WILLS (Continued). tator's death to the testator's sister, and providing if "any person whomsoever who, if I died intestate, would be entitled to any part of my estate," except the persons named, should assert any claim to the estate, he should receive one dollar, was not revoked under section 1299 of the Civil Code by the marriage of the testator the day after the making of the will, since the quoted phrase "provided for" the wife.-Estate of Kurtz, 146. 8. CONTEST BY WIDOW-EVIDENCE-ENGAGEMENT TO MARRY AT TIME OF EXECUTION OF WILL.-In a contest to such a will by the widow of the testator, evidence that the testator was engaged to marry the contestant at the time the will was made was admissible for the purpose of showing who the testator intended to include by the quoted phrase.-Id. 9. AMBIGUOUS WORDS-EXTRINSIC FACTS.-Evidence is admissible to show extrinsic facts which serve to explain the meaning of ambiguous words appearing on the face of a will.—Id. 10. UNBORN CHILD WILL NOT REVOKED.-Such a will was not revoked under section 1298 of the Civil Code by the fact that the widow was enceinte at the time of the testator's death and that the testator was the father of the child, since under section 29 of such code a child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary to its interests in the event of its subsequent birth.-Id. 11. SEPARATE INSTRUMENTS-WHEN NOT PART OF WILL.-A separate written instrument which is not mentioned or referred to in a will cannot be considered as part of the will.-Estate of Doane, 412. 12. EVIDENCE-INTENT OF TESTATOR-LETTER UNIDENTIFIED IN WILL Where there is nothing in a will which places any restriction or limitation upon a residuary legatee, a letter signed by the testator, which is not referred to in the will, is not admissible to show that the legatee took as a trustee only.-Id. 13. LEGATEES-DIFFERENT CAPACITIES-PAROL EVIDENCE.-Although a bank and trust company, which is named as a residuary legatee in a will, has two capacities, one as an individual and one as trustee, the contention that, in view of the presumption in favor of testacy, parol evidence is admissible for the purpose of showing in which capacity the testator intended the legatee should take, cannot be maintained, where there is no ambiguity or uncertainty in the language of the will.-Id. 14. TRUSTS INTENT. While no particular form of expression is necessary for the creation of a trust, some expression of intent to that end is requisite.-Id. 15. INVALID PROVISION OF WILL TESTATOR'S INTENT - POWER OF COURT. Where a decedent has made an invalid provision in clear, WILLS (Continued). unequivocal language, the courts are without power to alter that language to express what may have been in the testator's mind but was not attempted to be expressed by him, however beneficent such unexpressed intent may have been.-Id. 16. LIFE ESTATE REMAINDER.—Where a will bequeathed to the wife of the testator "the entire handling and control of any and all of my real estate and any and all my personal property of any and every name, nature or kind-wheresoever situated-To have and to hold, occupy or use the whole or any part thereof in such manner as may in her judgment seem best for her own individual benefit and support without any hindrance on the part of any person or persons wholly confiding in and believing my beloved wife will not allow said property to depreciate or go to waste," and by a subsequent paragraph any and all property remaining at the wife's decease was given to the brothers and sister-in-law of the decedent, the wife's bequest constituted a life estate, although with power to consume the principal of the estate, with remainder over of unconsumed property to the brothers and sister-in-law.-Colburn v. Burlingame, 697. 17. ACTION FOR ACCOUNTING BY REMAINDERMEN INSUFFICIENCY OF COMPLAINT. In an action by the remaindermen under such will to compel the life tenant to account for property which came into her possession under the will and to restrain her from selling, disposing of or encumbering any of the corpus of the estate and to give security to protect their interest, the complaint does not state a cause of action, where it is based upon the theory that the use of the estate to contribute to the support of the second husband of decedent's widow is not within the purposes of the life estate.-Id. 18. LIFE TENANT REMAINDERMEN SECURITY.-The rule as to the giving of security by a life tenant to the remaindermen is one of equity established by the courts for the protection of the remainderman in the absence of any direction in the will; but the rule thus established must yield to the terms of the will; and if it appears from a proper construction of the will that it was the intention of the testator that the property should be placed in the possession of the life tenant without security, such intention will be carried out.-Id. See Estates of Deceased Persons, 5, 6, 15, 19, 20, 23-28, 30, 32. WITNESSES. See Place of Trial, 5, 7. WORKMEN'S COMPENSATION ACT. 1. UNDERLYING PRINCIPLE. The underlying principle upon which the Workmen's Compensation Act rests is the providing of compensation to an employee for injuries resulting from his employment WORKMEN'S COMPENSATION ACT (Continued). which is to be borne by the industry as a part of the cost of production.-Union Iron Works v. Industrial Acc. Com., 31. - 2. PRIMARY PURPOSE OF INDUSTRIAL COMPENSATION. - The primary purpose of industrial compensation is to insure to the injured employee and those dependent upon him adequate means of subsistence while he is unable to work and also to bring about his recovery as soon as possible in order that he may be returned to the ranks of productive labor.-Id. 3. MEDICAL TREATMENT-NATURE OF.-The medical treatment required by section 15 (a) of the Workmen's Compensation Act to be furnished an injured employee by his employer is such as will reasonably and seasonably tend to relieve and cure the injured employee from the effects of the injury.-Id. 4. FURNISHING OF REQUIRED TREATMENT ACTS TANTAMOUNT TO REFUSAL. The refusal after more than three years of unsuccessful treatment on the part of an employer's physicians to operate on an employee who had both legs and an arm broken, despite repeated requests to do so, which refusal extended over a period of nine months, during which time the injured employee continued to suffer and his condition apparently grew worse, was tantamount to a refusal to furnish the treatment seasonably required by the statute.-Id. 5. TREATMENT BY PHYSICIAN SELECTED BY EMPLOYEE COMPENSATION FOR EXPENSES-ESSENTIALS.-Before an injured employee will be entitled to compensation for expenses incurred in the treatment of him by a physician of his own selection it must be shown that the treatment not only was a success but that it was reasonably and seasonably necessary to cure and relieve him, taking all the circumstances into consideration.-Id. 6. MEDICAL SERVICES - EXTENSION OF TIME-JURISDICTION OF COMMISSION. Under section 15 (a) of the Workmen's Compensation Act, as amended in 1915, the Industrial Accident Commission may extend the right of an injured employee to medical services after as well as before the expiration of ninety days after the injury, the length of time for which an employee is entitled to such services being the length of time necessary to his complete recovery and section 20 (d) of the act giving the Commission continuing jurisdiction over all its awards for two hundred and forty-five weeks.-Id. 7. INDEFINITE EXTENSION OF TIME - ACTS OF EMPLOYER.—Where for three years after the expiration of the ninety-day period provided by section 15 (a) for the furnishing of medical services to an injured employee, the employer not only continued to supply but expressed its willingness to supply further medical treatment, such action was tantamount to a consent to an indefinite extension WORKMEN'S COMPENSATION ACT (Continued). of the ninety-day period and a waiver of the right to object to tho power of the Commission to proceed in the premises.-Id. 8. AMENDMENT OF AWARD ALLOWANCE OF EXPENSES OF OPERATION —JURISDICTION.-Where an injured employee who had been unsuccessfully treated for three years by his employer's physicians employed a physician of his own selection and underwent a successful operation after the employer's physicians refused to operate, the Industrial Accident Commission had jurisdiction to amend its award allowing the employee the expenses incurred in the performance of the operation, such operation being a new development sufficient to justify the amendment.-Id. 9. UNLOADING OF AUTOMOBILES FOR DEALERS-STATUS OF LONGSHOREMAN AND ASSISTANTS-INDEPENDENT CONTRACTORS.-A longshoreman furnishing his own tools and implements for unloading automobiles from cars for dealers at the rate of $1.50 for each machine, selecting his own assistants and dividing with them the amounts received from the dealers who exercised no control over him or his assistants in the doing of the work, is an independent contractor and an assistant injured in the performance of such work is not entitled to an award of compensation against the dealer. Freiden v. Industrial Acc. Com., 48. 10. REHEARING OF CAUSE-ADDITIONAL TESTIMONY-WRIT OF REVIEW. Under the Workmen's Compensation, Insurance and Safety Act (Stats. 1917, p. 831), the Industrial Accident Commission may hear additional testimony on the rehearing of a cause, and an application for a second rehearing after the affirmance of the award is not necessary before seeking a writ of review from the supreme court.-Federal Mutual etc. Ins. Co. v. Industrial Acc. Com., 97. 11. FURNISHING OF LUMBER HANDLERS ARRANGEMENT BETWEEN STEVEDORE COMPANY AND LUMBER COMPANIES-GENERAL EMPLOYER -LIABILITY FOR INJURIES.-A stevedore company organized by lumber dealers to furnish them with lumber handlers is the general employer of the men furnished and its insurance carrier is liable for injuries received by them in the course of their em ployment, notwithstanding they work subject to the sole direction and control of the lumber companies, where the stevedore company has the ultimate control over their hiring and discharge, carries them upon its pay-rolls and pays their wages out of money received from the lumber companies equaling such wages plus a percentage thereof as a recompense and plus the estimated amount of the premium upon the compensation insurance of the men carried on the pay-rolls and working in the lumber-yards.— WORKMEN'S COMPENSATION ACT (Continued). 12. CONTRACT OF HIRE-CONSTRUCTION OF TERM.-A "contract of hire" as used in section 8 (a) of the Workmen's Compensation Act (Stats. 1917, p. 831), defining an employee means a contract for personal services as indicated by the fact that the basis of compensation provided by the act is the amount of wages earned.— Press Pub. Co. v. Industrial Acc. Com., 114. 13. INJURY FROM OVERTURNING OF MOTORCYCLE-CARRYING OF CREAM -DELIVERY OF NEWSPAPERS-STATUS OF CARRIER.-In this proceeding to have annulled an award of compensation for injuries received from the overturning of a motorcycle while carrying cream for a creamery and delivering newspapers for a publishing company along the same route, the surrounding circumstances of the employment as shown by the undisputed evidence warrant the inference that the claimant was under a contract for personal services to the creamery and likewise under a contract for personal services to the publishing company, it appearing that he was paid fixed wages and was subject to discharge at any time for unsatisfactory service.-Id. 14. EMPLOYER AND EMPLOYEE-ACCIDENTAL DEATH-WHEN RECOVERY CANNOT BE HAD.-Where the driver of a truck for the delivery of ice, who had more or less latitude as to the time and manner of covering his route and the privilege of obtaining his lunch wherever he desired, was run down and killed while crossing a street, after having had lunch at a cafeteria to which he had delivered ice earlier in the day and had returned solely for lunch, not having any business in the vicinity for his employer, his heirs are not entitled to any benefit under the Workmen's Compensation Act for his death.-California C. I. Exch. v. Industrial Acc. Com., 433. 15. ESSENTIALS FOR RECOVERY. To entitle the representative of the deceased to recover in such a case it must be shown that the employee, at the time of the injury, was not only performing service growing out of and incidental to his employment, and acting within the course of his employment, but also that the injury was proximately caused by such employment.-Id. 16. ANNULMENT OF AWARD - EFFECT OF.-The effect of the decision of the supreme court on certiorari, annulling an award of the Industrial Accident Commission for the accidental death of an employee, is to set the matter at large for proceedings not inconsistent with the decision. (On denial of rebearing.)-Id. 17. DUAL EMPLOYMENT APPLICATION OF LAW.-Employment may be dual in character. In so far as the employee acts in one capacity, he may be within the provisions of the Compensation Act; and in so far as he works in another capacity, his employment will be |