(230 P.)

tions are free and equal within the meaning of the Constitution when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, or make it so difficult as to amount to a denial; and when no constitutional right of the quali

sharp distinction in the enactment of laws intended to safeguard the ballot and to regulate the holding of elections. Indeed, so far as we are now advised, no act dealing solely with the details of election matters has ever been declared unconstitutional by this court. This for the reason that ballot and election laws have always been regarded as peculiarly within the province of the legislative branch of government, and should never be stricken down by the courts unless in plain violation of the fun-fied elector is subverted or denied him. Judged damental law.

by these tests, the act of 1913 cannot be attacked successfully on the ground that it offends against the 'free and equal' clause of the Bill of Rights. It denies no qualified elector the right to vote; it treats all voters alike; the primaries held under it are open and public to all those who are entitled to vote and take the trouble to exercise the right of franchise; and the inconveniences if any bear upon all in the same way under similar circumstances and are made necessary by limiting the number of names to be printed upon the official ballot, a right always recognized in our state and not very confidently disputed in the case at bar.

"In the present case, it is pertinent to inquire: What provision of the Constitution has been clearly violated by the act of 1913? Appellants make answer by pointing to that clause of the Bill of Rights which requires 'elections to be free and equal.' We have already discussed this clause in a general way, but it remains to briefly consider the points now pressed upon us. It is contended that the act under consideration is discriminatory and restrictive in its operation because it limits the names of candidates on the official ballot to the two who polled the highest vote at the primary. There is nothing new or novel in the provision thus criticized. If there is to be an official ballot, there must of necessity be a limit to the num-section 13 makes the provisions of the act unber of names printed thereon, else such a ballot would mean nothing. If every one had the right to have his name printed on the official ballot, there would be no necessity or occasion to furnish such a ballot. The old law limited the number of names to be printed upon the official ballot, and the Legislature provided the method by which to determine what names should be so printed. Thus the Legislature prescribed the limitations and the courts declared this to be a valid exercise of legislative power. The act of 1913 simply prescribes another method of reaching the same result. The people vote directly for such persons as submit their names at the primary, and the two polling the highest number of votes are entitled to have their names printed upon the official ballot. There is no distinction in principle between this method of limiting the number of names entitled to be printed on the ballot and the old system whereby the same result was secured through party nominations or by groups of citizens. In both cases the Legislature prescribed the limitations, and, in so doing, exercised a power clearly contemplated by the Constitution. We see no more abuse of the power in one case than in the other; its quality is the same under the new act as under the old law, but the methods provided for determining the result are different. Who can say that one method is lawful and the other unlawful? The Constitution says nothing about nominations, or how candidates shall be chosen, or how many names shall be printed on the ballot. It furnishes no rule by which to accurately determine what the Legislature may or may not do in the enactment of laws relating to such details in the exercise of the elective franchise. In the absence of any express constitutional limitation upon the power of the Legislature to make laws regulating elections and providing for an official ballot, nothing short of gross abuse would justify a court in striking down an election law demanded by the people, and passed by the lawmaking branch of government in the exercise of a power always recognized and frequently asserted. "In a general, way it may be said that elec

"It is further suggested that the proviso to reasonable and discriminatory by providing in substance that when only one person is to be elected to a particular office, and there are several candidates at the primary, the one who shall receive more than one-half of the total vote polled for such office, and more than onehalf of the * * ballots, cast in the political district or division, such candidate shall be the sole nominee for the office, and his name alone shall be printed as a candidate upon the official ballot. With the wisdom of this provision we have nothing to do. Our only duty is to determine whether it was within the power of the Legislature to so provide. We have already decided that the Legislature did not exceed its power in limiting the number of names to be printed upon the official ballot to the two candidates who received the highest number of votes at the primary, but it is insisted that this rule should not be applied to the proviso in question. It is difficult to draw an arbitrary line and say that a certain number of names shall be printed upon the official ballot and that a less number may not be without infringing the rights of the elector. If the courts should say that it is a lawful exercise of legislative power to limit the number of names to be printed on the ballot to the two candidates who received the largest vote at the primary, and that the printing of a less number of names is an unlawful limitation, this would simply mean the substitution of judicial for legislative judgment. Primarily this is a legislative and not a judicial duty. Courts can interfere only when the Legislature acts in plain disregard of constitutional rights. This court has decided that the limitations imposed must not amount to a denial of the franchise itself, and this is the extremest limit to which our cases have gone. It cannot be reasonably said that the exercise of the elective franchise is denied to the individual voter by the limitation contained in the proviso to section 13. The elector may vote for the name thus printed upon the ballot, or he may write in the name of any person for whom he may choose to vote, and thus he is not denied the right to exercise the franchise

(230 P.)

5. Wills 746-Complaint to quiet title to devised property held not subject to demurrer, for failure to state sufficient facts. Complaint of remainderman to quiet title to property, not used for comfort and support of life tenant, as permitted by will, whose allegations indicate that, on satisfaction of possible debts chargeable against property, some will be left, is not subject to demurrer for failure to state cause of action.

6 Action 57(1)-Suit by remainderman to quiet title to property, usable for comfort and support of life tenant, should be consolidated with probate proceedings, on estate of life tenant.

Suit by remainderman to quiet title to property devised to life tenant, and at her death, all not used for her comfort and support, to him, should be consolidated with probate proceedings on estate of life tenant.

Department 1.

missal was accordingly rendered against him, from which he has appealed to this court.

The controlling facts, as we view them, may be summarized from the allegations of the complaint, which, for present purposes, we must assume are true, as follows: On December 25, 1920, Nathan S. Porter died, being then and for many years prior thereto a resident of Thurston county. He left surviving him his then second wife, Mary Wheeler Porter, and the plaintiff, his son by a former deceased wife. Some time prior to his death Nathan S. Porter made and duly executed his last will and testament, in which, following directions as to the disposition of his body and the payment of his debts, he disposed of his property, and appointed his executrix as follows:

"3d. I give and bequeath to my son Alvah Porter three hundred dollars ($300.00) and twenty-five per cent. of the net income from

Appeal from Superior Court, Thurston my stock in the Little Chopaca, Ruby and UnaCounty; Wilson, Judge.

ka Mines, Columbia Gold Dredging Company of South America, Similkamun Falls Power Company and Mexican Rubber Culture Company.

Suit by Alvah Porter against H. L. Wheeler, executrix of the estate of Mary Wheeler Porter, deceased, and others. From order "4th. I give. and devise and bequeath to my sustaining demurrer to complaint, and judg-wife Mary Wheeler Porter all the balance of ment of dismissal, plaintiff appeals. Revers- I may die seized, consisting of real estate, monmy property real, personal and mixed of which

ed and remanded.

ey, bank stock, mining stock, rubber culture

Thos. L. O'Leary, of Olympia, for appel-stock, Sumilkamun Falls Power stock, lot and lant.

house on Main street, Olympia, household goods, Library, musical instruments, choses in

Vance & Christensen, of Olympia, for re-action, ornaments, and keepsakes to be used spondents.

and enjoyed by her during her lifetime, and at her death, I will that all of said property not used for her support and. comfort, go to my said son Alvah Porter.

"Provided. That if my widow Mary Wheeler Porter, shall marry, then I will, devise and bequeath all of my said property go to my said

son Alvah Porter,

"5th I hereby appoint my wife, Mary Wheeler Porter, my executrix, to carry out the provisions of this will; and that she be not required to give bonds, and without the intervention of any court, except to have this will probated."

PARKER, J. The plaintiff, Porter, commenced this suit in equity in the superior court for Thurston county, seeking a decree quieting his title in, and decreeing him to be the owner of, certain real property in that county, and also seeking an accounting and determination of his property rights in certain personal property, taken possession of and claimed by the defendants as a part of the estate of Mary Wheeler Porter, deceased, of which the defendant H. L. Wheeler is executrix; the other defendants being heirs of Mary Wheeler Porter or beneficiaries under her will. The plaintiff claims absolute ownership of the property drawn in question, upon the theory that it was the separate property of his father, Nathan S. Porter; Mary Wheeler Porter, deceased, his second wife, never being vested with any estate therein other than a life estate under his will, and upon her death the absolute title to the property vesting in the plaintiff under the terms of the will of his father, Nathan S. Porter. The cause was submitted to the court upon the complaint and a demurrer thereto, upon the ground that the complaint did not state facts sufficient to constitute a creed that all the residue of said estate of "It is therefore ordered, adjudged, and decause of action. The demurrer was by the Nathan Smith Porter, deceased, now remaincourt sustained, and the plaintiff electing ing in the hands of Mary Wheeler Porter, as not to plead further, final judgment of dis-executrix, be and the same is hereby distributFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-41

On January 10, 1921, that will was duly proven, and admitted to probate in the superior court for Thurston county, and the appointment of Mary Wheeler Porter as executrix confirmed. The administration of the estate proceeded accordingly, and such proceedings were had therein that on August 15, 1921, a decree of distribution was by the court entered, which, after reciting that the legacy of $300 bequeathed to the plaintiff had been paid; that all debts and obligations of the estate had been paid; and that the estate was then ready for distribution, decreed as follows:

ed, set over, and confirmed to Mary Wheeler | son, the plaintiff, as to which there is no conPorter, the surviving widow of said deceased, troversy here, provides: as provided in said last will of deceased. The

residue of said property referred to is describ-Wheeler Porter all the balance of my property "I give, devise and bequeath to my wife Mary

ed as follows.

*

real, personal and mixed of which I may die seized, On March 24, 1924, Mary Wheeler Porter during her lifetime; and at her death, I will to be used and enjoyed by her died in Thurston county, being then a resi- that all of said property not used for her supdent of that county, leaving a will appoint-port and comfort, go to my said son Alvah Poring the defendant H. L. Wheeler the executer." trix thereof, and naming the other defendants beneficiaries therein. That will was duly proven, and admitted to probate in the superior court for Thurston county on April

We shall not attempt to give to this estate so vested in Mary Wheeler Porter any techIt seems to be something nical legal name. more than an ordinary conventional life estate, since the language of the will does not limit her right to the bare use of the proper

income therefrom, with a view of preserving the property during her lifetime, but manifestly gives her the right to support and comfort from the property, even though it be consumed in furnishing her support and comfort during her lifetime. But the will does not give her such absolute ownership of the property as to enable her to dispose of it by will, or other disposition to take effect upon her death, nor can her heirs acquire any interest in the property by inheritance, because the will expressly provides that—

18, 1924, and the administration of the estate of Mary Wheeler Porter proceeded accordingly, in which the defendant H. L. Wheeler, as executrix, and the other defendants, as bene-ty, in the sense of limiting her right to the ficiaries under the will, are assuming and claiming that all the property left by Nathan S. Porter at the time of his death became, by virtue of the provisions of his will, and the decree of distribution entered in the settlement of his estate, the absolute property of Mary Wheeler Porter, freed from all claims the plaintiff might make to the remainder thereof at the time of her death. The real property drawn in question is real property left by Nathan S. Porter, which he owned in his own separate right at the time of his death. The personal property drawn in question is either property in specie or the proceeds of property left by Nathan S. Porter, which he owned in his own right at the time of his death.

[1] There are other allegations of facts in the complaint looking to the setting aside of the decree of distribution entered in the estate of Nathan S. Porter, should it be construed as a final adjudication against the plaintiff that Mary Wheeler Porter took any greater interest or estate in the property left by Nathan S. Porter than a life estate and her right to support therefrom. These allegations, we shall find as we proceed, are not necessary to the stating of a cause of action entitling plaintiff to the relief he prays for, | since we have arrived at the conclusion that the decree of distribution entered in the estate of Nathan S. Porter did not adjudicate by its terms any different or greater prop erty right in favor of Mary Wheeler Porter than was awarded her by the terms of the will of Nathan S Porter.

[2] Assuming that the decree of distribution entered in the estate of Nathan S. Porter is final and not subject to being set aside, we think a correct construction of it becomes the principal controlling consideration determinative of the plaintiff's right to the property left by his father, Nathan S. Porter, in so far as such property has not been consumed in and is not now burdened with obligations growing out of its use for the "support and comfort" of Mary Wheeler Porter during her lifetime. Nathan S. Porter in his will, after making specific bequests to his

"At her death, I will that all of said property not used for her support and comfort, go to my said son Alvah Porter."

Now the decree of distribution, entered in the estate of Nathan S. Porter, does not in terms vest in Mary Wheeler Porter any specified estate in the property so willed to her, but goes no further than to decree:

That the property "is hereby distributed, set over, and confirmed to Mary Wheeler Porter, the surviving widow of said deceased, as provided in said last will of deceased."

Manifestly we think that, in order to determine the nature and extent of the interest and estate taken by Mary Wheeler Porter under this decree, the above-quoted language of the will must be considered as embodied in and made a part of the decree. We are quite unable to see that the decree has any other possible meaning.

[3] We are of the opinion, therefore, that the plaintiff is entitled to be decreed to be the owner of all the property, of which Mary Wheeler Porter took such lifetime use of and interest in under the will of Nathan S. Porter, in so far as that property has not been consumed in, and is not now burdened with obligations growing out of its use for her support and comfort during her lifetime.

[4] There is thus developed a situation, rendering it debatable as to just how we should now dispose of this appeal. Possibly, the strict logic of the situation calls for a holding that the plaintiff's complaint does not state facts entitling him to relief; that is, not entitling him to relief at this time,

1

(230 P.)

The order of the superior court sustaining the demurrer to the plaintiff's complaint and its judgment of dismissal are reversed, and the cause remanded to the superior court for Thurston county for further proceedings,

because the facts alleged in the complaint rights of all parties here drawn in question inferentially show that there may be out- can be there fully tried out and determined standing debts of Mary Wheeler Porter in- at the proper time. curred in the furnishing of her support and comfort during her lifetime, which are chargeable to the property in the administration of her estate. It seems to us that the property is subject to administration, at least to the extent of subjecting it to the satisfac-in harmony with the views herein expressed. tion of such debts, or for determining that there are no such debts. The defendant H. L. Wheeler, as executrix, is therefore entitled to the possession of the property, at least for the purpose of such administration. But this is a suit in equity, in which the primary problem is in effect the construction of the will of Nathan S. Porter, or rather the con

struction of the decree of distribution enter

ed in the administration of his estate. This complaint could well have been filed as a petition in the probate proceedings, in which the estate of Mary Wheeler Porter is being administered, and every question here presented could therein become fully adjudicated, as between all parties interested, including possible creditors of the class above mentioned. Such a petition filed at the time of the commencement of this action might have been premature; but we think only in the sense of postponing its final disposition until the settlement of the estate of Mary Wheeler Porter, in so far as the property rights, here drawn in question, and the possible debts incurred in the furnishing of support and comfort to Mary Wheeler Porter in her lifetime, are concerned, and would not have called for a dismissal of such petition as not stating facts constituting a right in behalf of this plaintiff as such petitioner. Our decisions in Leo Kee v. Wah Sing Chong, 31 Wash. 678, 72 P. 473, and Chellew v. White, 127 Wash. 382, 221 P. 3, while not exactly in point, lend support to this conclusion.

[5, 6] Under these circumstances we conIclude that the defendant's demurrer to the plaintiff's complaint should not be sustained, since the allegations of the complaint render it probable that, upon the satisfaction of possible debts chargeable against this property, there will be left of it some substantial quantity and amount, to which the plaintiff will ultimately be entitled. We see no substantial reason for sustaining the demurrer at this time, and dismissing this action, and thereby forcing the plaintiff to commence anew at a time when the full extent of his rights may become more certain, but are of the opinion that this cause should be consolidated with and merged into the probate proceedings, in which the estate of Mary Wheeler Porter is being administered. This being an equity suit not triable by jury, and the administration of the estate of Mary Wheeler Porter being administered in the same superior court in which this action is pending, the

MAIN, C. J., and FULLERTON, TOLMAN, and BRIDGES, JJ., concur.

OLSON v. LIDA et al. (No. 18364.) (Supreme Court of Washington. Dec. 3, 1924.) 1. Chattel mortgages 283-Foreclosure decree held erroneous as embracing property not covered by mortgage.

Where mortgaged household property described as located in a certain apartment was decree was entered, decree foreclosing mortnot located in such apartment when foreclosure gage against property located in such apartment was erroneous.

2. Sheriffs and constables 98 (2)-Sheriff held not liable for taking property pursuant to foreclosure decree erroneously describing property.

Sheriff held not liable for taking property pursuant to foreclosure decree erroneously describing property not covered by mortgage, since it was his duty to follow the decree. 3. Chattel mortgages 283-Claimant of property may have proper foreclosure decree entered, independently of right against sheriff for taking property.

That one claiming interest in property against which a decree erroneously authorized a foreclosure of mortgage has a right of action against sheriff for taking such property pursuant to decree held not to deprive claimant of right to have a proper foreclosure decree entered.

4. Chattel mortgages 277-Answer of code

fendant in foreclosure action held at most disclaimer of interest in mortgaged property.

Where complaint described mortgage and mortgaged property described therein as located in certain apartment house, and alleged that mortgagors abandoned apartment house and turned it over to codefendant, who claimed some interest therein, codefendant's denial held at most a disclaimer of any interest in mortgaged property.

5. Chattel mortgages 277-Owner of goods not covered by mortgage held not required to show ownership thereof or to anticipate entry of erroneous decree.

an interest in furniture and furnishings not In suit to foreclose mortgage, one claiming covered by mortgage was not obliged to allege or prove that he owned such property, or to anticipate entry of decree ordering sale of his property.

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