(141 Cal. 432) In re HITTELL'S ESTATE. (S. F. 3,490.) 1. Under Civ. Code, § 1350, providing that a devise or legacy to more than one person vests in them as owners in common, sections 685 and 683, defining "interest" in common and "joint interest," and section 686, providing that every interest created in favor of several persons shall be in common, unless expressly declared a joint interest, a bequest of all the testator's estate to two persons creates a tenancy in com mon. 2. A bequest to two persons (naming them) "with whom I live, and whom I regard and treat as my adopted daughters," is not a bequest to a class, entitling one to the entire bequest on the death of the other before the death of the testator. 3. Where a will bequeathed the entire estate to two persons, stating that the testator regarded them as adopted daughters, and giving reasons for making no bequests to his heirs, to the effect that they were already provided for, on the death of one devisee before the testator's death the court will not construe the will to create a right of survivorship in the other, in order to carry out the intent of the testator that his heirs should not take under the will. Department 2. Appeal from Superior Court, City and County of San Francisco; J. V. Coffey, Judge. Proceedings on the estate of John S. Hittell, deceased. From a decree distributing the whole estate to Anna P. Greer, Theodore H. Hittell and others appeal. Reversed. Theodore H. Hittell, for appellants. Smith & Pringle and W. B. Kohlmyer, for respondent. MCFARLAND, J. The deceased died testate, and this appeal is by heirs at law fróm a decree of distribution by which the whole of the estate is distributed to the respondent, Anna P. Greer, a devisee named in the will. The contention of appellants is that only one undivided one half of the property of the deceased went to the respondent under the will, and that the other half was undisposed of, and vested in the heirs at law, and this contention must be sustained. There was before the trial court a photographic copy of the will, and it is in the record on appeal. It is contended by appellants that a certain word in the will is "daughter" (in the singular), and by respondent that it is "daughters" (in the plural). The court below did not expressly find whether the word is singular or plural. The only evidence on the point, outside of what the will itself shows, is the testimony of one Ames, who was called by respondent as an expert on handwriting. He testified that the word "was, as a physical fact, written 'daughter,' in the singular," and then went out of the realm of expert testimony to say that, taking the context, the grammatical construction of the sentence, etc., "he was of the opinion that it was intended to mean 'daughters.'" The court below must have treated the word as plural, for otherwise there would be no pretense for the theory upon which the decree rests. But as, in our opinion, the contention of appellants must be maintained whether the word be held to be singular or plural, we will not pass on that question, and, for the purpose of this opinion, will take it to be "daughters," and so write it in the part of the will hereinafter copied. The will, omitting the parts which are merely formal or not material here, is as follows: "I bequeath all my real and personal property to Anna P. Greer and Mary M. Greer with whom I live at this house 1216 Hyde St., and whom I regard and treat as my adopted daughters. I give nothing to my brother Theodore because I suppose him to be rich; I give nothing to any of his children,-Catherine, Charles or Frank, because he can provide for them; I give nothing to my sister Mary H. Killinger or to her children, Charles, Flora and John, for a similar reason; and nothing to my niece Mary H. Kingbury because I suppose her husband can provide well for her." The will was made September 8, 1897, and the testator died March 9, 1901. Mary M. Greer, mentioned in the will, died on February 23, 1900 -more than a year before the death of the testator. There were no findings or evidence of facts as to the circumstances under which the will was made that give any extrinsic aid to its interpretation. The will itself shows that at the time of its execution the testator and the devisees were living together at a certain place, and the only additional evidence as to that matter was that they had been so living together for "some ten years." It also appears that Mary was "about forty years old," and that Anna was "older"; that they were sisters; that the testator continued to live with Anna until his death; that he and they were unmarried people; and that there "was no relationship of blood or marriage between said testator and either said Anna P. Greer or Mary M. Greer." These are the only facts not shown by the will, and they throw no light upon its meaning. What it means must therefore be gathered from what appears upon its face. The first apparent and obvious impression which a reading of the instrument leaves on the mind is that the will makes a devise to two persons, Anna and Mary, as tenants in common; that, if they had both outlived the testator, they would have taken as tenants in common, and if, afterwards, one of them had died, her estate would have gone to her heirs or devisees, and not to the other cotenant; and that, upon the death of Mary during the life of the testator, the testamentary disposition to her failed or lapsed, in which event it went to the heirs at law of the testator. Our Code expressly provides that "a devise or legacy given to more than one person vests in them as owners in common" (Civ. Code, § 1350); that "an interest in common is one owned by several persons not in joint ownership or partnership" (Id. § 685); that, "a joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy" (Id. § 683); and by section 686, Id., that every interest created in favor of several persons is an interest in common, unless a joint interest created as provided in section 683 or held in partnership. By the will in question here, no joint tenancy or right or survivorship of any character is declared or intimated. It creates a clear tenancy in common. Counsel for respondent, as we understand them, do not seriously contend that the will creates the strict legal relation of joint tenancy. But they contend that their client gets the whole estate, not as a surviving joint tenant, but as the remaining person of a "class." Their contention is that the devise was to Anna and Mary as a class, and that the case comes within the rule that, where there is a devise to a class, those of the class who are in existence at the death of the testator take the whole estate. We think that this position is wholly untenable. The devise in the case at bar is simply to two named individuals, and there is no designation of a "class," within the meaning given that word by the authorities. The statement that the devisees were persons with whom he lived, and treated as his adopted daughters, is of no significance, except, perhaps, as a reason given for his bounty. A common instance of a devise to a class is where a testator gives property, generally to the "children" of a certain person, without naming them-as to "the children of my brother John"; and in such a case it is held that the devise is to such children of John as will be in existence at the time of the testator's death. There are cases where in the devise the individuals and the class are both named -as, for instance, where it is "Charles, James, and Robert, children of my brother John'; and in such cases courts have had some difficulty in determining whether the devise was to the individuals named or to the class. In such a case the general rule is that the persons named take as individuals, and not as a class, unless some other clause of the will, or some evidence outside of it, calls for a different construction. The result of the authorities-and counsel for each side have cited a large number of them-is correctly stated in Page on Wills, § 543, as follows: "Where there is a gift to a number of persons who are indicated by name, and also further described by reference to the class to which they belong, the gift is held prima facie to be a distributive gift, and not a gift to a class;" and, after citations in his notes, he says: "In such cases, if one of the beneficiaries dies before the testator, there is therefore no right of survivorship to the other named beneficiaries." Indeed, counsel for respondent admit that "a denominative gift to members of a class, without more, is not a gift to the class." Therefore, in the case at bar, even if a class had been named, the gift would have been to the individuals, because there is nothing in the other parts of the will, or in any extrinsic evidence, showing a different intent, and there are no operative words creating any right of survivorship. But as before stated, there was no class named, and this fact is an insurmountable obstacle in the way of respondent's contention. Although the will has no operative words to create anything other than a tenancy in common, it is contended that a right of survivorship should be judicially forced into it in order to carry out the intent of the testator, because, it is said, the reference in the will by the testator to his relatives, who were his heirs at law, showed that he did not intend that they should have any of his property, while, if there be no survivorship, one-half of his estate would go to such heirs. We see no merit in this contention. The will was made in view of conditions existing at the time of its execution, and as he gave all of his property to the two women, both of them living, of course he intended at that time, and under existing circumstances, that his heirs should take nothing. It was quite natural that, having given nothing to any of his blood relatives, he should state his reasons for his conduct in that respect. These reasons did not intimate any hostility to his relations. They were simply that he supposed them to be well provided for financially. As in the case of innumerable wills, the testator did not anticipate changed conditions, and did not provide for the event of the death during his lifetime of one of the named devisees, which he could easily have done, if he so desired, by giving the property to them, or to the survivor of them. What his actual intent may have been after the conditions were changed by the death of Mary, we have no means of knowing, except from the fact that he allowed the will to stand as originally executed. He may have thought that one-half of his estate would be sufficient for the wants of the remaining woman. At all events, we must apply the law to the will as i reads, and the fact of the death of Mary before that of the testator; and, thus applying it, the conclusion clearly follows that the living devisee, Anna, took one undivided half of the estate, and that the other half vested in the heirs at law. The decree of distribution appealed from is reversed. We concur: LORIGAN, J.; HENSHAW, J. (141 Cal. 466) BRUSH v. SMITH et al. (S. F. No. 3,289.) (Supreme Court of California. Dec. 29, 1903.) JUDGMENTS-COLLATERAL ATTACK-JUSTICE OF THE PEACE--EXECUTION. 1. Where a justice of the peace had jurisdiction of the parties and subject-matter, the judgment was not void because the complaint did not in fact state a cause of action; and such judgment was not subject to collateral attack in an action to reclaim property sold under execution issued on such judgment. 2. An execution reciting that judgment was recovered "in Justice B.'s court of S. township," instead of reciting that it was recovered in the justice's court of S. township, was amendable, and it would be accorded the same effect, with reference to acts done under it, as if it had been amended. Commissioner's Decision. Department 2. Appeal from Superior Court, Sonoma County; S. K. Dougherty, Judge. Action by J. H. Brush against J. H. Smith and others. Judgment for plaintiff, and defendants appeal. Reversed. R. W. Miller, J. A. Barham, and Ed. C. Barham, for appellants. R. F. Crawford and Thos. Rutledge, for respondent. COOPER, C. This action was brought to recover the possession of certain cattle described in the complaint, or the value thereof in case a delivery cannot be had. The case was tried before the court, and findings filed, upon which judgment was ordered and entered for plaintiff. Defendants prosecute this appeal from the judgment and an order denying their motion for a new trial. The facts are as follows: In September, 1899, defendant King commenced an action against the plaintiff in the justice court of Santa Rosa township to recover the sum of $299.99, besides interest. The complaint in said case, after being properly entitled, alleged: "That on or about the 19th day of September, 1899, at Santa Rosa, California, the above-named defendant had and received of this plaintiff, to the use and benefit of the defendant, the sum of $299.99 gold coin of the United States; that the defendant has not paid the same, nor any part thereof; that said sum of $299.99 is due, and remains wholly unpaid." Judgment was prayed for for said sum, with interest. A summons was duly issued by the said justice, and personally served upon the plaintiff (who was defendant in said action). He made default, and thereupon judgment was duly entered against him for the amount claimed in the complaint. He then moved in said justice court to set aside the default judgment, and his motion was denied. He afterwards appealed from the said judgment to the superior court of Sonoma county, and the judgment rendered in the justice court was affirmed, and became final. An abstract of the justice judgment was filed in the office of the county clerk of Sonoma county, and said judgment duly dock This eted therein. Plaintiff did not pay the judgment so docketed against him, and, at the request of defendant King an execution was issued in January, 1901, and delivered to defendant Smith, as sheriff of Mendocino county, with directions to levy upon the cattle described in the complaint in this case. The cattle belonged to plaintiff (defendant against whom the execution issued), and defendant Smith in his official capacity levied the said execution upon said cattle, and sold them to satisfy the said judgment held by defendant King against plaintiff. The taking was by virtue of the said execution, and not otherwise. The main contention of plaintiff, upon which the court below decided in his favor, is that the judgment rendered in the justice court is void for the reason that the complaint therein does not state facts sufficient to constitute a cause of action. The complaint therein is claimed to be defective for the reason that the money is alleged to have been paid and received "to the use and benefit of the defendant," instead of plaintiff. If this were not clearly a clerical error, as the context of the complaint shows it to be, it would not avail the plaintiff herein. is a collateral attack on the judgment in the justice court, and it is too well settled to need citation of authorities that a judgment cannot be collaterally attacked unless it is void. Of course, if it is void, it is in legal effect no judgment, and in such case an execution upon it would not vitalize it, and would be but waste paper. Such an execution would not protect defendant Smith if he had notice that the judgment was void, nor would it protect any one aiding and assisting him. A judgment is not void if the court has jurisdiction and power to grant the relief contained in the judgment. In this case it appears that the amount claimed in the justice court was less than $300, exclusive of interest, and the justice court therefore had jurisdiction of the subjectmatter, and power to enter judgment in such case. The summons was personally served upon the defendant in said action in the justice court, and the court thereafter had jurisdiction of his person. In fact, it is not seriously claimed that the justice court did not have jurisdiction of the subject-matter and of the defendant against whom the judgment was entered, but it is claimed that the complaint was wholly insufficient. Whether the complaint states a cause of action or not was for the court of original jurisdiction to determine, and it was within the province of such court to allow the pleading to be amended. If the court below should hold a complaint sufficient, when, as a matter of law, it failed to state facts sufficient to constitute a cause of action, such ruling would be erroneous; but nevertheless the court had jurisdiction. It had jurisdiction to determine the question, and to determine it wrong as well as right. If it committed error, the remedy was by appeal. In this case the plaintiff did not appear in the justice court, although notified by the summons and complaint that, if he did not do so, judgment would be taken against him for $299.99, and interest. If the complaint was fatally defective, he had his remedy by appeal. He did appeal, and the judgment of the justice court was affirmed by the superior court. The sufficiency of the complaint is not a conclusive test of the jurisdiction of the justice court. Crane v. Cummings, 137 Cal. 202, 69 Pac. 984; In re James' Estate, 99 Cal. 376, 33 Pac. 1122, 37 Am. St. Rep. 60; Dryden et al. v. Parrotte et al. (Neb.) 85 N. W. 287; North Pacific Cycle Co. v. Thomas (Or.) 38 Pac. 307, 46 Am. St. Rep. 636. In the latter case the correct rule is stated by Bean, C. J.: "If the object of a plaintiff can be ascertained from the allegations of his complaint, and the court has power to grant the relief demanded, and jurisdiction of the parties, the judgment is not vulnerable to a collateral attack, although the complaint may in fact be bad in substance." The plaintiff now claims that the writ of execution was irregular and defective on its face, for the reason that it recites that judgment was recovered "in Justice John Brown's court of Santa Rosa township, county of Sonoma," instead of reciting that it was recovered in the justice's court of Santa Rosa township. If plaintiff could now raise such question when he failed to notify the sheriff of any such alleged defect, but notified him that the execution was issued upon a void judgment, we deem the objection too technical to merit discussion. The writ was certainly amendable in the respect pointed out, and in such case it will be accorded the same effect with reference to acts done in execution of it as if it had been amended. Brann v. Blum (Cal. March 19, 1903) 72 Pac. 168; O'Donnell v. Merguire, 131 Cal. 527, 63 Pac. 847, 82 Am. St. Rep. 389. It follows that the judgment and order should be reversed. We concur: HAYNES, C.; SMITH, C. For the reasons given in the foregoing opinion, the judgment and order are reversed: MCFARLAND, J.; LORIGAN, J.; HENSHAW, J. (141 Cal. 427) SANCHEZ v. FORDYCE et al. (L. A. 1,389.) (Supreme Court of California. Dec. 26, 1903.) OFFICERS ELECTION WRONG NOTICE OF ELECTION-STATUTES-CONSTI- 1. Those sections of an act which were amended by the county government act of 1901 (St. 1901, p. 686, c. 234) having been republished as amended, there was a compliance with Const. art. 4, § 24, requiring an act revised or section amended to be published at length as amended. 2. County government act (St. 1901, p. 686, c. 234, § 56), providing that in all townships having less than 6,000 inhabitants only one con stable shall be elected, is authorized by Const. art. 11, § 5, conferring the power, by general and uniform laws, to provide for the election of such township officers as convenience may require, the provision of such section authorizing the Legislature to regulate the compensation of county officers in proportion to duties, and to classify counties by population for this purpose, not affecting such power. 3. Though a township board of supervisors, by proclamation, called for the election of two constables where the statute only allowed one. the election is valid as to one where the statutes (Pol. Code, § 1041; St. 1897, p. 474, c. 277, § 56, as amended by St. 1901, p. 686, c. 234, and St. 1897, p. 474, c. 277, § 58) give notice of the time and place of election and the officer to be elected. Commissioners' Decision. Department 2. Appeal from Superior Court, Ventura County; D. K. Trask, Judge. Contest of election by E. H. Sanchez against Eugene Fordyce and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed. W. E. Shepherd, H. L. Poplin, and Blackstock & Orr, for appellants. M. J. Rogers and Thos. O. Toland, for respondent. COOPER, C. Election contest. Prior to the general election held in November, 1902, the Democratic and Republican parties each nominated two candidates for the office of constable of Ventura township, in Ventura county, and the board of supervisors issued an election proclamation calling for the election of two constables for said township. Respondent was nominated by petition. In the contest the ballots were recounted, and the court found that respondent received the greatest number of legal votes, and judgment was accordingly entered in his favor. The court refused to count any ballot cast on which more than one person's name appeared for the said office of constable. Appellants state that the record presents two questions of law, which they ask to have decided. First. Was the township entitled to elect two constables? Second. If the township was not entitled to two constables, was there any valid election? It is provided in the county government act of 1901 (section 56, c. 234, p. 686, St. 1901) that "in townships having a population less than six thousand there shall be but one justice of the peace and one constable." The undisputed evidence shows that Ventura township contained, at the time of said election, less than 4,000 population. Appellants do not controvert the fact that the county government act, if valid, gives only one constable to said township, but they claim that the said act is void because it was amendatory of the act of 1897 (St. 1897, p. 452, c. 277), and was not republished as amended. The amended sections of the act were republished as amended, and this was a compliance with section 24, art. 4, of the Constitution. The act was held constitutional in the late case of Beach v. Von Detten (Cal.; filed June 23, 1903) 73 Pac. 187, followed in Rea v. Von Detten (Cal.) 73 Pac. 1131, and Davidson v. Von Detten, Id. 189. We see no reason to depart from the rule there laid down, nor to repeat the reasons as therein stated. The additional point is here made that, as section 5, art. 11, of the Constitution authorizes the Legislature to "regulate the compensation of all such officers (county officers) in proportion to duties, and for this purpose may, classify the counties by population," therefore it cannot directly or indirectly classify the counties for any other purpose than the one purpose of regulating the compensation of county officers. We agree with appellants' counsel that under this provision of the Constitution the Legislature can classify counties but for the one purpose, of regulating the compensation of county officers. It has been so held by this court. Pratt v. Browne, 135 Cal. 650, 67 Pac. 1082. It cannot classify townships for the purpose of regulating compensation. But the said section of article 11 expressly confers upon the Legislature the power, by general and uniform laws, to provide for the election or appointment of such township officers as convenience may require. It has, by section 56 of the county government act, done this very thing. It has said that, in all townships of the state having a population of less than 6,000, only one constable shall be elected. It has thus determined that public convenience does not require more than one constable for a township having less than 6,000 population. This determination was a matter of legislative discretion. It has nothing to do with the compensation of constables. It is not a classification of townships for the purpose of regulating the compensation of constables, but a mere provision as to the number of township officers of a certain kind. It is general and uniform, because it applies equally to every township in the state. It is founded upon a reason which might rationally be held to justify the provision. It was said in McDonald v. Conniff, 99 Cal. 391, 34 Pac. 73: . "It is not necessary that a law shall affect all the people of the state in order that it may be general, or that a statute concerning procedure shall be applicable to every action that may be brought in the courts of the state. A statute which affects all the individuals of a class is a general law, while one which relates to particular persons or things of a class is special. A statute regulating the rights of married women, or which affects all mining corporations, or confers rights upon a municipal corporation of a certain class, or places restrictions upon all foreign corporations, is a general law." In People v. Lodi High School District, 124 Cal. 699, 57 Pac. 662, it was held that an act authorizing school districts having a population of 1,000 or more to establish and maintain a high school in such district was constitutional and not special legislation. was there said: "The law is general in its It operation, for it applies alike to all cities, incorporated towns, and school districts having a population of one thousand inhabitants or more, and it is general in its purpose, for it gives to all inhabitants of the state similarly situated equal opportunity to avail themselves of the benefits to be derived from these schools." It is said that there is no reason why a township containing a population of 5,999 shall be entitled to only one constable, while a township containing 6,000 is entitled to two. If we were to adopt the above rule, we would destroy the power of the Legislature to classify counties, the power to classify school districts in proportion to population for the purpose of assigning teachers, and the power to make many other provisions which the public convenience may require. The Legislature has provided for several classes of cities, according to population, and not for the purpose of regulating the compensation of the officers thereof, and the power to so classify has never been questioned. It is not easy to determine the exact instant of time when the day ceases and night begins, but for this reason laws are not declared void which prescribe a different penalty for crime committed in the nighttime from those committed in the daytime. As to the second proposition, the election was valid notwithstanding the proclamation of the board of supervisors called for the election of two constables. The statutes gave notice of the time and place of election and the officer to be elected. Pol. Code, § 1041; County Government Act, St. 1897, p. 474, c. 277, § 56, as amended by St. 1901, p. 686. c. 234, and St. 1897, p. 474, c. 277, § 58. It is said in Cooley on Court Lim. (6th Ed.) p. 759: "When both the time and place of an election are prescribed by law, every voter has a right to take notice of the law. and to deposit his ballot at the time and place appointed, notwithstanding the officer whose duty it is to give notice of the election has failed in that duty. The notice to be thus given is only additional to that which the statute gives, and is prescribed for the purpose of greater publicity; but the right to hold the election comes from the statute. and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given, and such election cannot be defeated by showing that a small portion only of the electors were actually aware of the vacancy or cast their votes to fill it." See, also, Paine on Elections, § 384; The People v. Brenham, 3 Cal. 487; Carson v. McPhetridge, 15 Ind. 327; Dickey v. Hurlburt et al., 5 Cal. 344; State v. Jones, 19 Ind. 356, |