attachment, but it was taken, and could only have been legally taken, by virtue of the court's order authorizing it. That order, as we have seen, is not questioned by any one, but remains in full force and effect. Nor is the judgment in which the property was ordered sold to satisfy petitioner's lien attacked or questioned by any one. If it be conceded, therefore, that when defendants' motion was made to set aside the so-called execution, the motion was made in time to authorize the court to modify its judgment, yet the motion was not made for that purpose; nor did the court modify it or attempt to do so in the order it made and which is attacked in this proceeding. This being so, the pretended order of the court to quash the so-called execution was, in legal effect, merely an indirect attempt to modify a prior order and judgment of the court in an unauthorized manner.

It seems to us that whether the order of sale, or so-called execution, be considered in the light of section 3080, Comp. Laws 1907, which provides for the sale of attached property "if judgment be recovered" in an action, or in the light afforded by section 1414, which applies to sales under the special landlord's lien statute, the result must still be the same. In neither section is an order of sale or execution. contemplated. Nor, in the absence of an express statute, can we see any good reason for any such order of sale or execution. The usual purpose of such orders or executions is to authorize the officer to seize the property of the execution debtor and to sell it as contemplated by the execution. In attachment proceedings the officer seizes and obtains possession of the property by virtue of the writ of attachment, and the statute, in express terms, authorizes the sale if a judgment is obtained. In such proceedings, therefore, the officer, in selling the attached property after judgment, acts by virtue of the statute, and not by virtue of special process. True, it may be convenient in practice, and may also be convenient for the officers and clerks, to issue a formal order of sale, but what legal efficacy such an order has, or what authority it confers upon the officer in selling attached property that he does not possess without it, in view of our stat

ute, exceeds our comprehension. In this case the officer in taking the property acted under the direct order of the court by which the property was surrendered to him for the benefit of the petitioner, and in selling it the officer would have acted both by virtue of the statute and by the order contained in the judgment and decree to which we have referred. In granting the motion, therefore, to set aside the so-called execution, the court effected nothing. The court, however, did more than merely to set aside the execution. It ordered the sheriff not to sell the property. In making this order we are of the opinion that the court exceeded its power and authority, and hence the order in that regard is void and of no effect. Although it was beyond the power of the court to make the order, yet the petitioner was not required to expose himself and the officer to proceedings for contempt by disregarding the court's order, but he could do what he has done-institute these proceedings to annul the court's unauthorized act.

5

In view of all the circumstances, we, after some hesitation, have been forced to the conclusions: (1) That the order made by the court setting aside the so-called execution is without force or effect; (2) that the further order of the court by which it ordered the officer not to sell the property in question was in excess of its power, and hence void and of no effect; and (3) that if the defendants had, or have, any remedy it is not by a motion by which they merely assail the order of sale, but they must, in some proceeding, assail the original order and judgment by which the property was surrendered by the court to the petitioner for the special purpose disclosed by the record and the judgment in which the court specially directed the officer to sell the property. We are of the opinion, therefore, that the pretended order of judgment of the district court quashing said order of sale or so-called execution and restraining the officer from selling said property should be, and it accordingly is hereby, annulled, set aside, and held for naught. The pe titioner to recover costs.

STRAUP, C. J., and MCCARTY, J., concur.

In Re JENSEN'S ESTATE.

GREEN v. JENSEN.

No. 2096. Decided April 29, 1910 (108 Pac. 927).

WILLS-PROBATE-NATURE OF PAPER. Decedent wrote a letter to petitioner, discussing in a general way their plans after they were married, stating therein that he would make petitioner his sole heir whether they were married or not, and if he died before they were married would make her his legal heir, but "I hope I will enjoy your company and association before that, now this is only talk. I don't expect to die, but I am just telling you what I mean." Held, that the letter was not intended as a present disposition of decedent's property but merely expressed an intention to dispose of it at some future time, and was not admissible to probate as a will. (Page 430.)

Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge.

Petition by Millie Green against Jens Jensen to probate an alleged will.

From a judgment denying probate, proponent appeals.

AFFIRMED.

Decided April 29, 1910.

Hansen & Meredith (Goodwin & Van Pelt, of counsel), for appellant.

John T. Pope (M. M. Warner of counsel), for respond

ent.

FRICK, J.

The appellant filed her petition in the district court of Uintah County, Utah, and with it presented for probate a certain writing which she alleged was the last will and testament of one John Jensen, late of Uintah County, deceased. The alleged will was in the form of a letter written by the

deceased and directed to the appellant, who was his fiancee. The letter in full is as follows: "John Jensen & Co., Dealers in Miners' and Ranchers' Supplies. Dragon, Utah, Jan. 26, 1909. My Dear Millie: I had just written a letter to you when I received your most interesting letter I ever got from you. I am glad to hear that you favor our union this spring. Yes, my dear Millie, we will try to get our union sealed as soon as we can. I need you here and I want you here to comfort me and be a helpmate to me, and that we both may be benefited and blessed. (This is a kiss.) I am surprised to see your thoughts correspond with mine. You need not worry about your travel across the country. I will come and get you, and we will go right on to Salt Lake and back to Dragon and never mind the reception, we will have that some other time. I appreciate your sentiments and I am fully in sympathy with them, as I am with all you propose, but we must economize as much as we can. We are not millionarys and you and I must live, and so we will make things match as much as we can, and when we get well off then we will spread it on (do you see). Sweet Millie, I do not know if you like this or not, but I think you a sensible girl. I will make you my sole heir whether we get married or not, and if I die before you and me are married, I will make you my legal heir, but I hope that I will enjoy your company and association before that, now this is only talk. I don't expect to die, but I am just telling you what I mean. If we were together we could talk all this thing face to face I will be other there some time this spring. I will let you know later and we will arrange things. We may get married in Vernal, and then go to Salt Lake City, but I have to see the Stake President about that. You just keep your ears stiff and trust in the Lord. Pray for me and yourself and we will be all right. Yes, my dear, I hope all saloons will be closed and whiskey banished from the face of the earth. You shall not think that those post cards is of any consequence. It was only to show you what the store looks like. I will send you some more to show you Dragon from different points. We don't want to stay here all

our lives, but we will stay here till we can do better or worse. I like to make a few dollars and go in the chicken business. God bless you, my dear Millie. From your loving John." The district court held that the writing was not intended as a will, and that, in legal effect, it was not such, and hence refused to admit it to probate, and entered judgment accordingly. The appeal is from the ruling and judg

ment.

1

It is urged that the district court erred in its conclusions. and judgment. Conceding, for the purposes of this decision, that the writing in question is in form and execution sufficient as a holographic will under the provisions of section 2736, Comp. Laws 1907, yet the writing lacks the elements of substance which are requisite to constitute it a will whether holographic or regular. It is manifest, from the face of the writing itself, that the writer did not intend it as constituting a disposition of his property, or any part of his property. True, the writer says, "I will make you my sole heir, . and if I die before you and me are married I will make you my legal heir." These are the only words that even the most liberal constructionist could claim had any tendency towards manifesting an intention on the part of the writer to make a post mortem disposition of property. It is, however, clear from the language used that the writer did not intend to presently bequeath or devise any property, but that he merely expressed an intention to do so at some future time. This is not only the unavoidable conclusion to be deduced from the language itself, but such a conclusion is fortified by the fact that the writer does not mention or specify any property of any kind whatever. If the writer had intended the letter as a present disposition of his property, or any part of it, he no doubt would have said something about property of some kind. To our minds it is very clear that the letter in question was not intended as a will, but that it was intended for what it purports to be, namely, a letter by which the writer communicated his thought and plans, in a general way at least, to one with whom it was his intention to estab