also the said letter. That from the time of the writing of the alleged codicil until the day of the death of C. E. Barney the said Barney was of sound. and disposing mind and memory. There were two sheets in said letter, or alleged codicil; and no evidence was offered or produced to the effect that there were only two when written. The letter or alleged codicil bears on its face the year date of 1880,-a date prior to the execution of the will. C. E. Barney did not execute a codicil to said will." "Conclusions of law: The said letter is not a codicil in law. The will was revoked by subsequent marriage. The will was not republished by said letter. Neither said will nor said aldisposi-leged codicil or letter should be admitted estate? to probate." The court then found: “As conclusions of law, this court finds that said letter is not a codicil in law. The will was revoked by decedent's subsequent marriage. The will was not republished by said letter. Neither said will nor said alleged codicil (or letter) should be admitted to probate. Judgment was accordingly rendered as follows: "It is further ordered, adjudged, and decreed by reason of the premises aforesaid that neither said alleged will, nor said alleged codicil, nor either of them, be admitted to probate." From this judgment the proponents of the will appeal. ponents for probate herein? Yes. (2) Was the decedent, at the time of the execution of said will, free from duress, menace, fraud, and undue influence? Yes. (3) Was the said will duly executed by the decedent, and duly attested by the attesting witness? Yes. (4) Did the decedent write the letter addressed to Hon. E. N. Harwood, and which is filed herein, as and for a codicil to said last will and testament? If so, was it received by Mr. Harwood? Yes. (5) Was the said letter entirely written, dated, and signed by the hand of decedent himself? Yes. (6) Was said letter written on the 18th of August, 1890? If not, at what date was it written? Yes. (7) Is the said letter the expression of the will of decedent as to the tion he desired to make of his Yes. (8) Is the letter written to Hon. E. N. Harwood a codicil to the last will and testament of decedent, executed June 15, 1889? Yes. (9) Do the said last will and the said codicil constitute the last will and testament of the decedent? Yes. (10) Was decedent competent to make a last will and testament at the time he wrote the said letter? Yes. (11) Was the decedent, at the time of writing of said letter, free from duress, menace, fraud, and undue influence? Yes. (11%1⁄2) Was Mr. Barney of sound mind and of disposing memory from the time of his marriage with Miss Brodie up to the time of his death? Yes. (11) Do you find from the evidence that the will mentioned in the said letter is the identical will put in evidence in this case? Yes. (12) Did C. E. Barney mail said letter, or cause it to be mailed, to Mr. Harwood? Yes. (13) If he did not mail the same, but caused some one else to mail the same, whom did he cause to mail it, and how did he cause such person to mail it? His wife; through the dairymen. (14) Did the decedent, Charles E. Barney, make a will in the month of June, 1889? Yes. (15) Was he a single or married man on said date? Single. (16) Did he afterwards, to-wit, on or about the 9th day of August, 1890, intermarry with Ellen C. Brodie? Yes. (17) When did Charles E. Barney die, if at all? October 2 or 3, 1890. (18) Did said decedent, on or about the 18th day of August, 1890, write a letter to Hon. E. N. Harwood, in which he requests said Harwood to change or modify some will referred to in said letter, or requesting him to write a codicil to a will? Yes. (19) If you find from the evidence that said- decedent, Charles E. Barney, wrote such a letter, state whether said Harwood complied with said request, and whether any change or codicil was made to said will by said Harwood. No." After the return of these findings by the jury, the court filed the following: Findings of fact and conclusions of law by the court: The court finds the following facts and conclusious of law, and, so far as the findings of the jury conflict therewith, they are set aside; and, so far as the jury findings do not conflict, the jury findings are affirmed, and made the findings of the court. The court finds that the will in question was in the possession of Hon. E. N. Harwood, and by him delivered to the clerk of the court, as was O. F. Goddard and Cullen, Sanders & Shelton, for appellants. Savage & Day, for respondent. DE WITT, J., (after stating the facts.) The probate practice act (section 22) provides: "The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it." It is not disputed that the original will was properly executed, and was, before the marriage of the decedent, a good and valid will. It is conceded that the marriage of decedent revoked that will. Section 459, p. 384, Comp. St. It is clear that, if the letter of the decedent is a codicil to said will, it republished the will, and that the will and codicil together constitute the last will and testament of the decedent. Section 448, p. 382, Comp. St. The letter referred to the previous will. The whole gist of the case, therefore, is whether said letter was a codicil; that is, whether it was testamentary in character. The court submitted to the jury a great number of questions, which seem to have included all matters of fact in the case. The court also required the jury to determine whether said letter was a codicil. The jury said that it was. The court set aside this finding, and held that the letter was not a codicil. The respondent now contends that this finding of the jury was a conclusion of law, and that the court was not bound thereby, and that such finding was practically a nullity. Appellant contends that the court was bound by all the findings of the jury, and that it was error to set them aside. The court certainly submitted all the facts to the jury. It looks as if a large portion of the law as letter was, using the old definition, "his just sentence of his will touching what he would have done after his death." Can any one read the decedent's letter and be in any doubt as to what he intended should be the disposition of his property as to his wife? We think not. Such holographic will need not be in any particular form. Section 439, Prob. Prac. Act. If the decedent's intention is clear, that intent must not be ignored because the well had gone to the jury for deter:nination, and that the court was then dissatisfied with the jury's view of the law. But, passing this anomalous condition of affairs, and disregarding the submission of law to the jury, we will decide this appeal upon the following view: The facts are all found. The findings have never been attacked. We take them all as true. On these facts, did the court correctly construe the letter from the deceased to his attorney? That is to say, we will pro-language is not technical. The expression ceed to determine whether the said letter was, under the established facts, a codicil, and testamentary in character. It is claimed that the letter is an holographic will or codicil. The statute provides as follows: "Sec. 439. An holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed." "Sec. 19. An holographic will may be proved in the same manner that other writings are proved. It is perfectly clear from the findings that this letter fulfills every requirement of the statutes, supra, as to the execution and proof. 99 " of decedent's intention is as clear as that in the case of Estate of Wood, 36 Cal. 75; or in the case of Succession of Ehrenberg, 21 La. Ann. 280. In the latter case the holographic will was as follows: "New Orleans, September 15, 1859. Mrs. Sophie Loper is my heiress. G. EHRENBERG. The legatee's name is correctly spelled Loeper. G. EHRENBERG." On the back of this instrument is written the following: "Ehrenberg's will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in the hands of the heiress. See, also, Clarke v. Ransom, 50 Cal. 595, and authorities cited; also Robnett v. Ashlock, 49 Mo. 171; Morrell v. Dickey, 1 Johns. Ch. 152, opinion by Chancellor KENT; Cowley v. Knapp, 42 N. J. Law, 297; Byers v. Hoppe, 61 Md. 206. No motion for a new trial was made in the case at bar. The findings of fact were not attacked. Whatever the jury may have found as to the law we do not consider. But we are of opinion that when the district court had before it the facts found, the court should have concluded that those facts established the letter in evidence to be a codicil. The judgment is therefore reversed, the cause is remanded, and the district court is directed to admit to probate the will of June 15, 1889, with the said letter of decedent as a codicil; the two writings together constituting the last will and testament of said Charles E. Barney, deceased. BLAKE, C. J., concurs. HARWOOD, J., being disqualified, did not sit in this case. . (1 Colo. App. 427) NUCKOLLS v. ST. CLAIR. The only question remaining is whether it is testamentary in character. A decision of this point was reserved on the former appeal of this case. "A will is an instrument by which a person makes a disposition of his property, to take effect after his decease." I Jarm. Wills, 26, and notes. "A last will and testament may be defined as the disposition of one's property, to take effect after death. 1 Redf. Wills, 5. "Swinburne defines a 'testament' to be a 'just sentence of our will, touching that we would have done after our death.'" Turner v. Scott, 51 Pa. St. 132. Woerner, in the American Law of Administration, expresses the same views. Chapter 5. The decedent in this case, in the letter in question, announces his marriage, and then writes: "What I want is for you to change my will so that she [his wife] will be entitled to all that belongs to her as my wife. I am in very poor health, and would like this attended to as soon as convenient. I don't know what the laws are in Montana. I don't know what ought to be done, but you do." Do these words disclose an animus (Court of Appeals of Colorado. March 14, 1892.) testandi? The writer expresses his wish that his wife shall have something. The reasonable construction of the letter is that he wished her to have a certain portion of his estate after his death. intent may be expressed by the word "want," which he uses, or "wish," or “desire, "as well as by the words "command" or "direct." Busby v. Lynn, 37 Tex. 150. To be sure, what the decedent wrote was It is that he wanted his will changed.' argued that it was not changed. But did not this letter change it? The original will was the expression of his intention, on June 15, 1889, as to the disposition of his property after death. That was his "will," using that word in its original sense of "intent, "" desire," or "command." Now, on August 18, 1890, he had another "will" or "intent" or "desire." That later "will" or "intent" or "desire" he clearly expressed in his letter of that date. That His AGENCY-EVIDENCE. Where a minor purchases hay as agent for his father, and payment is made therefor, and afterwards the father sells his farm, but the son remains thereon, and subsequently purchases more hay, without stating who the real purchaser is, and, after it is partially delivered at such farm, the seller learns that the father is not the purchaser or sole purchaser, the seller is put on inquiry, and the mere statement of the son that his father will pay for the hay is insufficient to establish the son's agency, and the seller cannot recover for hay subsequently delivered. Appeal from Arapahoe county court; GEORGE W. MILLER, Judge. Action to recover payment for hay by Robert M. St. Clair against Emmett Nuckolls. Judgment for plaintiff. Defendant appeals. Reversed. Hartzell & Patterson, for appellant. Enos Miles, for appellee. REED, J. This suit was originally brought before a justice of the peace by appellee to recover payment for hay alleged to have been sold and delivered to Nuckolls & Rohrer. A trial was had result. ing in a judgment for the plaintiff. An appeal taken to the county court. A jury was waived, and trial had to the court, resulting in a judgment for the plaintiff for $264.55 against appellant, (Rohrer not served,) from which an appeal was prosecuted to this court. There was no controversy in regard to the delivery, quan. tity, or price of the hay; the only question being as to the liability of appellant for the payment of the debt. The bay was sold and delivered in September, October, and November, 1889. The farm to which the hay was hauled, and where used, previous to April, 1889, was the property of appellant. About that date it was sold, and became the property of the Riverside Stock Farm Company. S. F. Rohrer was president and manager. Appellant resided in the mountains, and was only occasionally at the farm. While he was the owner, a son, Marshall, it appears, remained at the farm, a youth of 20 or 21 years, and acted as the agent of his father. He remained there after the sale. In the spring, it is shown, appellant, through the agency of the son, bought hay from appellee, and for which payment was made. The testimony of appellee shows the son to have been the purchaser of the hay in question, without having designated for whom, or who was to pay for it: that appellee supposed it was for appellant, he knowing nothing of the change in ownership; that the hay, until a greater portion of it had been delivered, was charged to appellant; then that he was informed by Ezra, a younger son, that Rohrer was connected with it, and that he would pay for it; that the bill was then charged to Nuckolls & Rohrer as partners; that payments were not made, and the delivery of the hay stopped; that the son Marshall said his father would pay for it, upon which assurance the balance was delivered. The testimony was conflicting and unsatisfactory. Appellant could only be charged by reason of the former transactions through the agency of the son, and a want of knowledge on the part of appellee as to the change that had taken place. His liability cannot be predica ted upon the promise of the younger Nuckolls that his father would pay it. No agency, authority, or power of the son was shown to bind the father by a promise to pay. It is undisputed that before the delivery of all the hay-when about threefourths had been delivered-plaintiff was informed that appellant was not the purchaser or sole purchaser. He was sufficiently informed to put him upon inquiry as to who was the purchaser, and as to the authority of the son to bind the father by a promise to pay. If by reason of want of knowledge of the change, and resting upon the former course of dealing, appellant could be made liable, his liability could only extend to the time plaintiff was informed or should have been put upon inquiry; and I cannot see, without an established agency of the son, how the defendant could have been held liable for hay delivered after that time. It is doubtful if evidence of former dealing and want of notice was sufficient to charge the defendant with any part of the bill, but we do not put the decision of the case upon that ground, but upon a new trial evidence upon these points should be more satisfactory and conclusive. It was clearly erroneous to embrace in the judgment that portion of the claim contracted after notice, without proof of agency of the son and authority to bind the father. The judgment will be reversed, and cause re manded for a new trial. (1 Colo. App. 396) ROCKWELL V. HIGHLAND DITCH Co. (Court of Appeals of Colorado. Feb. 23, 1892.) WATER-RIGHTS-CONSTRUCTION OF CONTRACT. Defendant contracted to deliver a certain quantity of water stored in a reservoir on its land to the two parties of the second part of the contract,--621⁄2 inches to one, and 1871⁄2 inches to the other,"in separate shares to each party, or the whole quantity to be delivered together, as said second parties may determine; either of said parties have the right to demand and receive his proportionate share at any time." The same rights were reserved to the heirs, executors, administrators, and assigns of the second party. Held, that the contract gave no right of separation or division as to the quantity of water to be delivered except the expressed one of the right to receive the total quantity in separate shares to each party, as stated, or the right to receive the total 250 inches at one time, at the election of the second parties. Error to district court, Boulder courty; S. S. DowNER, Judge, Bill in equity by L. C. Rockwell against the Highland Ditch Company. Bill dismissed. Plaintiff brings error. Affirmed. L. C. Rockwell, pro se. Byron L. Carr and F. P. Secor, for defendant in error. BISSELL, J. The refusal of the ditch company to deliver water to Rock well was the gravamen of this suit. It was an equitable proceeding to obtain a perpetual injunction to enforce his claim. On the hearing, the bill was dismissed. According to the view which the court takes of the rights of the parties, it will not be needful to refer to any part of the testimony, save in the most cursory fashion, except as to the contract upon which Rockwell's right rests, and out of which the obligations of the ditch company spring. The provisions and conditions of the contract, other than a few of its specific clauses, can be easily understood from a general statement of them. In May, 1881, Hetzel and Osborn were the owners of a quarter section of lard in Boulder county, Colo. In May of that year they granted and conveyed the realty to the Highland Ditch Company, in consideration for the grant and sale of a perpetual water-right for 250 inches of water. It would seem that there was a depression in the land which the company proposed to improve, and turn into a reservoir for the storage and distribution of water to their various customers. As is usual in those cases, the contract ran to the grantors of the property, their heirs, representatives, and assigns. It is unnecessary to state the general provisions of the agreement concerning the construction of the ditches and the delivery of the water. It was distinctly provided that the ditch company should “furnish water at such time as Hetzel and Osborn might require, between the 1st of March and the 1st of November, and at one continuous time, or at different times, as said second party may elect, until the added days of all said several times shall equal sixty days in any given year." It was further stipulated that the proportionate quantity of water to be delivered to each of said parties of the second part, respect. ively, is sixty-two and one-half inches to the said Jacob Hetzel, and one hundred and eighty-seven and one-half to the said Osborn, to be delivered in separate shares to each party, or the whole quantity to be delivered together, as said second parties may determine; either of said parties to have the right to demand and receive bis proportionate share at any time. That the heirs, executors, administrators, and assigns of said second party shall severally and jointly have the same rights in relation to each other that second parties have in reference to each other. Evidently, the rights of the grantees of the perpetual water-right, and the obligations of the company with reference to the supply, are fixed by the terms of the contract, and must be learned from its provisions. None of the rights to the waters of a running stream, under the constitution and statutes of the state, which may be acquired by the user, can in any manner affect the obligations or relations of the contracting parties. The company was the owner in fee of the land on which the lake was situated, and had an absolute title to the water, with the right and privilege of sale, according to their own pleasure. The accurate construction of this contract is one of some difficulty, but the conclusion arrived at seems to be the only one consistent with its provisions. It is not necessary to determine what may be the obligations of the original grantees and their subsequent alienees as between themselves, since the action was brought solely against the ditch company by an alienee whose rights are to be measured by the terms of the original instrument. There will be no discussion about the right of the various owners and alienees, in case of a convention between them, to insist upon a delivery of the water at such times as they may elect, and in such quantities as they may desire, subject to the expressed limits of the agreement. The sole inquiry, and the only question determined by this decision, is as to the rights which Osborn acquired under the contract, and whether his right is a divisible one without the consent of the company. The argument that it is the policy of our law to prevent restraints upon the alienation of property rights, which is always persuasive when its application is possible and consistent with the agreement of the parties, can have no influence in the settlement of the present controversy. The matter rests wholly in contract, and the question is a naked one of construction. There seems to be no escape from the conclusion that there was an agreement to deliver 62% inches to Hetzel, and 1871⁄2 inches to Osborn. It was a contract to deliver two distinct and specific quantities of water to the two named grantees for a definite period of time, with no right of separation or division as to quantity except the expressed one of the right to receive the total quantity in separate shares to each party, as stated, or the right to receive the total 250 inches at one time, at the election of the grantees. This enumeration of the rights and the definite relation of Hetzel's 62% inches and Osborn's 187 inches, with an expressed inhibition upon any right of division except that which would give each his limited quantity, or to both the entire amount at one time, must be taken as a limitation upon the right of division which would naturally follow a general grant of a water-right to parties and their grantees. The intention of the parties to the contract with reference to alienees is very clearly expressed by the subsequent provision that the heirs and assigns shall enjoy rights with reference to each other identical with those which Hetzel and Osborn have with reference to each other, which are to receive the 62% inches and 187 inches as two distinct and specified quantities of water, and the option to receive the 250 inches at one and the same time if they may so elect. The introduction of this last clause was evidently the result of a purpose to so limit the right of division as to the alienees, whether by contract or operation of law, that they must take as Hetzel or Osborn took,-in two distinct and specified shares, divisible in the quantities named. While equitable considerations and those of convenience and value are often allowed to control the construction and interpretation of contracts, it is only in those cases where the intention of the parties cannot be clearly derived from the terms of their agreement, or where its provisions are equally susceptible of two constructions. When the language is clear, and the intention manifest, they cannot be disre garded in determining the rights of the parties. They rest upon contract, and are totally unaffected by the evidence which was introduced for the foundation of the contention that the company, by their conduct, were estopped, as against Rockwell, to insist that he had no right to claim the 62%1⁄2 inches of water which he bought from the Osborns. The case is barren of the facts which the authorities all agree are essential to the creation of an estoppel. What Rockwell acquired was gotten by a grant of a part of that which rested in contract. He bought with knowledge of it, must be charged with notice of its limitations, and he must be held bound by its provisions. There was an absence of proof that he bought upon the faith and strength of any antecedent representation on the part of the company, or that he was misled to his prejudice by anything which they did, upon which he had a right to rely. It is unnecessary to state the whole ground of an estoppel. Enough has been said to show that the plaintiff in error failed to bring himself within the protection of that principle. There is no error in the record upon which the judgment ought to be reversed, and it will accordingly be affirmed. REED, J., concurs. RICHMOND, P. J., took no part in the consideration of this cause. (1 Colo. App. 362) HOCKADAY v. BOARD COUNTY COM'RS OF CHAFFEE COUNTY et al. (Court of Appeals of Colorado. Feb. 23, 1892.) CONSTITUTIONAL LAW-COUNTIES - INDEBTEDNESS -FORM OF ACTION-BILL OF DISCOVERY.. 1. Const. art. 11, § 6, prohibits a county from contracting "any debt by loan in any form, except for the purpose of erecting necessary public buildings, making and repairing public roads and bridges," and forbids such indebtedness exceeding in any one year certain rates on the taxable property in the county. Held, that the drawing of warrants against a special fund already provided, and certain to be paid in during the fiscal year, where the amount of the warrants does not exceed the amount of such fund, is not the creation of a debt, within the constitution, though it anticipates the revenue to be collected, since the warrants are drawn against existing values. 2. Where it was shown in an action to collect the amounts due on certain county warrants that the special fund provided for the payment of the warrants had been illegally withdrawn and appropriated to other purposes by the county au thorities, a proceeding by mandamus would have been useless, and the action in assumpsit was maintainable. 3. Payment on the warrants having been refused, on their presentation to the treasurer, for an alleged want of money, plaintiff is entitled to have an account of all warrants drawn on such fund, (a road fund,) of all apportionments of taxes for road purposes, and of all such taxes so apportioned for that purpose which have been collected and remain uncollected, from the time of the presentation of the warrants to the institution of the present action. BISSELL, J., dissenting. Error to district court, Chaffee county; JOHN CAMPBELL, Judge. Action by Richard W. Hockaday against the board of county commissioners, and John G. Hollenbeck, treasurer, of Chaffee county. Complaint dismissed. Plaintiff brings error. Reversed. The other facts fully appear in the following statement by REED, J.: The plaintiff brought suit against the defendants to collect from the county the amounts due on several county warrants or orders, aggregating $1,318.29, and the interest on the same. Such warrants were issued in the years 1884, 1885, and 1886, and were drawn payable out of any moneys in the treasury belonging to the "Road Fund." The warrants were presented to the treasurer of the county for payment at various dates from April 28, 1884, to March 31, 1886, were not paid, but were indorsed by the treasurer, "Not paid for want of funds," and registered as required by law. The complaint is drawn with great care and great particularity of detail. It is alleged that on the 2d day of October, 1883, the board of county commissioners set aside and designated of the taxes of that year $10,953.69 as a road fund; on the 6th day of October, 1884, the sum of $15,396.18; on the 6th day of October, 1885, the sum of $12,052.52,-making the aggregate for the three years, $38,402.39, to which was to be added the further sum of $4,825.18, due the county of Chaffee from the county of Lake, which was by the board of county commissioners of the former county set aside and designated as a part of the road fund; making the supposed available fund amount to the sum of $43,227.57. That there was drawn against said fund for the year ending December 1, 1884, $15,334.75; for the year ending December 1, 1885, $6,384.81; and between the 1st day of December, 1885, and the 8th day of March, 1888, $1,515.08,-aggregating $23,234.67, leaving a large balance; and alleging a refusal of the defendants to pay the warrants in controversy according to the date of presentation, or at all, and that they and all of them remain wholly unpaid and overdue. It is further alleged that "the board of commissioners and the said treasurer have diverted, and are still diverting, said taxes apportioned for the payment of said warrants to the payment of certain other road-warrants not held by plaintiff, and which were not presented to the said treasurer for payment until long after the presentation of plaintiff's said warrants, and to the payment of other road and other general fund warrants not issued until long after the presentation of the plaintiff's said warrants for payment as aforesaid; that the said board of commissioners and the said treasurer of the said Chaffee county pretend that said warrants held and owned by plaintiff were issued in excess of the limitation fixed in the constitution of the state of Colorado concerning the creation of the county debts; whereas plaintiff charges the contrary thereof to be true, and doth say that the said warrants held and owned by plaintiff, together with all other warrants drawn during the period aforesaid upon the said road fund, were within the apportionment of said taxes made for said road fund, and that said apportionment of said taxes was by said board of commissioners duly and lawfully made, whereby so much of the said annual taxes of the said Chaffee county as was set aside for a road fund, for and against which, to the full amount of said apportioment, said road-warrants might well and lawfully be drawn, and when so drawn said county became liable to pay the same; and the plaintiff, by the law of the land, is entitled to recover against the county, by its said corporate name of the‘Board of Commissioners of Chaffee County,' to the extent of the sums of money in the said warrants specified, with interest thereon as aforesaid." The prayer of the complaint is as follows: "Wherefore plaintiff prays judgment against the said defendant board of commissioners of said Chaffee county for the aggregate sum of money in plaintiff's said warrants specified, with interest upon each of said sums from the date of the presentation of said respective warrants to the treasurer of said Chaffee county for payment as aforesaid; but if the court shall be of the opinion that for any cause plaintiff is not entitled to recover judg |