the matter of instructing the jury. Of the instructions asked by the defendant and refused, those which were correct were given in other parts of the charge.

6. There are a great many exceptions in the record to the rulings of the court upon the admissibility of evidence, but we see no material error committed by the court in such rulings.

7. The most serious point made by appellant is that during the progress of the trial the court unnecessarily and unjustly censured the attorney of appellant, and applied to his conduct of the case improper adverse criticism, and thus prejudiced the jury against the attorney, and therefore against appellant. This contention has certainly cme plausible reasons for its support, but after a full consideration of the whole matter we do not think that what passed from the court to appellant's counsel was of sufficient impropriety or importance to warrant us in setting aside the verdict. The great difficulty with an appellate court in determining such a question is to learn from a dry, printed transcript the true character and quality of the thing complained of. It is not photographed before us, and we cannot know the tone, the emphasis, the expression, or the manner with which the thing was said or done. The language complained of related mainly to what the court considered an unnecessary consumption of time by appellant's counsel in examining and cross-examining witnesses, making objections, etc. The court, no doubt, might have confined counsel within proper limits of time in conducting the defense by the use of less harsh language; but that nice mingling of the fortiter in re and the suaviter in modo which would enable a presiding judge to always keep in hand the orderly conduct of a trial without an occasional jerk is not to be often expected. Counsel for appellant seems to have been entirely respectful in his manner to the court, but his repetition of questions, many of which were pointless, was a useless waste of time. Some of the witnesses for the people had been examined on a previous trial of another person for the same offense, and upon a preliminary examination before a magistrate, and counsel for appellant asked them a great many questions about what they had testified on those former occasions. This was proper, of course, if there had been an apparent intent to show a difference between their former and their present testimony; but most of the questions were whether or not they had said things on the former occasions which were exactly the same things to which they had just then presently testified. All this was no doubt trying to the patience of the court; and, while some of the language used by the court to counsel is not at all to be commended, we do not think that, considering the whole case, the appellant was prejudiced or injured thereby. There are no other points necessary to be

considered. The judgment and order ap pealed from are affirmed.

We concur: GAROUTTE, J.; PATERSON. J.; HARRISON, J.; FITZGERALD, J.; DE HAVEN, J.

HOVEY V. WALBANK et al. (No. 18,187.) (Supreme Court of California. Oct. 28, 1893) WILLS-CONSTRUCTION-RIGHTS OF LEGATEES.

Under a will giving to testator's wife all his property to expend as she may see fit, with full power to dispose of any or all of it as she may deem proper, and with power to convey all interest which testator might have in his property at his death, a provision directing that, after the death of the wife, certain legacies be paid from any money remaining to testator's estate, gives the legatees named no rights in the property as against grantees of the testator's wife.

Department 2. Appeal from superior court, Siskiyou county; J. S. Beard, Judge.

Action by Frank Hovey, as administrator with the will annexed of the estate of Charles Breton, deceased, against Edward M. Walbank and another, to recover property which had belonged to testator's estate. Judgment for defendants. Plaintiff appeals. Affirmed. L. F. Coburn, for appellant. Gills & Tapscott, for respondents.

MCFARLAND, J. Charles Breton died on the 4th of August, 1890, leaving a will of which the following are the material parts necessary to be here considered: "First. I direct that all my just debts, the expenses of my last sickness, and my funeral expenses be paid from the first money that shall come to the hands of my executrix hereinafter named. Secondly. I will, bequeath, and devise to my beloved wife, Bertha Bre ton, all of the remainder of my property. real, personal, and mixed, and wherever the same may be situated, to have, use, and expend as she may see fit during her lifetime, with full power to sell, transfer, or dispose of the whole or any portion thereof. as she may deem proper, hereby granting. giving, and devising to her full power to convey a fee-simple title to any of the real es tate which I may own at the time of my death, and to convey all the right, title, and interest which I may have at the time of my death, of, in, and to all the property which may be hereby willed, bequeathed, and devised to her. After the death of my said wife, I direct that from any money remaining to my estate the following named legacies be paid." Then follow several legacies to different persons; and by the will his said wife, Bertha Breton, was made executrix without bonds. The widow, the said Bertha Breton, qualified as executrix, and such proceedings in the administration of the estate were duly had that on October 31 1891, a final decree of distribution of the

estate of Charles Breton, deceased, was regularly entered in the superior court in which said administration was pending, distributing said estate in the words of said will; and on November 7, 1891, a further decree was entered discharging the said Bertha Breton from all further liability as executrix, and adjudging that the estate was "fully distributed and the trust settled and closed." The said Bertha Breton took possession of all the property under said decree of distribution; and afterwards, on February 21, 1892, she made, executed, acknowledged, and delivered to the defendants, Edward M. Walbank and William Bisbee, an instrument in writing, by which she conveyed and transferred to said defendants all the property mentioned in said decree of distribution, and in said will remaining undisposed of by her at that time; and the said defendants thereupon immediately took possession of all of said property. This instrument provided that the defendants should execute certain trusts therein expressly declared. Afterwards the said Bertha Breton died, and the plaintiff herein, who was public administrator, procured himself to be appointed administrator with the will annexed of the estate of said Charles Breton, deceased. As such administrator he commenced this action against said defendants, Walbank and Bisbee, to recover possession of all the property in their hands which had belonged to said Charles Breton, deceased, at the time of his death. The defendants answered, claining ownership of said property under said conveyance from said Bertha Breton. At the trial-the evidence and admissions of the parties having shown substantially the above facts-the court granted a nonsuit, and entered judgment for the defendants. From the judgment, plaintiff appeals.

Respondents contend, in the first place, that the judgment should be affirmed without reference to the construction of the will, because it appears that the estate of Charles Breton was fully and finally distributed, and the administration closed; that there was nothing further to be administered on in said estate, and that, if those who claim to be legatees under the will after the death of Bertha Breton have any rights in the preises, such rights could be asserted only in actions brought directly by said legatees against the defendants We are disposed to think that respondents are right in this contention, but we do not deem it necessary to definitely determine this point, because, in our opinion, said legatees, under the facts, took no interest in any of said property. It is not necessary to determine accurately and to a nicety into what category of estates the interest which Bertha Breton took under the will should be placed. Under some authorities such an absolute power of disposition of property as this will contains is held to substantially and necessarily create an estate in fee, notwithstanding the

fact that such a phrase as "lifetime" may also have been used. In Ramsdell v. Ramsdell, 21 Me. 288, the court say: "If estates be devised to a person with or without words of inheritance, and with an absolute right to sell and appropriate the proceeds at pleasure to his own use, it is not perceived how there can be a vested interest imparted to another in the same estate or property. Such full dominion in the devisee or legatee is inconsistent with and destructive of all other rights." But, however that may be, it is certainly true that where, in such a case, the devisee has actually disposed of all the property, there cannot afterwards be "a vested interest imparted to another" therein. In none of the cases cited by appellant was the language of the will the same as that used in the will here in question. In the present case the devisee was not confined by the words of the will to the mere use of the property during her life. She was not limited merely to such disposition or such change of form of the property as would enable her to better enjoy it. It was given to her to "expend as she may see fit," and "with full power to sell, transfer, or dispose of the whole, or any portion thereof, as she may deem proper;" and she was given "full power to convey a fee-simple title to any of the real estate," and "to convey all the right, title, and interest which I may have at the time of my death, of, in, and to all the property" mentioned in the will. It is admitted that by the said instrument in writing, executed and delivered to the defendants, she did in express terms convey, transfer, and dispose of all of said property to said defendants, and, having done so, there was not "any money remaining" to which the subsequent legacies named in the will could attach. The judgment and orders appealed from are affirmed.

1. Money received by a creditor of an insolvent in consideration of not bidding at a judicial sale of insolvent's property cannot be recovered by the assignee in insolvency in an action for its embezzlement as part of the insolvent estate, under Insolvent Act 1880, § 23.

2. The fact that a creditor delayed the appointment of an assignee until the remedy by vacating the sale became inadequate could not give rise to such action, since it could not have been maintained if the assignee had been appointed without delay.

3. The creditor who received money from the purchaser at the sale for not bidding did not become a trustee of the money for insolvent's creditors, as the money did not belong to the insolvent or his estate.

Commissioners' decision.

Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge.

Action by E. R. Crawford, as assignee in insolvency of W. W. Granger, against L. J. Maddux, the Jacob Unna Company, Reddington & Co., Alfred Greenebaum & Co., Whittier, Fuller & Co., and Yates & Co. for the embezzlement of money of the insolvent debtor. From a judgment for plaintiff, and an order denying a motion for a new trial, defendants appeal. Reversed.

Chickering, Thomas & Gregory, Joseph Kirk, and L. J. Maddux, (Warren Olney, of counsel,) for appellants. Dennett & Need ham, for respondent.

HAYNES, C. On September 26, 1889, one Goldzier obtained a judgment in a justice's court against Granger, the owner of a drug store. An execution was issued thereon, and on October 15, 1889, the goods were sold by the constable under the execution of J. W. Husband and G. S. Turner for $196, the amount of said judgment and costs. On October 1, 1889, the Jacob Unna Company, Reddington & Co., Alfred Greenebaum & Co., Whittier, Fuller & Co., and Yates & Co., (appellants here,) creditors of Granger, filed a petition in the superior court praying that Granger be adjudged an insolvent debtor. The record does not disclose at what time the order to show cause was made returnable, nor when it was served upon Granger, but on December 7, 1889, he was adjudged an insolvent debtor, and on August 15, 1890, Crawford, the plaintiff in this action, was elected assignee.

It was further alleged in the complaint, and the court found, that one A. C. Bonnell was the agent of the appellants, and as such agent agreed with Husband and Turner, who desired to purchase the store at said execution sale, that he would not bid at such sale in consideration that they, said Husband and Turner, would pay appellants the sum of $704; that Husband and Turner had represented to Bonnell that they were willing to pay $900 for the store; "that thereafter the said Husband and Turner did bid in the said store and stock thereof for the sum of $196, and the said Bonnell did refrain from bidding at said execution sale," and that thereafter Husband and Turner paid to defendant Maddux said sum of $704; that Maddux transferred the money to the Board of Trade of San Francisco, who paid the same to defendants, the said petitioning creditors, and that they "received the said sum of $704, belonging to the insolvent estate of said W. W. Granger, before the assignment therein, and, having notice of the commencement of the proceedings in insolvency, converted and appropriated the same to their own use, and refused to deliver the same when demanded by the assignee of the said insolvent estate, the plaintiff herein."

The court further found that the value of the store was $900; that the constable who made the sale had no knowledge of said agreement; that Husband and Turner had no knowledge that said $704 was not to be paid to the assignee of Granger, and that Maddux was an innocent agent in the transaction. Judgment was rendered against appellants for the sum of $1,408, with interest from October 15, 1889, amounting to $213.54, and costs of suit. This appeal is from said judgment and an order denying defendants' motion for a new trial.

The action is based upon section 23 of the insolvent act of 1880, which is as follows: "If any person, before the assignment is made, having notice of the commencement of proceedings in insolvency, embezzles or disposes of any of the moneys, goods, chattels or effects of the insolvent, he is charge able therewith, and liable to an action by the assignee for double the value of the property so embezzled or disposed of, to be recovered for the benefit of the estate." By section 61 of the same act the filing of a petition by or against the debtor is declared to be the commencement of proceedings in insolvency under the act.

The judgment against appellants is based upon the theory that the property sold by the constable was of the value of $900; that Husband and Turner were willing to pay that amount for it; that the agreement be tween them and Bonnell, as the agent of appellants, prevented competition; that the money paid to appellants after the sale was the money of the insolvent's estate, and that its appropriation by them was an embezzlement of the money of Granger, against whom proceedings in insolvency had been commenced.

It is apparent that, if the money so paid by Husband and Turner was not the money of Granger, the judgment is wrong., Ap pellants have not at any time had possession or control of the goods under execution. The agreement in question was against public policy, and wholly void. If Husband and Turner had refused to pay the money, Bonnell could not have compelled payment; or if, after payment, the sale had been set aside because of the agreement, Husband and Turner could not have compelled Bonnell or his principals to repay it. Packard v. Bird, 40 Cal. 378; Freem. Ex'ns, § 297, and cases there cited. The payment was, therefore, voluntary, and the agreement was made by Husband and Turner for their real or supposed personal advantage. The finding of the court that they did not know that the money was not to go to the creditors of Granger does not in any way affect the question. The illegality and wrong of the agreement was the prevention of competition at the sale, and that illegality and wrong would have been equally great and equally capable of redress by setting aside the sale if the

Another conveyance was made by Page to Albee and Hogins of a tract including the land theretofore conveyed to the Albees and other lands. This conveyance was intended, as Albee testified, to take in odds and ends. The land described in this deed was conveyed to Albee by Hogins. November 17, 1880, Albee conveyed to Hogins a tract of land described as follows: "Commencing at the northwest corner of the Good Templars' Hall Association lot on Depot street, and running along said Depot street, about northwest, about fifty feet; thence nearly westerly about one hundred and fifty feet, more or less, to Page's line; thence fifty feet in a southerly direction; and thence one hundred and fifty feet, more or less, to the place of beginning." February 23, 1883, Albee conveyed to defendant Boggs a tract of land described as follows: "Commencing on Depot street in said town of Newcastle, at the northeast corner of A. N. Page's lot; thence westerly, along the south line of said Page's lot, a distance of 90 feet; thence south, 20 feet; thence west, 60 feet, more or less; thence south, 50 feet; thence east, a distance of 150 feet, more or less, to said Depot street; thence north along said Depot street, 70 feet, to the place of beginning,-together with the dwelling house thereon, heretofore known as the residence of the party of the first part." In none of the deeds from Page, under which Albee claimed, were any landmarks called for except Abbot's lot, Madden's lot, and Depot street. North of Madden's lot, no landmark was called for except Depot street. The distances are therefore controlling. There was nothing to do, then, but to find the starting point, and measure northerly along the line of Depot street. There was no chance, under such circumstances, for surplus land. It does not appear that any landmarks were set after the deeds were made which were agreed upon by the parties. The land was not immediately inclosed. In 1878 a fence was built in front of the property, and according to that, as I understand the testimony, there was a surplus of 74 inches only. Still, a witness, Elmer Albee, was allowed to testify, against the objection of defendant, that he assisted Mr. Page in measuring the 100 feet conveyed to Mrs. Albee, and that, "as nigh" as he could guess, it was 5 or 6 feet over. The only purpose of this testimony was to show that more than 100 feet passed by the deed to Mrs. Albee. It was clearly incompetent for that purpose. If they measured 6 feet over the 100 feet, that did not pass title to anything more than was described in the deed. Mrs. Hogins claims as heir to Daniel Hogins, and under a deed from Albee dated June 23, 1890. Apparently, at that time, Albee had no land to convey, and it is likely the conclusion of the court was based upon the testimony of Elmer Albee as to the surplus six feet. Oral evidence would have been competent to apply the description to

the land. For this purpose it might have been shown where H. H. Smith's lot was, that it was the same property afterwards known as the "Madden" or "Good Templars' " lot, and where Depot street was. These facts appearing, there were no others which could have thrown light upon the matter. I think the judgment and order should be reversed, and a new trial had.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and a new trial ordered.

RAKER v. BUCHER, Sheriff. (No. 18,015.)1 (Supreme Court of California. Nov. 6, 1893.) SHERIFFS AND CONSTABLES-DUTIES - FALSE RETURN-SUFFICIENCY OF EVIDENCE-PLEADINGANSWER-CORRECTION OF CLERICAL ERROR

1. Plaintiff's motion for judgment because the answer is evasive is properly denied, where plaintiff's objection to the answer may be overcome by the correction of an evident clerical error which the context shows to be the use of "when" for "where."

2. In an action against a sheriff for the penalty for selling property without notice, where the truth of the sheriff's return was in issue, undisputed evidence that the sheriff had admitted its falsity was sufficient to overcome the prima facie effect which the law attached to such return.

Department 2. Appeal from superior court, Modoc county; G. G. Clough, Judge.

Action by Raker against Bucher, as sheriff, for statutory penalty for failure to give the required notice of an execution sale, and for damages. Judgment for defendant Plaintiff appeals. Reversed.

Spencer & Raker and Clarence A. Raker, for appellant. D. W. Jenks, for respondent.

DE HAVEN, J. The defendant, as sheriff, sold certain real property owned by plaintiff under an execution issued upon a judg ment recovered against him. The complaint in this action, which is verified, alleges that this sale was made by defendant without giving the notice required by section 692 of the Code of Civil Procedure, and the plaintiff demands a judgment against the defendant for the statutory penalty of $500 given by section 693 of the Code of Civil Procedure against an officer for selling property without legal notice, and also for the actual damages alleged to have been sustained by him by reason of such wrongful sale. The defendant answered, and the action was tried without a jury, the court finding, in substance, that the defendant gave the notice required by law before making the sale complained of, and judgment was thereupon entered in favor of defendant. Plaintiff appeals.

1 Rehearing denied. See 34 Pac. Rep. $49.