nent with the person whose deposition was directed to be taken.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 741; Dec. Dig. § 314.*]

Appeal from County Court, City and County of Denver; Grant L. Hudson, Judge. Petition by Eliza Twentymen Butcher to admit a will of J. W. Butcher to probate.

3. WILLS (8314*)-DEPOSITIONS-AUTHORITY Caveat by George C. Butcher. From a judg

OF PERSON TAKING.

Where a commission was issued to a justice of the peace, as commissioner to take depositions of subscribing witnesses to a will, he thereby became an officer of the court for that purpose, and no proof was necessary of his being a justice, of his authority to administer oaths, or of his signature.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 741; Dec. Dig. § 314.*]

4. WILLS ( 314*)-DEPOSITIONS-AUTHORITY OF PERSON TAKING.

The signature of a person to whom a commission to take depositions of subscribing witnesses to a will was issued, with the addition of the words, "J. P., Commissioner." attached to a deposition, sufficiently shows that he was a justice of the peace to whom the commission was issued.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 741; Dec. Dig. § 314.*] 5. WILLS (§ 314*) - DEPOSITIONS

SIVENESS.

-RESPONThough attesting witnesses to a will were described in the application for a commission to take their depositions as residents of Sidney, N. S. W., and the depositions showed that at the time they were taken the residences of certain of them were not in Sidney, where they also showed that they were and had been for many years doing business in said city, the variance is merely technical and will not invalidate the deposition taken.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 741; Dec. Dig. § 314.*] 6. WILLS (§ 289*) CONTEST PROOF.

BURDEN OF

Where a surviving attesting witness to a will testified to every matter prescribed by Rev. St. 1908, § 7088, which provides that a court may admit a will to probate on proof of the subscribing witnesses that they were present and saw testator sign the will and attested it at his request, or that he acknowledged the same to be his last will, and that they believed the testator to have been of sound mind and memory at the time of signing and acknowledging, though the witness only stated that he signed the attestation clause, where that recites that it was in the presence of the testator, the showing is prima facie sufficient to entitle the will to probate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 653-661; Dec. Dig. § 289.*]

7. JURY (§ 28*) RIGHT TO JURY TRIAL WILL CONTEST-WAIVER OF RIGHT.

ment admitting the will to probate, George
C. Butcher appeals. Affirmed.
Franklin & Tedrow, for appellant.
Knight & Henry, for appellee.

Mc

KING, J. James W. Butcher died at Denver, Colo., December 27, 1905. January 24, 1906, Perry K. Pratt was appointed administrator of the estate upon petition alleging that Butcher had died intestate seised and possessed of certain real and personal property, leaving surviving him as his sole heirs four sons by his first marriage, residing in New York, and that a certain Lillian Butcher and two children of Sydney, Australia, claimed to be, respectively, the widow and daughters of said Butcher by a second marriage. February 13, 1907, Eliza T. Butcher, claiming to be the widow of said James W. Butcher, presented to the county court of said county a written instrument purporting to be his last will and testament, which was in words and figures as follows, to wit:

"This Is The Last Will And Testament of me James Walter Butcher of Sydney in the Colony of New South Wales Merchant After Payment of all my just debts funeral and testamentary expenses I give devise and bequeath All real and personal property of or to which I may die seized possessed or entitled unto and to the use of my wife Eliza Twentymen Butcher her heirs executors administrators and assigns absolutely And I appoint my said wife sole executor of this my will and guardian of my children In Witness whereof I have hereunto subscribed my name this twenty-seventh day of January in the year of our Lord one thousand eight hundred and eighty. J. W. Butcher.

"Signed published and declared by the said James Walter Butcher the testator as and for his last will and testament in the joint presence of us who at his request in his presence and in the presence of each other have hereunto subscribed our names as witC. H.

Though a contestant to a will had the rightnesses. F. E. MacKenzie, Sydney. to a trial by jury, where both parties requested Sorrell, Clerk, Sydney" a directed verdict, and the contestant, after the refusal of his motion, failed to request that any specific issue of fact be submitted to the jury, he thereby waived his right, and the failure to submit the question as to whether the writing produced was the last will and testament of the testator was proper.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 176-196; Dec. Dig. § 28.*] 8. WILLS (§ 327*)-CONTESTS EVIDENCE.

Where, in a will contest, there was no evidence for the contestant to overcome the evidence of the proponent showing the execution of the will, a directed verdict for the proponent was proper.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 773; Dec. Dig. § 327.*]

together with her petition praying that the will be admitted to probate, that letters of administration theretofore issued to Pratt be revoked, and that letters testamenta ry issue to her upon the probate of the will, and pending the probate that she be appointed special administratrix to collect. Time for probate of said will was fixed by the court, due notice thereof given, and the petition for the removal of the administrator was denied, from which last-named order appeal was taken to the district court. George C. Butcher. one of the heirs, filed his caveat, objecting to the probate of said writing as the will of

said Butcher, deceased, alleging that said to be taken. The commissioner certified that writing was not his last will or testament. While the appeal mentioned was pending in the district court and undetermined, proponent prayed for and was granted commissions to take the depositions of C. H. Sorrell, surviving attesting witness to said will, and two other persons to prove the handwriting of F. E. MacKenzie, the other attesting witness, and to prove his death, said depositions to be taken at Sydney, Australia, and they were accordingly taken. Contestor objected to the issuance of commission to take depositions, because of the pendency of the appeal, and after the same were taken and returned, moved to suppress them, which was denied, and also objected to the introduction of said depositions in evidence for the same reason, and for the reason that the certificate of the justice of the peace to whom the commission was directed was signed, as commissioner, instead of justice of the peace, and showed that the deposition of Charles Henry Sorrell, instead of C. H. Sorrell, was taken, which said objections were overruled and to all of which exceptions were taken.

pursuant to said commission he took the deposition of Charles Henry Sorrell, "whose name is subscribed to the foregoing deposi tion." The name subscribed to the deposition and to the attestation clause of the will is "C. H. Sorrell." The witness testified that his name is Charles Henry Sorrell; that he signed his name as attesting witness to said will, which he fully identified. His original signatures to the attestation clause and to the deposition were before the trial court and are in this court for inspection. It is perfectly clear that the person whose deposition was taken and returned into court is the identical person whose deposition was intended to be taken, and named in the commission as aforesaid. The authorities cited by counsel for appellant support their contention to the extent that it cannot be assumed as a matter of law, from inspection only, that "Charles Henry Sorrell" and "C. H. Sorrell" designate the same person; but there are not to our knowledge any which hold, and there is no reason for holding, that where other evidence or circumstances identify the names so differing as the true name of the same person, such difference is fatal to the validity or sufficiency of any written instrument.

[3, 4] 3. The commission was issued to W. H. Moseley, justice of the peace, as commissioner to take the depositions. He thereby became an officer of the court for that purpose, and no proof was required of his being a justice, or of his authority to administer oaths, or of his signature. Weeks on Depositions, § 189. His signature to the certificates, as follows: “W. H. Moseley, J. P., Commissioner"-was sufficient. Adams v. Graves, 18 Pick. (Mass.) 355; Pollard's Heirs v. Lively, 43 Va. 216; Brown v. Luehrs, 79 Ill. 575.

On the day set for hearing, a jury was called to try the issues made, and the testimony, consisting of the depositions aforesaid, was offered in support of the will. Contestor offered no evidence. After said testimony was read, contestor moved for nonsuit, which was denied, and requested a directed verdict in his favor, which was also denied; whereupon proponent requested an instruction directing a verdict supporting the will and judgment admitting the same to probate, which motions were sustained. But before the instructed verdict was rendered, contestor submitted a request for nine general instructions to be given to the jury, all of which were refused and exceptions taken; but no request was made by said contestor to submit to the jury any specific question | application for commission, and in the comof fact. Verdict was accordingly rendered finding the said instrument to be the last will and testament of the said James W. Butcher, deceased, and judgment was entered thereon admitting the will to probate and record, from which the contestor appealed to the Supreme Court. Counsel for appellant argues at length, and the court has considered all of the assignments of error; but specific mention and ruling will be made only with reference to the following:

[1] 1. The court did not err in issuing commissions to take depositions pending the appeal to the district court from the order refusing to remove Pratt as administrator and refusing to appoint in his stead the executrix named in the will. Such appeal in no manner affected the jurisdiction of the probate court over further proceedings as to the probate of the will. Section 7254, Rev. Stat. 1908; 2 Woerner's Administrations, § 547, and cases therein cited.

[2] 2. The commission directed the deposition of "C. H. Sorrell," as subscribing witness,

[5] 4. The witnesses were described in the

mission itself, as being residents of Sidney, New South Wales. The depositions showed that at the time they were taken the actual residence of said Sorrell and of one of the other witnesses was not in the city of Sidney, but that said witnesses were, and had been for many years, doing business in said city. The objection is purely technical, and it was not error in the court to overrule the same.

[6] 5. Objection is made that the witness Sorrell did not testify that he and MacKenzie "attested said will, in the presence of the testator." Said witness did testify to every matter and element prescribed by section 7088, Rev. St. 1908, as necessary to be shown upon the probate of a will. That such attestation was made in the presence of the testator may be fairly inferred from the deposition, although not specifically stated. He deposed that he subscribed the attestation clause, which was then before him, and which specifically states that the attestation was in the presence of the testator, and

quest that any specific issue of fact be submitted to the jury, he thereby waived his right, and the refusal of the court to submit the question to the jury upon the general issue was not error, and contestor cannot predicate error upon such refusal. In

Ry. Co., 134 Fed. 794, 67 C. C. A. 300; Groves v. Acker, 85 Hun, 492, 33 N. Y. Supp. 406; Keohler v. Adler, Adm'r, 78 N. Y. 287; Magone v. Origet, 70 Fed. 778, 17 C. C. A. 363; Kirtz, Adm'x, v. Peck, 113 N. Y. 222, 21 N. E. 130.

[8] Under the evidence in this case, and upon the authority of the Supreme Court in Re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181, the county court had the right, and it was its duty to direct a verdict for the proponent.

No substantial error appearing in the record, the judgment will be affirmed.

(21 Colo. App. 456)

BOARD OF DIRECTORS OF YELLOW
JACKET IRR. DIST. et al. v.
WESSELS. (No. 3,808.)

(Court of Appeals of Colorado. March 11,
1912.)

thereby he may fairly be said to have affirmed the truth of that statement. Proof of the signature of said MacKenzie, as well as that of the living witness, Sorrell, to the attestation clause, gives the language of that clause great probative force, and, under the authorities, the effect of the statement insurance Co. of North America v. Wis. Cent. said attestation, that said will was subscribed and attested by the witnesses in the presence of the testator and of each other, is to throw the burden of proof that it was not so attested upon the opponent of the will. Tappen v. Davidson, 27 N. J. Eq. 459-460; Allaire v. Allaire, 37 N. J. Law, 312-325; In re Will of Cottrell, 95 N. Y. 329-335; Nickerson v. Luck, 12 Cush. (Mass.) 332-341; In re Pepoon's Will, 91 N. Y. 255; 1 Woerner's Administrations, pp. 71, 475; In re Shapter's Estate, 35 Colo. 578, 584, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216. In Allaire v. Allaire, 37 N. J. Law, page 325, the court said: "But although a testimonium clause be not indispensable, a certificate of attestation, which comprises a statement of all that is requisite to the formal execution of the instrument as a will, is in the highest degree useful with respect to the proof at the trial. It is prima facie evidence of all the facts stated in it. If, by reason of the death of the attesting witnesses, or their absence beyond the reach of process, or for any other cause, a foundation be laid for the introduction of secondary evidence, proof of their signatures will be evidence that what they attested, in fact, did take place. (Citing cases.) And if the attesting witnesses, when called, admit their signatures, but through defect of memory, or for any other reason, fail to testify to the due execution of the will, it may be established on the presumption arising from the form of the attesting clause, unless there be affirmative evidence given to disprove its statements." And such seems to be the rule recognized by practically all of the authorities. It is also held that the attestation of the will in the presence of the testator is an implied statement that the testator was of sound mind and competent to make a will. In re Shapter's Estate, supra;. Stevens v. Leonard, 154 Ind. 67, 56 N. E. 27, 77 Am. St. Rep. 446. This statement implied as to MacKenzie's attestation, supplements Sorrell's express statement in evidence. In the absence of any showing to the contrary, the testimony offered in support of the will was amply sufficient for the admission of the same to probate.

[7] 6. Under our statute, and the objec

1. APPEAL AND ERROR (§ 45*)-DECISIONS REVIEWABLE-MONEY JUDGMENTS.

Code, § 422, allows appeals from district courts in all cases where the judgment is final, and amounts, exclusive of costs, to $500. In mandamus against the directors of an irrigation the directors were not sued as directors, and district, a duly organized corporation in which in which they were defending in their individual capacity, defendants were ordered by final writ to deliver to petitioner $4,100 in warrants already issued, to issue and deliver to him warrants for $3,600 already passed upon, and to take action as to the payment of damages under the petitioner's contract. Held, that the judgment was not a money judgment, and hence not appealable.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 152-158, 172-197; Dec. Dig. § 45.*]

2: COSTS (§ 96*)—ACTIONS.

Defendants in mandamus to compel the delivery of certain warrants, who defend in their party for costs. individual capacities are liable to the prevailng

[Ed. Note. For other cases, see Costs,-Cent. Dig. § 380; Dec. Dig. § 96.*]

Walling and King, JJ., dissenting.

Appeal from District Court, Routt County; John W. Shumate, Judge.

Action for mandamus by Alden V. E. Wessels against the Board of Directors of the Yellow Jacket Irrigation District and others.

Judgment for plaintiff, and defendants ap

peal. Appeal dismissed.

Morrison & De Soto, J. K. Bozard, and W. B. McClelland, for appellants. Arthur L. Wessels, Joseph C. Helm, and Kelly & Haines, for appellee.

tions raised, the contestor had the right to have the issue as to whether the writing in question was the last will and testament of the alleged testator tried to a jury, unless waived. Both parties in this case having requested the court to direct a verdict, and the contestor, after refusal of the court to direct a verdict in his favor, having failed to re

CUNNINGHAM, J. This is an action in mandamus, commenced by Alden V. E. Wes

[1, 2] A commitment, if the judgment was final and regular, could have issued, but an execution for money could never have properly followed the judgment rendered. Certainly the property of the district could not have been seized on execution based on the judgment, and the district itself was not bound by the judgment. It would seem clear that the judgment rendered in this case cannot preclude the district from defending against the warrants, should they be issued and delivered pursuant to the mandate of the trial court, providing the district should ever see fit to question its

sels, plaintiff below, against the above-named | of a bond, and the amount thereof, as only appellants. On petition filed by appellee, a question of costs was involved"-so reads supported by affidavit, an alternative writ the record. issued, which writ, in due time, after certain proceedings not necessary to recite had been had, was made mandatory. By the terms of the final writ the respondents were ordered to deliver to the petitioner $4,160 in warrants already issued, and they were further "required to issue, sign and deliver to petitioner warrants for $3,640 already passed upon, and to take action as to the payment of $200 and also the $1,000 damages under said contract." The contract referred to in the above quotation, and which was set forth in the original petition, pertains to work which petitioner was to perform, and material he was to furnish | liability thereon. Thus far the district has for the Irrigation District, and his com- manifested no interest in the controversy, pensation therefor. Following the order or but has permitted its officers to defend themdecree of the district court as above recited, selves as best they may in an action to respondents attempted to perfect an appeal which it has been conceded by counsel for to the Supreme Court. Apparently upon appellants it, the district, is not a party. the theory that the respondents, the Irri- Again, the respondents were not sued as gation District, is a municipal corporation, the board of directors. At least the adverb and that defendants are public officials, de- is not used in the caption or in the body fending in their official capacities for the of the petition. We think that the appelbenefit of the public, no appeal bond was lants are defending in their individual capacrequired of appellants, and none was given. ity, and, if they are so defending, then the Appellee has filed a motion to dismiss the judgment is clearly not a money judgment appeal, and it is this motion that we are in any sense of the word. That the defendnow called upon to consider and dispose of. ants are defending in their individual capacIn his motion to dismiss the appeal, ap-ity, and are liable for costs, finds support pellee states three grounds: (1) That the in the following cases: United States v. judgment appealed from was not final. (2) Boutell, 17 Wall. 604, 21 L. Ed. 721; United That the appellants have no right to prose- States v. Schurz, 102 U. S. 378, 26 L. Ed. cute the appeal without bond. (3) That the 167. Our conclusion that the motion to disjudgment is not one which can be appealed miss the appeal should be granted is supportfrom under section 422 of the Code (R. S.); ed by the case of Brady v. People, 45 Colo. that is, that it is not a judgment that 364, 101 Pac. 340. In attempting to disamounts to the sum of $500, exclusive of tinguish the Brady Case from the case at costs. bar, counsel for appellants in their brief on the motion to dismiss the appeal say: "The requirement in that case (the Brady Case) was that one corporation, the county, should levy a tax for the benefit of other corporations, school districts, for the purpose of The warrants which appellants were or- maintaining public schools. No judgment or dered to deliver amounted, at face value, to other liability is found against the county $7,810. On the theory that a judgment was commissioners, and no indebtedness was involved exceeding $5,000, appellants have found against any person, and no benefit heretofore made application, under section whatever in the shape of money or property 6 of the act creating this court, to have the was awarded or commanded to be delivered cause remanded to the Supreme Court from to any one." But this does not seem to be whence it came by transfer to this court. the basis of the opinion rendered in the After exhaustive arguments, a majority of Brady Case. Mr. Justice Gabbert, speaking the court reached the conclusion that the for the court in the Brady Case, uses this judgment or order appealed from was not language: "Section 388 of the Civil Code, for money at all, and accordingly denied therefore, designates when this appeal was the motion to remand. Counsel for appel- taken in what instances an appeal will lie lants appear at one time to have entertained to the Supreme Court. By this section it the same view held by a majority of this court. When the application for an appeal was made, the trial judge first announced that he would require a bond in the sum of $15,600, substantially twice the amount of the face of the warrants involved, "and thereupon respondents objected to the giving 122 P-26

The view which the majority of the court entertains as to the last ground of the motion makes it unnecessary to consider the first two grounds, and we express no views as to the soundness of either of them.

is provided that appeals to the Supreme Court from the district and county courts shall be allowed, where the judgment or decree appealed from is final, and shall amount, exclusive of costs, to the sum of $100 (the amount which formerly governed appeals), or relates to a franchise or free

hold. In the case at bar there is no money (5. TRIAL (§ 260*)-INSTRUCTIONS-REQUESTS judgment. Consequently this court is without jurisdiction to entertain the appeal." The motion to dismiss the appeal will be granted, and the appeal is dismissed, without prejudice.

[Ed. Note. For other cases, see Fraud, Cent. mine, the amount of its production, the profDig. § 30; Dec. Dig. § 35.*]