Smith, an infant, through her guardian, John P. Smith, her father. A demurrer to the complaint was sustained, and plaintiff appeals from the judgment. The following facts are stated in the complaint: John P. Smith gave, by deed of conveyance, to his infant daughter, a house and lot in the city of Missoula. At the time of this deed the real estate in question was incumbered by a mortgage of $800 given by John P. Smith to the Missoula Loan & Building Association. Subsequently, and on February 2, 1890, the debt which this mortgage secured was past due, and the condition of the mortgage was broken. The guardian filed a petition in the district court setting forth these facts, and that the mortgagee demanded the debt, and threatened to foreclose the mortgage and sell the property. The petition prayed for authority to borrow sufficient money to pay the mortgage, and for this purpose to mortgage the property of the ward. A day was set for the hearing of this application, and due notices were given. On the hearing the court took evidence as to the condition of the property, and entered a judgment, wherein the above facts were recited. It further appears in said judgment that the accounts of the guardian were settled, and that there was no money or personal property in his hands, and that the real estate in question was the only property of the ward, and that the rents from the same were not more than enough to maintain and educate her; that there was due on the Missoula Loan & Building Association mortgage $1,158.69; that foreclosure was threatened, and that the market for real estate in Missoula was dull, and that if a foreclosure and sale took place the property would be sacrificed, and that the interest of the ward requires the property to be saved, and that this can be done by borrowing money to satisfy this mortgage. It was then adjudged that said John P. Smith, as guardian for said Ida L. Smith, is authorized to borrow, for the purpose of paying off this mortgage debt, the sum of $1,158.69, for a period not exceeding three years, and at a rate of interest not exceeding 1 per cent. per month, and that to enable him to do this he is authorized to mortgage the property of said ward. It is further adjudged that before delivering any mortgage, he report his contract for the approval of the court. In pursuance to, and under authority of, this judgment, the guardian borrowed $1,150 from the plaintiff in this action, and gave the mortgage now sought to be foreclosed, with which money he satisfied the mortgage of the Missoula Loan & Building Association. All these facts appear by the complaint in this action, with the exhibits attached thereto. The demurrer to the complaint was on the ground that the complaint did not set forth a cause of action, in that it appeared by that pleauing that the mortgage to plaintiff was void. The same contention is now made upon this appeal. v.38p.no.4-15

C. S. Marshall, J. M. Evans, R. L. McCullock, and A. K. Barbour, for appellant. Geo. W. Reeves, for respondents.

DE WITT, J. (after stating the facts). The question upon this appeal is whether the mortgage given by the guardian upon his ward's estate, under the authority of the judgment of the court, is void; that is to say, had the court no power or jurisdiction to render such a judgment? Mr. Pomeroy lays it down that "It seems to be a doctrine sustained by a preponderance of authority that a court of equity has no power; as a part of its jurisdiction over infants, to order a sale of the infant's real estate for purposes of maintenance, education, or investment." 3 Pom. Eq. Jur. § 1309, p. 332. But in his note to this remark the author refers to cases which have held a contrary doctrine. See, also, Allman v. Taylor, 101 Ill. 185; Dodge v. Cole, 97 Ill. 338; Smith v. Sackett, 5 Gilman, 534; Goodman v. Winter, 64 Ala. 410. But the same author says, in the same section above quoted: "The powers and duties of guardians in their management of the property of infant wards, and the powers of courts to direct a sale of their lands, are so much regulated by statutes in the various states that these general rules of the purely equitable jurisdiction can have little practical application throughout the United States." We have in this state a statute which provides for the sale of the ward's estate, under certain circumstances. Probate Practice Act, § 369. But we have no statute which directly authorizes a guardian, under order of the court or otherwise, to mortgage the real estate of his ward. The majority of the decisions seem to be to the effect, as Mr. Pomeroy remarks, that the court has not jurisdiction, in the absence of a statute, to authorize a guardian to sell or mortgage the real estate of his ward. This doctrine seems to be a relic of the English doctrine of primogeniture, and was born of the desire to preserve for the infant the integrity of the corpus of the real estate. While there is no direct authority in our statute to mortgage the ward's real estate, still we have the declaration of the statute that the guardian must safely keep the property of his ward; that he must maintain the same, with its buildings and appurtenances, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. Probate Practice Act, § 422. Whether we should ever be prepared to hold that a court could empower a guardian to mortgage the real estate of his ward for the purpose of raising moy for the ward, or for his support or maintenance, we think we need not now determine, for such exact question we do not think is here presented. In this case no money whatever came to the guardian or to the ward by virtue of this mortgage to plaintiff, and no incumbrance was placed upon the ward's property, additional to that

which was already there. In effect, the guardian, under the order of the court, simply exchanged creditors. He exchanged a pressing and importunate creditor for one who was willing to let the loan stand for three years more. It appears by the judgment of the court, in authorizing the loan and mortgage, that the ward's estate was about to be sacrificed by foreclosure, and wholly lost, and that it could probably be saved to the ward by negotiating with a new proposed creditor. Of course, it appears, in the light of subsequent events, that the estate has not been finally saved to the ward, but the case may be looked at from the point of view which the court occupied when it made the order allowing this present loan and mortgage. As far as appeared to the court, this transaction was certainly not to the disadvantage of the ward, but was for her probable advantage. None of the reasons adduced against the policy of allowing the ward's estate to be mortgaged apply to the transaction before us. There was no incumbrancing the ward's estate, for it was already incumbered in the identical amount. It is said that it is not good policy to allow a mortgage upon the estate of a ward, lest it may finally eat up the estate, and the ward, at majority, receive nothing. But the incumbrance was already there, and the estate was to be eaten at once by the foreclosure of the Missoula Loan & Building Association mortgage. The new mortgage simply postponed this devourment-which, under the old mortgage, would have been at once-to a period three years later, with the probability, as appeared, of finally saving the estate, or a portion of it, and the certainty of saving the rents and profits for three years. Therefore, not an argument or reason against the policy of allowing a mortgage upon the ward's estate applies to the facts before us. The guardian must safely keep the property of his ward, and deliver it to the ward, at the close of his guardianship, in as good condition as he received it. Probate Practice Act, § 422. If the guardian, and the court, as his superior, had allowed the mortgage of the Missoula Loan & Building Association to be foreclosed, the guardian could not have kept the estate at all, and he never could have delivered it to the ward in any condition. He adopted a course, under the order of the court, which seemed to offer a prospect of his keeping the estate for his ward, without adding one dollar's worth of burden to the estate, more than it was already carrying. matter of fact he lightened the burden, for he obtained the new loan at the rate of 6 per cent. interest, whereas the old loan was accumulating against the estate of the ward at the rate of 9 per cent. interest.

As a

It was said in Smith v. Sackett, 5 Gilman, 545, as follows: "The jurisdiction of the court of chancery to order the sale of the whole or a portion of the estate of an infant, or to order it to be incumbered by a mort

gage, whenever the interest of the infant demands it, will not be denied, whether that interest be of a legal or an equitable nature. Such is one of the objects of this suit, and it certainly seems that the case made by the bill shows a strong necessity for the exercise of that power. As I have already shown, the infant has an equitable interest in this land, of considerable value, for the property is averred to be worth some three thousand dollars. The interest of the infant manifestly requires that the lien or incumbrance upon the estate should be discharged." So the interest of this infant in this case manifestly required that the mortgage debt to the Missoula Loan & Building Association should be discharged, or, if this could not be done, carried to a later and perhaps more prosperous period; otherwise the infant would have, at that time, lost her estate. It was held in Allman v. Taylor, 101 Ill. 185, that the court might order the sale of an infant's unproductive real estate in order to raise money to pay an incumbrance upon productive property, and save the latter to the infant.

We are of opinion that under the facts of this case the doctrine announced in many decisions, against mortgaging a ward's estate, is not here applicable. The court, as superior guardian of the infant, here had reason to believe that it saw an opportunity to save the infant's estate, not by creating a debt, or by borrowing money, but by simply transferring an already existing debt from one creditor to another. The court had reason to believe that this would be of advantage to the infant, and indeed it was some advantage, although the final result is that the infant loses her estate now, instead of three years before. The judgment in this case is reversed, and the cause is remanded, with directions to overrule the demurrer.

(15 Mont. 106)

SCHMIDT v. MONTANA CENT. RY. CO. (Supreme Court of Montana. Nov. 8, 1894.) ACTION AGAINST RAILROAD COMPANY-INJURY TO EMPLOYE-SUFFICIENCY OF COMPLAINT.

A complaint alleging that plaintiff was employed by defendant as a fence builder along its line of railroad, and that while, under or ders from a superior, he was propelling a hand car, which it was necessary to use in his work, defendant's train suddenly and without warning of any kind appeared, coming at a high rate of speed around a sharp curve, where there was also a deep cut, preventing a view of the tracks beyond, and that plaintiff jumped from the hand car to avoid the danger, and was injured,-states a cause of action.

Appeal from district court, Lewis and Clarke county; William H. Hunt, Judge.

Action by William Schmidt against the Montana Central Railway Company for injuries. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

A. J. Craven and Geo. Haldorn, for appellant. H. G. McIntire, for respondent.

are:

HARWOOD, J. The questions for deternination on this appeal arise on the pleadings by reason of the trial court sustaining a demurrer to the complaint, on the alleged ground that it fails to state facts sufficient to constitute a cause of action. The allegations of the complaint, briefly stated, That the defendant, Montana Central Railway Company, is a corporation, duly organized, incorporated, and existing pursuant to the laws of this state, and owns and operates a line of railway, together with cars, locomotives, etc., thereto belonging, situate in this state. That plaintiff, at the time of the injury complained of, was an employé of defendant, engaged in the work of fence builder along the line of said railroad. That while thus employed "it became necessary, for plaintiff, under said employment, and under the orders of the foreman of the gang in which he was working, to enter in and upon a hand car, the property of said defendant, and to ride thereon from one point to another upon said line of railway." That while so proceeding, and riding upon and helping to propel said hand car over said line of railway, at a certain point described, where said railway passes around a sharp curve, and through a deep cut, "defendant, not regarding its duty towards plaintiff to operate said line of railway, and its locomotives and trains thereon, in a careful and skillful manner," did, by its servants, the ngineer and fireman of its locomotive, so arelessly, unskillfully, and negligently run special train, consisting of locomotive and ar or cars thereto attached, through said leep cut and around said sharp curve, at a igh rate of speed, towards plaintiff, on the same track upon which he was proceeding n said hand car, without sounding the whistle or ringing the beli of said locomoive, or in any manner warning plaintiff of he approach of said special train; and by reason of said sharp curve in the line of said ailroad, and its passage through said deep ut, plaintiff was unable to see any great listance along the line of said railroad and erceive the approach of said train, whereby plaintiff was brought into and exposed o such great danger and imminent peril of life and limb as to make it unsafe for him to longer remain on said hand car, wherefore plaintiff jumped therefrom in attempting to escape from such dangerous position, and thereby plaintiff received certain serious bodily injuries, particularly alleged, for which he seeks to recover damages. It is further alleged in the complaint that in so jumping from said hand car plaintiff acted as a reasonable and prudent man would bave acted under like circumstances, and that he in no manner, by negligence or carelessness, contributed to the injury for which he seeks to recover damages by this action. In support of the demurrer respondent's counsel insist that it is shown by the allegations of the complaint that plaintiff received

the injuries for which he seeks to recover damages, through the negligence and carelessness of the engineer and fireman of the locomotive drawing said special train, and that said engineer and fireman were fellow servants of plaintiff, engaged in a common employment by defendant; and they cite the case of Railroad Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, and other authorities, which affirm that an engineer and fireman, in the operation of a railroad train, occupy the relation of fellow seryants with employés of the same company engaged in keeping the railroad line in proper condition. In treating the case above cited, however, it is observed that the courts are in hopeless conflict on that as well as other points of application of the doctrine of fellow service, and that "wherever the subject is regulated by statute, of course the statute is applied by the federal courts, pursuant to Rev. St. 721, as a law of the state." The general doctrine, as announced through decisions of courts, on the subject of respondeat superior, has been modified somewhat by statute law enacted in this state, following, no doubt, the policy manifested by modern legislation of other states of the American Union, and of foreign dominions, on the same subject. (A general exposition of such enactments will be found in the valuable work of Mr. McKinney on Fellow Servants.) The constitution of this state, adopted in 1889, provides that: "It shall be unlawful for any person, company or corporation, to require of its servants or employés, as a condition of their employment or otherwise, any contract or agreement whereby such persons, company or corporation, shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employés while in the service of such person, company or corporation, by reason of the negligence of such person, company or corporation, or the agents or employés thereof; and such contracts shall be absolutely null and void." Article 15, § 16. In an act of the legislature relating to railroad corporations it is provided: "That in every case the liability of a corporation to a servant or employé acting under the orders of his superior shall be the same in case of injury sustained by default or wrong ful act of his superior, or to an employé not appointed or controlled by him, as if such servant or employé were a passenger." Comp. St. div. 5, § 697. Plaintiff, in alleging the facts which constitute his cause of action, avers that he was acting and proceeding, when injured, pursuant to the orders of his superior, namely, the foreman whom defendant had set over him to direct his movements in said employment. And, giving the complaint a just and reasonable interpre tation, we think that it should be construed as alleging that plaintiff, while acting in obedience to the direct order of his superior, and by reason of the default of the defendant, in connection with said order "disre

garding its duty towards plaintiff to operate said line of railway, and its locomotives and trains thereon, in a careful manner," etc., brought plaintiff into the dangerous position alleged, while no signal warned him of the approaching danger, and the circumstances - alleged prevented his observing the approach of said train, with the exercise of due care and prudence, whereby,-by reason of all these facts conspiring, in connection with the default or wrongful act or disregard of duty on the part of defendant in so ordering the plaintiff, under the circumstances' alleged, without due precaution on the part of defendant for his safety,-his injury was compassed; and that, so viewing the complaint, giving all the averments their proper relation to one another, the demurrer should be overruled. It was proper to allege that there was no sound of whistle or ringing of bell or other signal to warn plaintiff of the approach of said train, for this allegation shows that plaintiff, in proceeding into the dangerous situation, acting in obedience to the command of his superior, did so without warning of the danger coming upon him by the movement of defendant's train. The complaint is far from being a model of concise statement of facts constituting the cause of action without repetition or unnecessary verbiage. Nevertheless it becomes the duty of the court, even though the complaint be inartistic and involved, to give its allegations, when viewed all together, a reasonable construction. The judgment of the trial court should therefore be reversed, and the case remanded, with directions to overrule the de

murrer.

PEMBERTON, C. J., and DE WITT, J.,

concur.

(15 Mont. 100)

RYAN et al. v. MAXEY. (Supreme Court of Montana. Nov. 8, 1894.) APPEALABLE ORDER-MOTION TO DISMISS. 1. An order taxing the costs of appeal on remittitur is a special order after final judgment, and therefore appealable.

2. On motion to dismiss, a point involving the merits of the appeal will not be considered. Appeal from Ninth district court; F. K. Armstrong, Judge.

Action by Annie Ryan and others against Daniel Maxey. From an order sustaining plaintiffs' motion to retax costs of appeal on remittitur, defendant appealed, and plaintiffs moved to dismiss the appeal. Denied.

Luce & Luce, for appellant. E. P. Cadwell, for respondents.

the supreme court. Plaintiffs then moved to retax these costs as to one item. This motion was sustained. From that order, defendant has appealed to this court. The respondents on this appeal now move to dismiss the same, on the ground that such order is not appealable. They rely upon Rader v. Nottingham, 2 Mont. 157, and Orr v. Haskell, Id. 350. See also Bank v. Neill, 13 Mont. 377, 34 Pac. 180. In these cases it was held that an order taxing or retaxing costs was not itself appealable, but that the same could be reviewed on an appeal from the judgment. But the costs there considered were the original costs of the case, which went into the judgment of the district court in the case. The costs now in question are not costs which entered into the judgment pronounced by the district court; nor could they in any manner be a part of the original judgment, for the reason that they were incurred after such judgment was rendered, and upon appeal from the same. The original judgment was complete before the appeal was taken, and must have been a judgment before appeal could have been taken therefrom. Therefore, the costs of appeal from the judgment could not have been reviewed on such appeal, for they were not part of the judgment of the district court, and could not have been. There is not now an appeal from the original district court judgment to bring up the costs under consideration, because that appeal has already been heard and determined. Thus, the cases above cited are wholly inapplicable. The order retaxing costs of appeal on remittitur filed in the district court is a special order made after final judgment, and, in the nature of things, could be nothing else. It is therefore appealable, and the motion to dismiss the appeal is denied.

Another point made upon the motion to dismiss raises the consideration of the merits of the appeal, and will not be considered

1. An administrator's report, covering a period of five years, during which time no other reports were filed, was not only uncontested, but was approved by the heirs, all of whom were of age. Shortly afterwards, some of the heirs sued to set aside a mortgage on the estate, executed by them when of age, on the ground that the administrator induced them to sign it by undue influence. Held, that a peremptory order temporarily removing the administrator on such fact coming to the knowledge of the court was erroneous. De Witt, J., dissenting.

2. Prob. Prac. Act, § 55, provides that letters of administration shall be granted in a certain order, and section 95 provides that, when an administrator is removed, "the probate

judge must appoint a special administrator," or "he may direct the public administrator of his county to take charge of the estate." Section 97 provides that, in appointing a special administrator, the probate court must give preference to the persons entitled to letters testamentary or of administration. Held, that the court could not appoint the public administrator as special administrator on removal of the original administrator, where one who is, under section 55, entitled to priority of appointment, made application. De Witt, J., dissenting.

Original petitions for writ of habeas corpus in the matter of Katherine L. Ming, and also for writ of certiorari on behalf of John H. Ming and another.

J. W. Kinsley and Blake & Penwell, for relator. C. B. Nolan, amicus curiae.

HARWOOD, J. This writ of habeas corpus is accompanied by a writ of certiorari, whereby all the proceedings leading up to the order for the commitment of relator are brought before this court. Thereby it appears that John H. Ming died in the year 1887, leaving, as heirs, Katherine L., widow, and John H. and James L. Ming, sons, of decedent, to whom decedent had, by last will and testament, bequeathed all his estate, and appointed Katherine L. Ming executrix of said will; that said will was duly admitted to probate, notice to creditors given, and other preliminary matters and proceedings as to said estate, required by law, were attended to; that in 1889 the executrix made a report showing the condition of said estate, which report, after notice, as provided by law, was considered, settled, and approved; that no report was thereafter made until about February, 1894, when, in obedience to an order of court calling for a report of the condition of said estate, said executrix presented one, covering the period intervening since the first report, made in 1889; that said other two beirs, John H. and James L. Ming, both being of the age of majority, joined in approving the last-mentioned report. In their approval thereof these heirs say: "We have been at all times familiar with the executrix's management of this estate; have been consulted freely by her in the matter of sale of personal and real estate, and all rental of real estate, from which the income has been derived; and have also approved, and hereby approve, her management in this estate in that respect. We have also been familiar with the several items of expenditure, as they have been made; have been consulted freely by her at the time and under the circumstances when the same were made; and we have approved, and do hereby approve, all her acts in regard thereto; and we hereby give our unqualified assent and approval of all her acting as executrix, as shown herein, and of the expenditures contained in this report, and mutually join in the request that this, her report, be allowed, and that she be permitted by this court to retain from the future

income of said estate the present indebtedness of $253.22, now shown to be due her, and such other items of expenses as she may have incurred, or may hereafter incur, in the interest and for the benefit of this estate." This report was not only accompanied by the approval of all heirs interested in said estate (all of them being of the age of majority), but no creditor, or any one whosoever claiming to be interested, has made any objection thereto since the filing thereof. Nor does there appear to have been any investigation, consideration, or other action taken by the court in respect to said last report (sections 265-268, Prob. Prac. Act) until after the peremptory order removing the executrix was made. But on or about July 23, 1894, an order was made by the judge of the probate court peremptorily removing said executrix, basing said order, as appears therefrom, upon the ground that said executrix had not made annual reports of the condition of said estate, from time to time, for the years intervening between 1889 and the said last report; and upon the further ground that it had come to the knowledge of the judge, exercising probate jurisdiction, through the files and records of the district court, within and for Lewis and Clarke county, that an action had been commenced in that court by John H. and James L. Ming against the First National Bank of Helena, and the relator, Katherine L. Ming, for the purpose of obtaining a decree canceling a certain mortgage executed by Katherine L., John H., and James L. Ming, of their interests in certain property of said estate, to said bank, to secure certain indebtedness, the ground alleged for cancellation of said mortgage being that Katherine L. Ming had used undue influence with John H. and James L. Ming to induce them to join as parties thereto. Thereafter the relator, Katherine L. Ming, was cited to appear be fore the probate court; and the court appointed three referees to investigate and report upon the account of the executrix, last filed, and generally to inquire into the management of said estate by the executrix, and also to inquire into the question of the fi ness and competency of said executrix to remain in that office, and report upon those questions. Thereupon the referees, in proIceeding with that inquiry, called said execu trix as witness, and, having questioned her generally in regard to her last account and report upon said estate, required her to produce all books in her possession wherein were entries or memoranda of transactions or accounts of expenditure in reference to said estate. The executrix replied that, if proper objection or contest were made as to any item or items of the account shown in said last report, she would establish the same by proof, but, without such objection, she declined, through her counsel, to produce books and enter upon a showing on the inquisition of the referees, where no question, objection, or contest had been made. Report of this