGE, Washington Territory (Sess. Laws 1851, p.

Ballinger's Ann, Codes & St. § 1598, de- 312; Abbott's Real Property Statutes, 381) clares that if, after making any will, the testator shall marry, and the wife shall be living at

passed an act relating to wills which contestator's death, such will shall be deemed re

tained the following sections: voked, unless provision shall have been made “Section 1. Be it enacted by the Legislature for her by marriage settlement, or she be pro- of Washington Territory, that every person vided for in the will, or in some way mentioned therein to show an intention not to make

of twenty-one years of age and upwards, of such provision, etc. Section 1015 declares that sound mind, may by last will devise all his words used in the act which import the mascu- estate, real and personal, saving to the widline gender may be extended to females, when such construction shall be necessary. Held, that

Ow her dower." where a feme sole made a will devising her en- “Sec. 3. A married woman may by will tire estate to her brother, and afterwards mar- dispose of any real estate held in her own ried and died without issue, leaving her husband

right, subject to any rights which her hussurviving, such will, which did not refer to the husband in any manner, was revoked by the

band may have as tenant by curtesy." marriage.

"Sec. 7. If, after making a will disposing [Ed. Note.-For cases in point, se'e Cent. Dig. i of the whole estate of the testator, such tesvol. 49, Wills, $ 109.)

tator shall marry and die, leaving issue by Appeal from Superior Court, King County;

such marriage living at the time of his death, R. B. Albertson, Judge.

or shall leave issue of such marriage born Application by T. II. Kolderup for the pro

to him after his death. Such will shall be bate of the will of Alexia Halvorsen Petridge,

deemed revoked, unless provision shall have deceased, to which II. B. Petridge, filed ob

been made for such issue by some settlejections. From an crder admitting the will

ment, or unless such issue shall be provided to probate and appointing Kulderup admiuis

for in the will, and no evidence shall be trator with the will annexed, Petridge ap

received to rebut the presumption of such peals. Reversed and remanded.

revocation.

"Sea, S. I will made by an unmarried woFred II. Peterson and II. C. Force, for al

man shall be deemed revoked by her subsepellant. S. S. Langland, for respondeut.

quent marriage."

The enactment of the above sections 7 and CROW, J. On April 27, 1903, Alexia Car- 8 was an adoption of common-law principles oline Halvorsen, it single woman, residing in ly our first territorial Legislature. This statSeattle, executed her last will and testament, ute was continued without change until the devisins her entire estate to her brother, territorial Legislature passed an entirely new Emil Nelson, of Bordeaux, France. On 01.10- i probate act (Abbott's Real l'roperty Statutes, ber 11, 1911.7, she married II. B. Petridge, 38): Sess. Laws 1859–60), 11. 165), chapter 2 whom she did not know at the date of the of which related to wills. In this chapter. will. They lived together as husband and sections 3 and 8 of the act of 18.74 were conwife until December 27, 1800, when she died itinued without change, while sections 1 and 7 were respectively succeeded by the follow- omitted, section 43 (section 1015, Ballinger's ing:

Ann. Codes & St.; section 2301, Pierce's Code) "Sec. 18. Every person who shall have at- was first enacted. The appellant insists that, tained the age of majority, of sound mind, applying the rule of construction therein anmay, by last will, devise all his estate, real nounced to section 1398, Ballinger's Ann. and personal. This section shall not be con- Codes & St. (section 2341, Pierce's Code), the strued as depriving a widow of her dower, latter should be construed under the facts nor a husband of his interest as tenant by the of this case to read as follows: "If, after curtesy."

making any will, the testatrix shall marry "Sec. 23. If, after making any will, the and the husband shall be living at the time testator shall marry, and the wife shall be of the death of the testatrix, such will sha! living at the death of the testator, such be deemed revoked, unless he be providevi will shall be deemed revoked, unless provi- for in the will, or in some way mentioned sion shall have been made for her by mar- therein as to show an intention not to make riage contract, or unless she shall be provid- such provision, and no other evidence to reed for in the will, or in such way mentioned but the presumption of revocation shall be therein as to show an intention not to make received." Having due regard to the lansuch provision, and no other evidence to guage used in the two sections now being rebut the presumption of revocation, shall construed, and also considering the history be received."

of our legislation on wills, property rights The acts of 1851 and 1860 both preserved of husband and wife, and the descent of realto the widow and the husband, respectively, ty and personalty, we hold that the construethe common-law estates of dower and ten- tion urged by appellant is necessary and ancy by the curtesy, which have since been should be adopted. Endlich on Interpretaabolished and no longer exist in this state. tion of Statutes, $ 182. The acts of 18:54 and In Sess. Laws 1873, p. 252 (Abbott's Real 1860 relating to wills both protected the comProperty Statutes 390), the territorial Legis- mon-law estates of dower and tenancy by the lature again enacted a probate practice act, curtesy from destruction by the will of eiof which chapter 3 (sections 22 to 43, inclu- ther the husband or wife. The first Legissive) related to Wills. These sections, which lature (Sess. Laws 1871, pp. 307, 308), in were incorporated in the Code of 1881 with- chapters 11 and 12 of an act relating to exout change, are now sections 4591 to 4615, ecutors, administrators, and the distribution Ballinger's Ann. Codes & St., and sections of real and personal property, enacted a law 2310 to 2361. Pierce's Code. Section 8 of the of descents; chapter 11 making no provision act of 1854, providing that subsequent mar

for the inheritance of real property by the riage should revoke the previous will of an husband from the wife or by the wife from unmarried woman, was omitted from this the husband, although chapter 12 did proact of 1873, while section 23 of the act of vide for such distribution of personalty un1860 was re-enacted as section 26 (section der certain conditions. Section 242 of chap4598, Ballinger's Ann. Codes & St.; section ter 11 (page 308), however, reads as follows: 2314, Pierce's Code), with the exception that "Xothing contained in this act shall effect the the words “marriage settlement” were sub- title of a husband as tenant by curtesy, nor stituted for the words “marriage contract."

that of a widow as tenant in dower." In 180) The chapter of the act of 1873 relating to the first separate and community property wills also contained an entirely new sec

law defining the rights of married persons was tion, numbered 43, being section 1615, Ballin- enacted. Sess. Laws 1869), p. 318; Abbott's ger's Ann. Codes & St., and section 2361, Real Property Statutes, 471. This statute Pierce's Code, reading as follows: "Sec. 43.

was materially amended in 1871 (Sess. Law's Words in this chapter contained, or in this 1871, p. 67; Abbott's Real Property Statutes, act which impart the singular number only, 171), but was re-enacteil in 1873 (Sess. Laws may also be applied to the plural of per- 1873, p. 1.50). sons and things, and words imparting the It is evident from the separate and commasculine gender only may be extended to munity property law, originally passed in females also when such construction shall be 1869 and re-enacteil in 1873, and the probate necessary." Section 1597, Ballinger's Ann. practice act of 1873, that the trend of leyCodes & St. (section 2343, Pierce's Code), rela- islation was a departure from the commontive to the revocation of wills, is to be found law principles, with a tendency towards an in all three of the territorial laws above men- equalization of the property rights of hustioned, except that the words "testatrix" and band and wife. An examination of the pro"her" appeared first in 1873.

bate act anıl other statutes of 1873, however, The respondent contends that the omis- discloses that no change in the law of desion of original section 8 of the act of 1834 scents was then made. The original act of from the act of 1973 shows a legislative in- 18.54 relating to descents, with some imindtent that the will of an unmarried woman terial amendments. Wils permitted to conti:lshould not thereafter be revoked in the event ue. doubtless by reason of legislative overof her subsequent marriage. There might sight or inadvertence. At the succeedliny be some merit in this contention but for the 1875 session, however (Law's 1873), p. 33), the fact that, at the identical time section 8 was Legislature passed an act to regulate the de

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