and set aside to the family as exempt. There was no homestead, and the proceeds derived from the sale of real estate amounted to but $24. The only assets of the estate were the said $24, and the sum of $10,940 recovered on a policy of insurance on the life of Griesemer, made payable to his estate. During his lifetime Griesemer effected three policies of insurance on his life; two of them, aggregating $15,000, were by their terms made payable to his wife, the appellant, who is also administratrix of the estate. The policies of insurance in favor of the estate had to be collected by suit, and the money on the same was not obtained until December, 1894, and January, 1895; so that no allowance could have been made out of the estate before that time. This we mention in connection with the proposition urged that there is a distinction between making an allowance for a family and advancing it afterwards as a reimbursement. It appears that a large part of the money recovered by the appellant on the policies which were made for her benefit was improvidently invested for her by the Traders' Bank of Tacoma; that she has since recovered judgment against the said bank for about $8,000, but the bank is in the hands of a receiver, and it is uncertain how much it will pay; though, with the view we entertain of the law, this circumstance is not material. The estate proved to be insolvent. Several judgments had been recovered against Griesemer prior to his decease, and at the time of the hearing of the petition of the appellant for an allowance under the provisions of section 973 of the Code of Procedure, the court found that, if no allowance were made to the widow and children, there would be $5,960.21 to disburse to creditors; and the allowance was rejected, for the assigned reason that the appellant had a separate estate left her through the life insurance policies above mentioned, sufficient to support herself and family during the administration of the estate. This is the main proposition in the case, and we think the court erred in refusing to grant the petition of the appellant, and to make an allowance commensurate with the necessities of the

case.

Section 973 provides that, in case of the appointment of an executor or administrator upon the death of the husband the court shall, without cost to the widow, minor child or children, set apart, for the use of such widow, minor child or children, all the property of the estate by law exempt from execution; that, "if the amount thus exempt be insufficient for the support of the widow and minor child or children, the court shall make such further reasonable allowance out of the estate as may be necessary for the maintenance of the family according to their circumstances, during the progress of the settlement of the estate." It seems to us that the language of the statute is plain, explicit,

here absolutely and without qualification protected, and provision made for its distribution in a particular way, and that, if it be found by the court that the amount "thus exempt" be insufficient for the support of the widow and minor child or children, it has no other duty to perform than to make the further reasonable allowance provided for by the statute; that the question is not whether the amount thus exempt, together with some other amount, which the widow or some one or other of the children might own as a separate estate, is insufficient for their maintenance, but it is whether the amount thus exempt is insufficient. It is an absolute right that the statute gives, unqualified by collateral conditions.

The allowance for the maintenance of the family according to their circumstances during the progress of the settlement of the estate is an allowance out of the estate which is being settled, and not an allowance out of some other estate. Neither does it seem to us that it depends upon the question of necessity, or of the capability of the wife to provide a good living for herself and children outside of the estate. It might eventuate that the wife was an accomplished musician or a noted lecturer, or that she could command a salary which would be amply sufficient to support herself and family; but that certainly, under the direct provisions of our statute, would not deprive her of the right to this support out of the moneys of the estate; and the fact that she has a separate estate of her own, no matter whether it came to her through the medium of a life insurance policy or in any other way, cannot be held to militate against her right to receive the allowance provided for by the statute. The right to the possession of the homestead or the household furniture might as well be taken from the widow and children. The law provides that if, by the return of the inventory of the estate of any intestate who died leaving a widow or minor children, it shall appear that the value of the estate does not exceed $1,000, the court shall, by decree for that purpose, assign for the use and support of the widow and minor children of the intestate, or for the support of the minor child or children if there be no widow, the whole estate after the payment of the funeral expenses and expenses of administration; and there shall be no further proceedings in the administration unless further estate be discovered. On the same line of reasoning advanced by respondents this statute should also be abrogated if it should be ascertained that a sufficient separate estate existed in the widow to maintain herself and children. These are statutes of distribution, and these allowances are debts against the estate, created by the law, and are preferred, just as other debts are preferred, such as expenses of last sickness, funeral expenses, etc. They are absolute in their nature, and therefore not subject to any collateral conditions. If the homestead

right should be rejected, and the allowance | should be rejected on the theory that the wife had a sufficient separate estate, and all the funds of the estate were distributed to the creditors, it might eventuate that the widow, by improvident investments, would lose all her separate estate, and then the object of the statute would be destroyed altogether. The right of the children cannot be affected by any action or any condition of the mother. It was the duty of the father to provide for his family during his lifetime, and to provide for them at all hazards, even as against the rights of creditors; and the law, during the administration of the father's estate, simply steps into his shoes, and insists upon making the same provision for the family. It seems to us that a statute like this, where no conditions or qualifications are mentioned, is not susceptible of construction. But, outside of this conclusion, the authorities are uniform in construing statutes of this kind in favor of the right of the family to the allowance.

This question came before the supreme court of the state of Vermont as early as 1850, in the case of Sawyer v. Sawyer, 28 Vt. 245, and it was there held that the statutory provision for the maintenance of the widow of the deceased person during the settlement of his estate had a general application, and that the probate court had a discretion only as to the amount of the allowance, and could not refuse it altogether where the widow had other abundant means of maintenance. That is a wellconsidered case, and was followed in Re Lux's Estate (Cal.) 35 Pac. 341, and is the uniform holding of the courts on statutes containing provisions similar to ours. And the authorities are equally uniform to the effect that the right of the widow and children is paramount to that of creditors, and hence does not depend upon the solvency or insolvency of the estate. This rule is laid down in so many words in section 83, Woerner, Adm'n. To the same effect are Thomp. Homest. & Ex. (1st Ed.) § 945; Buffum v. Sparhawk, 20 N. H. 81, and In re Dennis' Estate (Iowa) 24 N. W. 746. Of course, we are not speaking now of the amount of the allowance which should be made by the court under this application, but simply hold that the right to allowance is not affected by the separate estate of the widow.

Another contention of the respondents is that the widow and children had left the state of Washington since the death of the father, and were, therefore, not entitled to this allowance. The record shows that the appellant had taken her children to the state of Ohio, where she was educating them. We are not satisfied from the whole record that the appellant is not really a resident of this state, and the court failed to find on that proposition at all. If the respondents had desired such a finding, in order to raise that issue, they ought to have requested it of the court. But, even conceding that she was a nonresident, the authorities, so far as we have been able to ascertain, hold that such fact would not deprive the widow

and minor children of the right of allowance. In the case of Farris v. Battle, 80 Ga. 187, 7 S. E. 262, where it appeared that the widow had been separated from her husband for seyeral years, that the wife and family had been living in Tennessee and the husband in Georgia for 11 years preceding his death, and the point was raised that by reason of nonresidence they were not entitled to the allowance provided by the statute, which was similar to ours, it was held by the court that such fact would not deprive the widow and children of their distributive share in the estate, viz. the year's support (in that state the statute provided for a year's support instead of support during the administration of the estate), the court saying in that connection: "Creditors are left out, and adult children are left out, until this much of the estate is withdrawn from it. Then they are admitted for participation in the balance. They have no right to anything except by the statute of distributions. To take at all, they must look to the law, and must take according to law. This being so, we consider that the special provision applicable to the widow and minor children gives them this much advantage over other distributees. It makes their part of the estate that much more, and they take it as absolutely and unconditionally, and for as long a time, as distributees take under the general provisions of the statute. It requires nothing to give a right to this benefit, except the relation of wife or minor child. When that relation exists at the time of the death, the person or persons sustaining it are entitled to make their claim under the terms of the statute, and this court has held that their title becomes absolute." The same doctrine is announced in Succession of Christie, 20 La. Ann. 383. The question of whether or not the expense incurred in transporting appellant and her children to Ohio, and their maintenance there, was a necessary expense, taking into consideration the circumstances of the family, is a question for the consideration of the court when it comes to pass upon the amount of the allowance. It follows from what we have said that the judgment must be reversed, and the cause remanded, with instructions to the lower court to grant the allowance provided for by the statute.

HOYT, C. J., and ANDERS and GORDON, JJ., concur.

(13 Wash. 187) STATE ex rel. COLLINS v. SUPERIOR COURT OF SNOHOMISH COUNTY et al. (Supreme Court of Washington. Dec. 5, 1895.) LOCAL ACTION-SPECIFIC PERFORMANCE-PARTI

TION-LIEN.

An action for specific performance, and also to have certain conveyances set aside, and for partition of lands, and, if specific performance cannot be decreed, to have the moneys advanced by plaintiff declared a lien, is local, and not transitory. Dunbar, J., dissenting.

Mandamus by the state, upon the relation of John Collins, against the superior court of Snohomish county and others. Writ issued.

Struve, Allen, Hughes & McMicken, for petitioner. A. D. Warner, Stratton, Lewis & Gilman, and Donworth & Howe, for respondents.

SCOTT, J. This is a proceeding in mandamus, whereby the relator seeks to compel the respondent to assume jurisdiction of, and proceed with the trial of, a cause commenced by the relator in said superior court of Snohomish county against certain parties defendant, in whose behalf the relator's right to the issuance of the writ is contested. The point to be determined is whether the action is a local or a transitory one. It is conceded that if the action is a local one the writ should issue, and if otherwise it should be denied. The respondent contends that the action is simply one for a specific performance of a contract to convey real estate, and is therefore transitory in character. An examination of the complaint, however, satisfies us that the action is something more than one for a specific performance, for the relator in said action not only seeks to compel the performance of a contract to convey an undivided interest in certain lands to him, that was entered into between the relator and certain of the defendants, but he also seeks to have several conveyances made by said defendants to some of the other defendants set aside, in so far as the same affect his claimed interest in the lands, on the ground that they were made with notice of, and subject to, his rights therein. He also asks for a partition of the lands, and further that, if for any reason the court cannot decree a specific performance of the contract, then that several sums advanced by the relator and his assignors to the contracting defendants aforesaid be declared a lien upon the lands in controversy. This makes something more than an action for a specific performance of a contract to convey lands. The request for a partition of the lands, and, if a specific performance of the contract cannot be decreed, that the relator be adjudged to have a mortgage lien thereon, clearly make the action a local one, under the statutes of this state, and it was properly brought in the superior court of Snohomish county.

The relator has also asked a further consideration by us of the question as to whether an action for a specific performance of a contract to convey real estate is a local or a transitory action; the relator maintaining that such an action is a local one, and must be brought in the county where the lands are situated. Under the circumstances of this case, we do not think it is necessary to enter upon any further examination of that question, as the other features above mentioned of the present action make it unquestionably a local one. Let the writ issue as prayed for.

HOYT, C. J., and ANDERS and GORDON, JJ., concur.

DUNBAR, J. Believing the action to be in substance an action to enforce specific performance, I think the writ should be denied. I therefore dissent.

(13 Wash. 341) LORENCE v. CITY OF ELLENSBURGH. (Supreme Court of Washington. Dec. 30, 1895.)

MUNICIPAL CORPORATIONS - INJURIES FROM DEFECTIVE SIDEWALK-NOTICE OF DEFECTS-CONTRIBUTORY NEGLIGENCE-EXCESSIVE DAMAGES. 1. Where a city has exclusive control over its streets and sidewalks, with power to raise money to keep them in repair, it is bound to keep them in a reasonably safe condition for ordinary travel.

2. In an action against a city for injuries to a child of eight years from a defective sidewalk, where there was evidence that the child had lived near the place of the accident, and had frequently passed over the same sidewalk, and the child testified that she had no knowledge of the defective condition of the walk prior to the injury, the question of contributory negligence was for the jury.

3. Evidence that a sidewalk had been defective for three or four months preceding the injury will charge the city with constructive notice.

4. In an action against a city for injuries to a child from a defective sidewalk, where it was shown that, by reason of the injury, a portion of the femur had to be removed, causing a shortening of the right limb from four to six inches; that plaintiff was confined to her bed for about 18 months, and suffered great pain; and that the suffering was likely to continue,— a verdict for $8,000 was not excessive.

Appeal from superior court, Kittitas county; Carroll B. Graves, Judge.

Action by Ethel Lorence, by guardian, against the city of Ellensburgh, for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

John B. Davidson, for appellant. L. A. Vincent, Austin Mires, and Edward Pruyn, for respondent.

GORDON, J. This was an action brought by plaintiff in the superior court for Kittitas county, in this state, to recover damages for a personal injury sustained from a fall on a defective sidewalk. The complaint alleges that the defendant wrongfully and negligently suffered and permitted the sidewalk on a street in said city, known as "Third Street," to become and remain out of repair for several months prior to the date of the injury, which was the 20th of February, 1892. The alleged defect consisted of a V-shaped opening in the walk, of about five inches in width, and about 24 inches in depth. The defendant city answered the complaint by denying generally and specifically all of the allegations contained in it, and upon the trial a verdict was rendered in favor of the plaintiff (respondent here) against the appellant (city)

for the sum of $8,000; and from the judgment entered upon said verdict, and the order of the court denying appellant's motion for a new trial, this appeal is taken. The record is somewhat exceptional, in this: It is not contended that any error was committed by the trial court in admitting or rejecting testimony at the trial, or in charging or refusing to charge the jury concerning the law of the case, nor was any objection made either below or here as to the sufficiency of the pleadings.

1. The principal contention made in the brief of appellant in this case is that the city is not liable in actions for injuries received by reason of defective streets and sidewalks, and the first 37 pages of said brief are devoted to the discussion of that proposition. After the preparation of the brief, but prior to the hearing of the cause, this court passed upon a like question adversely to such contention, in the case of Sutton v. City of Snohomish, 39 Pac. 273, in which we held that "where a city has exclusive control of its streets, with power to raise money to keep them in repair, it is bound to keep them in a reasonably safe condition for ordinary travel."

2. It is next contended that the court below erred in denying appellant's motion for a nonsuit, which motion was urged upon the ground that the evidence in behalf of the plaintiff showed her to have been guilty of contributory negligence. An examination of the record satisfies us that the nonsuit was properly denied. It appears from the evidence that plaintiff, at the time of the injury, was a child of about eight years; that she lived with her parents at a place near where the accident occurred; that during the forenoon of the day of the accident, while in company with an elder sister, on the way to Sabbath school, she ran into the opening in the walk already described, and suffered a severe fall. It appears that she had frequently traveled said sidewalk prior to the injury and subsequent to its becoming out of repair. She testified, however, that she did not know of its defective condition prior to the injury; and we think that, considering her tender years, negligence could not, as a matter of law, be imputed to her, but prima facie she would be incapable of exercising that care and caution which the law requires of an adult. Just what care and caution a child must exercise in order to be entitled to recover in this class of cases cannot be determined by any general rule, but must, in connection with the circumstances in each case, depend upon the intelligence, capacity, and judgment which he is shown by the evidence to possess, and his capacity must be left to the determination of the jury under proper instructions, which in this instance we are bound to presume were given. Westbrook v. Railroad Co. (Miss.) 6 South. 321; Westerfield v. Levis (La.) 9 South. 52; Schnur v. Traction Co. (Pa. Sup.) 25 Atl. 656; Iron Co. v. Brawley, 83 Ala. 371, 3 South. 555.

3. Counsel insists that there is no proof showing that appellant had notice of the de

* * *

fective condition of the sidewalk. There was evidence tending to show that the walk had remained in the defective condition already described for three or four months preceding the time of the injury. Actual notice was not necessary; constructive notice is sufficient. "If this dangerous hole was in existence for such a length of time that the city authorities, by the exercise of ordinary vigilance, would have discovered it in time to prevent the accident, the city cannot escape liability for want of notice. Under such circumstances the law imparts notice. Failure to discover and remedy a dangerous defect in a public street within a reasonable time is itself negligence." Sutton v. City of Snohomish, supra. 4. Lastly, it is claimed that the verdict of the jury is excessive. From our examination of the evidence we feel that we would not be warranted in disturbing the verdict upon this ground. It appears that, in consequence of the injury sustained from the fall, the infant plaintiff was obliged to undergo a surgical operation, in which a portion of the femur was removed, causing a shortening of the right limb from four to six inches; that she was confined to her bed for a period of about 18 months, during which time she suffered great pain; and that, as a necessary result of the injury, she is destined to suffer more or less pain through life. From all the evidence, we are unable to say that the damages were given under the influence of passion or prejudice; and, no error appearing in the record, the judgment is affirmed.

LOGGER'S LIEN-WHEN ARISES.

No lien on shingles arises under Laws 1893, c. 132, § 2, giving a lien to every person performing work or labor in manufacturing logs into lumber and shingles "while the same remains at the mill where it was manufactured or in the possession or under the control of the manufacturer," where the undisputed findings show that the shingles were not at the mill at the time the lien was filed, but had been sold by the manufacturer, and had passed from his possession to defendants.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by H. N. Swartwood and others against the Red Star Shingle Company and others to foreclose a logger's lien. From a judgment dismissing the complaint as to some of the defendants, and allowing them costs, plaintiffs appeal. Affirmed.

B. B. Fowle and Geo. A. Joiner, for appellants. Million & Houser, for respondents.

DUNBAR, J. This case comes here solely upon an exception to the conclusions of law

No exceptions

found by the court below. were taken to the findings of fact; in fact, they do not appear in the record; so that (no questions having been raised as to the sufficiency of the pleadings) the only question is, do the findings of fact sustain the conclusions of law announced by the court? The action is brought jointly by appellants, as plaintiffs, against the Red Star Shingle Company, a corporation, and Fred Wiles, W. A. Pitts, and Robert Fraser, respondents, who, it is alleged in the complaint, claim some interest in the shingles, a lien upon which is sought to be foreclosed. The court found that the work had been done by the plaintiffs as alleged in the complaint; that the amount alleged to be due them was due them from the defendant the Red Star Shingle Company; and that they had duly filed their liens for services rendered on said shingles on the 9th day of July, 1894. It also found that prior to the filing of the liens, viz. on the 5th day of May, 1894, the Red Star Shingle Company had sold to the respondents the shingles upon which the plaintiffs were attempting to foreclose a lien; that on the 9th day of May, 1894, the respondents (defendants in the action below) took possession of said shingles, and removed them from the mill where they were manufactured to the warehouse on the railroad, which was about a quarter of a mile from the shingle mill, which warehouse had been used by the Red Star Shingle Company for storing and shipping their shingles when they could not get cars to load into directly; that on the 5th day of May, 1894, at the time of the sale of these shingles to the respondents, the Red Star Shingle Company executed and delivered to them a bill of sale for the same, which bill of sale was recorded in the office of the auditor of Skagit county on the 8th day of May, 1894; that the plaintiffs did not know that said shingles had been sold to the defendants, not being actually apprised of the giving and recording of said bill of sale, but knew that said shingles had been removed to said warehouse by the defendants Wiles, Pitts, and Fraser, with their teams. And, as a conclusion of law from said facts, the court found that the plaintiffs had no lien or right of lien upon said shingles, and that the defendants Wiles, Pitts, and Fraser were entitled to have plaintiffs' complaint dismissed as to them, and to have judgment for their costs and disbursements, and judgment was entered accordingly.

There is very little that can be said on this proposition. The statute governing this case (section 2, c. 132, Laws Wash. 1893) provides that "every person performing work or labor or assisting in manufacturing saw logs and other timber into lumber and shingles, has a lien upon such lumber while the same remains at the mill where it was manufactured, or in the possession or under the control of the manufacturer. The court having found in this case that the shingles

*

**

were not remaining at the mill at the time the lien was filed, that they were not in the possession or under the control of the manufacturer, but that they had been sold to the defendants, who had taken possession of them, and removed them from the mill where they were manufactured, it would seem that the court was powerless, under the law, to arrive at any other conclusion than the one announced, that the plaintiffs had no lien or right of lien upon said shingles. The judg ment will be affirmed.

HOYT, C. J., and ANDERS, GORDON, and SCOTT, JJ., concur.

(13 Wash. 178)

PETERSON v. BINGHAM et al. (Supreme Court of Washington. Dec. 4, 1895.)

UNMARRIED MAN-EXEMPTIONS.

The word "householder," as used in Hill's Ann. Code, § 486, relating to exemptions, does not include an unmarried man who has no person dependent upon him for support.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Peter Peterson against C. E. Bingham and others to recover the value of certain property sold by defendants. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Million & Houser, for appellant. Sinclair & Smith, for respondents.

DUNBAR, J. This action was brought by the appellant against the respondents, Bingham & Holbrook and W. E. Perkinson, as sheriff of Skagit county, for the value of a certain quantity of hay sold by the said sheriff at the instance of respondents Bingham & Holbrook upon a judgment in their favor against appellant; the claim of appellant being that the property so sold was exempt under subdivision 4 of section 486 of the Code of Procedure. The pertinent allegations in the complaint were that, at all times therein mentioned, the plaintiff was, and had been, and then was, an unmarried man; that for more than five years last past, as a bachelor and single man, he had been living in a house of his own, and alone, and with no other person than himself; that he did not contribute to the support of any person, and had no person living with him and depending on him for support. A demurrer was interposed to this complaint, which was sustained by the trial court. The plaintiff electing to stand upon his pleading, judgment was entered for the defendants. So that it will be seen that the only question raised is the question of the construction of said section 486.

It is urged by the appellant that the term "householder," used in said section, is not to be construed in its strict sense and meaning, as synonymous with "head of a family." as is done in a great many of the other statutes,