only deposits other than current deposits may be deducted from bills and accounts receivable and other credits. Section 3701 authorizes any taxpayer to deduct or have deducted from his credits all debts then owing by him; but this section does not authorize the deduction of debts from money on hand, and, if it attempted to do so, would clearly violate the provisions of the Constitution. In Daly Bank & Trust Co. v. Board of Commissioners, 33 Mont., 81 Pac. 950, this court held that the provisions of section 3701 are general and applicable alike to all taxpayers, whether natural persons or corporations, and we see no reason for receding from that position now. This being so, and the provisions of section 3701 conflicting directly with those of subdivision 8 of section 3695 above, the provisions of section 3701 prevail, for there is not anything in such a construction inconsistent with the meaning of the chapter in which both sections are found. This is the rule of construction provided by section 5165 of the Political Code which reads: "If conflicting provisions are found in different sections of the same chapter or article, the provisions of the section last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." Furthermore, the attempt of the Legislature to authorize private bankers to deduct their debts from moneys on hand is abortive. That portion of subdivision 8 of section 3695 above referred to is in direct contravention of sections 11 and 16, art. 12, of the Constitution of Mon

These appellants, having made timely demand, were entitled to have their debts deducted from their credits (Daly Bank & Trust Co. v. Board of Commissioners, above), and this notwithstanding they mistakenly thought they could also deduct such debts from moneys on hand. The assessor could not have been misled by any statement of appellants attached to their list of property, respecting the particular provisions of the Code under which they assumed that their assessment would be made. The assessor's duty was to make the assessment according to law, not according to what appellants may have thought the law was or ought to be.

But it is said that, adding together the amounts of the moneys on hand and in transit and the amounts due from other banks, bankers, etc., practically the same amount (though larger) is obtained as that upon which the assessment was made; and, as appellants did not pay the taxes on the greater amount, they cannot complain that they are required to pay on the lesser amount. But such an argument, while it may have some foundation in morals, has none in law. In the first place, moneys due from other banks and bankers are credits within the definition of that term as given by section 3680 of the Political Code. In the second place, to say that, because one species of property which a man does own

is not assessed, he may be made to pay taxes on property which he does not own, or on property which he does own but which is not liable for taxation, violates almost every principle of the law of taxation. Accord ing to the return made to the assessor by these appellants, their property liable to taxation consisted of their real estate, and of moneys on hand and in transit, amounting to $403,869.27. The appellants could not assess their own property. They were only called upon to furnish a list of the items. It was the duty of the assessor to make the assessment, and, if he failed to do so in a proper manner, these appellants cannot be held to be to blame. Appellants having paid the taxes levied upon their real estate directly, such real estate could only be sold to satisfy the lien of a tax levied upon their personal property, and such a lien could only be created by a valid tax. As an indispensable prerequisite to a valid tax there must have been a valid assessment of such personal property. Northern Pac. R. R. Co. v. Carland, 5 Mont. at page 171, 3 Pac. at page 146; Board of Commissioners v. Anderson, 68 Fed. 341, 15 C. C. A. 471 (Montana case); Worthington v. Whitman, 67 Iowa, 190, 25 N. W. 124; People v. Hastings, 29 Cal. 450; 27 Ency. Law (2d Ed.) 660. At least two steps are necessary to be taken to make a valid assessment. First, listing the persons and property; and second, estimating and fixing the value of the property. State er rel. Butte v. Johnson, 16 Mont. 570, 41 Pac. 706; People V. Weaver, 100 U. S. at page 545, 25 L. Ed. 705. And this assessment must be made by the proper officers, and cannot be made by the court. Danforth v. Livingston, 23 Mont. 558, 59 Pac. 916; Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Hulbert v. People, 189 Ill. 114, 59 N. E. 567; Monroe v. Town of New Canaan, 43 Conn. 309; 2 Cooley on Taxation, 912. The cash on hand belonging to these appellants and which was liable for taxation was not assessed at all; on the contrary, this amount was completely wiped out by deducting debts of an equal amount from it; while appellants were assessed with $1,529,940, represented by solvent credits. But from the amount of these credits appellants were entitled to have deducted their just debts represented by the current deposits; and had this deduction been made, there would not have been anything left of their credits subject to taxation. The fact that appellants had more than $400,000 worth of property liable to taxation and with which they ought to have been assessed, but were not, does not justify the imposition of taxes upon $1,500,000 of property which they had, but which was not liable to taxation under the circumstances presented by this case.

Some contention is made that appellants are not entitled to an injunction upon the showing made in their amended complaint. The maxim "He who seeks equity must do equity" is quoted by respondents. It is said

to be applicable here, for the reason that appellants have not paid or offered to pay the taxes upon the $403,869.27, moneys on hand and in transit. But, as we have said before, this amount was not assessed to them, and, an assessment being necessary to a tax, there were not any taxes due from appellants on that property, and, therefore, nothing for them to pay or tender. And they cannot be charged with being remiss in failing to pay or tender an amount not due or payable at the time this action was commenced. The tax levied upon the amount of credits, without any deduction having been allowed for debts, was void, and, under the authority of Montana Or. Pur. Co. v. Maher, 32 Mont. 480, 81 Pac. 13, and Hensley v. City of Butte, 33 Mont., 83 Pac. 481, injunction was a remedy available to these appellants.

Under the view we have taken it is not necessary to consider the question whether the delinquent tax list, in so far as it applied to property of these appellants, was sufficiently explicit to warrant the sale contemplated if no other objection had been made. The complaint states facts sufficient to constitute a cause of action in favor of appellants.

The judgment is reversed, and the cause is remanded to the district court, with directions to overrule the demurrer.

Reversed and remanded.

BRANTLY, C. J., and MILBURN, J., con

cur.

(149 Cal. 680)

1.493.)

In re HAYDEN'S ESTATE. (Sac. (Supreme Court of California. Sept. 14, 1906. Rehearing Denied Oct. 11, 1906.)

1. WILLS-PROBATE-PROCEEDINGS.

An heir of a decedent, in his petition for letters of administration, alleged the intestacy of decedent. Another person filed a petition in opposition to the granting of administration and alleged that decedent died testate and prayed for the probate of her will. Held, that the failure of the heir petitioning for administration to file a written opposition to the probate of the will, as required by Code Civ. Proc. $ 1312, did not deprive him of a standing in the appellate court, on appeal from a judgment refusing the probate of the alleged will, where throughout the proceedings in the trial court the pleadings were recognized as sufficient to raise an issue on the matter.

2. SAME-BURDEN OF PROOF.

It is incumbent on one petitioning for the probate of a will of a decedent to make satisfactory proof of the will, and, if he fails to do so, the trial court must, though there is no opposition to the probate, refuse probate. [Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 653-659.]

3. APPEAL-FINDING ON CONFLICTING EVIDENCE-CONCLUSIVENESS.

A finding of the trial court on conflicting evidence will not be disturbed on appeal, where the testimony depends on the credibility of the witnesses.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3983.]

In a proceeding for the probate of a lost will, the petition alleged that decedent died leaving a will, and that W. and a servant, or some person acting with them and under their direction, concealed the will wherein W. was disinherited for the purpose of enabling him to obtain the property. The court found "that F. nor W., nor any other person, * * * carried away any will*** belonging to *** decedent, * * that said F. nor W. ever at any time *** had in their possession any will of" decedent, "nor are they, or either of them, in the possession of any will, *** nor did they, or either of them, ever have in their possession *** any will" of decedent. Held, that the omission of the word "neither" before the name of F. did not render the finding insufficient on which to base a decree refusing the probate of the will. 5. SAME.

A finding of the court that the allegations of a party seeking the probate of a will of a decedent. "with respect to" decedent "leaving any will or any person having in their possession any will of" decedent, "are untrue," is sufficient to justify the refusal to admit the will to probate.

Department 2. Appeal from Superior Court, San Joaquin County; W. B. Nutter, Judge.

In the matter of the estate of Sarah C. Hayden, deceased. Hayden, deceased. From a judgment refusing the probate of an alleged will of the decedent, Frederick H. Collins appeals. Affirmed.

See 81 Pac. 668.

A. H. Carpenter, for appellant. Nicol & Orr and E. P. Foltz, for respondent.

HENSHAW, J. Sarah C. Hayden died in the county of San Joaquin on the 6th day of June, 1904. After her death A. L. Westing, her grandson, and one of her heirs, applied for letters of administration upon her estate. alleging her intestacy. About nine months before her death Mrs. Hayden, who had become paralyzed in the latter part of the year 1902, and who had failed physically and mentally from that time, was declared incompetent, and Westing was appointed her guardian and continued to act as her guardian until the time of her death. Frederick H. Collins, a nephew by marriage of the deceased, filed a petition in opposition, alleging that Mrs. Hayden had died leaving a last will and testament, and that Westing and a hired servant, or some person acting with them and under their direction, had taken, carried away, and concealed the last will and testament wherein Westing was disinherited for the purpose of enabling him to obtain the property for himself. The petition set up what was alleged to be a copy of the will and a codicil thereto. The court refused probate of the alleged will and granted letters of administration to Westing, and from these decrees these appeals are taken.

It is first contended that as no written opposition to the probate of Mrs. Hayden's will had been filed, as required by the provisions of section 1312 of the Code of Civil Pro

cedure. respondent has no standing before this court, but as Westing himself in his peti. tion for letters of administration had alleged the intestacy of the deceased, and as throughout the proceedings in the trial court the pleadings were recognized as sufficient to raise issue upon this matter, appellant's position is not well taken, and even if respondent were not to be heard, as it was incumbent upon appellant to make satisfactory proof of the will, and he failed to do this to the satisfaction of the trial court, it was the duty of the trial court, even without opposition, to have refused probate to Mrs. Hayden's purported will. There was testimony to show that deceased had made a will and a codicil thereto. There was, however, no testimony that Westing, or anybody acting with or under him, had ever seen or had possession of the will, much less that they had feloniously taken, concealed, or destroyed it. There was also evidence that, if the will was made. it was revoked by the deceased in her lifetime: the testimony showing declarations of the deceased that she did not have a will, and that they, meaning Collins and those in interest with him, were endeavoring to induce her to make a will. The case is typical of the wisdom of the rule so long enunciated and adhered to by this court that it cannot and will not disturb a judgment given upon conflicting evidence. Much of the weight of the testimony in this case of necessity depends upon the standing and credibility of the witnesses upon either side, as to which the trial court. and not this, is alone capable of judging.

The appellant contends that the findings are enigmatical and uncertain. The finding to which this attack is addressed is as follows: "That Annie Fogacci nor A. L. Westing, nor any other person, took or carried away any will or codicil, or other document of value belonging to said Sarah C. Hayden, for the purpose of enabling A. L. Westing to fraudulently or at all get possession of the property of said Sarah C. Hayden, or for any other purpose whatever; that said Annie Fogacci nor A. L. Westing ever at any time found or had in their possession any will of said Sarah C. Hayden, deceased, nor are they, or either of them, in the possession of any will of Sarah C. Hayden, nor did they, or either of them, ever have in their possession or under their control any will whatever of said Sarah C. Hayden, deceased." While unquestionably the finding would have been made clearer by the insertion of the word. "neither" before the name "Annie Fogacci," this omission does not nullify the finding, as the context makes perfectly plain what the court meant to declare.

The finding of the court that the allegations of the opposition of Frederick H. Collins "with respect to Sarah C. Hayden leaving any will, or any person having in their possession any will of Sarah C. Hayden, deceased, are untrue," is sufficient as a finding

to justify the court's refusal to admit the alleged will to probate.

We have examined the alleged errors of the court in admitting and rejecting evidence. None of the points call for detailed consideration. It is sufficient to say that the rulings were proper.

The orders and decrees appealed from are affirmed.

We concur: LORIGAN, J.; McFARLAND, J.

(143 Cal. 667) RIPPERDAN et al. v. WELDY et al. (Sac. 1,448.) (Supreme Court of California. Sept. 4, 1906. Rehearing Denied Oct. 4, 1906.)

1. APPEAL-FINDINGS-CONCLUSIVENESS.

The finding of the trial court on conflicting evidence cannot be reviewed on appeal. 2. CANCELLATION OF INSTRUMENTS - CONFIDENTIAL RELATIONS-PRESUMPTIONS.

Where no confidential relation existed between a grantor and a grantee, no presumption against the validity of the deed on the ground of undue influence arose.

[Ed. Note.--For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, § 100.] 3. APPEAL-FINDINGS-CONCLUSIVENESS.

Where, in a suit to set aside a deed on the ground of the incompetency of the grantor, the court on the testimony of the subscribing witnesses testifying in favor of the grantor's mental soundness, and intimate acquaintances testifying both in favor of and against the grantor's competency, found in favor of the grantor's competency, the court on appeal could not interfere with the finding, for the question related only to the weight of the evidence. 4. INTEREST OF WITNESS-EVIDENCE--WEIGHT OF TESTIMONY. Though, under Code Civ. Proc. § 1879, a witness interested in the event of the litigation is a competent witness, the fact of his interest is a proper matter for the trial court to consider in weighing his testimony.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 2439.]

5. TRIAL-FINDINGS-FINDING OF ULTIMATE FACT IN ISSUE.

A finding, in a suit to set aside a deed on the ground of the grantor's incompetency, that on the day the deed was executed the grantor was "entirely competent, mentally and physically, to transact the business of executing and delivering *** a deed," and that at that time the grantor "was in full possession of his mental faculties and fully understood the transaction," necessarily involves the inference that the grantor was not entirely without understanding, within Civ. Code. § 38, providing that a person entirely without understanding has no power to make a contract, and is a finding of the ultimate fact in issue.

6. APPEAL — REVIEW CONSTRUCTION FINDINGS.

OF

Findings must be construed so as to support the judgment, rather than defeat it. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3769.]

7. DEEDS-FUTURE ESTATES-VALIDITY.

Under Civ. Code, § 767, providing that a future estate may be limited by the act of the party to commence in possession at a future day, either without the intervention of a precedent estate or on the termination of a precedent estate created at the same time, a con

veyance to take effect at the grantor's death and reserving to him the use of the property during his life is valid.

[Ed. Note. For cases in point, see vol. 16, Cent. Dig. Deeds, § 381.]

8. CANCELLATION OF INSTRUMENTS-PLEADINGS-ISSUES.

Where, in a suit to set aside a deed, the complaint set forth an ordinary deed, and alleged that the same was procured without the consideration and by the undue influence and fraud of the grantee, and that the grantor was incompetent, which allegations were denied, the court could not determine that the conveyance was void because creating a trust not authorized by Civ. Code, § 857, specifying for what purposes trusts may be created.

9. DEEDS-FAILURE OF CONSIDERATION-EF

FECT.

A deed made freely, voluntarily, and without fraud, by one who is competent, passes title, though the consideration may fail in whole or in part.

[Ed. Note.--For cases in point, see vol. 16, Cent. Dig. Deeds, § 38.]

10. SAME.

Civ. Code, $ 1608, providing that, where any part of a single consideration for one or more objects or of several considerations for a single object is unlawful, the entire contract is void, applies only to contracts which are executory, at least in part, and does not permit a grantor who has received and retained the consideration for the conveyance to recover the property on the sole ground that the consideration was unlawful in part.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, $$ 200-205; vol. 11, Cent. Dig. Contracts, $$ 701-712.]

Department 1. Appeal from Superior Court, Stanislaus County: G. W. Nicol, Judge.

SLOSS, J. This action was brought by the plaintiffs, heirs, devisees, and legatees of Isaac Ripperdan, deceased, to set aside a deed of certain real estate and a bill of sale of personal property made by Ripperdan on the 4th day of May, 1901, to Nancy E. Weldy and Jennie W. Jones. The complaint sets forth, as grounds for the relief sought, unsoundness of mind of the deceased, as well as undue influence and fraud exercised by the grantees, and alleges that the defendant Nancy E. Weldy occupied a confidential relationship toward the grantor, and that there was no consideration for the transfers. It is alleged, further, that the grantees had, after delivery of the deed to them, conveyed portions of the land to other defendants, who, it is asserted, took with notice of the incompetency of Isaac, and of the undue influence and fraud practiced by the defendants Weldy and Jones. The prayer is for appropriate equitable relief. The defendants answered, denying all of the allegations of incompetency, undue influence and fraud, and denying, necessarily. any notice by the grantees of Weldy and Jones of any such defects in the original con

veyance. The answer also denies the existence of any confidential relation and the want of consideration. After an extended trial the court made its findings, which were in favor of the defendants on every issue, and judgment for said defendants for their costs followed. The plaintiffs appeal from the judgment and from an order denying their motion for new trial.

The main contention of the appellants is on their appeal from the order, and is based on the insufficiency of the evidence to support the findings. As has been said, the trial was protracted. The statement on motion for a new trial shows that some 50 witnesses were examined. It would be impracticable for us to analyze and discuss the testimony of each of these witnesses. Without undertaking such task, we have no hesitation in saying that, on the issues as to which the defendants' evidence was not preponderating or undisputed, there was, putting appellants' case in its strongest light. a distinct and substantial conflict of evidence, which imposed upon the trial court the duty of determining the disputed facts. Nothing is better settled in this court than the rule that, on appeal, the verdict of a jury or the finding of a trial court on conflicting testimony cannot be reviewed. The nature of the testimony and of the questions which were presented to the trial court may be indicated by a brief statement of facts which appeared substantially without dispute. Isaac Ripperdan was a farmer or "rancher," who had for many years been living on his property in Stanislaus county. He was a bachelor. In 1876, Nancy E. Weldy, his niece, with her husband and children, one of whom is the defendant Jennie W. Jones, came to live with him. Thereafter, until his death in 1904, Mrs. Weldy acted as his housekeeper. It is plain from the evidence that in that capacity she made herself very useful, and that a strong attachment existed between uncle and niece. On May 4, 1901, when the deed and bill of sale now in controversy were made, Isaac Ripperdan was 85 years of age. IIe was, physically at least, somewhat enfeebled by his advanced years, and suffered from impaired eyesight, due to an injury sustained some years before. On May 4, 1901, he conveyed all of his real and personal property. of the value, as found by the court, of about $50,000, over and above incumbrances, to Mrs. Weldy and Mrs. Jones. At the same time and as part of the same transaction they executed an agreement by which, in consideration of the deed and bill of sale, they agreed to provide him, during his life, with board, lodging, clothing, and, if needed, medical attention; to allow him the use of a room in the dwelling on the property conveyed, and free access to all the premises; to furnish him with a buggy and team, and to care for the same; and to pay him the sum of $2.000 a year in quarterly installments during his natural life. They further agreed not to sell or convey any

part of the premises during his lifetime. Upon the execution of these documents, Nancy E. Weldy and Jennie W. Jones took possession and control of the premises and the personal property. They thereafter managed the farm, borrowed in their own names the money that was needed to carry on operations, and in all ways assumed and claimed ownership of the property. In June, 1902, an agreement was made modifying the restrictions upon sale contained in the agreement of May, 1901, by permitting the sale of portions of the premises to pay the indebtedness on the lands. Under this modification, the conveyances by Weldy and Jones to other defendants, set forth in the complaint, were made. Isaac continued to live upon the property, and the agreement with him seems to have been faithfully carried out. He enjoyed the care and privileges which Mrs. Weldy and her daughter had contracted to give, and there was evidence that the payments provided for were made to him. In 1888 he had made a will, in which, after giving Nancy Weldy a life interest in the "home place" (a portion of the property here in dispute), he divided the bulk of the residue of his estate between his brothers, sisters, nephews, and nieces, who are the plaintiffs here. Upon his death the will, in which Nancy was named as executrix, was offered for probate. This action was commenced after the will was filed, but before it was admitted to probate.

Most of the testimony at the trial was directed to the question of Isaac's mental condition, and it is to this point that the argument of appellants is principally directed. So far as the issues of fraud and undue influence are concerned, the evidence for the defendants was certainly ample to support the findings, if, indeed, it did not decidedly preponderate. The court was fully justified in finding, as it did, that no confidential relation existed, and, this being so, no presumptions against the validity of the transfer arose. On the issue of the grantor's competency, mentally, to transact business of this character, many witnesses testified on either side. Most of them qualified as "intimate acquaintances" of Isaac Ripperdan (Code Civ. Proc. 1870), and as such gave opinions "respecting his mental sanity." Generally speaking, the plaintiffs' witnesses expressed the opinion that he was not, in May, 1901, mentally capable of transacting important business, while the contrary view was expressed by the witnesses called by the defendants. The subscribing witnesses to the deed and bill of sale of May 4, 1901, also testified to their opinion in favor of the grantor's soundness of mind. Code Civ. Proc.

1870. The court, in determining the ultimate fact, evidently regarded the testimony of defendants' witnesses as better entitled to credit. This question relating, as it did, purely to the weight of evidence, was peculiarly for the trial court. With its conclusion we cannot interfere. As to several of the wit

nesses, appellants argue that they were "interested financially, and therefore disqualified from giving an opinion." But an interest in the litigation does not, of itself, work any such disqualification. By section 1879 of the Code of Civil Procedure it is provided that "neither parties nor other persons who have an interest in the event of an action or proceeding are excluded" as witnesses. "At common law interest disqualified any person from being a witness. That rule has been modified by statute. In this state interest is no longer a disqualification, and the disqualifications are only such as the law imposes." Merriman v. Wickersham, 141 Cal. 567, 75 Pac. 180. Probably counsel do not intend to claim that these witnesses were in a strict sense not competent to testify, but rather that their interest was such that no weight or credence should be given to their testimony. But that is not a question for this court. The interest of the witnesses on either side was undoubtedly a proper matter for the trial court to consider in weighing their testimony; but, whether a witness be interested or not, it still remains for that court to determine whether, under all the circumstances, his testimony is to be credited or not. The witnesses stated the reasons on which their opinions were based, and their conclusions were no doubt weighed in the light of their reasons. Apart from these opinions, there was a good deal of evidence regarding the relations of the parties and the circumstances surrounding the transactions in question. Much of it had a bearing. one way or the other, on the question of Isaac's mental condition. Without undértaking any more elaborate statement of the facts shown, we repeat that, after a careful examination of the record, we are satisfied that the evidence as to competency was ample to sustain the findings.

Appellants contend, further, that there was no sufficient finding on the issues as to Isaac's competency. The court found "that on said 4th day of May, 1901, said Isaac Ripperdan was entirely competent, mentally and physically, to transact the business of executing and delivering to Nancy E. Weldy and Jennie W. Jones, defendants, the deed of conveyance and bill of sale herein before mentioned; that at the time of the execution and delivery of said deed of conveyance and bill of sale by said Ripperdan to said Nancy E. Weldy and Jennie W. Jones the said Isaac Ripperdan was in full possession of his mental faculties and fully understood the transaction." It is objected that the court has merely found that Isaac was "competent to transact business." Appellants claim that competency or incompetency is a conclusion of law, to be drawn from facts, and that there should have been a finding on the fact of soundness or unsoundness of mind. The cases cited do not sustain the proposition that competency or capacity to contract may not properly be found as an