after the father's death, although living elsewhere with his guardian. The progress or march of the Constitution halted at times. In Battey v. Barker, 62 Kan. 517, 64 Pac. 79, 56 L. R. A. 33, the court gave a narrow construction to the homestead clause, and held that the homestead right would not persist for the benefit of an unmarried daughter of adult years who resided on a homestead with her father until his death, he dying intestate and leaving her his sole heir, and she continuing to occupy the premises as her home. The land was held subject to sale for the debts of the father. The uncertainty as to the extent of the homestead right prevailing at the time the decision was written is apparent in the following statement of Mr. Justice W. R. Smith in the opinion: "We are not called upon to decide, nor do we find that the question has been passed upon by this court, that where the head of a family residing on a homestead loses his wife and children, the right one fixed by law to hold the homestead as against creditors is divested by such circumstance." 62 Kan. 521, 64 Pac. 80 (56 L. R. A. 33). The court was called upon in Cross v. Benson to consider the homestead guaranty as affecting a situation to some extent unique, and the decision cast additional light upon the meaning of the Constitution. It marks another stage in the progress of the Constitution, or rather in the conception of what the homestead provision means. Later, because the court was satisfied with the decision, it was made the basis for an express declaration in Weaver v. Bank, supra, overruling Ellinger v. Thomas, and in my opinion, it went far beyond the decision in Battey v. Barker, supra, and in effect has overruled the doctrine of that case. Only 18 states of the Union have in their statute of wills a provision declaring that property devised by will shall be subject in some manner to the debts of the testator. Among the 30 states which have no such provision are those comprising the 13 original colonies and the states created from their territory. Notwithstanding the absence of such a provision in 30 states, it cannot be doubted that the law is the same in all the 48 states, and that in all of them property devised by will is subject generally to the rights of creditors. It amounts to this: The law is the same whether the statute of wills contains such a provision or not. Things that are equal to the same thing are equal to each other. The language of the proviso in our statute of wills adds nothing to the force or effect of the statute nor to the rights of creditors. Without such a provision in the statute the owner of property conveyed it by will subject, generally, to his debts; the statute makes no reference to a homestead, and it seems obvious that the language was not intended and should not be construed to deprive the owner of a homestead of the right to convey or dispose of it by will just as he could have conveyed it by deed. In the words of the Supreme Court of Kentucky in Myers' Guardian v. Myers' Adm'r, supra: "And it would, therefore, seem no more injury to creditors, nor in contravention of the purpose and reason of the homestead law, for the debtor to pass the title by will than by deed; for if, as has been held, he can, by deed, remainder interest to his children, reserving a and for merely love and affection, convey the life estate to himself, we see no reason why he may not do practically the same thing by will, because his creditors are prejudiced in one state of case no more than the other." After the fullest consideration of the importance of the question involved, I have reached the conclusion that the devisees under the will take the land free from the claims of the general creditors. I am authorized to say that Mr. Chief Justice JOHNSTON and Mr. Justice BURCH join in this dissent. (54 Mont. 472) STATE ex rel. HUBBERT v. DISTRICT It requires the exercise of but a modicum of the liberality employed by the highest court in the land in the interpretation of the commerce clause of the federal Constitution for this court to hold that the valuable right of the owner of a homestead to dispose of it in any of the recognized methods of conveying real estate was included in the constitutional provision, since the only exception to his right to convey does not include a prohibition against disposing of it by will; and, following the logic of Cross v. Benson, and the force and effect given to it by the Minnesota court, to say that since the right to dis-(Supreme Court of Montana. March 7, 1918.) pose of the homestead by devise or will was not taken from the owner by the Constitution, the Legislature has no power to do so, if that were held to be the intention of the provision of section 1 of the statute of wills. As regards the intention of the Legislature, I think the majority opinion not only places too much emphasis upon the proviso in section 1 of our statute of wills, but assumes that it was intended specially to limit the Application by the State, on the relation of transfer of the homestead by will, although E. J. Hubbert, for writ of supervisory control the homestead is not specifically mentioned. to the District Court of the Eighteenth Judi MANDAMUS 4(3) — REMEDY BY APPEAL APPOINTMENT OF RECEIVER. Writ of supervisory control will not be granted where the court appoints a receiver of the property in controversy; the remedy by appeal from the order granted by Rev. Codes, 7099, being adequate and speedy. Appeal from District Court, Hill County; W. B. Rhoades, Judge. cial District in and for the County of Hill, and W. H. Rhoades, Judge thereon. Denied and dismissed. Donnelly & Carleton, of Havre, for relator. Thos. D. Long, of Havre, for respondents. HOLLOWAY, J. In the case of Masterson et al. v. Hubbert, pending in the district court of Hill county, the trial court, at the instance of the plaintiffs and without notice to defendant, appointed a receiver to take charge of the property in controversy. The defendant moved the court to annul or abrogate the order appointing the receiver, and, the motion being denied, applied to this court for a writ of supervisory control. The remedy sought is an extraordinary one. The writ never issues as a matter of course. It is authorized by the Constitution, out of abundance of caution, to prevent a failure of justice by supplying a means for the correction of manifest error committed by the trial court within jurisdiction where there is no other adequate remedy and gross injustice is threatened. State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612. If the statute provides a remedy which will afford the same or equivalent relief, it must be pursued. The motion to abrogate the order appointing the receiver was made upon the records and files in the case. The only records in the case at that time were the complaint and order of appointment. By section 7099, Revised Codes, the order appointing the receiver is appealable, and an appeal would present for consideration the entire record upon which (24 N. M. 348) (No. 2095.) STATE v. LUCERO. (Supreme Court of New Mexico. March 12, 1918.) (Syllabus by the Court.) 1. CRIMINAL LAW 841-TRIAL-INSTRUC- attention of the trial court by proper objections (Additional Syllabus by Editorial Staff.) Where the motion for a new trial did not call the trial court's attention to the alleged insufficiency of the evidence as to venue to sustain a conviction, the question was not reviewable on appeal. Appeal from District Court, San Miguel County; Leahy, Judge. Juan V. Lucero was convicted of the lar ceny of one head of neat cattle, and he appeals. Affirmed. O. A. Larrazolo, of Las Vegas, for appellant. George C. Taylor, Asst. Atty. Gen., for the State. ROBERTS, J. Appellant was tried and convicted in the district court of San Miguel county under an indictment charging him with the larceny of one head of neat cattle, the property of Florencio Garcia. The venue was laid in the county of San Miguel. reversal: First, that the trial court erred in [1] Two points are relied upon here for the motion to abrogate was made, and there- giving instruction No. 10 relative to where fore every question raised before the lower the trial of an offense may be had, where it court or which may be raised on this applica- line between two counties. This instruction, is committed within 500 yards of a boundary tion could be raised on the appeal. If the order should be reversed on appeal, the effect however, is not subject to review here because the alleged vice in it was not called would be to blot out the receivership as from the beginning. In other words, the appeal tion or exception prior to the giving of the to the attention of the trial court by objecwould accomplish the same result as would instruction. Errors in instructions must be have been accomplished if the trial court had called to the attention of the trial court by sustained defendant's motion and the same proper objections or exceptions before the inresult as would now be accomplished if on structions are given to the jury. Territory this application we should direct the lower v. Pettine, 16 N. M. 40, 113 Pac. 843; State court to annul its order. The fact that a mov. Eaker, 17 N. M. 479, 131 Pac. 489; State v. tion to annul the order of appointment was Alva, 18 N. M. 143, 134 Pac. 209, 211; State made and denied does not affect the right | v. Padilla, 18 N. M. 573, 139 Pac. 143; U. S. to appeal from the original order, and the time within which an appeal from such order may be taken has not expired. It follows that in this instance the statutory remedy is adequate. It is also speedy; for under the rules of this court such appeal is entitled to advancement as of right. For these reasons, this application is denied, and these proceedings are dismissed. Dismissed. BRANTLY, C. J., and SANNER, J., con cur. v. Cook, 15 N. M. 124, 103 Pac. 305; State v. Graves, 21 N. M. 556, 157 Pac. 160; State v. Johnson, 21 N. M. 432, 155 Pac. 721. [2, 3] The second point urged is that the verdict was not sustained by the evidence, in that there was no evidence to show commission of the crime in San Miguel county. An examination of the transcript, however, does not sustain appellant's contention. There was evidence from which the jury might reasonably conclude that the animal was stolen within San Miguel county; nor is this question here for review, because not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes CONTESTABLE. The word "incontestable," as used in life insurance policies providing that the policy shall be incontestable, means indisputable and amounts to a guaranty that no objection shall be taken to defeat the policy on the death of the person whose life is insured. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Incontestable.] 2. INSURANCE 517-LIFE INSURANCE-INCONTESTABLE POLICY-DEFENSE OF SUICIDE. An incontestable clause in a policy of insurance does not preclude the defense of suicide, where the suicide clause in the policy is a part of the contract to pay, providing how much shall be due and payable in the event of death by self-destruction. Appeal from District Court, Bernalillo County; Mechem, Judge. Suit by Gussie I. Stean against the Occidental Life Insurance Company. Judgment for plaintiff, and she appeals. Affirmed. Heacock & Cornell, of Albuquerque, for appellant. A. B. McMillen, of Albuquerque, for appellee. ROBERTS, J. This suit was instituted in the court below by appellant to recover from appellee the sum of $2,000, alleged to be due appellant as beneficiary under a policy of insurance of $2,000 on the life of her husband, Earl R. Stean, issued by appellee. Appellee answered and admitted the execution of the policy and alleged that there was due thereon the sum of $76.80, which was tendered to appellant. The case was submitted to the court on stipulation of facts, substantially as follows: The policy of insurance was issued on the 19th day of June, 1915, and, in consideration of an annual premium of $38.40 to be paid on the 18th day of June of each year, the company agreed to pay $2,000 to the beneficiary upon receipt of due proofs of the death of the insured should such death occur within ten years from the date of the policy and while the policy was in force. The policy contained two provisions which are involved in this case, which are as follows: "1. This policy is incontestable after one year from date of issue except for nonpayment of premiums and is absolutely free from all conditions as to residence, occupation, travel or place of death. * "7. Death by self-destruction, sane or insane, within two years of the date of the issue hereof, shall limit the amount payable by the company to the total premiums paid by the insured, and no more. This policy is issued on the nonparticipating plan. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties." The insured had paid two annual premiums of $38.40 each, and on the 7th day of March, 1917, while the policy was in full force, the said Earl R. Stean died by self-destruction. The insured having died more than one year after the issuance of the policy but within less than two years from such time, the trial court found that under said paragraph 7 the beneficiary was entitled to only the annual premiums paid by the insured and entered judgment accordingly. To review this judgment this appeal is prosecuted. [1, 2] The sole question presented under the pleadings and stipulation of facts in this case is the proper construction of the policy and the amount to be recovered thereunder. That it was competent for the company to limit its liability in case of self-destruction by the insured is not questioned, and that it had such right is well settled. 25 Cyc. 878; Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, 23 L. Ed. 918. The provision in case of selfdestruction within two years of the date of the issue of the policy, and its effect, is clear, and there can be no question as to its meaning; but appellant relies upon the incontestable clause of the policy to defeat the clause relative to self-destruction. Appellant contends that appellee has contested the policy, and her argument and the authorities cited are directed to this theory of the case. Of course, if it is true that the construction which appellee claims should be placed upon the policy amounts to a contest, clearly appellant would be right in her contention. It is beyond question that in the interpretation of a policy of insurance it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity which in making the insurance it was his object to secure, and when the words used by the insured are, without violence susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted. May on Insurance, § 175; Elliott on Contracts, vol. 2, § 1528, and cases cited. We are unable to see how the assertion by the insurance company that its liability is limited to the return to the beneficiary of the premiums paid by the insured under the suicide clause amounts to a contest of the policy. The insurance company admits that the policy is in full force and effect and that it is liable thereunder, but insists that its liability is limited to the return of the premiums paid because of the fact that the insured commit Ann. Cas. 236, the same point was involved, and the court held that the assertion by the insurance company of its limited liability under the suicide clause was not a contest of the policy. This case was cited with approval by the Appellate Court of Indiana in the case of Court of Honor v. Hutchens, 79 N. E. 409. The same rule was announced in the case of North America Union v. Trenner, 138 Ill. App. 586. In 14 R. C. L. 1233, it is said: ted suicide within two years. The provision | of America, 113 Tenn. 252, 82 S. W. 832, 3 that its liability in such case shall be limited to a return of the premiums is clear, and there can be no question as to its meaning. The incontestable clause in the policy is in substance that the validity of the policy will not be questioned after the expiration of one year, but the suicide clause is not one which enters into the original validity of the contract, but one which limits the right of recovery after the full existence of the contract is established. A very good definition as to the meaning of "incontestable" is found in Simpson v. Life Ins. Co. of Virginia, 115 N. C. 393, 20 S. E. 517, which is as follows: "That a promise that all assurances shall be unquestionable means indisputable, and amounts to an absolute guaranty that no objection shall be taken to defeat the policy on the death of the person whose life is insured." "It would seem that a provision for reduced liability in the case of death by suicide is not affected by the incontestable clause." We are of the opinion, that, while the policy in this case became incontestable after one year except upon the grounds stated, that it was in force according to its terms and those terms being plain and explicit to the effect that the beneficiary in case of suicide of the insured should be entitled only to recover the premiums paid, the amount for which judgment was rendered in the court below and which was tendered into court, the judgment of the court must be affirmed, and it is so ordered. HANNA, C. J., and PARKER, J., concur. (24 N. M. 351) STATE v. ROMERO. (No. 2145.) (Supreme Court of New Mexico. March 12, 1918.) (Syllabus by the Court.) 1. CRIMINAL LAW 1159(2)-APPEAL-VERDICT-REVIEW. Where there is substantial evidence to support the verdict of the jury, the same will not be disturbed on appeal. 2. CRIMINAL LAW 404(4) CLOTHING WORN BY DECEASED. EVIDENCE Under circumstances of this case, it was not dence clothing worn by deceased at time of killerror to permit the state to introduce in eviing. In construing life insurance policies as in the construction of other contracts, the entire contract is to be construed together for the purpose of giving force and effect to each clause. 25 Cyc. 740. In the policy under consideration, the clause limiting the liability in the case of self-destruction does not conflict with the incontestable clause. The amount payable in case of death by self-destruction is just as much a part of the contract as is the amount payable in case of death from natural causes. Neither the one nor the other can be determined without examining the terms of the contract. Neither amount will be payable unless the policy is valid and in force. The right to the amount payable in case of self-destruction depends upon exactly the same prerequisites as the amount payable in case of death from natural causes. In this case there is no fact in controversy. There is no contest upon the facts. The sole question presented is the application of the law to the facts; that is, when the appellee asked the court to construe the policy according to the plain language embraced therein, did that amount to a contest under the incontestable clause? It must be clear that every resistance by the insurer against the demand of the beneficiary is in one sense a contest, but it is not a contest of the policy; that is, not a contest against the terms of the policy but a contest for or in favor of the terms of the policy. In other words, there are two classes of contests: one to enforce the policy, the other to destroy it. Undoubtedly the term "incontestable" as used in a life insurance policy means a contest, the purpose of which is to destroy the validity of the policy, and not a contest the purpose of which is to demand its enforce- The undisputed evidence shows that the ment. Here, the appellant and the appellee appellant killed Maria Varela de Jaure, at are demanding exactly the same thing, name- the time alleged in the indictment, by shootly, the enforcement of the terms of the policy.ing her. Nor is there any dispute of the fact The dispute is as to those terms, and seeking that appellant and deceased had been on the construction by the court of the terms of friendly terms shortly prior to the time of the policy and the application of the terms the killing. Appellant claims, however, that when ascertained is not a contest of the policy. he was exceedingly drunk at the time he In the case of Childress v. Fraternal Union fired the fatal shot, and that he had no recol Appeal from District Court, San Miguel County; Leahy, Judge. Julian Romero was convicted of murder in the first degree, and he appeals. Affirmed. William J. Lucas and William G. Haydon, both of East Las Vegas, for appellant. Milton J. Helmick, Asst. Atty. Gen., for the State. PARKER, J. The appellant, Julian Romero, was convicted of murder in the first degree, in the district court for the county of San Miguel. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lection of his conduct in this respect. It is made thereon by appellant's plea of not argued that the verdict of murder in the first guilty. At the trial it thereupon became indegree cannot be sustained, because of preju- cumbent on the state to prove the material dice existing in the minds of the jury, due to allegations of the indictment beyond a reathe admission and exhibition of the clothing sonable doubt. The clothing was an item of of the deceased in evidence. Counsel for the evidence tending to prove, in part, those alappellant consequently argue that the verdict legations. The appellant not only did not of the jury would not have been murder in admit all relevant matter which the clothing the first degree, had the court excluded con- might tend to prove, but from an examinasideration of the clothing of deceased. tion of the record it appears that his counsel [1] 1. There is evidence in the record tend-questioned the evidence of the state as to the ing to show that appellant was not drunk at number of shots which were fired by appelthe time he fired the fatal shot; his conduct | lant at the deceased. We are satisfied that at and prior to this time indicating that he the circumstances of this case were such as possessed his faculties, whereas the evidence permit the introduction of the clothing in introduced on behalf of appellant would indi- evidence. Icate that he was drunk and did not possess his faculties. There is substantial evidence, however, to support the verdict of the jury, and the verdict will not, therefore, be set aside on appeal. [2] 2. The crucial question is whether the court erred in admitting in evidence the clothing of the deceased. Counsel for the appellant contend that the admission and exhibition of the blood-stained clothing of the The judgment of the trial court is therefore affirmed; and it is so ordered. HANNA, C. J., and ROBERTS, J., concur. (24 N. M. 339) TRUJILLO et al. v. TUCKER. ARNWINE et al. v. SAME. (Nos. 2079, 2080.) 1918.) (Syllabus by the Court.) 30-AFFIDAVIT-SUFFICIENCY 1. REPLEVIN An affidavit in replevin in substantial com- PROPERTY. 59-COMPLAINT - Value of The value of the property sought to be replevined need not be stated in the complaint, where suit is filed in a court of general jurisdiction, and the statute does not require the complaint to state the value. 3. APPEAL AND ERROR 719(1) ASSIGN deceased served no legitimate purpose in the (Supreme Court of New Mexico. March 12, case, and that it tended to inflame the minds of the jurors and prejudice them against the appellant. It is contended that the killing was admitted, as was the location of the wound on deceased and the relative position of the parties at the time the fatal shot was fired. In the oral argument of the case, counsel for appellant stated that the location of the wound could have been proved by the state by evidence other than the clothing. We fully discussed the law with reference to the admissibility of such evidence, in the case of State v. McKnight, 21 N. M. 14, 35, 153 Pac. 76. We held in that case that such demonstrative evidence was admissible, but that it should not be admitted, unless it serves to identify the deceased or honestly explain the transaction. Where there is no issue or contest as to facts which such evidence would legitimately tend to prove, there is no justification for its admission. Thus, in Gillespie v. State (Tex.) 190 S. W. 146, the defendant stated that there would be no issue on the question as to the location and character of the wounds. It was held that the court erred in admitting in evidence the bloody clothing of the deceased, because all that such evidence would prove was conceded by the appellant. In McKinney v. State (Tex.) 187 S. W. 960, 963, the testimony of two state witnesses was not in complete harmony as to the location of the wounds on the body of the deceased, and it was held that the clothing was therefore properly admitted. See, also, Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527, 530; Lucas v. State, 50 Tex. Cr. R. 219, 95 S. W. 1055. In the case at bar the indictment charged murder in the first degree, and an issue was MENTS OF ERROR-REVIEW. Questions not raised by the assignments of error will not be considered. 4. PROPERTY 9-OWNERSHIP AND POSSESSION EVIDENCE. Any competent evidence may be introduced of possession of personal property. to establish the fact of ownership and right Appeal from District Court, Lincoln County; Medler, Judge. Demurrer to Suit in replevin by Francisco Trujillo and another against Thomas H. Tucker, and suit in replevin by Allan Arnwine and another against the same defendant. complaint overruled and judgment for plaintiffs in each case, and defendant appeals. Judgment in each case affirmed. George B. Barber, of Carrizozo, for appellant. George W. Prichard, of Santa Fé, for appellees. ROBERTS, J. The above cases were tried together and upon the same evidence in the |