CORRESPONDENCE.

WHAT TO DO WITH THE CRIMINALLY INSANE.

Editor Central Law Journal:

In your issue of February 27th there is an article entitled: "What to Do With the Criminally Insane." This language is contradictory but has become common. I am glad to call your attention to Section 5414 of the 1897 Code of Iowa, which reads as follows:

"Acquital on ground of insanity. If the defense is insanity of the defendant, the jury must be instructed, if it acquits him on that ground, to state that fact in its verdict. The court may thereupon, if the defendant is in custody, and his discharge is found to be dangerous to the public peace and safety, order him committed to the insane hospital, or retained in custody until he becomes sane."

Is not this statute a very fair way to protect the public? Yours truly, M.

Chicago, Ill.

HOW ΤΟ MEET THE PROPOSAL OF THE RECALL OF JUDGES.

Editor Central Law Journal:

In the issue of the Central Law Journal of the 27th inst. I note the comments of Mr. A. H. Robbins on certain language employed by me in a lecture on Federal Jurisprudence, which is both unfair to myself and the facts. The language of courts and commentators should always be restrained to the fitness of the subject matter under consideration. What I was discussing was the "frenzy of the hour." in certain sources, for the recall of Judges, and the review of their decisions by the populace at the polls. I sought to show that such method of asserting the administration of justice is an entire misconception of what justice is; that it would revolutionize our form of government, and ultimately wreck the very foundations of the administration of the law.

It is no answer to my argument to advert to specify instances of legislative acts of reform in procedure, and advances in legislation, in the exercise of the police power of the State, to meet the constantly developing demands of commerce, and political economy. It is the difference between evolution and revolution. The people have the power to unmake constitutions, and to change the whole form of the government, State and National; but the question is, whether it is wise and safe to do so. Kingsley well said: "There are two freedoms,-the false, where a man is free to do what he wills, the true, where a man is free to do what he ought." In the quotation made from said lecture the printer has made me put in the mouth of Shakespeare, "The base Indian throw a pearl away." It should have been "the base Judean." Shakespeare knew as little about the Indian as the Indian did about "liberty regulated by law." JNO. F. PHILIPS.

Kansas City, Mo.

We are glad to give publication to this letter of Judge Philips. We agree heartily with the learned judge in his objection to the recall of judges and of decisions. No proposed scheme of reform is fraught with so much danger to the public interest.

But our view of the situation has been that the popular attitude upon the present judicial administration of justice should not be called a "frenzy" as if the people had lost their reason and could no longer be trusted. The people are not going to adopt the recall idea with respect to the judiciary nor any other similar proposal but they will insist on some remedy for what they consider a real evil.

Our idea is that the people have or think they have a real grievance against the courts and when members of the bar have refused to counsel with them on any such assumption, the people have turned willing ears to those less competent to advise them.

The people will solve this question and the bar should be willing to assist them in this solution by constructive suggestion rather than by satirical attacks upon their credulity.

EDITOR.

HUMOR OF THE LAW.

It was a banquet where a notable gathering of politicians had assembled. A certain aspiring young attorney was among the number, and as he spied an influential judge at the far end ofthe parlor, he called the head waiter, slipped half a dollar into his hand and whispered: "Put me next to Judge Spink at the table."

Upon being seated, however, he found he was at the other end of the room from the judge. He called the head waiter to explain. "Well sir," replied the official, "the fact is that the judge gave me a dollar to put you as far from him as possible."-Lippincott's.

Hawkins, Q. C., a famous pleader of the midVictorian era, was engaged before Lord Campbell in a case that arose out of a collision between a brougham and an omnibus. One of the advocates pronounced the word "brougham" as a dissyllable, evidently unaware that the name of the vehicle, like the surname of Lord Brougham, is abbreviated into a monosyllable. After several repetitions the judge grew irritated and exclaimed:

"Brother Hawkins, if you would say 'broom' you would save two syllables and the time of court."

Counsel took the hint; but bided his time for a retort. Presently the judge began to sum up, and had occasion to speak of the "omnibus."

"My Lord," interrupted the audacious advocate, "if your Lordship would only say 'bus,' you would save two syllables and the time of the court."-Sunday Magazine.

It was a wizened little man who appeared before the Judge and charged his wife with cruel and abusive treatment. His better half a big, square-jawed woman, with a determined eye.

was

"In the first place, where did you meet this woman who has treated you so dreadfully?" asked the Judge.

"Well," replied the little man, making a brave attempt to glare defiantly at his wife, "I never did meet her. She just kind of overtook me."

1.

10, 51, 69, 73 13, 11, 75 2. 42 4, 5, 9, 13, 28 33, 34, 37 24, 57

Attorney and Client-Factions in Corporation. Where an attorney, rendered services to one faction of a corporation, he cannot recover against the corporation for such services, ever. though he was successful.-Ney v. Eastern Iowa Telephone Co., Iowa, 144 N. W. 383.

2. Bankruptcy Partnership Creditors. — Partnership creditors are entitled to share ratably with individual creditors in the individual assets of the bankrupt, where the partnership and the individual partners are all insolvent and there are no partnership assets. In re Gray, U. S. D. C., 208 Fed. 939.

3.Preference.-The lien of a mortgage given by a bankrupt, which is voidable as a preference is in effect discharged by the bankruptcy for all purposes.-Petition of Rouse, C. C. A., 208 Fed. 881.

4. Security for Advances.-Successive assignments of accounts by way of security under contract for advances to enable the assignor to get the goods without knowledge of the assignor's insolvency and without fraudulent intent were good as against the bankrupt assignor's general creditors.-Greey Dockendorff, 34 Sup. Ct. Rep. 166.

V.

5. Statute of Limitations.-The two years' limitation after the closing of an estate prescribed by Bankruptcy Act of suits by or against trustees in bankruptcy, bars an action by a former trustee to set aside a conveyance as in fraud of creditors after the bankruptcy proceedings had been reopened for that purpose, on the ground that he had just discovered the facts, where pending the original proceedings the trustee made some inquiries but dropped the matter.-Kinder v. Scharff, 34 Sup. Ct. Rep. 164.

6.

Banks and Banking-Authority of Cashier. -The cashier of a bank has prima facie authority to extend the time for payment of negotiable paper, this being particularly true where he has virtual control of the bank's entire business.-Citizens' Bank of Senath V. Douglas, Mo., 161 S. W. 601.

7.Inspection of Books. A stockholder in a national bank held to have the absolute right under Rev. St. U. S. § 5210 to examine the list of stockholders at any proper time, whatever may be his motive.-Murray v. Walker, Ky., 161 S. W. 512.

8. Bills and Notes Negotiable Instruments Law. Persons signing for accommodation, but as joint makers, are persons primarily liable to pay the note within Negotiable Instruments Law. Citizens' Bank of Senath v. Douglass, Mo., 161 S. W. 601.

9. Carriers of Goods--Estoppel.-Railroad companies cannot assert, as against the power of the state to compel interchange of traffic in the corporate limits of a city, that they were not incorporated for intracity transportation.Grand Trunk R. Co. of Canada v. Michigan R. R. Commission, 34 Sup. Ct. Rep. 152.

11.

Commerce

Federal Employers' Liability Act. A boiler maker's helper, injured while assisting in repairing an engine, regularly in use in interstate commerce, in the shops of a railroad company, held employed in interstate commerce within Employers' Liability Act.-Law v. Illinois Cent. R. Co., C. C. A., 208 Fed. $69.

12. Instrumentality.-A dead engine, which was being hauled by an interstate train from one state to another, is an instrumentality of interstate commerce.-Atlantic Coast Line R. Co. v. Jones, Ala., 63 So. 693. 13.

Insurance.-Insurance is not commerc and a foreign insurance company may be subject to the annual tax imposed under Rev Codes Mont. § 4073, on the basis of the excess of premiums over losses and expenses within the state during the previous year.-New York Life Ins. Co. v. Deer Lodge County, 34 Sup. Ct. Rep. 167.

14.- Interstate Business.-A contract to furnish theatrical companies as agent to the owners of various theaters for a certain sum and a percentage of the amount paid the actors, by which complainant agreed to furnish such companies for defendant's theater, held not to in-` volve interstate commerce.-Interstate Amusement Co. v. Albert, Tenn., 161 S. W. 488.

ment set aside and to recover the amount due him. Frankel v. Dinitz, N. Y., 144 N. Y. Supp.

770.

17. Conspiracy.-Labor Union.-It is unlawful for several persons to conspire to oppress another through substantial injury to his lawful business or means of livelihood, as by coercing his employer to discharge him and to cancel a subcontract.-Clarkson v. Laiblan, Mo., 161 S. W. 660.

18.

Contracts

Confidential Relations.-A transfer of property by persons mentally or physically infirm to those having custody of them will be set aside in equity, where influence has been acquired and abused, or confidence reposed and betrayed.-McDowell v. Edwards' Adm'r, Ky., 161 S. W. 534.

19. Restraint of Trade.-That a contract, the main purpose of which is to promote the business of those making it, incidentally restrains trade will not render it invalid as in restraint of trade.-J. W. Ripy & Son V. Art Wall Paper Mills, Okla., 136 Pac. 1080.

20. Corporations-Apparent Authority.--The apparent authority of a president to bind the corporation by making contracts in its name must be considered with reference to the character of the business involved.-Ney v. Eastern Iowa Telephone Co., Iowa, 144 N. W. 383.

cor

21. Foreign Corporation. A foreign poration is "doing business" within the state when it transacts therein some substantial part of its ordinary business, and its operations within the state do not consist of mere casual or occasional transactions.-Interstate Amusement Co. v. Albert, Tenn., 161 S. W. 488.

22.-Profit by Officers.-Where the officers of a corporation formed a partnership to do work for the corporation from which they derived a profit, they may be held liable to the corporation for such profits.-Tenth Nat. Bank of Philadelphia v. Smith Const. Co., Pa., 89 Atl. 76.

23. Respondeat Superior.--Corporation held liable for acts of agent in course of his duties and within the apparent scope of his authority, though contrary to his instructions, and though prompted by fraudulent or malicious motives.— Grorud v. Lossl, Mont., 136 Pac. 1069.

24. Damages-Breach of Contract.-A party breaching a contract is only liable for such consequences as may be reasonably supposed to have been within the contemplation of the parties when the contract was made. Altschuler v. Atchison, T. & S. F. Ry. Co., Wis., 144 N. W. 294.

25. Death-Action for.-A widow suing for the negligent death of her husband, leaving surviving children, must sue for herself and as trustee for the children, so that all the damages may be recovered in one action.-Marquez v. Koch, Mo. App., 161 S. W. 648.

26.- -Eyewitnesses.-The rule that is presumed that a decedent was not guilty of contributory negligence, where no one saw the accident would not apply where there was evidence by eyewitnesses tending to show contributory negligence.-Battles v. United Rys. Co. of St. Louis, Mo. App., 161 S. W. 614.

27. Dedication-Acceptance.-The acceptance of an offer of dedication must be by some overt

unequivocal act on the part or the municipality indicating an intent to appropriate the property designated to public use.-Moore v. City of Chicago, Ill., 103 N. E. 583.

28. Deeds-Executory Contract.-An informal unacknowledged document signed by both parties, reciting that one has sold and transferred property under an unconfirmed Mexican grant and will execute conveyances as soon as another grant should be confirmed, is an executory contract for a conveyance.-Chavez v. De Ber gere, 34 Sup. Ct. Rep. 144.

29. Filling Blanks.-Where the vendor, instead of conveying, gave the purchaser the deed from his own grantor, in which there was a blank for the name of the grantee, and the purchaser, without consent, inserted the name o one to whom he had sold, the deed was void, so far as the purchaser himself was concerned.— Osby v. Reynolds, Ill., 103 N. E. 356.

30. Habendum Clause. The habendum clause of a deed may be referred to for the removal of ambiguities and even to control and modify the granting clause when that is necessary to effectuate the grantor's plain intent.— Garrett v. Wiltse, Mo., 161 S. W. 694.

31.

Easements-Servient Estate.-Where defendant's property was burdened by an easement of a right of way in favor of plaintiff, defendant was entitled to set out the way; but on his refusal plaintiff was entitled to pass over the servient estate in such manner as to cause the least inconvenience to the owner.-McKenney v. McKenney, Mass., 103 N. E.. 631.

32. Fraud Concealment.-Concealment of a material fact which the party is bound in good faith to disclose will amount to an actionable fraud, if it is an inducing cause in the transaction; but mere silence, in the absence of a duty to speak, is not actionable.-Boileau v. Records & Breen, Iowa, 144 N. W. 336.

33. Fraudulent Representations.-A false and fraudulent representation of a material fact relating to the property of a corporation, which necessarily affects the value of the corporate stock, gives a cause of action against one who thereby induced plaintiff to make a purchase. Borde v. Kingsley, Wash., 136 Pac. 1172.

34. Misrepresentation.-Where plaintiff, a purchaser of land, knew nothing about alkali land, and that fact was communicated to defendant, who consummated the sale, defendant was liable for misrepresentation as to the freedom of the land sold from alkali even though the parties made an inspection of the land.— Becker v. Sunnyside Land & Investment Co., Wash., 136 Pac. 1147.

35. Silence.-If a person makes representations as to title, he is to speak the truth, and where he places himself in a position where his silence will convey a false impression of the truth, there may be as much fraud as in a false statement.-Kronfeld v. Missal, Conn., 89 Atl. 95.

36. Frauds, Statute of-Assumption of Mortgage. An agreement whereby a grantee assumes a mortgage executed by the grantor need not be incorporated in the conveyance, but may be entirely oral, not being within the statute of frauds.-Citizens' Bank of Senath v. Douglass, Mo., 161 S. W. 601.

37. Goods, Wares and Merchandise.-Cor、 porate stock is "goods, wares and merchandise" within the statute of frauds, whether the stock is issued or to be issued.-Hewson v. Peterman Mfg. Co., Wash., 136 Pac. 1158.

38. Homestead-Widow.-That a married woman already has a homestead in land of her former husband will not prevent her from acquiring a homestead in her second husband's estate. Smith v. Rittenhouse, Ill., 103 N. E. 569.

39. Husband and Wife-Duress.-That a wife signed a note and deed of trust on her home because of threats that her husband would be prosecuted for crime if she did not constituted duress authorizing cancellation.-Ryan v. Strop, Mo., 161 S. W. 700.

40. Necessaries.-A husband is not liable to a surgeon who operated on his wife, where the wife did not request the operation, but only passively acquiesced in it, and no person having any power of agency for the husband requested or authorized it.-Kennedy v. Benson, 144 N. Y. Supp. 787.

a

44. Recovery from Wrongdoer.-Generally recovery by insured from a third person, causing a loss of the property insured, releases the insurer from liability.-Weaver v. New Jersey Fidelity & Plate Glass Ins. Co., Colo., 136 Pac. 1180.

45. Waiver.-Restrictions upon the power of an insurance agent to waive any of the conditions of the contract or upon the method of such waiver, are themselves conditions of the contract, which may be waived the same as any other condition.-Dromgold v. Royal Neighbors of America, Ill., 103 N. E. 584.

46. Judgment-Setting Aside Default.-As a rule. the court will not decide controversies arising out of disputed verbal agreements by counsel respecting the time of answer, etc., for the purpose of sustaining or setting aside a d fault judgment taken against one of the parties. Ronayne v. Hawkeye Commercial Men's Ass'n, Iowa, 144 N. W. 319.

discovery of a condition of the premises, thereby waives a right to claim a constructive eviction by reason thereof, in the absence of anything to show that he relied on the landlord's promise to remedy them.-Paterno v. Dunham, 144 N. Y. Supp. 764.

48. -Continuance of Tenancy.-Whether the mere leaving of property in the premises by a tenant upon removal is a continuance of his occupancy is usually a question of fact, in determining which the value of the goods as compared to the amount of the rent is material.Broome-Clinton Co. v. Woltzer, 144 N. Y. Supp.

768.

a lease

49. Control of Premises-Where was of "the lower floor and shed" of a brick building, the lessee had the right to reasonably use the columns at the entrance or the walls for advertising, as by painting his sign thereon, etc., unless such use was unusual or harmful as against objections of the landlord that he wished to use the columns for advertising his own business.-Snyder v. Kulesh, Iowa, 144 N. W. 306.

50.-Repairs.-Where a landlord contracts to keep the leased premises in repair and neglects to do so, he is liable for the consequential damages to the lessee's servant.-Glidden v. Goodfellow, Minn., 144 N. W. 428.

51. Limitation of Actions-Covenant of Warranty. Limitations against an action for breach of a covenant of warranty do not run until actual or constructive eviction under a superior outstanding title.-Hays v. Talley, Tex., 161 S. W. 429.

52. Malicious Prosecution-Wrongful Attachment.-Suing out an attachment against real property, not to secure the debt, but to prevent a transfer of the attached property, in order that plaintiff might obtain it himself, constitutes a malicious abuse of process.—Malone v. Belcher, Mass., 103 N. E. 637.

54.

Master and Servant-Discharge.-Where a contract to pay plaintiff commissions upon oil sold by him for defendant provided that plaintiff should get the market, prices for the oil, sales by plaintiff under an agreement to refund to his customers 5 per cent of his commissions would be a breach justifying discharge. Goller v. Henseler Mercantile Oil & Supply Co., Mo., 161 S. W. 584.

55. Proximate Cause.-A master is not an insurer of the safety of his servants' place of work, and is not liable for the happening of an accident arising from no known cause.-Lehigh Portland Cement Co. v. Bass, Ind., 103 N. E. 483. 56.

-Safe Premises.-The term "reasonably safe," within the rule requiring an employer to adopt a reasonably safe mode for the performance of the work, means safe according to the usages and habits, and ordinary risks of the business.-Marquez v. Koch, Mc., 161 S. W. 648.

57.- Unknown Cause of Death.-Where the evidence left it wholly conjectural as to how a workman, found dead in the shaft of a counterweight used for raising a large coal bucket, came in contact with the counterweight, the employer was not responsible for his death.

Hansen v. Milwaukee Coke & Gas Co., Wis., 144 N. W. 289.

a

58. Mortgages-Assumption of. Where grantee assumes a mortgage, not only does he become the principal debtor between the parties, but the mortgagee, after notice of the assumption, must treat the grantee as the principal and the grantor as surety.-Citizens' Bank of Senath v. Douglass, Mo., 161 S. W. 601.

59. Burden of Proof. The party asserting that an absolute deed is a mortgage has the burden of proof.-Fort v. Colby, Iowa, 144 N. W. 393.

60. Deficiency Judgment.-A deficiency judgment being asked against defendant in foreclosure, he may counterclaim for breach of the covenant of plaintiff's deed against incumbrances. Simon v. Neef, 144 N. Y. Supp. 753.

61. Municipal Corporations-Abutting Owner. The sidewalk belongs to the public, and an abutting owner cannot compei a member of the public to leave the sidewalk, even though he is guilty of a violation of a breach of the peace.Hixson v. Slocum, Ky., 161 S. W. 522.

62. Negligence-Child.—A child of tender years may comprehend certain dangers so as to be guilty of negligence as a matter of law, and will be held negligent if he does so, or if the danger is obvious to one of his age.-Battles v. United Rys. Co., of St. Louis, Mo., 161 S. W. 614.

63. Similar Acts.-In an action for damages for negligence, proof of specific acts similar to those on which the action was grounded, as distinguished from a custom or habit to do such acts, is inadmissible.-Hodges v. Hill, Mo., 161 S. W. 633.

64. Novation Doctrine of. The doctrine of novation implies the substitution by agreement of a debtor or a creditor and the making of a new contract, which can never be presumed, but must be proved.-Patzowsky v. Mutual Shoemakers, Me., 89 Atl. 61.

65. Elements of.-To operate as a novation, a contract obligation, taking the place of a prior valid obligation, should be agreed to by all parties and extinguish the formal contract.—— Burge v. Maund, Fla., 63 So. 708.

66. Principal and Agent-Apparent Authority. -Where a principal allows another to act as agent with apparent authority, and receives the benefits of the agent's acts, he is estopped to deny the authority of the agent to act for and bind him.Ney v. Eastern Iowa Telephone Co., Iowa, 144 N. W. 383.

67. Principal and Surety-Waiver.-Failure of surety to rescind within a reasonable time after notice of the obligee's fraudulent misrepresentation of the liabilities of the principal held a waiver of the defense of fraud.--Barnes v. Century Savings Bank, Iowa, 144 N. W. 367. 68. Quieting Title-Burden of Proof.--In suit to quiet title, plaintiffs have the burden of proving, not only title in themselves, but also that the defendant was claiming or asserting some title to or interest in the land adverse to plaintiffs.-Heaton v. Grant Lodge No. 335, I. O. O. F., Ind., 103 N. E. 488.

69.

a

Railroads-Throwing Missiles from Train. -A railroad company was bound to operate its train so as not to interfere with plaintiff's enjoyment of his premises near the right of way by casting missiles from the train and injuring plaintiff. Trinity & B. V. Ry. Co. V. Blackshear, Tex., 161 S. W. 395.

70. -Warning. If a railroad company was bound to warn of the approach of a train to a point at which a coal tipple was being constructed over the track, one engaged in the work could assume that a warning would be given, and was not conclusively negligent in not looking in crossing the track in his work. -Cincinnati, N. O. & T. P. Ry. Co. v. Winingham's Adm'r, Ky., 161 S. W. 506.

71. Sales Burden of Proof.-Where, in an action for goods bought, the answer admits the contract and the receipt of the goods, and the

only defense is that the contract is illegal and procured by fraud, the burden of proof is on defendant.-J. W. Ripy & Son v. Art Wall Paper Mills, Okla., 136 Pac. 1080.

72. -Conditional Sale.-Where machinery is, to the seller's knowledge, sold to be attached to the realty of a third person and used for a particular purpose, to bind such third person by a contract of conditional sale between the buyer and seller, such third person must have actual notice of the reserved title.-Allis-Chalmers Co. v. City of Atlantic, Iowa, 144 N. W. 346.

73. -Rescission. The rule that when a mistake is not mutual courts will not relieve the party making it, does not apply where the party accepting an offer knows of the mistake and seeks to take advantage of it.-Barteldes Seed Co. v. Bennett-Sims Mill & Elevator Co., Tex., 161 S. W. 399.

74. Set-Off and Counterclaim-Payment.—The defense of set-off is distinguishable from payment in that it must be based upon a claim existing before commencement of the suit and it is optional with defendant whether he plead to or make the claim the basis of an independent suit, while payment, whenever made, if pleaded, terminates plaintiff's right to recover, and - unless pleaded is waived.-Slaughter v. Martin, Ala., 63 So. 689.

75. Trade-Marks and Trade-Names-Infringement. where complainant alleged infringement of its trade-mark and unfair competition, and a decree was granted on the ground of unfair competition, but the trade-mark was held invalid, complainant was not entitled to complain on appeal that the decree should have been based on both grounds and thus obtain a review of the validity of the mark.-P. E. Sharpless Co. v. William A. Lawrence & Son, C. C. A.. 208 Fed. 886.

76. Trespass

Liberum Tenementum.-The plea of liberum tenementum in trespass confesses that plaintiff has such possession of a close in the county wherein the venue is laid as would support trespass against a wrongdoer, and asserts a freehold in defendant with a right of immediate possession, justifying the trespass.-Marks v. Madsen, Ill., 103 N. E. 625.

77. Use and Occupation-Void Lease.—A tenant who enters into possession under a void lease must pay for the use and occupation of the premises while he occupies them, but he is not liable for rent after his vacation of the premises.-Riviera Realty Co. v. Henry, 144 N. Y. Supp. 790.

78. Vendor and Purchaser-Guaranty of Title. Where a contract for the sale of land, based on a tax title, guaranteed that such title was regular and in accordance with the laws of the state, the guaranty only covered the proceedings leading up to the tax deed, and not the sanity of the person to whom the property was assessed.-Boileau v. Records & Breen, Iowa, 144 N. W. 336.

79. Waiver. While the vendor could waive a provision of a contract forfeiting vendee's rights upon nonpayment of installments when due, by habitually accepting overdue payments, or payments for a less amount than due. the occasional acceptance of overdue payments would not necessarily be a waiver. Fox V. Grange, Ill., 103 N. E. 576.

80.- Waiver. Where payments of the purchase price under a contract to convey and payments of taxes and interest were all made after the time fixed therefor by the contract, the provision that time should be of the essence being disregarded at all times, there was a waiver of such provision.-Hill v. Alber, Ill., 103 N. E. 612. 81. Wills-Undue Influence. Where confidential relation exists between testator and beneficiary, a slight additional circumstance will shift to the latter the burden of rebutting a presumption of undue influence. In re Gordon's Estate, N. J., 89 Atl. 33.

82. Unnatural Bequest.-A will leaving all testator's property to strangers instead of to contestant, his brother, held not objectionable as capricious or unnatural, where testator harbored a feeling that his brother had done him a great wrong and that the person whom he hade beneficiary would care for him in his old age. In re Carey's Estate, Colo., 136 Pac. 1175.