3. STATUTES

MENT.

230-CONSTRUCTION-AMEND- such revocation shall pay the cost and expenses of proceedings out of the property of the deceased." Rem. Code, § 1313.

To measure law making a change in a preexisting law, the old law must be considered;

the presumption being that in making change the Legislature had in mind a mischief and a remedy.

4. WILLS

TION.

Pac. 677, the court met the insistence of coun

In Jasinto v. Hamblen, 79 Wash. 590, 140

sel that an allowance for attorney's fees and 404-CONTESTS-COSTS-DISCRE- costs to a nonsuccessful contestant should be

Contestant to whom deceased had, by a prior will, devised his entire estate, held to make a prima facie showing of probable cause in contest of second will, so that court abused its discretion in taxing costs and attorney's fees against her as costs, under Laws 1917, P. 648, § 19, providing that if the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court, and, if the will be sustained, the court may assess costs against the contestant, which costs may, in the discretion of the court, include a reasonable attorney's fee.

Department 2. Appeal from Superior Court, Mason County; D. F. Wright, Judge. Proceedings by Marie Preuss against Anna Berg, as executor contesting a will of Carl Eichler, deceased. Decree for contestee, and contestant appeals. Remanded, with instructions to modify decree.

Adolf Loewe, of Seattle, for appellant. T. M. Vance, of Olympia, and R. A. Lathrop, of Shelton, for respondent.

CHADWICK, J. [1, 2] The statement of facts was heretofore stricken, and we cannot inquire into the merit of the court's decree. We are not unmindful of the contention of the appellant that we may nevertheless consider the exhibits, and which in themselves will show that the decree of the court is ill

founded in fact. It is true that the exhibits were not stricken eo nomine; but inasmuch as the exhibits are made by statute and the certificate of the trial judge a part of the statement of facts, it follows that they went out under our previous order.

However, the question whether the court erred, or abused its discretion, in taxing costs and an attorney's fee of $400 against the con

testant is still in the case. Respondent contends that the attorney's fee is not disproportionate or excessive when measured by the value of the estate, which was appraised at $5,758. This argument would be attractive if the payment was to be made out of the estate and to counsel who had successfully resisted the contest. But the case presents itself from another angle. The statute under which the court taxed costs and attorney's fees against the unsuccessful contestant is:

"If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court. If the will be sustained, the court may assess costs against the contestant, which costs may in the discretion of the court

include a reasonable attorney's fee." Laws 1917, c. 156, § 19.

The former statute is as follows:

"The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled, the party who shall have resisted

made out of the estate by quoting the statute and saying that there was no provision of the Code under which the costs and expenses of an unsuccessful contest could be paid out of the estate. The court observed that it was of opinion that neither the law nor good conscience demanded that the unsuccessful contest of a will should result in costs and counsel fees against the estate, advancing the reason that such a ruling would in effect place a reward upon the contest of every will disposing of large estates. See, also, Hunt v. Phillips, 34 Wash. 362, 75 Pac. 970; In re Rathjens' Estate, 45 Wash. 55, 87 Pac. 1070. There is much merit in the observance of the court, but it is evident that the Legislature was not impressed with the reasons given other than its quotation of the statute, for it is evident that that body foresaw the possibility of a contest that might be meritorious, and which in justice the contestant would have a right to wage, although unsuccessful in the end. This case would fall in

the latter class, for here we have a situation made entirely by the deceased person. He made two wills; one sustained by the declarations and habit of years and the tie of blood, the other by no sustaining grace other than the cold writing on the page.

[3] To measure the present law we must consider the old law, for a presumption carries in all changes in statute law that the Legislature had in mind a mischief (a mischief of various rules, 40 Cyc. 1362) and a remedy, and we must attribute a motive for the striking out of the arbitrary provisions of the old law and a substitution of a discretionary power to award costs and attor

ney's fees unhampered by any restrictions

within the realm of reasonable discretion.

Counsel for respondent cite In re Gorkow's Estate, 20 Wash. 563, 56 Pac. 385, and In re Statler's Estate, 58 Wash. 199, 108 Pac. 433, but they go but a little way, if at all, to sustain their position, for in each of those cases the allowances were made out of the estate. They were not charged as a money judgment against an unsuccessful contestant.

[4] So that the only question for us is whether the trial judge abused his discretion. We are convinced that he did, and for two reasons: The charge was made as costs against contestant as a losing party, which is primarily unsound, and contestant made a prima facie showing a probable cause for contesting the will. It appears from the petition that appellant is a niece of the deceased, Eichler; that deceased had often expressed an intention of making her his sole heir, and

11661⁄2 (12) - HARMLESS ERROR-REMARKS OF COURT.

A remark by the court, "the jury must disregard all testimony," following closely after a ruling sustaining an objection to introduction of a certain paper, could not have prejudiced accused. 1141(2)—APPEAL-PRE

4. CRIMINAL LAW

SUMPTIONS.

Department 2. Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge. Fanny Daugherty was convicted of assault in the third degree, and she appeals. Affirmed.

A. E. Rice and Gus L. Thacker, both of Chehalis, for appellant. Herman Allen, of Chehalis, and J. H. Jahnke, of Centralia, for the State.

to that end had prepared a will as early as 13. CRIMINAL LAW July 22, 1913, in which he had devised all of his estate, saving two legacies of $1 each to her, and to avoid all question or chance of loss had put the will in her hands for keeping; that he had an affection for his niece which was more than casual, for he had directed that his "body be decently buried un Error is never presumed, and, on the conder the direction of my beloved niece, Marie trary, the presumption must be that the proceedPreuss." This will was proposed in the pe-ings were correct, where the record is susceptible of two constructions. tition for contest. It is further alleged that in 1916, and shortly before the execution of the later will, Eichler was living alone, was aged and infirm, sick in body and mind, and subject to undue influence and coercion; that the respondent occasionally attended him; that he was eccentric, quarrelsome, suspicious, and easily frightened and intimidated; and that, because of his helplessness and dependence, respondent, a stranger to his blood, with mercenary intent, prevailed upon him to reverse his avowed intention to leave his property to appellant and to make her the devisee of the great bulk of his property. It is further alleged that a short time there-instructed. Error is assigned in the giving of after, and while sick at a hospital in Seattle, where he had gone for surgical treatment, he caused a letter to be written to the scrivener and custodian of the later will at Shelton, directing him to send it to him at Seattle, and that the will did so arrive in due course of mail on the morning after the night of his death. Surely this is a showing of probable cause, a color of title if you please, and to penalize appellant for daring to ask an adjudication upon a subject-matter that in right and conscience is probably her own would be to do a great wrong, and tend to discourage the assertion of legitimate claims. We think our statute was intended to cover just such cases as we have here, and that the exercise of a sound discretion demands that the costs be taxed against the estate, and that no at torney's fees be charged to appellant.

The cause is remanded, with instructions to modify the decree accordingly. Appellant

will recover her costs on appeal.

HOLCOMB, MOUNT, and MACKINTOSH, JJ., concur.

STATE v. DAUGHERTY. (No. 14820.) (Supreme Court of Washington. June 4, 1918.) 1. ASSAULT AND BATTERY 95-SELF-DEFENSE-INSTRUCTIONS.

MACKINTOSH, J. The appellant claims that the jury which found her guilty of assault in the third degree was improperly

an instruction upon the defense of selfdefense and the refusal to give another instruction proposed by the appellant on the same subject. A careful reading of the record shows that the following is the only testimony referring to self-defense:

*

"He said, 'Damn you, you can't bluff old Morgan Hunt (the prosecuting witness).' He started off, and I gave him a jab with my gún He turned and then I guess he in the back. struck his head. * * Mr. Hunt started to go off from me, and I called his attention, and asked him to please give me the note. I don't know whether I jabbed him or was warding off the lick; I was mad and excited. All you did was to poke Mr. Hunt in the back? A. I jabbed Mr. Hunt in the back to attract his attention. Q. You deny striking him over the head? A. I don't know. I put up my gun to ward off the lick. Q. You may have struck him with your gun over the head? A. Yes."

* *

[1, 2] It was the duty of the court to determine as a matter of law whether sufficient

proof had been introduced to warrant the

submission to the jury of the defense of selfdefense, and in this case the court should

have determined as a matter of law that there had been no such evidence introduced; therefore the refusal of the court to give the instruction requested was not error, and the instruction which was given was harmless. State v. Cushing, 17 Wash. 544, 50 Pac. 512; State v. McPhail, 39 Wash. 199, 81 Pac. 683; State v. Ash, 68 Wash. 194, 122 Pac. 995, 39 R. A. (N. S.) 611.

In assault case, it is for the court to deter-L. mine as a matter of law whether sufficient proof [3, 4] The other error assigned is that the has been introduced to warrant the submission court during the trial used the following lanof self-defense to the jury. guage:

2. ASSAULT AND BATTERY

96(3)-SELF-DE

FENSE SUFFICIENCY OF EVIDENCE. In assault case, where defendant did not know whether she put up a gun to ward off a

blow or just hit the prosecuting witness over the head in her anger, the court properly refused an instruction on self-defense.

"The jury must disregard all testimony."

The record discloses that this instruction or remark was made after an argument had

been had in regard to the admissibility of certain evidence, and the record shows that just

prior to the making of this remark the court and on that date, at a hearing on his final had said:

Thereupon the court used the language complained of. We do not think this could' have prejudiced the appellant in any way for the court proceeded with the testimony in her behalf, and certainly we cannot presume that the jury understood the court intended it to disregard all the testimony in the case, but that the language used merely referred to the testimony which at that time was under consideration. Error is never presumed, and, on the contrary, the presumption must be that the proceedings were correct, where the record is susceptible of two constructions. Francioli v. Brue, 4 Wash. 124, 29 Pac. 928; Seattle v. Whitworth, 18 Wash. 127, 51 Pac. 345; Carpenter v. Barry, 26 Wash. 255, 66 Pac. 393; Powers v. Washington Portland Cement Co., 79 Wash. 1, 139

Pac. 615.

The judgment is affirmed.

report before the county court of Muskogee county, was adjudged by said court to be indebted to plaintiff in the sum of $732.96. From this judgment there was an appeal taken by the guardian to the district court, where the appeal was dismissed for want of prosecution, and the judgment of the probate court became final. For the amount of this judgment plaintiff brings suit against defendant on her guardian's bond. The defense of the surety company is that the judgment of the county court had been compromised, and the company had agreed to pay plaintiff the sum of $500. This sum was deposited with the county judge to be paid to plaintiff when she reached her majority. There was trial to the judge without jury, and judgment rendered for the plaintiff in the sum of $500. From this judgment defendant appealed.

The plaintiff is a citizen of the Cherokee Nation, and the funds received by her guardian, which are the basis of this action, were

from the rental of her allotment and from the sale of a portion thereof. The alleged compromise agreement was entered into MAIN, C. J., and MOUNT, CHADWICK, about the 9th day of September, 1915. Plainand HOLCOMB, JJ., concur.

SOUTHERN SURETY CO. v. LEPHEW.

(No. 9053.)

(Supreme Court of Oklahoma. May 28, 1918. Rehearing Denied June 25, 1918.)

(Syllabus by the Court.)

tiff became of age on the 19th day of May, 1916. The attempted compromise with the minor was ineffectual and not binding upon her.

[1] A minor allottee cannot make a valid contract concerning his or her allotted lands or proceeds therefrom except by guardian acting within the scope of his authority as such and in conformity to the law governing his

1. INDIANS 24- MINOR ALLOTTEE CON- acts as guardian. Cochran v. Teehee, 40 Okl.

TRACT.

A minor allottee of the Five Civilized Tribes is not bound by a contract entered into by her during her minority affecting her allotted lands or the proceeds derived therefrom. 2. GUARDIAN AND WARD

182(6)-GUARDIAN'S BOND-ACTION-SUFFICIENCY OF EVI

DENCE.

The evidence examined, and held sufficient to sustain the judgment of the trial court.

Commissioners' Opinion, Division No. 3. Error from District Court, Muskogee County; R. P. DeGraffenried, Judge.

Action by Jennie Lephew, née Maher, against the Southern Surety Company. Judginent for plaintiff, and defendant brings error. Affirmed.

Stanard, Wahl & Ennis, of Shawnee, for plaintiff in error. W. W. Noffsinger and Y. P. Broome, both of Muskogee, for defendant in error.

388, 138 Pac. 563; Brewer v. Dodson, 159 Pac. 329.

[2] Defendant contends that after she reached her majority she ratified the compromise. The evidence by which defendant seeks to establish a ratification of the comthe 19th day of May, 1916, plaintiff became promise establishes the following facts: On

of age.

She, accompanied by her husband. went to the office of the county judge. That the county judge took up with them the matter of turning the funds in his hands over to them. He informed them that he had some claims for grocery bills, one bill being in favor of A. W. Jones for $25, and another claim in favor of Dodson-Hine Grocery Company for $50 or $60. That he would have to withhold these amounts and deduct the court costs from the funds in his hands. The plaintiff agreed to pay the Jones account of $25. The county judge drew a check in favor PRYOR, C. This action was commenced of Jones, which plaintiff indorsed and reby Jennie Lephew, née Maher, as plaintiff, turned to the judge; but when he insisted against the Southern Surety Company, as he would have to withhold the amount of surety, on guardian bond, to recover the sum the Dodson-Hine account and court costs, of $732.97. The parties will be referred to plaintiff refused to allow this claim to be deas they appeared in the trial court. On the ducted and informed the judge that the sure18th day of September 1914, James Maher ty company was to pay the court costs and was the guardian of plaintiff, then a minor, | back taxes, according to their agreement, and