is that wills are to be liberally construed, 30 as to effectuate the intention of the testator, (Welch v. Huse, 49 Cal. 506;) and another: "The first great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law," (Smith v. Bell, 6 Pet. 68.) In the case last cited the will under review contained the following clause: "Also, I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and whereso. ever, and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal, absolutely; the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin," the testator's son. On the death of the testator, his wife took possession of the property bequeathed to her, and held it till she died; and the question was whether, under the will, she acquired a title absolute or only for life. It was held (Chief Justice MARSHALL delivering the opinion of the court) that she took only a life estate in the property, and that Jesse Goodwin had a vested remainder in the property that would come into his possession on the death of the said Elizabeth.

The question, then, is, what was the intention of the testator when he made the will, the construction of which is involved in this case? Did he intend to give to Stephen Roy the $10,000 absolutely, or only on condition that he should reach the ages named for its payment? It will be observed (1) that no part of the bequest was to be paid to the legatee until after the death of the testator's wife; (2) that the legatee was to receive nothing until he reached the age of 15 years; (3) that, between the ages of 15 and 21, he was to receive the income of the bequest, only; (4) that, on arriving at the age of 21, he was to be paid one half of the bequest, and thereafter the income from the other half till he reached the age of 25, when the balance was to be paid; (5) that, if he should die before arriving at the successive ages above named, then such portion of the bequest as had not theretofore been paid, "together with the income thereon," was to be distributed as the other portion of the estate "shall be or shall have been distributed, namely, to the brothers and sisters of myself and my wife, Caroline, share and share alike. If the last clause had been omitted, it might, no doubt, be successfully claimed that there was a present and absolute bequest, the times of payment only being deferred, and that it vested in the legatee on the death of the testator. That clause, however, makes it clear, we think, that the intention was not to make an absolute bequest, but a conditional one, to take effect only if the legatee should reach the ages named for its payment. It is argued for appellant that this construction is not in harmony with the subsequent clauses of the will, because the bequest to the wife was of the "residue" of the estate, meaning

the residue or what remained after the $10,000 bequest to Stephen Roy, and that the bequest to the brothers and sisters was only to take effect in case the testator survived his wife. We see no force in this argument. If Stephen Roy had lived, the property of the estate would all have been distributed to the surviving wife, subject to a trust in his favor. He could have claimed nothing till he reached the ages when he was to be paid. As he died before he arrived at the age of 15, and before distribution, it was proper that the de cree be made as it was. We advise that the order and decree appealed from be affirmed.

We concur: VANCLIEF, C.; Foote, C.

PER CURIAM. For the reasons given in the foregoing opinion the order and decree appealed from are affirmed.

(8 Utah, 47)

CHILTON V. UNION PAC. RY. Co. (Supreme Court of Utah. April 1, 1892.) ACTION FOR WRONGFUL DEATH-AGE AND NUMBEB OF CHILDREN-APPOINTMENT OF ADMINISTRATOR -COLLATERAL ATTACK.

1. In an action to recover damages for death by wrongful act, testimony as to the number and ages of decedent's children, and as to the kind treatment of his family by decedent, is admissible; the jury may take into consideration the number and ages of decedent's children in assessing the damages, they being beneficiaries of the recovery, if any, under Comp. Laws, § 2962.

2. In such action, where the court appointing plaintiff administrator of decedent had acquired jurisdiction of the application by service of notice, the validity of the appointment, because of irregular service of notice, could not be made the subject of collateral attack.

Appeal from district court, Weber county; JAMES A. MINER, Justice.

Action by Isaac Chilton, administrator of Joseph Shaw, against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Williams & Van Cott, for appellant. Ev. ans & Rogers, for respondent.

ZANE, C. J. This is an appeal from a judg ment for $8,000, and an order denying a motion by the defendant for a new trial. The action was brought to recover damages in consequence of the death of the late Joseph Shaw, caused, it is alleged, by the negli gence of the defendant while in its service as a brakeman. The defendant insists that the evidence does not prove that the death of the intestate was caused by its neglect, and that the judgment was for that reason erroneous. It appeared from the record that the defendant's track de. scended 210 feet per mile from Eureka to Ironton, a distance of about 5 miles; that the train consisted of an engine, tender, five cars, and a caboose; that the valves of the engine were out of repair; that one of the cars had no brakes, and that the brakes on another were defective; that the cars were all loaded; that the engineer was upon his first trip over that part of the line, and was somewhat inexperi enced; that, in obedience to the signal of the conductor, the engineer started the train down the grade; that the steam

brakes on five of the cars failed to act; that the engineer deemed it safer not to reverse his engine on account of its speed; that the hand brakes were insufficient; and that the train dashed on, uncontrolled, over a defective frog, at which the cars left the track, and threw the deceased from one of them, and injured him so that he died soon afterwards. No want of ordinary care contributing to the injury appears on the part of the deceased. From the evidence in the record we cannot say that the jury was clearly wrong in finding that the death of the plaintiff was a result of the defendant's negligence.

Defendant's counsel also urges that the court erred in permitting the widow to testify to the number of their children, and to the treatment of the family by her late husband; and that the court also erred in charging that in assessing the damages the jury might take into consideration the number and ages of the members of his family dependent upon him for support. The common law does not authorize an action for the benefit of the heirs of a person whose death has been caused by the wrongful act or neglect of another. The intent of the statute is to furnish them a remedy by which they may obtain such compensation for their loss, in consequence of such death, against the person whose wrongful act or neglect caused it. The statutes of this territory making such provision, so far as necessary to quote them, are as follows: Section 3179: "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. * * In every action under this and the preceding section such damages may be given as, under all the circumstances of the case, may be just " Volume 2, Comp. Laws Utah 1888. Section 2962, Id.: "And the amount received in every such action shall be distributed, by direction and decree of the proper probate court, to such persons (other than creditors) as are by law entitled to distributive shares of the estate of such deceased person, and in such proportions as are prescribed by law." While this action in form is by the legal representative of the deceased, the recovery is to remunerate the loss of the heirs in consequence of his death. Upon the assumption of a recovery, the value of the support and maintenance, and the money or other object, the value of which can be definitely estimated in money, that it is reasonably certain they would have received from him if he had lived, they should undoubtedly recover from the defendant.

But the further question arises, may the jurors, in assessing damages, take into consideration the benefits from the associations, comforts, and pleasures that they may reasonably believe from the evidence his family would have received from him had his life been spared? When a person survives an injury caused by negligence of another, it is well settled that the jury in assessing damages for the injury may take Into consideration physical pain and mental anguish caused by it. Yet our esti

mates of the allowance for physical pain and mental anguish are quite as vague and indefinite as the allowance in money to the widow and children for the loss of the society, the advice, the kindness, and good treatment of the husband and father. Human capacity can make but vague and indefinite estimates of their value in dollars and cents, but justice demands that it shall be done. We do not think that the court erred in permitting testimony as to the number and ages of the children, and as to the treatment of his family by the deceased, and in charging the jury that they might take into consideration the number and ages of the children in assessing the damages. As the damages to be assessed were to compensate the widow and children for their loss, it was proper to inform the jurors by competent evidence how many children there were, and the treatment that the deceased gave his family, because its value would depend on the kind of attention and care given; and it was proper to inform the jurors that they might take into consideration the number and ages of the children, because young children should receive more care and training, and they would be likely to need and receive it longer, than children of mature years, and it would be more valuable to them. Pool v. Railroad Co., (Utah,) 26 Pac. Rep. 654; Hyde v. Railway Co., Id. 979; Webb v. Railway Co., (Utah,) 24 Pac. Rep. 616; Tilley v. Railroad Co., 29 N. Y. 252.

Appellant also alleges as error the admission of the order in evidence appointing the respondent administrator of the estate of the deceased. It is claimed that the order is void, because it appears from the affidavit of the service on file in the proceedings that notice of the nearing of the application for letters was served on the day the order was made. It appears from the record that the respondent had filed in the probate court his petition for letters of administration, and that the widow had filed in writing a request for | respondent's appointment, and that the court, 12 days before, had made an order fixing a day for the hearing. The probate court of Utah county had acquired jurisdiction of the subject-matter, and, having such jurisdiction, the regularity of its proceedings in the appointment of the respondent, as administrator, could not be drawn in question in this action. The order cannot be assailed collaterally. Simons v. Saul, 138 U. S. 439, 11 Sup. Ct. Rep. 369; Emery v. Hildreth. 2 Gray, 228. We find no error in this record. The judgment of the court below is affirmed.

ANDERSON and BLACKBURN, JJ., concur.

(8 Utah, 52)

HARKNESS et al. v. MCCLAIN.
(Supreme Court of Utah. April 1, 1892.)

PLEADING AIDER BY VERDICT.

Under Comp. Laws, § 3258, providing that defects in pleadings, not affecting the substantial rights of the parties, shall be disregarded, when a complaint fails to properly allege notice of protest to an indorser, the defect is cured by a judg ment after verdict.

Action on a promissory note by Harkness, Wyman & Russell against J. R. McClain. Judgment for plaintiffs, and order overruling a motion for a new trial. Defendant appeals. Affirmed.

Evans & Rogers, for appellant. Rhodes & Hudson, for respondents.

BLACKBURN, J. This suit is brought by an indorsee against the payee and indorser. The complaint is in the usual form, except in the manner of alleging protest and notice, which is as follows: "That on the 27th day of May, 1890, the said note was duly protested for nonpayment thereof, and said note is now wholly unpaid. The defendant demurred on the ground, among other things, because the complaint does not state facts sufficient to constitute a cause of action, and at the same time filed an answer. He answered a specific denial, and, further answering, says "that at no time prior to the bringing of this action had defendant any notice of protest or nonpayment of said note by these plaintiffs or any other person." A trial was had before a jury, and evidence was heard on both sides in reference to the question of notice, and the jury found a verdict for the plaintiffs. Motion was made for a new trial, and overruled, and from the judgment and the overruling of the motion for a new trial the defendant appeals.

#

The only assignment of error made by the appellant is, the complaint does not state facts sufficient to constitute a cause of action, in that there is no allegation in the complaint of notice to the indorser. The complaint is perhaps not good pleading, but the question is, is it not cured by the verdict? Chitty lays down the rule as follows, (1 Chitty, Pl. *402:) “After verdict, * if the issue joined be such as necessarily required, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict at common law." This rule is fully supported in Pangburn v. Ramsay, 11 Johns. 143; Chapman v. Smith, 13 Johns. 81. Applying this rule to this case, the judgment would be good after verdict. But we are told the Code practice governs. So it does; but the only reason given for the adoption and maintenance of the Code pleading is that they are much more simple and less technical than those at common law. Besides, we have this provision of the Code, (section 3258, Comp. Laws Utab:) "The court in every stage of the action shall disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." The defendant cannot be prejudiced by the defect in the complaint, because he was fully heard on the question of notice. made the issue in his answer, and the jury decided against him. We think, therefore, whatever defect there is in the complaint

He

ZANE, C. J., and ANDERSON, J., concur. (8 Utah, 54) PRATT V. GILBERT et al. (Supreme Court of Utah. April 1, 1892.) ACTION ON APPEAL BOND.

An action may be maintained on an appeal bond filed one day too late, where such bond has operated to stay the judgment, and recites that it is given for such purpose, although the appeal is thereafter dismissed for failure to file the bond in time.

Appeal from district court, first district; JAMES A. MINER, Justice.

Action by James Pratt against H. C. Gilbert and others on an appeal bond. Judgment for defendants. Plaintiff appeals. Reversed.

Maloney & Perkins, for appellant. Rhodes & Hudson, for respondents.

BLACKBURN, J. Plaintiff sued the JarvisConklin Trust Company before a commis. sioner and obtained judgment. The company gave notice of appeal, and in said appeal defendants gave their bond. It was filed one day too late before the commissioner, but the appeal, as a matter of fact, was actually taken. The docket fee was paid by appellant, and the case docketed in the district court. In apt time a motion was made to dismiss the appeal because the bond was not filed in the commissioner's court in time, which motion was sustained. The judgment in the commissioner's court not being paid, this suit was brought to recover on the bond in commissioner's court. Judgment for plaintiff, and an appeal was taken to district court. Motion was made for judgment on the pleadings by the plaintiff. The motion was overruled and denied. Trial was had, and plaintiff offered in evidence the bond and all the proceedings in the suit of plaintiff against the Jarvis-Conklin Mortgage & Trust Company; and the court, on motion of the defendants, dismissed the case because the evidence was insufficient to support a judgment.

The contention of appellant is that the court erred in dismissing the case and refusing to give judgment for plaintiff. We think this contention is well taken. The defendants cannot deny the validity of the bond, because they are estopped from denying its recitals. The first bond recites that it is given for costs, and the second that it is given to stay the operations of a judgment, and the record shows that judgment was stayed by means of the undertaking. It says: "In consideration thereof, and of such stay of proceedings, and of the promises, jointly and severally undertake and promise," etc. Now, it would be an outrage on justice and fair dealing to allow these defendants to plead that they were not liable on these undertakings, because they were filed one day too late, after they have operated to stay the proceedings, as they were intended. When sned upon an undertaking of the nature of these, the obligors are estopped from denying their recitals. Arnott v. Friel, 50 Ill. 174; Trim

that the obligation of maintenance can be enforced only upon condition of a divorce first obtained, but merely declare that the obligation shall continue after that time; and the jurisdiction, therefore, which courts have, to enforce the obligation where the wife has been deserted and left destitute without cause, is not disturbed.

2. A judgment of a court of general jurisdiction, valid on its face, cannot be collaterally attacked by facts aliunde the record, showing that it was not fairly obtained, although such facts might be sufficient to impeach it if brought to bear in a proper proceeding.

Appeal from district court, Lewis and Clarke county; WILLIAM H. HUNT, Judge.

Suit by Kate D. Edgerton against Erastus D. Edgerton to enforce maintenance. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Alex. C. Botkin and E. P. Cadwell, for appellant.

V.

McConnell & Clayberg and Thos. C. Bach, for respondent, on the question of jurisdiction cited Lawson v. Shotwell, 27 Miss. 630; Bankston v. Bankston, Id. 692; Bowman v. Worthington, 24 Ark. 529; McGee v. McGee, 10 Ga. 477; Goss v. Goss, 29 Ga. 109; Fischli v. Fischli, 1 Black f. 360; Muckenburg v. Holler, 29 Ind. 139; Moon v. Baum, 58 Ind. 194; Chestnut v. Chestnut, 77 Ill. 346; Trotter v. Trotter, Id. 511; Ross v. Ross, 69 Ill. 569; Harshberger v. Harshberger, 26 Iowa, 503; Wilson Wilson, 49 Iowa, 544; McFarland v. McFarland, 51 Iowa, 565, 2 N. W. Rep. 269; Jones v. Jones, 18 Me. 311; Henderson v. Henderson, 64 Me. 419; Littlefield v. Paul, 69 Me. 533; Shannon v. Shannon, 2 Gray, 287; Baldwin v. Baldwin, 6 Gray, 342; Coffin v. Dunham, 8 Cush. 405; Adams v. Adams. 100 Mass. 365; Peltier v. Peltier, Har. (Mich.) 19; Perkins v. Perkins, 16 Mich. 167; Doyle v. Doyle, 26 Mo. 545; Simpson v. Simpson, 31 Mo. 24; Parsons v. Parsons, 9 N. H. 317; Sheafe v. Sheafe, 24 N. H. 569; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Nichols v. Nichols, 25 N. J. Eq. 60; Yule v. Yule, 10 N. J. Eq. 138; Rockwell v. Morgan, 13 N. J. Eq. 119; Anshutz v. Anshutz, 16 N. J. Eq. 162; Cory v. Cory, 11 N. J. Eq. 400; Atwater v. Atwater, 53 Barb. 621; Ramsden v. Ramsden, 91 N. Y. 281; Codd v. Codd, 2 Johns. Ch. 141; Lewis v. Lewis, 3 Johns. Ch. 519; Mix v. Mix, 1 Johns. Ch. 108; Perry v. Perry, 2 Paige, 501; Harrington v. Harrington, 10 Vt. 505; Prosser v. Warner, 47 Vt. 667; Rees v. Waters, 9 Watts, 90; Barker v. Dayton, 28 Wis. 367; Wilson v. Wilson, 2 Dev. & B. 377; 1 Bish. Mar. & Div. §§ 1383-1421.

HARWOOD, J. There are two questions brought here for determination by this appeal. The first relates to the jurisdiction, in equity, of the district courts of this state, and may be stated by the following proposition: Have the district courts of this state power, in the exercise of their equity jurisdiction, to enforce maintenance of a wife by decreeing proper relief in an action brought by her against her husband, independently of an action for divorce, where it is shown that he, without just cause, has abandoned her, or by his cruelty or other improper conduct has given her just cause for living separate and apart from him, and she is

without means of support, and he is able to maintain her? An action of this character, if maintainable at all, would naturally lie within the equitable jurisdiction of the district court. The subjects of equity, as well as common-law jurisdiction, are so well defined there can seldom arise a dispute as to whether a particular action for the enforcement of rights or the redress of wrongs lies within the cognizance of one or the other, or whether such action is not within either of these jurisdictions. In relation to the question just propounded, however, there have been and still are differences of opinion in the courts and among able jurists; and the discussion of it has sounded the depths and surveyed the scope and circumference of the equity jurisdiction of courts where it has been brought in question. It is unnecessary to recite the facts involved in the case at bar in order to treat this proposition. It may be treated as a question of law, relating to the equity jurisdiction of the court, without reference to any particular action. That the marriage relation lays upon the husband an obligation to furnish his wife necessary and comfortable maintenance, commensurate with his ability to provide, is a proposition upon which there is no dispute. It is an obligation imposed by law as one of the conditions of the marriage contract, and is recognized by all courts of justice, and is enforced, in proper cases, where the jurisdiction lies. Courts of common-law jurisdiction (as distinguished from equity courts) enforce that obligation by giving | judgment against the husband for necessary supplies furnished the wife by third persons, where the husband, without just cause, withholds the same, or abandons his wife, or by cruelty or otherwise makes it unsafe or improper for her to abide at the family home. In this way it will be seen that even courts of common-law jurisdiction not only recognize, but to some extent enforce, performance of that obligation. This jurisdiction exercised by the common-law courts was usually ex. plained on the theory that the law presumed the wife to be the agent of the husband to the extent of authority to obtain upon his credit necessary personal supplies. But it is plainly observable by an investigation of these cases that the common-law courts proceed upon a different ground than the mere relation of principal and agent; for when the busband had abandoned his wife, or driven her away by cruelty or other improper conduct, and had sought to avoid responsibility of her maintenance by giving notice forbidding parties to furnish her supplies, and attempting to revoke her authority in that respect, still the common-law courts, notwithstanding notice, held him bound for her necessary supplies, by an obligation irrevocable at will, arising by virtue of the marriage relation, and gave judgment against him. Schouler, Doin. Rel. § 66; Sykes v. Halstead, 1 Sandf. 483. 1 Bish. Mar. & Div. 572, and cases cited. It will be observed in these cases, too, that, where the wife was living separate and apart from her husband, it was always a proper inquiry

such