in respect to the condition of the promissory notes, and thereupon denied the petition, and the petitioners appealed to the circuit court for that county, which reversed the order of the county court and remanded the cause, with directions to order the filing of a final account, in default of which to remove the administrator, and he appeals from such decree to this court.

The transcript does not contain any testimony, and the defendant's counsel state in their brief that none was taken in either court. The proceedings in the county court, when exercising jurisdiction in probate matters, are required to be in writing, and, though no particular pleadings or forms are prescribed, the practice is in the nature of a suit in equity as distinguished from an action at law. B. & C. Comp. § 1100. Upon an appeal from a decree in equity given in any court, the suit must be tried upon the transcript and evidence accompanying it. Id. § 555. If no evidence is brought up in such a case, the only question to be considered is whether or not the pleadings are sufficient to uphold the decree. Howe v. Patterson, 5 Or. 353; Wyatt v. Wyatt, 31 Or. 531, 49 Pac. 855. As the decree rendered in the circuit ourt is based on the petition, the application to compel the administrator to file a final account must be treated as a complaint, which, if it fails to state facts sufficient to entitle the petitioners to the relief prayed for, the defect in this respect was not waived by answering over, if it be assumed that the demurrer to the petition was overruled. B. & C. Comp. § 72. The sufficiency of the petition must be determined from an examination of the statute prescribing the time of filing a final account by the representative of a decedent's estate, which is as follows: "When the estate is fully administered, it shall be the duty of the executor or administrator to file his final account." Id. § 1202. It will be remembered that the petition states that the personal property, including notes and accounts, belonging to Morrison's estate, was appraised at $12,388.70, and that the administrator's semiannual account disclosed that he had received from the sale and collection of that class of assets the sum of $3,487.51; thus conclusively showing that he had in his possession at the time the account was filed personal property and notes and accounts that had been valued by the appraisers at $8,901.29. An administrator is required to collect the debts due the estate, and, if it appear that they remain uncollected through his fault, he is accountable therefor (B. & C. Comp. § 1206), but whether or not a reasonable time had elapsed for the performance of the duty thus imposed is not important. as the only question involved herein is the sufficiency of the petition.

In an application by a person interested in the ultimate accounting by an administrator or executor, the petition therefor must aver

that the decedent's estate is ready for final settlement. 18 Cyc. 1132. The application in the case at bar does not comply with this requirement, nor does it allege that the estate "is fully administered," which fact is a condition precedent to the imposition of the duty on the decedent's representative to file a final account. B. & C. Comp. § 1202. If it be assumed, however, that an averment that all the debts of the estate have been paid is equivalent to a declaration of the legal conclusion that the estate is fully administered, whereby the personal property, including the notes and accounts, devolve to the next of kin or distributees, it necessarily follows that all the heirs or persons interested must join in the application, as the petition, to compel the performance of the duty imposed on the representative, must allege that they had agreed among themselves to accept such assets in lieu of cash. Money, as a measure of the value of commodities, can be separated into ratable parts, while personal property, unless it is of the same kind and worth, is not readily susceptible of an equal division. Where this class of property, belonging to a decedent's estate, is to be distributed to several persons, reason establishes the rule that such assets should be converted into money in order that the proportional allotment might be facilitated. "The title to the personal property of a deceased person," says Mr. Justice Boise, in Winkle v. Winkle, 8 Or. 193, "must be derived from the administrator through the orders of the court." An administrator or executor can transfer a chose in action to a distributee in payment, or on account of his share in an estate, and the latter may maintain an action thereon in his own name. Weider v. Osborn, 20 Or. 307, 25 Pac. 715. If it be assumed that McDonald could assign a part of the promissory notes in his possession to the petitioners and their brothers, who are evidently entitled to an undivided one-fourth of Morrison's estate, and if it also be considered as true that they, as tenants in common, could secure such a title to the commercial paper as would authorize them to maintain actions thereon in their joint names, how is it possible to assign to them a ratable share of the choses in action, some of which are probably uncollectible, when it is remembered that three-fourths of the notes belong to other heirs? If it be supposed that a lawful distribution of the personal property of a decedent's estate could be made to a part of the next of kin, who acquire a title thereto in their joint right, it might possibly be admitted that the remaining heirs could consent thereto, but the right to the assignment in such case would depend upon the agree ment of all the interested parties. So, too, based on such assumption, all the distributees might stipulate that the personal property and choses in action, the proceeds of which would belong to them, might be divided in a

specified manner, thus determining as between themselves that the estate was fully administered and possibly necessitating an ultimate settlement of their property interests, but such case the right to insist upon the filing of a final account must depend upon the agreement. The contract whereby they stipulate, respectively, to receive specific articles of personal property or certain choses in action, or that such part of the estate may be converted into money by some other person for their use and benefit, being the basis of their right, such agreement must necessarily be alleged, in order to enable them to secure a surrender of the property by the administrator or executor and the filing of a final account by him.

The petition in the case at bar fails in these respects, and hence it does not state facts sufficient to entitle the petitioners to the relief sought, and, this being so, the decree of the circuit court is reversed and the order of the county court affirmed.

(48 Or. 617) SHANNON v. MALHEUR COUNTY COURT et al.

Dec. 18, 1906.)

(Supreme Court of Oregon. HIGHWAY S-ESTABLISHMENT-PETITION-ORDER.

Where neither the petition for the location of a highway nor the order appointing viewers specified whether the proposed easement should be a county road 30 feet wide or a gateway of specified width, but left such matter optional with the viewers, which power they had no right to exercise, under Laws 1903, p. 269. §§ 20-24, providing for the location of such highways, the proceedings were void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 55.]

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Writ of review by John Shannon against the county court of Malheur county and others. From a judgment for defendants, plaintiff appeals. Reversed.

W. H. Brooke, for appellant. Bryan, for respondents.

Soliss &

BEAN, C. J. This is a writ of review to test the validity of the order and judgment of the county court of Malheur county in the matter of the location of a road of public easement over and across the lands of the plaintiff, and comes here on appeal from the judgment of the court below affirming the rulings of the county court.

The proceedings are had under sections 20 to 24, inclusive, of the road law of 1903 (Laws Or. 1903, p. 269). These sections are substantially the same as sections 4075 to 4079, inclusive, of Hill's Ann. Laws, 1892, as amended in 1899 (Laws Or. 1899, p. 164). It is earnestly insisted that the law is unconstitutional and void because it provides for

the taking of private property without due process of law and for private purposes. A similar law was held constitutional in Towns v. Klamath County, 33 Or. 225, 53 Pac. 604, and in Sullivan v. Cline, 33 Or. 260, 54 Pac. 154. The validity of such legislation has since been recognized. Fanning v. Gilliland, 37 Or. 369, 61 Pac. 636, 62 Pac. 209; Lesley v. Klamath County, 44 Or. 491, 75 Pac. 709; Kemp v. Polk County, 46 Or. 546, 81 Pac. 240. But it is unnecessary for us to re-examine the question at this time, as the judgment must be reversed on other grounds.

Neither the petition for the location of the road nor the order of the county court appointing the viewers and directing them to meet at the time stated to view out and locate such road specifies whether the proposed easement shall be a county road 30 feet in width or a gateway of a specified width, and not less than 10 nor more than 30 feet wide. That matter is left optional with the viewers-a power which it was held in Lesley v. Klamath County, supra, could not be exercised by them. The proceedings in the case referred to were had under the law now in question. The petitioner prayed that viewers be appointed to view out and locate a county road 30 feet in width, and the order of the county court followed the prayer of the petition. Objection was made to the proceedings on the ground that they did not leave it discretionary with the viewers to locate either a county road or a gateway, as in their judgment might seem best. The court held the objection without merit, saying: "The question presented depends upon the provisions of sections 4966 and 4967. B. & C. Comp. Properly construed, the petitioner is authorized to petition for either a road or a gateway, and it is not optional with the viewers to establish which they may choose, but they must view out the easement prayed for, and as directed by the county court, so as to do the least damage to the land through which it may pass." In this case, the viewers were not required to view out and assess the damages sustained by the location of a definite easement, but were directed to "view out and locate a county road or gateway not less than ten nor more than thirty feet in width," and to assess the damages sustained, thereby leaving it optional with them whether they should locate the one or the other. The petitioner for the location of the road should have specified in his petition the easement desired, and the county court should have determined the one to be located and directed the viewers to proceed accordingly. Because neither the petition nor the order of the county court complied with the statute the proceedings are void.

Judgment reversed.

(48 Or. 444) MORTON v. OREGON SHORT LINE RY. CO.

(Supreme Court of Oregon. Dec. 18, 1906.) WATERS AND WATER COURSES-ALTERATION OF CHANNEL.

Where a railroad company, acting under a license from a riparian proprietor, constructed a jetty into a stream, the effect of which was to cause the water to flow almost at right angles against plaintiff's land, injuring it, and the court decided that the jetty was an unlawful obstruction, which plaintiff was entitled to have abated, the order might be modified on a showing that the demolition of the entire jetty was unnecessary, and that a retention of a part of it would not injure the plaintiff's premises, but would afford protection to the railroad.

Motion for rehearing. Original opinion 87 Pac. 151. Defendant railroad company, under license from a riparian owner, constructed a jetty in a stream, the effect of which was to cause the water to flow almost at right angles against plaintiff's land and injure the same.

MOORE, J. After the opinion was announced in this case the defendant's counsel moved to modify the decree rendered in this court so as not to require the entire demolition of the long jetty, insisting that the retention of a part thereof will not injure the plaintiff's premises, and will afford some protection to the railroad embankment from erosion from the water. It is impossible to determine from the evidence before us whether or not the motion interposed should be allowed, and, this being so, the cause, upon the payment by the defendant of the costs and disbursements taxed, will be remanded, with directions to take testimony upon this question, and, if it shall appear therefrom to the trial court that any part of the long jetty can be allowed to remain without injury to the plaintiff's premises, to enter a supplemental decree to that effect, but, if this cannot be done, to deny the motion.

A writing by which defendant, S., agreed to sell to plaintiff by warranty deed a certain described tract of land for the sum of $1,600, the agreement to be in force from date until April 1, 1905, was a mere offer of sale, and unenforceable as a contract for want of mutuality.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 90, 95.] 2. SAME-CONSIDERATION.

Such agreement was also unenforceable for want of consideration.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 140.]

3. VENDOR AND PURCHASER-OFFER TO SELL LAND-ACCEPTANCE WITHDRAWAL.

A mere offer to sell land at a specified price within a certain time might be withdrawn

drawn by a sale of the property to another within the time and before acceptance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 17.]

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by A. P. Sprague against A. C. Schotte and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is a suit to enforce the specific performance of the following written instrument: "Elgin, Oregon, Feb. 6th, 1905.-This agreement, entered into this sixth day of February, 1905, between A. C. Schotte and A. P. Sprague, both of Elgin, Ore., whereby A. C. Schotte agrees to sell, deliver and transfer by good and sufficient warantee deed to said A. P. Sprague his homestead on the Wallowa river; legal description is as follows: W. of N. 4, S. E. 4 of N. W. 4, N. E. 14 of S. W. 4, of Sec. 26, Tp. 3 North of Range 40 E. W. M., for the sum of sixteen hundred dollars ($1,600.00). This agreement is in force from this date to April first, 1905, when it will become void. [Signed] A. C. Schotte." The complaint, after setting out the instrument in full, alleges that on March 8, 1905, the defendant Schotte, without the knowledge or consent of plaintiff, and for the purpose of defrauding him, sold and conveyed the land described in said instrument to his codefendant, the Palmer Lumber Company; that at the time of such purchase the lumber company had full knowledge and notice of the agreement in question and that plaintiff intended to comply therewith; that thereafter, and on the 11th day of March, the plaintiff, without notice or knowledge of the sale and conveyance to the lumber company, tendered to Schotte the full sum of $1,600, the purchase price of the land, and demanded a deed therefor, but that he refused and neglected to make or execute the same. The prayer is for a decree that the lumber company be adjudged to hold the legal title to the property in question in trust for the plaintiff, and for $500 damages. A demurrer to the complaint was sustained, the suit dismissed, and plaintiff appeals.

C. E. Cochran, for appellant. C. H. Finn, for respondents.

BEAN, C. J. (after stating the facts.) The demurrer was properly sustained. The instrument sued on is not a contract. There is no mutuality, and it is not supported by any consideration. It is merely a written offer by the defendant Schotte to sell the land therein described to the plaintiff at any time within the period stated, and was subject to revocation prior to acceptance. Bishop, Contracts, § 325; Wharton, Contracts, & 10; Gordon v. Darnell, 5 Colo. 302; Dickinson v. Dodds, L. R. 2 Ch. Div. 463; Litz v. Goosling (Ky.) 21 L. R. A. 127, note. It was

tract by the tender of the purchase money within the time stated and before its withdrawal by Schotte. Boston & Maine R. Co. v. Bartlett, 3 Cush. (Mass.) 224. But, until such acceptance, there was no contract which could affect the title to the land or give the plaintiff vested rights therein. Mers v. Franklin Ins. Co., 68 Mo. 127; 21 Am. & Eng. Enc. Law. (2d. Ed.) 925. Where an offer like the one in question is accepted, the minds of the parties meet and the contract becomes complete and binding on the giver of the option and all who claim from him with knowledge thereof, and may be enforced against them. Ross v. Parks, 93 Ala. 153, 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Haughwout and Pomeroy v. Murphy, 22 N. J. Eq. 531; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220. But, until acceptance, it imposes no obligation whatever on either party, and is subject to revocation. The sale of the land by Schotte to the lumber company, as appears from the complaint, was made prior to the acceptance of the offer by the plaintiff and before there was any contract for the sale of such land. The plaintiff, therefore, had at the time no interest in the property, legal or equitable, which he could enforce against Schotte or a purchaser from him. It is unnecessary to consider whether the sale operated as a revocation or withdrawal of the offer. If it did not, and the subsequent acceptance by the plaintiff, without knowledge of such sale, converted the proposal into a valid contract between him and Schotte, such contract would not relate back and affect the title of the land at the time of the sale to the lumber company. The decree is affirmed.

(45 Wash. 48)

In re MASTERSON'S ESTATE. (Supreme Court of Washington. Dec. 15, 1906.) 1. GUARDIAN AND WARD-APPOINTMENT OF GUARDIAN-RIGHT OF PARENTS-EFFECT OF ADOPTION.

Under Ballinger's Ann. Codes & St., § 6483, providing that, by an order for the adoption of a child, the natural parents shall be divested of all legal rights and obligations in respect to such child, a decree of adoption consented to by the natural mother of a child divested the mother and grandmother of any right to appointment as guardian given by section 6399 to the mother of a child in case of the decease of the father.

2. SAME-INTEREST OF GUARDIAN.

Where the court found that the daughter of an adoptive parent of a child, appointed as guardian of the child, was a suitable and proper person, the fact that it would be to her interest to prevent the marriage of the ward as she would inherit a portion of the ward's estate in the event of her death without issue is not ground for refusing the appointment.

Appeal from Superior Court, Walla Walla County; Thos. H. Brents, Judge.

In the matter of the guardianship of the person and estate of Gertrude Masterson, a minor. From an order appointing Emma J.

McManis guardian of the person, Ida M. Bischoff and another appeal. Affirmed.

John L. Sharpstein, for appellant. Marvin Evans, for respondent.

RUDKIN, J. Gertrude Masterson, a resident of Walla Walla county, is a minor of the age of about 11 years. On June 17, 1898, when of the age of about three years she was legally and regularly adopted by one Sinah Masterson, and continued to reside with her adopted mother until the death of the latter some time during the year 1904. Upon the death of the adopted mother, Sarah I. Smith was appointed guardian of the person of the minor, and continued to act as such until her death on the 22d day of January, 1906. Since the death of Sarah I. Smith the minor has resided with the respondent Emma J. McManis, a daughter of Sinah Masterson, deceased. Soon after the death of Sarah I. Smith, the respondent filed her petition in the superior court of Walla Walla county, praying that she be appointed guardian of the person and estate of said minor. Before the hearing on this petition similar petitions were presented to the court by the appellants Ida M. Bischoff and Katharina Bischoff, the natural mother and grandmother of the minor. The court heard all three petitions together, and appointed the respondent guardian of the minor's person and one A. L. Lorenzen guardian of her estate. Ida M. Bischoff and Katharina Bischoff have appealed from that portion of the order appointing the respondent guardian of the person.

The court found that each of the petitioners was a suitable and proper person to be appointed guardian of the person of the minor, but that, by reason of the fact that the minor had spent nearly all her time during the past seven years in the homes of Sinah Masterson, Sarah I. Smith, and the respondent, the latter was the most suitable person for the guardianship. If the welfare of the minor is the only question for consideration on this appeal, the order should be affirmed, as no abuse of discretion in the selection or appointment of the guardian is shown. If, on the other hand, either of the appellants has a legal claim to the guardianship, the order must be reversed, as the court has found that they are suitable and proper persons. Section 6399, Ballinger's Ann. Codes & St., provides that, "the father of the minor if living, and in case of his decease the mother, being themselves respectively competent to transact their own business, shall be entitled to the guardianship of a minor." Under this section the appellant Ida M. Bischoff was entitled to the guardianship, the father of the minor being dead, unless she waived or forfeited such right by consenting to the adoption of the minor by Sinah Masterson, now deceased.

Section 6483, Ballinger's Ann. Codes & St., relating to the adoption of children, provides as follows: "By such order the natural parents shall be divested of all legal rights and obligations in respect to such child, and the child shall be free from all legal obligations of obedience and maintenance in respect to them, and shall be, to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all the rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in lawful wedlock: Provided, that on the decease of parents who have adopted a child or children under this chapter, and the subsequent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin, and not to the next of kin of such adopted child or children." And we are constrained to hold that, by virtue of this section, and the decree of adoption, the naturel mother waived and forfeited any right or claim she might have under section 6399, supra. By the decree of adoption the child became, to all intents and purposes, the child of her adoptive mother, and continued to be such even after her death. The natural parent, by her voluntary act in consenting to the adoption of her child by another, became divested of all legal rights and obligations in respect to such child, and the situation was not changed by the death of the adoptive parent.

It is next contended that the grandparent is entitled to the guardianship, upon the death of the parents, under section 6399, as construed by the courts. Conceding this to be true, the rights of the grandparent, like those of the natural parent, were divested by the decree of adoption.

Lastly, it is contended that it would be to the interest of the respondent to prevent the marriage of her ward, as she would inherit a portion of the ward's estate in the event of her death without issue, under section 6483, supra, and that for that reason the respondent should not be appointed. The same objection might be urged against the appointment of the parents or any relative who would inherit a portion of the ward's estate in the event of her death without issue. Such a contingency is rather remote, and furthermore, the contention is inconsistent with the finding of the court that the respondent is a suitable and proper person for the guardianship. The control of the guardian ceases as soon as the female ward attains the age of 18 years, and should the guardian withhold her consent to the marriage of her ward during minority from any such sordid motive as is here suggested, the courts will be amply able to protect the rights of the ward.

We find no error in the record, and the judgment is affirmed.

FULLERTON, HADLEY, and CROW, JJ., concur. MOUNT, C. J., and DUNBAR, J., not sitting. ROOT, J., concurs in the result.

(45 Wash. 31)

NELSON et al. v. CITY OF SPOKANE. (Supreme Court of Washington. Dec. 15, 1906.) 1. MUNICIPAL CORPORATIONS TORTS-DEFECTS IN HIGHWAYS-PERSONAL INJURIES.

Where there were two ways, about 9 feet apart, one of which was 18 inches to 2 feet higher than the other, each formed by common travel and not laid out by the city, though within the city limits, and each safe within its own limits, the city is not liable for injuries caused by attempting to turn from the higher to the lower road.

2. SAME-CONTRIBUTORY NEGLIGENCE.

Where a husband, in driving along a road formed by common travel within the city limits, attempted to turn to another parallel road, 18 inches to 2 feet lower, and the vehicle was overturned, resulting in injuries to his wife, he was guilty of contributory negligence, barring any right to recover therefor.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Sarah Nelson and her husband against the city of Spokane. From a judg ment in favor of plaintiffs, defendant appeals. Reversed and remanded.

J. M. Geraghty and Alex. M. Winston, for appellant. Hamblen, Lund & Gilbert, for respondents.

DUNBAR, J. This is an action brought against appellant by respondents to recover the sum of $5,000 for personal injuries received by respondent Sarah Nelson on August 6, 1905, by reason of an alleged defective highway in the city of Spokane. As we understand the record, from the briefs and plats submitted, the place of the accident was within the corporate limits of the city of Spokane, but outside of the settled portion of said city. Through an 80-acre tract of land, that was unplatted and through which no streets ran, there had been made by travel three roads, starting from the same point of travel on the road from Medical Lake to Spokane, diverging for the space of 400 or 500 yards; two of said roads then converging and the other one bearing off in another direction. These roads were made by common travel, and at the placé where the accident occurred were about 9 feet apart. The evidence is a little conflicting in regard to this, but we conclude from the whole testimony that that was about the distance. One of these roads was higher than the other by from 18 to 24 inches. The respondents, with six other people, in a conveyance or hack drawn by two horses, had trav eled over one of these roads on the morning of August 6th, going some distance into the country. Returning that evening after dark, the respondent William Nelson, who was driv. ing the team, undertook to leave the road upon which he was traveling and get into the lower road. In doing so, the wagon was over. turned, and the injury for which this action.