(230 P.) lants refused to proceed, whereupon the "I had to run the expense of keeping him and everything else. * * It took all our financial resources, and I asked him for some money. Well, he was going to borrow it himself, but he was unable to do so; he didn't have any money in cash, as he said and as we knew, so he transferred this property to us in order so we could raise the money on it; and that is how it was done." The husband was present in court when this testimony was offered. If these facts were not true it was his duty to contradict them. The wife was the agent of the community. The principal accepting property through the negotiations of an agent accepts it upon the conditions agreed to by the agent. As we said in the case of Bowers v. Good, 52 Wash. 384, 100 P. 848: It seems clear to us that the court was in error in its rulings. The property in question was the community property of the appellants, and it is not the rule that one of the members of the community may by concessions or admissions unauthorized by the other, even though judicially made, authorize the title to such property to be taken from the community and vested in another. In this state it requires the joint action of both members of the community, or the action of one of them under circumstances such as the law will conclusively presume acquiescence on the part of the other, to convey the legal title to such property. Remington's Compiled Statutes, § 6893, and the cases from this court there collected. In this instance there was no consent on the part of the husband to a reconveyance. On the contrary, there is no showing that he acquiesced therein when the proposition of the wife was made prior to the commencement of the action, and when it was made by the wife while on the witness stand, he, through his counsel, re-benefit and repudiate those which are against fused to acquiesce therein. The citations made by counsel, as we view them, do not support the ruling of the trial court. The one from Jones on Evidence (2d Ed.) § 260, is typical of the rest. It is there stated that the declarations of the wife may be received against the husband as admissions when the declarant is the agent of the other, "and the declarations are made by express authority within the scope of the agency, and as a part of the res gestæ." This statement may be accepted as general law, we think, without accepting the conclusion that it controls the present case. The question the authors cited are discussing and the question before us are not the same. The authors are discussing the admissibility of evidence, while here the question concerns the effect of evidence after it is admitted, and we cannot conclude that, because the declarations of the wife are admissible, it must necessarily control the question which it is merely competent to prove. But we need not prolong the discussion. Our conclusion is that the court conclusively bound the community on an admission that did not have a conclusive effect, and that its judgment must be reversed. It is so ordered. "In this state the management and control of community property is vested in the husband, and the wife cannot, without his consent, make any valid contract with reference thereto, unless it be for necessaries for herself or the family When, therefore, the husband knowingly permits the wife to deal with the community property, his consent to her acts and all of her acts is implied, and he cannot afterwards hold to those which redound to his his interest. He must accept the contract as an entirety, * * and in this instance he will not be permitted to say that his wife had authority to contract for the land, but did not have authority to settle and relinquish any right acquired thereunder." MAIN, C. J., and BRIDGES and MIT-3. Divorce 252-Wife with four small chilCHELL, JJ., concur. dren held entitled to certain property, whether acquired by husband from community or separate funds. PEMBERTON, J. The property in quesWife with four small children held entitled tion was secured through the negotiations to certain property whether acquired by husof the wife, Mrs. Katie Esgate. She testified: band from community or separate funds. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Pleading-265-Reply to first of two an-, Castle, the said W. O. Nelson exercised conswers held sufficient. Reply to original answer held sufficient reply to second answer, which was filed for defendants without permission and tendered no new issue. Department 2. trol over said property and held himself out to the public as the owner of" it, and that the assignment of the sheriff's certificate to Florence Colby, and deed to her in pursuance of that certificate, "were made at the instance of the said defendant W. O. Nelson Appeal from Superior Court, King County; for the purpose of defrauding plaintiff and Card, Judge. Action by Violet Helen Nelson against William O. Nelson and others. Judgment for plaintiff, and defendants appeal. Affirmed. the four minor children of the plaintiff and the defendant W. O. Nelson, and the same was and is void, and the said property should be awarded by this court to plaintiff Violet Helen Nelson." [1, 2] The briefs and arguments of both C. J. Smith and John T. Casey, both of parties to this appeal have been devoted Seattle, for appellants. largely to the consideration of the question Egan & Moriarty, of Seattle, for respond- whether this property was the property of ent. MACKINTOSH, J. The respondent and W. O. Nelson were married in 1914, and as a result there are four children; the oldest one being seven years of age. At the time of the marriage, Nelson was the owner of considerable property which he placed in the name of a corporation called the "Seattle Safety Investment Company," of which he held all the stock except a few shares issued for the purpose of qualifying directors. In 1915 respondent sued for divorce. The cause was not brought to trial, but the controversy was settled, and in the settlement the property which was involved in this case was deeded to the respondent, subject to a mortgage. The respondent failed to pay the mortgage, which was foreclosed, and the sheriff sold it to the mortgagee. Thereafter Nelson raised sufficient money to purchase the sheriff's certificate of sale and the property was deeded to Nelson's sister, the appellant Florence Colby. In 1921 respondent brought another action for divorce against Nelson, wherein she was awarded a decree, and in the property settlement between them the respondent quitclaimed all her interest in the property here in controversy. Later the parties remarried, and respondent began this final action of divorce in October, 1922, which resulted in a decree of divorce and the granting to her of the property, being lot 6, block 7, Madison Street addition to Seattle. The court found that the property which belonged to Nelson at the time of his first marriage to the respondent had been conveyed to the Seattle Safety Investment Company for the purpose of placing it beyond the reach of his creditors; that the corporation was Nelson's alter ego; that after the property had been awarded to the respondent, the mortgage was foreclosed and the property purchased at the sheriff's sale and a certificate of purchase acquired by Nelson, either with separate funds or funds of the community, and assigned to Florence Colby, as trustee for Nelson, but that "at all times subsequent to the purchase of said certificate of purchase from the said the respondent or Nelson at the time the last divorce action was begun; whether the husband by fraudulent and devious means had divested the respondent of title to the property which she had acquired in settlement of one of the former divorce suits. It is strenuously contended by the respondent that the purchase of the sheriff's certificate of sale by her husband was out of the earnings of the community, while appellant as strenuously contends that Nelson acquired the certificate of purchase from funds raised out of his separate property. But, as we view it, this question need not be considered. It is unnecessary to follow the complicated transactions in which the title to this property is involved. From a reading of the entire record we are satisfied the court arrived at a correct disposition of this property, and it is unnecessary to determine whether the court arrived at that conclusion upon one theory or another so long as the conclusion is correct. This court, soon after its organization, in State ex rel. Trumbull v. Sachs, 3 Wash. 371, 28 Pac. 540, laid down the prinin all divorce actions from that day to this ciple which has been followed unhesitatingly that It seems clear to us that, whatever may be the rule in an ordinary case, in a complete jurisdiction to dispose of such moneys divorce case the court must be held to have as it may think just under all the circumstances." [3] When a husband and wife come into court for the purpose of securing a divorce, they bring in with them all their property, real and personal, community and separate, and place it before the judge, who, when he awards the divorce, is to make an equitable disposition of the property. In the case before us we have a wife with four small children, and a minute scrutiny of the testimony is not necessary to convince us that she should have the title to this piece of property, no matter whether it may have been acquired from community or separate funds. The conclusion of the court was eminently correct and will not be disturbed, even (230 P.) though it may be true that Nelson redeemed this property out of his separate funds. This disposition of the major portion of the appellants' assignment of errors makes it unnecessary to discuss the question of whether oral evidence was improperly admitted, and the questions raised under the head of res adjudicata Objection is made that the trial of the case was improperly held in that a continuance was refused. The record shows that no proper showing was made for a continuance, and we are satisfied that the court properly called the case and put it upon trial. [4] Objection is also made that the affirmative defense tendered by the appellants had not been met by the respondent. The record discloses, however, that the attorneys then appearing for the appellant served and filed an answer which was replied to by the respondent and that thereafter when present counsel for the appellant were substituted they filed another answer for the appellants to which no reply was tendered. This second answer was filed without permission having been given so to do, and tendered no issue other than that presented by the original answer and under the circumstances the reply to the original answer was sufficient. Finding no error in the record, the judgment is affirmed. resort to appropriate remedies, and is not matter for relief on hearing of appeal so perfected. Department 2 Appeal from Superior Court, Clarke County; Simpson, Judge. Oscar Forsyth was convicted of driving an automobile while intoxicated, and he appeals. Affirmed. Crass & Hardin, of Vancouver; and Richards & Richards, of Portland, Or., for appellant. Jos E. Hall and Dale McMullen, both of Vancouver, for the State. MACKINTOSH, J. [1] The appellant was convicted of driving an automobile while he was intoxicated. against the provisions of section 2527, Rem. Comp. Stat., and complains because nonexpert witnesses, who had observed his conduct and conditions at the time and place that the automobile which he was driving collided with a truck, and who testified to such conditions and conduct, were allowed to express their opinion that he was intoxicated. witnesses were entitled to give their opinion, There is no question that the after having detailed what came under their observation. The weight of the testimony is a question for the jury to pass on, and it has a right to take into consideration the opportunity the witnesses had for observing the MAIN, C. J., and HOLCOMB, TOLMAN, condition which led them to believe that in and FULLERTON, JJ., concur. STATE v. FORSYTH. (No. 18759.) (Supreme Court of Washington. Dec. 9, 1924.) I. Criminal law 465-Permitting nonexpert witnesses to express opinion as to intoxication of defendant held not error. In prosecution for driving automobile while intoxicated, permitting nonexpert witnesses to express opinion that defendant was intoxicated when he collided with a truck, after testifying to his conduct and conditions at that time, held not error. toxication existed. In State v Dolan, 17 Wash. 499, 50 P. 472, we said: "We are also of the opinion that the court erred in not permitting the witness Phelps to answer the question whether Dolan appeared to be so intoxicated that he did not know what The he was doing. It was not a question upon which only an expert could express an opinion witness, having seen, noted, and stated the condition, appearance, and actions of Dolan. had sufficiently shown his qualification to testify as to the extent of his intoxication. Such testimony is received in proof of insanity, and we see no valid reason why the question propounded should not have been answered. See 1 Wharton, Evidence, § 512, and notes." 2. Highways 186-Evidence of condition of The same rule has been applied by this body of one killed while riding with defend-court in similar situations. State v Brooks, ant held admissible in prosecution for driving 4 Wash 328, 30 P 147; State v. Craig, 52 automobile while intoxicated. Wash. 66, 100 P. 167; State v. George, 58 Wash. 681, 109 P. 114; Rust v. Wash. Tool & Hdw. Co, 101 Wash. 552, 172 P. 846. [2] It is next complained that error was committed in allowing a witness to testify as to the condition. after death, of one of the passengers in appellant's car who was killed in the accident An examination of the tes In prosecution for driving automobile while intoxicated, admission of testimony as to condition after death of one of passengers in defendant's car, killed at time complained of, showing death of such person was obvious, for purpose of showing defendant's action in taking hold of and speaking to such body in a manner to indicate intoxication, held not error. 3. Criminal law 1137(1)-Any error in dl-timony shows that it was admitted for the recting defendant to perfect appeal held not ground for relief. Any error in directing defendant to perfect appeal to Supreme Court after conviction in lower court should be taken advantage of by purpose of showing the actions of the appellant in taking hold of the dead body and shaking it and speaking to it, all of which indicated the possibility of appellant's intoxicated state, for a sober man would have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes recognized, from the presence of blood on the face and other evidences, that it was the body of a dead man. These are the only assignments of error occurring at the trial, and we find no reason in either of them to disturb the verdict. [3] Subsequently to the trial, it is urged, the court erred in ordering the appellant to perfect his appeal to this court. If the trial court was incorrect in this regard, it is a matter of which the appellant could have taken advantage by resorting to appropriate remedies. It is a matter which has nothing whatever to do with the question whether ap pellant received a fair trial. If the action of the trial court in this respect was unwarranted, there is no relief for it at this time. The judgment is affirmed. MAIN, C. J.. and HOLCOMB, FULLERTON, and MITCHELL, JJ., concur. STATE v. SMITH. (No. 18739.) (Supreme Court of Washington. Dec. 9, 1924.) 1. Assault and battery 91-Evidence held to sustain conviction for second degree assault. Evidence held to sustain conviction for assault in second degree. 2. Criminal law 1160-Verdict approved by trial court conclusive. Weight of conflicting evidence is for jury, and its verdict after trial court's refusal of new trial is conclusive on appellate court. Department 1. It is the contention of appellant that: "The verdict was clearly contrary to all the testimony, and showed that the jury had reached its conclusion of guilt by prejudice." [1, 2] Were the testimony of the appellant and his witnesses the only testimony in the case, there is no question but what the complaining witness was the aggressor instead of apcharged. We find, however, that this is not pellant, and he was not guilty of the offense the only testimony in the case. A. R. Frazier, one of the witnesses for the state, testified that he saw appellant strike Mr. Kidney with the iron. He testified as follows: "How many blows did you see struck? A. I Both seen two-that one blow and one jab. was done with some kind of an iron." The witness also stated to appellant at that time: "Don't you know it is a penitentiary offense to hit a man with a thing like that?" There is no question but what, under the law in this state, the weight of the evidence is for the jury, and when the material facts necessary to be shown are supported by the evidence and the trial court has refused to grant a new trial, the verdict is conclusive, and cannot be set aside by an appellate court. State v Chittenden, 111 Wash. 213, 190 P. 232; State v. Lance, 94 Wash. 484, 162 P. 574. The judgment is affirmed. MAIN, C. J., and PARKER, TOLMAN, and BRIDGES, JJ., concur. Appeal from Superior Court, King Coun- In re WADDELL'S ESTATE. (No. 18685.) ty; Chapman, Judge. E. H. Smith was convicted of assault in second degree, and he appeals. Affirmed. H. W. Powell and William A. Gilmore, both of Seattle, for appellant. Malcolm Douglas and T. H. Patterson, both of Seattle, for the State. PEMBERTON, J. Appellant was found guilty by a jury of the crime of assault in the second degree; the charging part of the information being as follows: "Said E. H. Smith, in the county of King, state of Washington, on the 18th day of October, A. D. 1923, willfully, unlawfully, and feloniously did make an assault upon one J. P. Kidney with a certain metal instrument, the exact name and nature of which is to affiant unknown; the said metal instrument being then and there a weapon and instrument likely to produce bodily harm, which he, said E. H. Smith then and there had and held, and then and there, willfully, unlawfully, and feloniously, with said metal instrument did beat, touch, strike, and wound said J. P. Kidney." (Supreme Court of Washington. Dec. 5, 1924.) Adoption 21-Adopted child of intestate's predeceased brother held entitled to inherit intestate's property as against intestate's first cousins or their representatives. In view of Rem. Comp. Stat. § 1699, adopted child of intestate's predeceased brother held entitled to inherit intestate's property under section 1341, subd. 5, as against intestate's first cousins or their representatives. Department 2. Appeal from Superior Court, Snohomish County; Alston, Judge. In the matter of the estate of Walter E Certain persons appeal Waddell, deceased. from the decree of distribution. Affirmed. Louis A. Merrick, of Everett, and Robert F. Sandall, of Seattle, for appellants. Wm. H. Pratt and M. J. Gordon, both of Tacoma, for respondent. MITCHELL, J. This appeal calls in question the decree of distribution entered by the (230 P.) superior court in the matter of the estate of Walter E. Waddell, a bachelor who died intestate in Snohomish county in June, 1923. On one side the parties are the adopted children (one of whom is represented by an assignee of all his interest) of a predeceased brother of Walter E. Waddell, and on the other side are the first cousins, or their representatives, of Walter E. Waddell, deceased. The trial court decided in favor of the adopted children, from which judgment the other parties have appealed. Counsel agree, as they should, that the statute of descent of property and the one on the subject of adoption are both involved. As to the first, subdivision 5 of § 1341, Rem. Comp. Stat., which is applicable here, provides: "If the decedent leaves no issue, nor husband nor wife, and no father nor mother, nor brother nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestors must be preferred to those claiming through an ancestor more remote." As to the other, section 1699, Rem. Comp. Stat.. entitled "Effect of Adoption-Descent of Property," provides: "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 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." Van Brocklin v. Wood 38 Wash 384, 80 P 530, was a case wherein a testator had died leaving an adopted child not named in the will, and it was held that the testator should be deemed to have died intestate as to such child, as though such child had been born of the testator's blood. In the opinion, after quoting the statute on adoption, it was said: "We have found no statute of any other state which goes further than this statute toward making the rights of the adopted children equal to those of the blood, and none has been called to our attention. No decisions have been cited to us which have construed the effect of similar statutes upon the status of an adopted child. It seems to us that under the plain provisions of our statute a child adopted under it has all the rights and privileges, and to the same extent, as one born in lawful wedlock, because the statute expressly says 'the child and legal heir of his or her adopter entitled to all the rights and privileges of a child of the adopter or adopters, begotten intended to, and does, confer upon the adopted child more than the ordinary right of inheritance, for in addition to making it the child and legal heir, as is done in some states, the statute proceeds to say that such child is entitled to all the rights and privileges of a child begotten in lawful wedlock. It is difficult to conceive of language which would clearly or definitely give to an adopted child all the rights of one born in lawful wedlock, if the language quoted in this section does not do so." in lawful wedlock.' This statute we think was In the case of In re Masterson's Estate, 45 Wash 48, 87 P 1047 122 Am. St. Rep. 886, both the natural mother and grandmother preferred the claim as a matter of law to the guardianship of a minor after the death of the minor's adoptive mother In denying the claim this court, upon quoting the statute on adoption, said: "And we are constrained to hold that, by virtue of this section and the decree of adoption, the natural mother waived and forfeited any right or claim she might have under section 6399, supra. By the decree of adoption the child of her adoptive mother and continued to be child became, to all intents and purposes, the 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." In the case of In re Masterson's Estate, 108 Wash. 307, 183 P. 93. construing these statutes together, it was held that an adopted child inherited an heir's portion of the estate of the natural son of the adopting parents. In the opinion it was said: "One of the rights or privileges of a natural child is to inherit from a brother or sister, the natural son or daughter of the same parents. If the adopted child does not have the same right, then it is denied a right or privilege which the natural child has. The statute says that such adopted child shall be entitled to all the rights and privileges as though it were begotten in lawful wedlock and, to all intents and purposes, shall be the child and legal heir of its adopter. To hold that the adopted child cannot take an heir's portion of the estate of the natural son and narrow construction of the statute. The of the adopting parents would require a strict authorities are not in harmony as to whether such statutes are to be construed strictly or with a tendency to liberality, in order that the primary purpose of such statutes, which is to promote the welfare of unfortunate children, may be carried into effect. Many of the cases adhere to a strict construction, but the prevailing tendency of the more modern authorities is in the direction of a liberal construction. Batcheller-Durkee v. Batcheller, 39 R. I. 45, 97 Atl. 378." One of the rights or privileges of a natural child, under the law of this state, is to in shall be to all intents and purposes the child herit from an uncle if such natural child |