(47 Wash. 256)

CHLOPECK v. CHLOPECK et al. (Supreme Court of Washington. Oct. S. 1907.) 1. APPEAL - HARMLESS ERROR - REFUSAL OF LEAVE TO AMEND.

In an action for an accounting between alleged partners, error in refusing leave to amend the prayer of the complaint by asking for the dissolution of the partnership was harmless, where the court was justified in finding there was no partnership.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4107.]

2. WITNESSES-PERSONS INTERESTED AGAINST INSANE PERSON.

Under Ballinger's Ann. Codes & St. § 5991, disqualifying persons in interest from testifying concerning transactions with insane persons, in an action for an accounting between alleged partners, it was proper to exclude a question asked plaintiff as to who composed the partnership; the defendant alleged to be a partner being in

sane.

3. APPEAL-INSUFFICIENT PRESENTATION OF

ERROR.

The Supreme Court will not review a ruling in excluding testimony, unless the party offering it informed the court what he expected to prove, and made the offer a part of the record, so that the court might judge of its materiality.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 2905-2909.] 4. SAME CASE TRIED TO COURT-IMPROPER TESTIMONY ADMITTED-EFFECT.

The admission of improper testimony is not cause for reversing an equity case or any case tried to the court.

5. PARTNERSHIP EXISTENCE OF RELATION

EVIDENCE-SUFFICIENCY..

In an action between alleged partners for an accounting, evidence held to show no partnership existed.

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Francis Chlopeck against Edward Chlopeck and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

Charles R. Crouch, Wm. H. Brinker, and Morris, Southard & Shipley, for appellant. Ira Bronson, D. B. Trefethen, and Ira A. Campbell, for respondents.

RUDKIN, J. This is an action for an accounting between partners. The court below found, among other things, that there was no partnership, and entered a judgment of dismissal, from which the plaintiff has appealed.

At the commencement of the trial the appellant asked leave to amend the prayer of her complaint by adding thereto a prayer for the dissolution of the copartnership. The court denied the application, and this ruling is assigned as error. If the court was justiIf the court was justified in its finding of no partnership, the ruling complained of could not be prejudicial, even though erroneous. The appellant, while on the witness stand in her own behalf, was asked the following question: "Q. Who composed the firm of Chlopeck Bros?" To this question the respondents objected, on the ground that the respondent Turner was defending as the guardian of an insane per

son, and the appellant was not competent to testify in her own behalf to any transaction had with such insane person under section 5991, Ballinger's Ann. Codes & St. This objection was properly sustained. The partnership relation could only be created through some contract or transaction with the respondent Edward Chlopeck, and, he being insane, testimony in relation to such contract or transaction by the appellant in her own behalf was properly excluded. Objections were also sustained to the following questions propounded to the same witness: "Q. What wages did you draw for such services? [Referring to services performed by the witness in superintending the smoking of fish.] Q. Did any of the employés of Chlopeck Bros. down there board with you? Q. Did you have any knowledge of money due her from Chlopeck Bros.? Q. Then, after that, Mrs. Chlopeck, when you wanted money to pay any expenses, where did you get it?" The materiality of the testimony sought to be elicited by these questions does not appear from the questions themselves, and in Norman v. Hopper, 38 Wash. 415, 80 Pac. 551, we held that in such cases we will not review the action of the trial court in excluding testimony, unless the party offering it informed the court what he expected to prove and made the offer a part of the record so that the court might judge of its materiality. For these reasons, we cannot review the rulings of the court in the matters complained of.

The next assignment relates to the admission of testimony over the objection of the appellant. The statements objected to were clearly hearsay and self-serving, but we have repeatedly held that the admission of improper testimony does not call for a reversal in an equity case, or in any case tried to the court. This court will simply disregard it.

The only remaining question is the sufficiency of the testimony to justify the court's finding. Briefly stated the material facts are these: The appellant and the respondent Edward Chlopeck, mother and son, resided together in Portland, Or., in the year 1884. In the fall of that year a fish and poultry business was purchased from one Wolfstein, and the business was thereafter conducted until 1896 under the name of Chlopeck Bros. In 1896 the mother and son removed to Seattle, where the same business was thereafter conducted under the same name until 1900. In the latter year the business was transferred to the Chlopeck Fish Company, a corporation, the son making the transfer, and, as a consideration therefor, 448 shares of the capital stock of the corporation of the par value of $100 each were issued to him. In 1902 the son and the respondent, Jennie Chlopeck, intermarried, and the son thereupon removed from the home of the appellant, where he had theretofore at all times resided. In 1903 the son was adjudged insane by the su

perior court of King county, and committed to the asylum for the insane, where he still remains, and thereafter respondent Turner was appointed guardian of his estate. The present action was commenced on May 15, 1906, some three years after the son was adjudged insane. Although this copartnership existed for a period of about 20 years before the son became insane, if it existed at all, yet there is not a particle of direct testimony tending to show the formation or existence of such a partnership. There is testimony tending to show that the mother advanced money for the original purchase of the business; that she took a general interest in the conduct of the business and superintended the smoking of fish; that she received no salary or wages for her services; that she drew considerable sums from the business for household expenses, and was authorized so to do; and that after the formation of the corporation such sums were charged to the personal account of the son. But all these facts are just as consistent with the relation of mother and son as with that of copartnership, or even more so. The general statements of witnesses to the effect that the appellant had an interest in the business, or at least appeared to have, are entitled to but little weight, in view of all the circumstances and the admitted relationship of the parties. Had this partnership existed for a period of 20 years, we cannot escape the conclusion that some more definite trace of its existence could be found than is disclosed by this record.

The findings of the court below are in accordance with out own views of the testimony, and the judgment is therefore affirmed.

HADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.

(47 Wash. 253)

In re MILLER'S ESTATE, (Supreme Court of Washington. Oct. 8, 1907.) 1. WILLS-PROBATE-AMENDMENT.

The court need not dismiss a petition for probate of a will on its appearing that the entire will of testator is not in form and substance as reduced to writing and set forth in the petition, but in its sound discretion may allow the will and its records to be amended to conform to the facts proved.

2. SAME NUNCUPATIVE WILL -"TIME OF LAST SICKNESS."

A nuncupative will is made "at the time of the last sickness," as required by Ballinger's Ann. Codes & St. § 4605, though not made when testator is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will, where made when the last sickness has so progressed that testator expects death, and is liable to die at any time, and in view of, and as preparatory to, such result. which followed, he made the verbal will, and this without regard to his opportunity then or afterwards to make a written will.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 352.]

Appeal from Superior Court, Columbia County; Chester F. Miller, Judge.

In the matter of the estate of William A. Miller, deceased. From an order, an appeal is taken. Affirmed.

Will H. Fouts and G. W. Jewett, for appellant. M. M. Godman, for respondents.

RUDKIN, J. This is an appeal from an order establishing a nuncupative will and admitting the same to probate. Upon the hearing of the petition for probate, the court found that the instrument filed herein and alleged to be the will of said Miller is not the entire or all the will made by him as shown from the evidence taken herein," and granted "leave to reduce or have reduced to writing and file herein the nuncupative will of said William A. Miller, as shown from the evidence to have been made by him, and upon the filing of the same such proceedings be had as the law may warrant in the premises." Thereafter the will, "as shown from the evidence to have been made," was reduced to writing and filed with the clerk, whereupon the court entered an order establishing the will and admitting the same to probate.

The appellant seems to contend that, as soon as it appeared that the entire will of the testator was not in form and substance as reduced to writing and set forth in the petition for probate, the court had no alternative but to dismiss the petition. This contention is unsound. In the exercise of a sound discretion, the court might well permit the alleged will and its records to be amended to conform to the facts proved, and such discretion was properly exercised in this case. Again, it is contended that the evidence failed to show either the animus testandi or the animus nuncupandi, or that the testator called upon any person present to bear witness that such was his will. Without discussing the testimony in detail, we think it clearly appears that the testator was strongly impressed with the probability of impending death; that he intended to make a will. and that his word should stand as his will; and that he called upon those present to bear witness that such was his will, or to that effect, as our statute provides.

It is next contended that the will was not made "at the time of the last sickness" of the testator. Ballinger's Ann. Codes & St. § 465. This presents the most serious question in the case. In the leading Américan case construing the term "last sickness," in statutes of wills, the opinion. was written by Chancellor Kent. Prince v. Hazelton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307. It was there held by a divided court that the term "last sickness" means where the testator is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. This construction of the statute has been adopted and fol|lowed

lowed in Georgia, Maryland, Mississippi,

New Jersey, New York, Pennsylvania, Texas, and Virginia. 30 Amer. & Eng. Ency. of Law (2d Ed.) p. 568. A different rule prevails in Alabama, Illinois, Kansas, Nebraska, and Tennessee. In Johnson v. Glasscock, 2 Ala. 218, the court said: "If a person in his last illness-the sickness of which he subsequently dies-impressed with the probability of approaching death, deliberately makes his will conforming to the statute, we do not feel authorized to say that it will be invalid because in point of fact he had time and opportunity to reduce it to writing." In Harrington v. Stees. 82 III. 50, 25 Am. Rep. 290, the court said: "At common law it was not essential to the validity of a nuncupative will that the testator should have been ill at all. The statute is, in this regard, a limitation of the common-law powers. The words 'in the time of the last sickness' had no technical signification at the time of the passage of the statute. These words must be taken in their ordinary signification. The courts have no power to take from or to add to the statute. It is their duty to carry out the will of the Legis lature as found in the words of the statute, and the necessary and reasonable implications arising from these words. The statute requires it to be proven that the will was made 'in the last sickness.' It is a reasonable and necessary implication that it must also appear that the testator, at the time of making the will, supposed that his then sickness would prove his last sickness. In other words, that he should be impressed with the probability that he would never recover." To the same effect, see Nolan v. Gardner, 7 Heisk. (Tenn.) 215. In Baird v. Baird, 70 Kan. 564, 79 Pac. 163, 68 L. R. A. 627, after referring to the two extreme views that might be adopted, the court said: "We cannot believe that either of these extreme claims are founded in reason, but rather prefer to hold that the proper interpretation

of the statute is that, where the 'last sickness' of one has progressed to such a point that the deceased expects death at any time and is liable to die at any time, and in view of its occurrence, and as preparatory thereto, a verbal will is made, and he does thereafter die of such disease, such will is valid, and is 'made in the last sickness'; that neither prior preparation to make such verbal will, nor opportunity to make a written will at the time or thereafter, would necessarily be determinative against the validity of the nuncupation." This rule is approved and followed in Godfrey v. Smith (Neb.) 103 N. W. 450. The proof clearly shows that the will in question was made "at the time of the last sickness," as that term is construed in these decisions, and we feel constrained to follow them. Nuncupative wills are not favored in law, but it seems to us that the earlier cases not only place a strict construction upon statutes authorizing them, but go further, and add very materially to the stat

utes themselves. We think the construction given in the later cases is more in harmony with the language and purpose of the statute, and the requirement that such wills must be strictly proved is a sufficient guaranty against fraud, at least until the Legisature otherwise provides.

It is lastly contended that the testator lacked testamentary capacity, and was unduly influenced in the making of the will. These charges find no support in the evidence.

We find no error in the record; and the judgment is affirmed.

ILADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.

(47 Wash. 310) STATE ex rel. LIBERTY LAKE IRR. CO. et al. v. SUPERIOR COURT FOR SPOKANE COUNTY.

(Supreme Court of Washington. Oct. 10, 1907.) 1. EMINENT DOMAIN-WATER RIGHTS-CONDEMNATION PROCEEDINGS-PETITION.

Where a petition for the condemnation of water rights disclosed that petitioner's purpose was to make a perpetual use of the water sought to be appropriated, the petition was not fatally defective for failure to allege in terms the extent of the time that the water was intended to be used, as provided by Ballinger's Ann. Codes & St. § 4143.

2. SAME-NECESSITY OF CONDEMNATION.

Where an irrigation company sought to condemn a way for a ditch and the riparian or littoral rights of relators to the waters of a nonnavigable arm of a lake, it was no defense that the water company appropriated and was capable of using a large supply of water through another source.

3. WATERS AND WATER COURSES-STATE STATUTES CONFLICT WITH FEDERAL STATUTE.

Ballinger's Ann. Codes & St. § 4156, providing that a portion of the water of nonnavigable streams and bodies of water shall be reserved to that part of the public using or needing the water on abutting property, was not inconsistent with Act Cong. March 3, 1877, c. 107, 19 Stat. 377 (1 Rev. St. Supp. U. S. 137 [U. S. Comp. St. 1901, p. 1548]), reserving such water to the appropriation and use of the public.

4. EMINENT DOMAIN-PROPERTY SUBJECTIRRIGATION APPROPRIATION OF WATER.

Ballinger's Ann. Codes & St. § 4156, declares that the right given to condemn the use of water shall not extend further than to the riparian rights of persons to the natural flow of water through lands on or abutting on streams or lakes as the same exists at common law, and is not intended to allow the taking of water from any person that is used by the person himself for irrigation or that is needed for that purpose. Held, that the word "needed" as so used meant water necessary to irrigate the land of a littoral or riparian owner which he has under irrigation at the time his rights are sought to be condemned, or which he intends to and will place under irrigation within a reasonable time, and that, as to such water, no condemnation could be had.

Writ of review by the state, on relation of the Liberty Lake Irrigation Company and another, against superior court of Spokane county. Order reversed. Case remanded.

Gallagher & Thayer, for relators. Happy & Ilindman and Allen & Allen, for respondent.

ROOT, J. This is a proceeding to review an order of condemnation made in the case of Spokane Valley Land & Water Company v. Liberty Lake Irrigation Company and Arthur D. Jones & Co. The order was for the condemnation of a way for a ditch and the riparian or littoral rights of relators to the waters of a nonnavigable arm of Liberty Lake. In the years 1904-05 the water company built a dam across an arm of the lake, which prevented the water thereof from reaching relators' premises. An action was brought to enjoin the company, and the court granted an injunction against further interference with the water until the water company should condemn the use of the water in the arm of the lake. Thereupon the present proceeding was had, and, from the order of condemnation made, this appeal is prosecuted.

The relators contend (1) "that the courts have never been granted power to condemn water which is 'needed' by the owner for irrigation purposes (Ballinger's Ann. Codes & St. § 4156); (2) the water company does not need this water because it owns an ample supply in the Spokane river; (3) no proof was made as to the extent of time the water sought to be condemned is intended to be used." We will notice these contentions in the inverse order.

Section 4143, Ballinger's Ann. Codes & St., provides that the petition for condemnation shall set forth the extent of time that said water is intended to be used. We think that ordinarily the petition should set forth a statement to this effect, but do not believe that the omission so to do is fatal to a judgment or decree in the proceeding, where the other facts set forth in the petition are such as to show. as they do in this case, that the purpose was doubtless to make a perpetual use of the water so condemned and appropriated.

As to the second contention, it appears from the record that the water company had appropriated, and was capable of using, a large supply of water from the Spokane river. We do not think, however, that this fact in itself is sufficient to defeat the order of condemnation made herein.

As to the first contention, the parties hereto are at variance touching the meaning of the word "needed," as used in section 4156, Ballinger's Ann. Codes & St., which is as follows: "The right herein given to condemn the use of water shall not extend any further than to the riparian rights of persons to the natural flow of water through lands upon or abutting said streams or lakes, as the same exists at common law, and is not intended in any manner to allow water to be taken from any person that is used by said person himself for irrigation, or that is needed for that purpese by any such person." Relators contend

that the statute authorizes and requires an exception from the condemnation order of all the water that is used by such owner or that may be hereafter needed to irrigate the lands abutting upon said stream or lake. The trial court, however, held that the meaning of the statute was that the riparian owner could reserve so much of the water as was "used and needed." It was contended by respondent that, under Act Cong. March 3, 1877, c. 107, 19 Stat. 377 (1 Rev. St. Supp. U. S. 137 [U. S. Comp. St. 1901, p. 1548]), relators had no riparian or littoral rights, inasmuch as their land was not patented by the government until after the date of the passage of this act. Assuming, but not deciding, that this is correct, we think the effect of section 4156, Ballinger's Ann. Codes & St., justifies relators in objecting to the condemnation by the water company of so much of the water as is used or needed for irrigation by them upon their abutting lands. If, under this act of Congress, the owner of land abutting upon a nonnavigable stream or body of water has no littoral or riparian rights therein, nevertheless it would seem that, after the issue of patent for such land by the United States, the duty would devolve upon the state to provide how "the appropriation and use of the public," mentioned in the statute, should be exercised. By section 4156, Ballinger's Ann. Codes & St., it is provided that a portion of this water shall be reserved to that part of the public using or needing the water upon abutting property. We perceive nothing in this requirement of the statute inconsistent with the act of Congress. In the recent case of State ex rel. Kettle Falls, etc., Co. v. Superior Court (Wash.) 90 Pac. 650, this court said: "Under section 4156, Ballinger's Ann. Codes & St., the ordinary abutting owner must submit to the condemnation of his riparian rights to the natural flow of the water as at common law, with the limitation. however, that water that is used by said person himself for irrigation, or that is needed for that purpose by any such person may not be condemned." See, also, Nesalhous v. Walker (Wash.) 88 Pac. 1032.

The question, then, turns upon the meaning and intention of the Legislature by the expression "needed." as employed in section 4156, Ballinger's Ann. Codes & St. We think it means the water necessary to irrigate the land of the littoral or riparian owner which he now has under irrigation, and also that which he intends to, and will, place under irrigation within a reasonable time. It cannot be supposed that the Legislature intended that a riparian owner could prevent an irrigating company from appropriating water not then in use, but which the riparian owner might need and use upon his land at some distant, indefinite time in the future. Such a construction would be in the interest of the speculator, rather than for the encouragement of the land improver and home builder.