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exception in respect to which it is assailed herein, in point of clarity, a model. The devising portion of said will is the second paragraph thereof, which reads as follows:

"2nd. I give, devise and bequeath all my estate, real and personal, whatsoever and wheresoever, in manner following: To my wife Elizabeth M. McKay the one-fifth. (1/5th) part thereof, and to each of my children Horton L. McKay and Ethel M. McKay the undivided four-fifths (4/5ths) part thereof."

The point of the appellant's assault upon this will is directed to the concluding clause of the above paragraph thereof, it being the contention of the appellant that the phrase "to each of my children Horton L. McKay and Ethel M. McKay the undivided four-fifths (4/5ths) part thereof" renders the entire will void for uncertainty, because a strict, literal, and grammatical interpretation of said clause would result in an attempted disposal of ninefifths of the testator's estate. [1] It is undoubtedly settled law relative to the interpretation of wills that the intent of the testator must be extracted from the express terms of his will, and that courts are not permitted to indulge in conjecture or surmise for the purpose of arriv ing at an intent which is not reasonably to be drawn from the language of the document itself. It is also true that in accordance with section 1324 of the Civil Code, "the words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained" from the terms of the document and its language. It is, however, also true that, as stated in section 1325 of the Civil Code, "the words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative."

[2] Bearing in mind the foregoing principles of interpreta tion, let us look to the four corners of this testator's will, to see whether his intent can be fairly ascertained therefrom, with the view to sustaining said will. It must be evident upon such inspection that the testator had in mind an attempted disposition of the whole of his estate, and no more. The use of the fraction "the one-fifth (1/5th) part thereof," in the bequest to his wife, and of the frac

tion "the undivided four-fifths (4/5ths) part thereof," in the attempted bequest to his two children, would seem to clearly indicate that it was five-fifths, and not nine-fifths, of his estate which he was proposing to dispose of by will. This being clear, the difficulty which presents itself is that of determining what the testator intended by the use of the word "each" in relation to the bequest to his children. Standing alone and read in its ordinary and accepted sense, the word "each" might seem to require the interpretation which appellant seeks to place upon it, and which would result in giving to these two devisees eight-fifths of the testator's estate, which, being impossible of consummation, would render the bequest void.

But the word "each" in this will is not to be given such interpretation, if, taking the language of the will as a whole, it is reasonably susceptible of another interpretation which would sustain the will. Thus regarding this word, it is to be noted that the testator by his preceding bequest has disposed of one-fifth of his estate, thus leaving fourfifths thereof subject to further disposition. The use of the word "undivided" in connection with his attempted disposition of this remaining four-fifths of his estate is evidence that he intended that his children share equally therein, and in every part thereof; or, in other words, that he wished the remainder of his estate to go to his children together and in an undivided portion rather than separately and in a segregated two-fifths bequest to each of them. This evident intent on his part works a modification of the use of the word "each" in the phrase in question, and indicates an intent upon the part of the testator that his two children were to share equally and together the remaining portion of the estate which he was seeking to devise to them. The testator would perhaps have expressed this intent more clearly had he devised to each of his children an "equal share" in the remaining four-fifths of his estate, in the above precise terms. But taking his will as a whole, we are of the opinion that this was his real intent, and that such intent is fairly inferable from the entire context of his will.

The principal authority cited by the appellant in support of her contention is the case of Rodisch v. Moore, 257 Ill. 615, [101 N. E. 206], wherein a testator devised one-half

of his estate to one person, one-fourth to another, and onehalf to a third, but that case is clearly distinguishable from the case at bar, since it would be plainly impossible to determine which one of the above bequests should be diminished in the distribution of the estate.

For the foregoing reasons we think that the will of said testator was susceptible of the construction which the trial court placed upon it, and for that reason the decrees of partial distribution appealed from are affirmed.

Waste, P. J., and Bardin, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 18, 1919.

All the Justices except Melvin, J., concurred.

[Civ. No. 2649. Second Appellate District, Division One.-July 23, 1919.]

T. G. WATTERSON, Appellant, v. HILLSIDE WATER COMPANY (a Corporation), et al., Respondents.

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[1] DISMISSAL SERVICE OF SUMMONS TIME LACK OF DILIGENCEDISCRETION OF COURT.-The time limit fixed by section 581a of the Code of Civil Procedure within which the plaintiff may secure service of summons is not absolute. The court may in its discretion dismiss an action prior to the expiration of that time where the summons is not served with reasonable diligence.

[2] ID.—DELAY OF TWO YEARS-INSUFFICIENT EXCUSES.-In this action neither the mistake of plaintiff in believing that he had the full three years after filing the complaint in which to serve summons, nor the fact that one of his attorneys died, depriving him of his advice and counsel, there being no showing that he was unable to secure other competent and sufficient legal advice, nor the fact that he desired to have the advice of the decision on appeal in another case pending in the supreme court, constituted any defense to the defendants' motion to dismiss the action for want of prosecution, the summons having been served more than two years after the filing of the complaint.

APPEAL from a judgment of the Superior Court of Inyo County. Wm. D. Dehy, Judge. Affirmed.

The facts are stated in the opinion of the court.

Richard S. Miner and P. W. Forbes for Appellant.

John R. Dixon, Isaac B. Potter, Newman Jones and L. C. Hall for Respondents.

JAMES, J.-This action was by the superior court ordered to be dismissed. The judgment of dismissal was entered upon motions made respectively and separately by defendant Hillside Water Company and The Owens River Canal Company. The ground of the motions in each case was that the plaintiff had failed to prosecute his action with reasonable diligence. In the case of the Owens River Canal Company the motion was made before summons had been served, while in the case of the Hillside Water Company the motion was made approximately one month after the service of summons and after demurrer had been filed by that defendant, but before answer. The action was commenced on February 10, 1913. The notice of motion to dismiss was given by the Canal Company on March 15, 1915. The notice of motion was given by the Hillside Water Company on April 24, 1915. So it will be noted that in each case more than two years had elapsed from the date of the commencement of the action before the notices to dismiss were served.

[1] Appellant first urges that the court had no discretionary power to grant the motions. He suggests that unless such authority is found in the statute, it does not exist; but in view of the decided cases which are to the contrary, we do not think that we are expected to take this argument seriously. The real point of the argument of appellant is that because of provisions contained in sections 581a and 583 of the Code of Civil Procedure, the discretionary power of the court to dismiss an action for want of prosecution has been limited. Section 583 provides in part as follows: "The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after answer filed to bring

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such action to trial. . . . Section 581a in substance provides that unless summons shall have been issued within one year and service and return made within three years after commencement of the action, the action shall be dismissed. In the case of the Canal Company the motion was made, as noted, before service of summons had been had. No appearance had been made on the part of that defendant. Section 583 provides that after answer filed discretion is vested in the superior court to dismiss an action within two years for failure of the plaintiff to bring his cause on for trial. It has been held that where the motion is made under the latter section, two years must have clapsed after the filing of the answer before the court is vested with authority to dismiss. In Romero v. Snyder, 167 Cal. 216, at page 219, [138 Pac. 1002], the court says: "We think the language of section 583 supports the theory of the plaintiff that in cases where an answer has been filed the court should not dismiss the action for want of prosecution unless the plaintiff has delayed for two years thereafter to bring the action on to trial. The declaration that the court, in its discretion, may dismiss the case because of such inaction for two years implies that inaction of that kind for a shorter period will not suffice." The court further in that decision declares that the general power of courts of general jurisdiction to dismiss for failure to prosecute an action with reasonable diligence is not to be disputed, and cites many decisions of the supreme court of the state to that effect, but declares that the general doctrine is inapplicable where the motion comes after answer filed under the provisions of section 583 of the Code. of Civil Procedure. The decision reaffirms the general rule and admits the authority of the court to so dismiss an action where the motion is made prior to answer filed, or where it is made because of failure to serve summons prior to the lapse of time mentioned in section 581a. Under the latter head, after citing prior decisions of the court, it is said: "These decisions declare that the provision in question merely fixes a limit beyond which the court's discretion ceases and a dismissal becomes mandatory upon motion of the opposite party, and further that it gives the court the additional power to dismiss an action in such a case of its own motion. No minimum time is specified in that section, or anything to indicate that a period of de

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