son by a former wife, Everett Davie. The widow was appointed administratrix, and the appellant, John T. Davie, was appointed guardian of the minor. The administratrix filed her inventory, but failed to include therein certain real estate which it is claimed by appellant the decedent owned at the time of his death. Upon appellant's petition, citation was issued requiring respondent to show cause why said real estate should not be included in the inventory. To this an answer was made, whereupon a hearing was had, which resulted in findings and conclusions and a decree in favor of the widow. From said decree this appeal is prosecuted.

The evidence shows that, after a protracted illness and some four or five days before his death, said William Davie and his wife executed a contract for the sale of said real estate to one Tipton, and at the same time executed a deed of conveyance of said real estate to said Tipton, which deed was to be held in escrow until the payments called for by the contract should be made. Negotiations leading up to the sale had been pending several months. The contract and deed appear to have been prepared by one Boyd, who was a partner in the real estate business with Tipton, and who was present when the papers were signed and acknowledged. In regard to the transaction, Mr. Boyd, among other things, testified: "After the contract and deed were executed, I asked Mr. Davie what was to be done with the papers, to which Mr. Davie replied: 'It is hers. I will give them to her. She will come down and place them in escrow in her name, so that she can handle it.' In the course of the conversation he stated: 'If anything happens to me, it will leave the widow in pretty good shape. It will leave her a home." It appears that Mrs. Davie placed the papers in escrow in accordance with said suggestions of Mr. Davie. The latter had signed the papers while in bed and quite sick; and lived but four or five days thereafter. Another witness, one Johnson, a notary public, who was present when Mr. Davie signed these papers, and who took the acknowledgment of Davie and wife, testified, among other things, as follows: "He made the remark that if anything should happen to him-he said: 'My widow' or 'my wife will have a home.'" Mrs. Davie was upon the witness stand and testified to the papers being signed. and was asked: "At that time what was done with the papers? Answer: They were handed to me at that time, that day. It was on the afternoon of the 28th of March, and the next day I took them up and had them put in escrow, as I was told to do." She was asked as to what was said at the time, but, objection being made, she was not permitted to state.

It is urged by the appellant that the evidence is not sufficient to establish a gift; that there is no sufficient evidence of a delivery; that the attempt to make a gift was

the result of undue influence; and that it was an attempt to make a gift of real estate, which could not be done orally. We think, under all the circumstances of this case, that the evidence shows an intention of the decedent to make a gift causa mortis. No creditor is complaining. No one appears to be interested except this minor child. Other property was left by the decedent. There are no circumstances shown in connection with the case to cast thereupon any suspicion of undue influence, fraud, or misrepresentation. It would seem to be but a natural thing for a man in the expectation of near approaching death to make a gift of this kind to his wife. In Phinney v. State, 36, Wash. 236, 241, 78 Pac. 928, GS L. R. A. 119. this court said: "It is now conceded by all modern authority that every species of personal property capable of delivery, either constructive or actual, may be the subject of gift mortis causa." In the same case, it was said, touching the question of delivery: "But, in the very nature of business transactions of this kind, this delivery must frequently be constructive. The nature and circumstances surrounding this case necessitated a constructive delivery. The subject of the gift was not available. So that, in justice and common sense, it seems to us that the delivery was complete, and that the will of the deceased ought not to be thwarted by any technical construction or definition of delivery." This language is applicable here. Decedent was giving the proceeds from the sale of the land to be paid upon, and according to the terms of, the contract. There was no way of making a delivery except by placing in her possession the written contract and escrow deed, which was done. We think this was sufficient.

With the contention that this was real estate, and could not be legally made the subject of an oral gift, we cannot agree. DeIcedent and his wife had made a contract to sell this property. They had executed a deed to be held in escrow, to be delivered when the purchaser should complete his payments as called for in said contract. Having done this, the interest in the real estate became such as is ordinarily treated as personal property in matters of administration. He was virtually giving her the proceeds coming from the sale. In the case of Griggs Land Co. v. Smith (Wash.) 89 Pac. 477, this court said: "But in the case at bar the owner of the land had made a contract to convey, and he could leave to his heirs only the interest then owned which was virtually but the right to the proceeds; the holder of the contract being entitled to have the land conveyed to him upon paying the purchase price. In such cases the courts have treated the property for purposes of administration, as personal rather than real. A recognition of this doctrine may be found in Hyde v. Heller, 10 Wash. 586, 39 Pac. 249." See, also, Gibson v. Slater, 42 Wash. 347, 84 Pac.

648; Noble v. Whitten, 38 Wash. 262, 80 Pac. 451; Guinan's Appeal, 70 Conn. 342, 39 Atl. 482; 26 Am. & Eng. Enc. of Law (2d Ed.) 721-726; 14 Am. & Eng. Enc. of Law (2d Ed.) 1063, 1068; 7 Am. & Eng. Enc. of Law (2d Ed.) p. 471; 9 Cyc. 826; 7 Current Law, p. 1881.

We think the decree of the trial court should be affirmed; and it is so ordered.

A city ordinance, general in its terms, and prohibiting playing at any game of chance played with dice for money or representatives of money, was broad enough to include a dice gambling game called "Twenty-six," for the purpose of winning money, cigars, and articles representative of money by chance, although the game was not enumerated in the ordinance.

Appeal from Superior Court, King County; A. W. Frater, Judge.

Ray MacDonald was convicted by the police judge of the city of Seattle of violating an ordinance against gaming, and appealed to the superior court. From a judgment of the latter court quashing the conviction, the city appeals. Reversed.

Ellis De Bruler, for appellant. Southard & Shipley, for respondent.

Morris,

FULLERTON, J. On November 17, 1899, the city of Seattle passed an ordinance relating to misdemeanors, section 10 of which reads as follows: "Whoever deals, plays at, wagers anything of value on, or in any manner takes part in, or whoever carries on or causes to be opened, or who conducts, sets up, keeps or exhibits any game of faro, monte, roulette, lans-quenette, rouge et noir, rondo, poker, draw-poker, keno or E. O. or roulette table or shuffle board, or fantan, or any gaming table or game whatever, for the purpose of gambling or any game of chance for the purpose of winning or securing money by chance, played with cards, dice or any device whatever, kind or nature, whether or not of the kind, character or nature herein mentioned, for money, checks, credit or any representative of value whatever, or whoever shall have in his possession to be used for the purpose of gambling or winning money by chance any gaming device whatever, shall be punished by a fine of not more than five

hundred dollars, or by imprisonment not exceeding six months, or by both." On March 7, 1903, the Legislature made it felony to maintain a gambling resort; the act consisting of one section, which reads as follows: "Section 1. Any person who shall conduct. carry on, open, or cause to be opened, either as owner, proprietor, employé. .or assistant, or in any manner whatever, whether for hire or not, any game of faro, monte, roulette, rouge et noir, lans-quenette, rondo, vingt-un (or twenty-one), poker, draw-poker, brag. bluff, thaw, tan, or any banking or other game played with cards, dice or any other device, or any slot machine, or other gambling device. whether the same be played or operated for money, checks, credits, or any other representative or thing of value, in any house, room, shop, or other building whatsoever, boat, booth, garden or other place, where persons resort for the purpose of playing, dealing or operating any such game, machine or device, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary for the period of not less than one nor more than three years." Laws 1903, p. 63, c. 51. On October 17, 1906, one W. I. Peer made complaint before the police judge of the city of Seattle, charging the respondent with violating the ordinance above quoted by playing at a dice gambling game called "Twenty-six," for the purpose of winning money, cigars, and articles representative of money by chance. The respondent pleaded not guilty to the charge before the police judge, and was tried and convicted and sentenced to pay a fine. The respondent appealed from the judgment of conviction to the superior court. In that court he filed a demurrer to the complaint on the ground, among others, that the facts charged did not constitute a crime. The superior court sustained the demurrer, and entered a judgment quashing the conviction and dismissing the proceeding. The city appeals.

The learned judge of the superior court sustained the demurrer on the ground that the city ordinance on which the complaint was predicated had been superseded by the statute above quoted. He rested his decision on the principle that a municipality, in the absence of express authority conferred upon it by its charter, is without power to enact an ordinance making punishable an act which is made punishable as a criminal offense by the general laws of the state; and held, as a necessary corollary to that rule, that an ordinance making the doing of an act an offense, enacted by virtue of the municipality's general power, is superseded by a general law of the state Legislature fixing and defining a punishment for the same act. There are many cases, representing perhaps the weight of authority, which support the rule followed by the trial judge. This court, however, has adopted the contrary rule. In Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324, we held that the city of Seattle by virtue of certain

provisions contained in its then charter, which have been continued in its present one, authorized it to enact ordinances for the punishment of offenses already made punishable by state laws. This rule is not without well-considered cases in its support, and, as we think it more in consonance with the principles of good government than is the rule followed by the trial judge, we do not feel that it ought to be overruled or modified. We hold, therefore, that the ordinance was not superseded by the general statute quoted.

It is further contended that the judgment must be sustained on the ground that the game the defendant played at is not one prohibited by the ordinance. It is true the game known as "Twenty-six" is not enumerated in the ordinance, but the ordinance is general in its terms, and prohibits a person from playing at any game of chance played with dice for money, or representatives of money, and is broad enough to include the game played at by the respondent.

The judgment appealed from is reversed, and the cause remanded, with instructions to reinstate the case and overrule the demurrer.

HADLEY, C. J., and RUDKIN, CROW, ROOT, DUNBAR, and MOUNT, JJ., concur.

(47 Wash. 235)

STATE ex rel. ATKINSON, Atty. Gen., v.

CO-OPERATIVE HOME BUILDERS. (Supreme Court of Washington. Oct. 7, 1907.) 1. APPEAL-REVIEW-QUESTIONS CONSIDERED -MATTERS NOT AFFECTING RESULT.

The denial of a motion to strike certain interrogatories and the answers thereto will not be considered on appeal where the granting of the motion could not have affected the result.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4033.]

2. BUILDING AND LOAN ASSOCIATIONS-STATUTES-LIABILITY.

A foreign corporation issuing contracts which provide for small monthly payments by contract holders, which produce the home maturity fund from which loans are made to these rontributors for the purpose of building homes, making improvements and discharging incumbrances on real estate, is a building, loan, and saving association, within the meaning of Laws 1890, p. 62, c. 4, § 22. which declares that the name "building and loan association" shall include all corporations doing a saving and loan or investment business on the building society plan, whether neutral or otherwise, and whether issuing certificates of stock which mature at a time fixed in advance or not, though the persons with whom it contracts and to whom loans are made are not members of the corporation; the statute imposing no penalty for noncompliance therewith, and Laws 1903, p. 219, c. 116, § 5, permitting building and loan associations to loan to nonmembers.

3. SAME.

A foreign corporation which is a building. loan, and saving association, within the meaning of Laws 1890, p. 56, c. 4. requiring such associations to perform certain acts, must comply with the provisions of the act or cease operations in the state.

Action by the state of Washington, on the relation of John D. Atkinson, Atty. Gen.. against the Co-Operative Home Builders, a corporation, to enjoin the defendant from transacting a saving, loan, and investment business on the building society plan within the state. From a judgment according to the prayer of the complaint, defendant appeals. Affirmed.

Harold Preston and F. R. Burch, for appellants. John D. Atkinson, J. B. Alexauder, and F. C. Kapp, for respondent.

RUDKIN, J. This action was instituted by the state, on the relation of the Attorney General, to enjoin the defendant from transacting a saving, loan, and investment business on the building society plan within the state. and for other purposes. Judgment was given below according to the prayer of the complaint, and the defendant has appealed therefrom.

A motion was interposed to strike certain interrogatories propounded to the appellant, and the ruling of the court denying this motion is the first error assigned. The appellant contends that the action was instituted to enforce a penalty or forfeiture, and that in such cases a party will not be compelled to make discovery. The principal question in the case was the nature of the business transacted by the appellant in this state, and, inasmuch as that sufficiently appeared from other competent evidence, the striking of the interrogatories and the answers thereto would not change the result. We therefore deem it unnecessary to discuss the nature of the proceedings or the ruling of the court on the motion to strike. It is admitted that the appellant is a foreign corporation organized and existing under the general laws of the state of California, and that it has not complied with the provisions of the act of March 28, 1890, entitled, "An act relating to building, loan and saving associations doing a general business." Laws 1890, p. 56, c. 4. If the ap pellant is a corporation, society, organization, or association, doing a saving, loan, or investment business on the building society plan, whether neutral or otherwise, and whether issuing certificates of stock which mature at a fixed time or not, as defined by section 22 of the building and loan association act, the judgment should be affirmed, but otherwise it must be reversed. The generally accepted definition of a building and loan association is the following: "Sec. 2. Definition of Building Association. The building association as now existing is a private corporation, designed for the accumulation by the members of their money by periodical payments into its treasury, to be invested

from time to time in loans to the members upon real estate for home purposes, the borrowing members paying interest and a pre

other members, and continuing their fixed

periodical installments in addition, all of which payments, together with the nonborrower's payments, including fines for failure to pay such fixed installments, forfeitures for such continued failure of such payments, fees for transferring stock, membership fees required upon the entrance of the member into the society, and such other revenues, go into the common fund until such time as that the installment, payments, and profits aggregate the face value of all the shares in the association, when the assets, after payment of expenses and losses are prorated among all members, which in legal effect, cancels the borrower's debt, and gives the nonborrower the amount of his stock." Thompson on Building Associations. p. 2. The nature of the business transacted by the appellant in this state appears from the following provisions of the contract entered into with its patrons or subscribers: "The California, Oregon & Washington Home Builders' Association, a corporation of the state of California, party of the first part, and party of second part, agree, the one with the other, and with all others executing similar mutual co-operative contracts, as follows: The object of this agreement is the acquisition of a home or farm or the discharge of a mortgage by the holder of this contract, he making small monthly payments and co-operating with others, executing similar contracts and to the same purpose. In consideration of the mutual benefits to be derived from the faithful performance of the mutual covenants herein mentioned, by the parties hereto, and the monthly installments to be paid by one to the other, it is agreed by them as follows: (1) The party of the first part shall number, date, and register each contract in this series in numerical order as applications for same are received at its home office, and all benefits accruing under this contract shall be in accordance with said numerical order of registration, provided, however, the party of the first part reserves the right to consolidate one or more series with this one by interpolating half numbers or maturing the same numbers, or set of numbers, in each series, alternately, thereby augmenting the home maturity fund as well as the numbers. (2) The party of the second part shall at the signing of his contract have paid thereon as a registration fee, to the party of the first part, the sum of five dollars ($5.00), and shall also pay thereon a further sum of two dollars and fifty cents ($2.50) each month, on or before the 20th day thereof, two dollars ($2.00) of which sum shall be placed to the credit of the second party, in what shall be hereafter known as the 'Home Maturity Fund.' and said sum of two dollars ($2.00) shall be applied on the installment purchases of homes or to the discharge of mortgages according to the co-operative plan aforesaid: and fifty cents ($0.50) shall be placed to what is herein termed the 'Expense Fund, and shall go to the party of the first part for the

expenses of said association. (3) This contract, if it is the lowest number not then matured, shall be deemed to have matured when, from the continued monthly payments into the home maturity fund on this and like contracts in this series, there shall on the first day of any calendar month have accumulated in the home maturity fund of said association the sum of seventy-five dollars ($75.00), the association having discharged all obligations then due on outstanding matured contracts. As soon as this contract shall have matured, then the holder thereof shall be entitled to an installment sum of seventy-five dollars ($75.00) per month to be applied toward the payment of a home or the discharge of a mortgage for such contract owner, until the sum of one thousand dollars ($1,000.00) shall in this manner be paid, which process shall continue in like manner with each maturing contract. When the sum of one thousand dollars ($1.000.00) shall have been paid for the benefit of the party of the second part, then this contract on the part of the party of the first part shall be performed. When this contract matures as aforesaid, and until the party of the second part shall select and arrange for the purchase of real estate, or to build a house or to discharge a mortgage on a lot, owned by him, the said sum of seventy-five dollars ($75.00) per month shall be kept and accumulated by the party of the first part, and paid out only on a home or mortgage for the said party of the second part. (4) Upon the maturity of this contract, and annually thereafter, the party of the second part shall pay to the party of the first part, the sum of six dollars ($6.00) over and above all other payments herein provided for, which shall go into what shall be hereafter known as the Equalization Fund.' *Equalization Fund.' (5) The said party of the second part shall obtain a complete abstract of title to the property to be purchased, or upon which a building is to be erected, or a mortgage is to be discharged, to be examined by the party of the first part, at the expense of the party of the second part, and if the property, title, and contract of purchase be approved by the party of the first part and the same be ordered purchased by the party of the second part, or the mortgage discharged, the contract of purchase or conveyance shall be made by the party of the first part with the owner of the property, and the party of the first part shall pay on said contract or purchase or conveyance or mortgage for the benefit of said party of the second part the sum of seventy-five dollars ($75.00) per month, as aforesaid, and the party of the second part shall execute a deed of trust or mortgage or a contract giving the party of the first part, or someone they may designate, a lien on said land in such way and kind as the attorney of the party of the first part may determine to be necessary; and, upon maturity of this contract, the party of the second part shall pay to the party of the first part on or before the 20th day of each month,

an additional sum of two dollars and fifty cents ($2.50 a month over and above the two dollars and fifty cents ($2.50) heretofore provided for, or the sum of five dollars ($5.00), fifty cents ($0.50) of which sum shall be paid to said party of the first part for the expense of conducting its business, and the sum of four dollars and fifty cents ($4.50) shall be placed to the credit of the party of the second part in the home maturity fund aforesaid, and shall go to pay off obligations of the party of the first part, for homes purchased or mortgages discharged, by the provisions of this and similar contracts. (6) When the monthly payments of four dollars and fifty cents ($4.50) into the home maturity fund shall aggregate the sum of one thousand dollars ($1,000.00), less the amount the second party has to his credit in the home maturity fund before maturity, and all other conditions of this contract shall have been complied with, then the first party shall convey to said second party, or contract holder, all its interest in said property. (7) This contract may be assigned, upon payment of two dollars ($2.00) to said first party, the consent of said first party having first been obtained in writing."

From the foregoing provisions, it is quite apparent that the general purpose of the appellant and the ordinary building and loan association is identical, viz., the creation of a fund by small periodic payments from which loans may be made to those who are otherwise unable to obtain them because of their inability to give security. Building associations exist in one form or another in nearly all the states. In some they are organized under the general incorporation laws, in others there are a few general statutory provisions in reference to them, while in still others the statutes contain elaborate provisions relating to their formation and the conduct of their business. For these reasons, while the general plan and purpose of all such associations is the same, their methods of transacting business are by no means uniform. Thus some loan to members only, others to nonmembers, some loan for a specific purpose, others for any purpose, some loan to the highest bidder at auction, others at a fixed premium, in some the stock matures at a fixed time in advance, others contra, some are on the terminating plan, while others are permanent, and diverse other features we need not mention. If the general plan and purpose of the appellant is similar to that of the ordinary building and loan association, why does it not fall within the definition of our statute? One reason assigned is that the persons with whom these contracts are entered into and to whom loans are made are not members of the corporation or association. In support of this view Attorney General v. Pitcher, 183 Mass. 513, 67 N. E. 606, is cited. It was there held that a statute forbidding any person. association, or corporation, except certain licensed ones, to transact the business of accumulating the

savings of its members and loaning to them such accumulations, in the manner of a cooperative bank, unless incorporated within the commonwealth for that purpose, was not violated by a corporation whose modus operandi was much the same as that of the appellant. Two reasons were assigned for the decision: First, because the statute was penal and should be strictly construed; and, second, because "the purchasers of these contracts are not members of the association, and their savings are not savings of members, but of holders of individual contracts from the association. They have no voice in the management of the affairs of the association. No money of members of the association is lent to any of its members. The savings of these contractors are not accumulated and lent to them in the manner of a co-operative bank, but the course of dealing is very different from that of any bank." The court added significantly, however: "It may well be said that all the reasons for the enactment of this statute apply with great force to an association transacting business like that of these defendants." We do not consider this case controlling for two reasons: First. The Massachusetts statute imposed a penalty of not more than $1,000 for its violation, and the rule of strict construction obtained, while our statute imposes no penalty on the corporation itself, and this court has uniformly given a liberal construction, in favor of the public, to statutes relating to the formation of domestic corporatious, or to the right of foreign corporations to transact business within the state. State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309. 80 Pac. 462; State ex rel. Gorman v. Nichols, 40 Wash. 437, 82 Pac. 741; State ex rel. Amalgamated Republic Mines Company v. Nichols (decided September 6, 1907), 91 Pac. 632. Second. Our statute permits building and loan associations to loan to nonmembers. Laws 1903, p. 219, § 5. Another line of cases arising under the usury laws is relied on. Our statute provides that "no premium taken for loans, nor amounts charged for expenses, as allowed in this act nor any payments on account of installments of stock made by a borrowing member shall be considered as a repayment on his loan, or shall render such association amenable to the laws relating to usury." Laws 1903, p. 219, § 4. And other states have similar enactments. It has frequently been held under such statutes that associations transacting a business similar to that of appellant are not exempt from usury laws. The reason for the rule is thus stated in Skinner v. Southern Home Builders' & Loan Association, 46 Fla. 547, 35 South. 67: "By the use of the term 'building society plan,' the Legislature must have had reference to some definite plan, and not to whatever scheme under a like name might be devised in the various states or foreign countries, and hence it is not improper to assume the legislators, in the use