The order appealed from is affirmed.

BRANTLY, C. J., and COOPER, J., con

cur.

Door testified that he informed Johnson mitted no abuse of discretion. Therefore no and Laundry they were under arrest, and useful purpose can be served by discussing would be put in jail upon their arrival at rules of law which are not necessary to a Missoula. There is also some testimony that decision upon appeal. Door told them, not that they were under arrest, but that he would have them arrested when they arrived at Missoula. He wired to a special agent of the company, who was a deputy sheriff, and upon the arrival of the train there this agent was present at the depot. The conductor had not taken the men into custody, but, as they stepped off the train, he directed the agent's attention to them, and by him they were taken into (Supreme Court of Montana. Oct. 27, 1920.) custody and placed in jail.

All of this testimony as to being intoxicated and taking part in any controversy, or as to conducting himself in any unseemly manner, was denied by plaintiff and his witnesses. Plaintiff testified that he had had two drinks of beer before boarding the train, but that he drank nothing at all upon the train nor did he see any bottle of liquor in the possession of Laundry or any other passenger. He admits the vomiting, but alleges that this was due to causes other than intoxication. He says that when put under custody upon arrival at Missoula he knew nothing as to the cause of the arrest, and that his conduct upon the train was exemplary.

In addition the testimony shows what followed the taking to jail, the publicity given the arrest, plaintiff's humiliation, etc., and that upon a trial for the criminal offense charged against him, that of drinking intoxicating liquors upon a passenger train, he was acquitted.

The order granting the motion for a new trial was general, and does not set forth the grounds upon which it was granted. The sole error specified by appellant is that the court erred in granting this motion. There is conflict in the evidence. The trial court was in a more favorable position than this court to pass upon the credibility and weight of the testimony.

[1, 2] As has been often said by this court, when in the opinion of the trial court the evidence in a given case preponderates against the finding of the jury, it should be set aside, and where its action in granting a motion for a new trial can be justified upon that theory, the Supreme Court on appeal will not say that it abused its discretion in granting the motion.

We are asked to review questions of law. However, we are not inclined to pass upon any feature of the case, except that presented by the specifications of error. There were two causes of action. The verdict was general. There is no method by which we may determine whether the jury allowed recovery upon the first or second cause, or upon both. The trial court saw fit to grant the motion for new trial. In this it com

(58 Mont. 428)

ZALAC v. BARICH et ux. (No. 4189.)

1. Work and labor 28(1)-Evidence held to support recovery of compensation for housekeeping services.

In action for service rendered as servant, where defendants claimed that there was no agreement to pay plaintiff for her services, and that services were performed in return for a evidence held to support judgment for plaintiff. home, clothing, entertainment, and education, 2. Appeal and error

1002-Verdict on con

flicting evidence not disturbed.

Verdict on conflicting evidence and judgment thereon will not be disturbed on ground of insufficiency of evidence.

Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge.

Action by Minnie Zalac against Joseph Barich and wife. From judgment for plaintiff and from order denying motion for new trial, defendants appeal. Affirmed.

J. P. Donnelly, of Havre, for appellants.
E. D. Phelan, of Helena, for respondent.

COOPER, J. The complaint alleges that between the 19th day of February, 1910, and the 19th of June, 1916, at the special instance and request of defendants, the plaintiff rendered services to them, as cook, housekeeper, and servant girl, of the reasonable value of $25 per month, for which they agreed to pay a reasonable wage, and that only $334 of the $1,566 alleged to be due plaintiff has ever been paid.

The answer consists of a general denial, supplemented by affirmative allegations to the effect that, in consideration for the services rendered by plaintiff, defendants agreed to and did furnish plaintiff with a home, and treated her and cared for her as their own child; that the plaintiff was informed and understood that, if she desired to work for wages elsewhere, she was at liberty to do so, because defendants could not afford to pay her any wages or salary, but that plaintiff preferred to remain with defendants and enjoy the benefits of the home so provided, and that, in addition to the home, "defendants expended a sum of money in so providing a home, rendered entertainment and education for said plaintiff, vastly in excess of

(193 P.)

her to the verdict she received at the hands of the jury, and that the defendants had failed to overcome the preponderance of the evidence found by the jury to exist in favor of the plaintiff.

[1, 2] From a careful review of the testi

the sum demanded by plaintiff in her complaint." Upon these issues a trial was had, resulting in a verdict for plaintiff in the sum of $750. This appeal is from the judgment and an order denying defendants a new trial. Refusal of the trial court to grant defendants a new trial is the principal ground urg-mony given to support the respective theories ed upon this appeal, the contention of appellants being that the proof offered by the plaintiff failed to establish the date upon which the agreement was made, and that, for that reason, the verdict is based upon guesswork, conjecture, and speculation, and ought not to be permitted to stand.

urged by the parties, it is apparent to us that there was a substantial conflict in it, and enough competent proof to uphold the judgment awarded the plaintiff. As has been many times announced by this court in cases presenting the condition now confronting us, the verdict of the jury and the judgment of the district court, attacked upon the ground that the evidence was insufficient to justify them, cannot be disturbed. Baxter v. Hamilton, 20 Mont. 334, 51 Pac. 265.

So far as the overruling of the motion for a new trial is concerned, it is only necessary to say that the evidence given by plaintiff was sufficient to convince the jury of the truth of the allegations of her complaint, to No error is assigned touching the compethe effect that she came to the home of the tency of the proof admitted upon the trial, defendants at East Helena from Austria, in nor in the instructions given. The jury and February, 1910; that she lived with them the trial court had before them the witnessfor a period of nearly seven years, during es, observed their demeanor upon the stand, all of which time she performed the usual the probability of the truth of their respechousehold duties, including washing dishes, tive stories, and upon the whole case have doing the family washing, scrubbing the accepted the plaintiff's account of the transfloors, milking the cows, delivering milk in action. Appellants have failed to convince the neighborhood, assisting Mrs. Barich, the us that a different result ought to have been wife of her codefendant, Joseph Barich, in reached. We are therefore constrained to the cooking and other work necessary to car-affirm the order and judgment appealed from. ry on a boarding house, and during the first Affirmed. year after her arrival at the home of defendants assisting them in the building of a house adjoining their residènce; for all of which the defendants agreed to pay a reasonable wage. It is not disputed that the defendants sent plaintiff a ticket upon which to travel from Austria to their home at East PHILBRICK v. AMERICAN BANK & TRUST Helena, at a cost to them of $104, gave her as spending money about $30, and provided wearing apparel at a cost of about $200, during the period covered by the pleadings, amounting in all to about $334, between the time she arrived at the home of defendants from Austria and left it to get married.

On behalf of defendants evidence was adduced in support of the affirmative allegations of their answer. They themselves testified that they never promised or agreed to pay plaintiff any wages, but that it was agreed between them that plaintiff should make her home with defendants and live with them as long as it was mutually agreeable, without any compensation other than the benefits afforded by the home so provided her, including her clothing, entertainment, and education, the value of which was far in excess of the amount. demanded by her as wages, and that, as a consequence thereof, defendants owed her nothing.

The district court, in passing upon the sufficiency of the evidence to sustain the verdict, refused to grant defendants a new trial, and thereby signified its conclusion that the plaintiff had made out a case entitling

BRANTLY, C. J., and HURLY, J., con

cur.

CO. et al.

(58 Mont. 376)

STATE ex rel. PHILBRICK V. DISTRICT
COURT OF EIGHTH JUDICIAL
DIST. et al.

(Nos. 4566, 4664.)

(Supreme Court of Montana. Oct. 18, 1920.) 1. Courts 201-District court has jurisdiction to determine when testamentary trust has accomplished purpose.

Rev. Codes, § 7698, confers jurisdiction on the district court, when sitting as a probate court, to determine whether the purpose of a testamentary trust has been accomplished, wherever it has acquired jurisdiction over the administration of the estate by probate of a will, which has created a trust to continue after final distribution.

2. Courts 201-Jurisdiction of district court in exercising probate powers special and limited.

The jurisdiction of the district court, when

exercising its probate powers, is special and limited, depending on the provisions of the code; but by implication it also possesses all the powers incidentally necessary to an effective exercise of the powers expressly conferred.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

3. Equity43-Equity jurisdiction depends on of the testator's last sickness, burial, etc., inadequacy of legal remedy. the will provided:

Appeal from District Court, Cascade Coun- Company of Great Falls, a Montana corpoty; H. H. Ewing, Judge,

I. W. Church and Fletcher Maddox, both that they are cousins of plaintiff; that they of Great Falls, amici curiæ.

(193 P.)

rer to the complaint. The other defendants were consolidated, heard, and submitted tofailed to appear, and default was entered gether. In addition to argument on the against them. Thereafter, on August 1, 1919, merits, counsel presented these questions of counsel for the trustee by stipulation with procedure: Whether, in view of the provicounsel for the plaintiff withdrew the de- sions of section 7698, the district court had murrer and permitted the default of this jurisdiction to entertain an independent acdefendant to be entered. Counsel then ap- tion to terminate the trust; whether an applied to the court for the relief demanded in peal lies from the order dismissing the pethe complaint. After consideration, the tition in the probate proceeding; and whethcourt held that the facts stated were not suf- er this court for this reason should not have ficient to justify any relief, and, plaintiff de- refused to entertain the original proceeding. clining to amend, rendered judgment dis- [1] Section 7698 of the Revised Codes, in missing the action. From this judgment, our opinion, confers jurisdiction upon the plaintiff appealed to this court. district court, when sitting as a probate In the meantime, pending the appeal, the court, to determine whether the purpose of plaintiff, concluding that she had mistaken a testamentary trust has been accomplished, her remedy in bringing the action, filed a wherever it has acquired jurisdiction over petition in the district court in the probate the administration of the estate by probate proceeding, entitled "In the Matter of the of the will, which has created a trust to Estate of Samuel C. Philbrick, Deceased," continue after final distribution. It declares seeking the desired relief under the provi- | that— sions of section 7698 of the Revised Codes. The trustee, being ordered by citation to submit his final account and to show cause why the plaintiff should not have the relief demanded, answered the petition, alleging that the facts stated therein presented the same question as that presented in the action which was pending on appeal, and asked that it be dismissed. The court sustained this contention and dismissed the petition. Thereupon the plaintiff, as relatrix, institut-ofed an original proceeding in this court, asking it for an order, under its supervisory jurisdiction, annulling the order of the district court dismissing the petition, and commanding that court to grant the relief demanded.

As reason why this court should assume original jurisdiction it is alleged in the petition that relatrix is advanced in years, and is dependent for food, clothing, and shelter upon the property devised to her under the will of her brother; that by reason of the constantly increasing cost of living, and the decrease of income yielded by the trust estate, it has become impossible for her to support, clothe, and shelter herself upon the income; and that it has become necessary for this reason that she have the whole of the estate delivered to her free from the trust, in order that she may make use of it to meet her necessities.

In response to an order issued by this court requiring the respondent court and its judge to show cause why the relatrix should not be granted relief, counsel appearing in their behalf filed a motion to quash the order to show cause and dismiss the proceeding, on the ground that the facts stated in the petition are not sufficient to warrant relief. The proceeding was set for final hearing on September 17 upon the question raised by the motion. The appeal in the equity case was set for hearing on the following day. At the hearing of the former, it being agreeable to counsel, the two causes

"Where any trust has been created by or under any will to continue after distribution, the district court shall not lose jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trust."

It declares further that any such trustee may, from time to time during the continuance of the trust, or at the termination there

"render and pray for the settlement of his accounts as such trustee before the district court in which the will was probated and in the manner provided for the settlement of the accounts of executors and administrators."

It also declares that

"Any such trustee may, in the discretion of the court or judge, upon application of any beneficiary of the trust, be ordered to appear and render his account after being cited by service of citation as provided for the service of summons in civil cases."

[2] The jurisdiction of the district court, when exercising its probate powers, is special and limited, depending upon the provisions of the Code. By implication it also possesses all the powers incidentally necessary to an effective exercise of the powers expressly conferred. In re Davis Estate, 27 Mont. 490, 71 Pac. 757; In re Dolenty Estate, 53 Mont. 33, 161 Pac. 524. Since the statute expressly declares that the court retains jurisdiction, after distribution, to examine and settle the accounts of the trustee, not only during the continuance of the trust, but also at its termination, and that the trustee may be compelled by it to make an accounting upon the application of any beneficiary under the trust, it seems to us that by necessary implication it confers the power, also, to ascertain when the purpose of the trust has been accomplished, and thereupon to declare it terminated, and to direct the trust

fund and property to be delivered to the, clear that the statute (Rev. Codes, § 7098) person or persons entitled to them. Other- authorizes an appeal from such an order. wise, in every case, though the trustee has rendered his final account, and it has been found correct and the purpose of the trust has been accomplished, an action would be necessary to terminate the trust and discharge the trustee.