an adverse claim to real estate within B. & C. Comp. § 516, and not an action to construe a will, notwithstanding it contained unnecessary averments as to a will under which plaintiff and defendants claimed.

2. SAME-DETERMINATION OF ADVERSE CLAIMS -NATURE OF REMEDY.

B. & C. Comp. § 516, providing for suits to determine adverse claims to real estate, is intended to provide an easy and simple method by which one having a substantial interest in real estate, but who cannot maintain an action at law against a claimant of an adverse interest, may require such claimant to appear in a court of equity and set up and have his claim adjudicated, and in such a suit the court will construe either a deed or a will, if necessary to an adjudication of the question involved, as an incident to its jurisdiction to determine the adverse claim.

3. SAME-HEARING ON COMPLAINT.

In proceedings to determine an adverse claim to real estate, the better practice is for the court to decline to determine the validity of defendant's claim, even if plaintiff has assumed to set it out in the complaint, until defendant has disclosed it by answer. 4. TRUSTS—SAle of Trust Property-Power.

Where a testator devised and bequeathed to his widow all his real and personal property for certain uses and purposes, with power to sell and dispose of the same whenever she deemed it advantageous, and there were no words limiting the estate devised, she had the right to convey a title in fee, even though she might be required to account for the proceeds.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by Theresa Jane Savage against Elmer M. Savage and others. From a judgment for defendants sustaining their demurrer to the complaint, plaintiff appeals. Reversed.

Lyman A. Savage died on the 11th day of February, 1898, seised and possessed of a large amount of real property in Marion county, and leaving a will, the material parts of which are as follows: "I, Lyman A. Savage, of Salem, Oregon, being of sound and disposing mind and memory, do make and declare this to be my last will and testament, hereby revoking all wills and testamentary papers at any time heretofore made by me. I give, devise, and bequeath all my real and personal property wheresoever and whatsoever unto my beloved wife, Theresa Jane Savage, for the following uses and purposes; viz.: First: To support and maintain herself as she may desire during her natural life. Second: She may support and maintain my children or either of them, as long as they or either of them, or their wife, husband, or children may desire to reside with her. Third: To keep up the repairs, taxes, and other expenses of said properties or their income or accumulation either in the management or handling thereof. Fourth: In case she may deem it proper or advantageous or she may so desire, she may at any time or times bargain, sell and convey all or any part or parts of my real property and convert the same into money for the use and benefit of my estate. Fifth: She may at any time or times sell and convert into money

any part or parts of my personal property for the use and benefit of my estate. After the death of my beloved wife, Theresa Jane Savage, I give, devise, and bequeath the rest and residue of my said property, both real and personal, remaining at the death of my wife, to my beloved daughter, Grace E. Savage, and my beloved son, Elmer M. Savage, to be divided equally between them, saving and excepting that there shall be deducted from my son, Elmer M. Savage's share, $2,000, which I have heretofore paid him as an advancement on his share of my estate." On February 16th the will was duly proved and admitted to probate, and Mrs. Savage appointed executrix. July 29, 1898, the estate was finally settled, and executrix discharged. December 7, 1905, Mrs. Savage contracted to sell a five-acre tract of land devised to her by her husband to one John Gueffroy for $3,700; but, owing to the fact that one of the residuary legatees, Elmer M. Savage, claimed some interest therein, the attorney for the purchaser refused to pass the title, and the sale could not be consummated. Mrs. Savage thereupon commenced this suit against Elmer M. Salvage, Grace E. Robbins, legatees under the will, and the purchaser, Gueffroy. In her complaint she sets out the will in full; alleges the probate thereof and the final settlement of the estate; describes the real property of which her husband died seised, and avers that ever since his death she has been in the sole and exclusive possession of such property as the owner in fee, holding it for the uses and purposes set forth in the will; alleges the terms of the contract of sale with Gueffroy, and the reason it was not consummated; avers that defendant Elmer M. Savage wrongfully claims some estate or interest in the property adverse to her, and denies her power or authority to sell the The prayer is for a decree requiring him to set forth the nature of his claim, and that it be decreed to be invalid as against the plaintiff. A demurrer to the complaint was sustained, because it did not state facts sufficient to constitute a cause of suit, and plaintiff appeals.

same.

W. W. Cotton, S. T. Richardson, and C. M. Inman, for appellant. J. P. Kavanaugh, for respondents.

BEAN, C. J. (after stating the facts as above). The position of the defendants concurred in by the court below is that the purpose of this suit is to obtain a judicial construction of a will which, under the rule announced in Edgar v. Edgar, 26 Or. 65, 37 Pac. 73, cannot be maintained. The complaint contains many unnecessary averments, but manifestly embodies all the essential allegations required in a suit to determine an adverse claim to real estate under B. & C. Comp. § 516. It shows that plaintiff has a substantial interest in, and is in possession of, certain described real property, and that

defendant claims an estate or interest therein adverse to her, and this is all that is required. It is not necessary in such a suit for plaintiff to set out the source of his title, or the nature of the adverse claim. An allegation in ordinary and concise terms of the ultimate fact that plaintiff is the owner of some substantial interest, naming it, in real estate that he is in possession of, or that it is not in the possession of another, is sufficient without setting out the nature of the evidence or the probative matters which go to establish such ultimate fact; and an averment that defendant claims an adverse interest therein is sufficient, without defining it, to put him to a disclaimer or to allegation and proof of the estate or interest which he claims. Zumwalt v. Madden, 23 Or. 185, 31 Pac. 400; Ladd v. Mills, 44 Or. 224, 75 Pac. 141; Holmes v. Wolfard, 47 Or. 93, 81 Pac. 819; Lovelady v. Burgess, 32 Or. 418, 52 Pac. 25; Ely v. New Mexico, etc., R. Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. Ed. 688; Castro v. Barry, 79 Cal. 443, 21 Pac. 946.

The purpose of the statute is to provide an easy and simple method by which one having a substantial interest in real estate, but who cannot maintain an action at law against another claiming an interest adverse to him, may require such claimant to appear in a court of equity, and set up and have his claim adjudicated. In such a suit the court will construe either a deed or a will, if necessary to an adjudication of the question involved, as an incident to its jurisdiction, to determine the adverse claim. Simmons V. Hendricks, 43 N. C. 84, 55 Am. Dec. 439. The complaint, therefore, clearly states facts sufficient to constitute a suit under the statute, and this is probably the only question the court should consider at this time. The better practice in this class of cases is for a court to decline to determine the validity of defendant's claim, even if plaintiff has assumed to set it out in the complaint, until he has disclosed it by answer. Its nature is necessarily known to him, but may not be to the plaintiff, and therefore the court, in attempting to adjudicate it before answer, may be deciding a mere moot question.

But since this cause was submitted on the theory that defendant's claim is based on the will, we have examined the question as to the power of the plaintiff to sell and convey in fee the property devised to her, and have concluded that she can do so. By the terms of the will the testator devised and bequeathed to her "all my real and personal property wheresoever and whatsoever" for certain uses and purposes, with power to sell and dispose of the same whenever she deemed it advantageous. There are no words limiting the estate devised, and the rule is that, where there is a devise of real property for life in express terms, with power of disposal, the power does not enlarge the estate into a fee, and the devisee can convey only such es

tate as he received, unless there are words clearly indicating that a larger power was intended. Winchester v. Hoover, 42 Or. 310, 70 Pac. 1035. But where there is a general devise without any specification as to the estate devised, and an absolute power of disposal, the donee may convey a tle in fee, although he may be required to account for the proceeds as a trustee. Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945, 38 L. Ed. 747; Little v. Giles, 25 Neb. 313, 41 N. W. 186; Dodge v. Moore, 100 Mass. 335; McMillan et al. v. Deering & Co., 139 Ind. 70, 38 N. W. 398; Hemhauser v. Decker, 38 N. J. Eq. 426, and note; Norcum v. D'Oench & Ringling, 17 Mo. 98; Kaufman et al. v. Breckinridge et al., 117 Ill. 305, 7 N. E. 666; Bishop v. Remple. 11 Ohio St. 277.

It is unnecessary to express an opinion at this time upon the question whether the plaintiff took an absolute fee under the will, or took the title in trust for certain purposes; for, if she took a less estate than an absolute fee, with the power of conveying in fee, the result, so far as this suit is concerned, would be the same as if she took the fee in herself. In either event her conveyance would pass title, and that is the only question which is important or can properly be considered in this case, so far as a construction of the will is concerned.

The decree of the court below is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

(51 Or. 172)

FLAGG v. COLUMBIA COUNTY et al. (Supreme Court of Oregon. March 10, 1908.) 1. CERTIORARI-WRIT OF REVIEW-ACTION OF

COUNTY COURT-CLAIM AGAINST COUNTY.

A writ of review is the only remedy for the review of discretionary action of the county court in fixing reasonable fees not fixed by law, and may be used to litigate a disputed claim therefor against a county after its presentation and refusal of payment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, § 35.]

2. NEWSPAPERS-COMPENSATION FOR PUBLICATION-DETERMINATION OF AMOUNT.

B. & C. Comp. §§ 2636-2638, requires the county court to select the newspaper in the county having the largest circulation in which its proceedings shall be published, that compensation therefor shall be fixed by the court within a prescribed limitation, and that, in case of contest, the court shall determine the largest circulation from verified lists. Held that, where the court selected a newspaper and fixed the rate of compensation thereunder, its decision was final and conclusive on the parties as to the amount to be allowed.

3. SAME.

Though no time is expressly mentioned in the statute when compensation shall be fixed by the court, the intent is that it should be done at the time of the selection of the newspaper.. 4. SAME.

In proceedings under such statute, a county court selected a newspaper without the required inquiry as to circulation, and fixed the compensation pursuant to an offer of the pub

lisher. Subsequently, having its attention called to the requirements of the statute, it rescinded its order, and required the applicants to file sworn statements as to circulation. It then selected the same newspaper as before, but without fixing in its order the amount of compensation. Held, that the court rightly rescinded its first order, and thereby relieved the publisher from his offer, and, not having fixed his compensation in the subsequent order, it must be presumed to have been satisfied with the maximum statutory rate, which it could not thereafter reject.

Appeal from Circuit Court, Columbia County; Thomas A. McBride, Judge.

Writ of review by E. H. Flagg against Columbia county and others to review proceedings of the county court of Columbia county. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff presented to the county court of Columbia county a claim amounting to $193.50 for publishing in his paper from March 1, 1905, to the end of that year, the proceedings of that court. The claim was itemized and made a total of 387 inches of printed matter, for which he charged at the rate of 50 cents per inch, making the stated amount. The court disallowed $192.50 thereof and allowed $1, whereupon he instituted this suit to review the action of the county court. The circuit court set aside the order of the county court, and gave plaintiff a judgment for $193.50, from which judgment the county appeals.

W. H. Powell, for appellant. J. W. Day, for respondent.

SLATER, C. (after stating the facts as above). The statute requires that the county court shall at the January session of each year select one newspaper published in the county, having the largest circulation where published, in which the proceedings of said court, as entered of record, shall be published at the expense of the county (section 2636, B. & C. Comp.); that compensation for the publication of such list of claims and proceedings shall be fixed by the county court, provided that, for each square of 10 lines of brevier type (newspaper measure) or its equivalent, the cost shall in no case exceed 50 cents per square (section 2637); and, in case there is a contest for the privilege of printing such proceedings, the next succeeding section of the statute specifically provides that the court shall determine from verified lists to be filed with the court which of the newspapers of the respective applicants had the larger circulation. On January 4, 1905, plaintiff made written application to the court that his paper, the Oregon Mist, be designated the official paper of the county for that year, in which he stated generally his belief that his paper had the largest bona fide yearly circulation within that county. On the same day one R. H. Mitchell, publisher of another paper-the Columbia Register -made a like application, but offered to do the work for a compensation of $1. On the

6th, without having taken any proof or made any inquiry into the comparative circulation of the two papers, the court made an order designating and appointing plaintiff's paper as the official paper of the county for that year, and fixed, in the order of appointment, the compensation therefor at the sum of $1 for the entire year, to which plaintiff had orally agreed with the court as a condition of receiving the appointment. On the 11th, the court, having its attention directed to the requirements of the statute relative to the manner of determining a contest in such matters, on Mitchell's motion, rescinded its order of the 6th, and required the two applicants to file with the court certified statements of the number of their subscribers, in accordance with the terms of the statute, on or before March 1st, which they did. But at that time plaintiff insisted that the order of the court rescinding its former order was not legal or binding and sought to have the former order reinstated, offering, in writing, to carry out the terms thereof. This the court denied, and then determined from the proof submitted that plaintiff's paper, the Oregon Mist, had the greater number of bona fide yearly subscribers within the county, and was entitled to the appointment, and it was so ordered; but the court did not then fix in its order the amount of plaintiff's compensation. Plaintiff performed the services required of him during the remainder of that year, and on January 3, 1906, he presented to the court his itemized claim showing that he had published during that time 387 inches of court proceedings, for which he charged 50 cents per inch or a total of $193.50, that being the maximum rate allowed by the statute. The only evidence of the action of the court thereon is an entry in the warrant register, setting forth, in column form under appropriate headings, the date of filing, name of claimant, amount and nature of claim, amount rejected, and amount allowed, from which nothing more appears than that $192.50 thereof was rejected, and $1 allowed. Plaintiff, being dissatisfied with the action of the court, sued out a writ to review its action. The circuit court made findings, and, among others, that the publication by plaintiff of the proceedings of the county during the year 1905, subsequent to March 1st, amounted to 387 squares of 10 lines each of brevier type and was of the reasonable value of $193.50 to the county; that the county court had erroneously refused to audit the claim or fix any compensation or to consider the amount of the services so rendered by plain. tiff, except that on January 10, 1906, without due or any consideration, and, without any intention of fixing just or any compensation for such services, made the entry above noted. From these determined facts, the court concluded as a matter of law that the county court had exercised its jurisdiction erroneously, and that plaintiff was justly entitled to the full amount of his claim. A judgment

therefor was accordingly entered in his favor.

It is first contended on behalf of the county that a writ does not lie to review the order of a county court where it exercises a discretion in fixing or allowing reasonable fees when not fixed by law, and that such remedy is not adapted to litigate a disputed claim against the county after presentation of his claim and a refusal of payment. In support thereof, there is cited Cook v. Multnomah County, 8 Or. 170; Vincent v. Umatilla County, 14 Or. 375, 12 Pac. 732; Oregon Coal Co. v. Coos County, 30 Or. 308, 47 Pac. 851. In Cook v. Multnomah County, supra, this court declined to disturb an order of the county court passing upon a coroner's bill and fixing the expenses of an inquest, because, there being no statute expressly providing what sum should be allowed, the law, it was held, imposed a duty to audit and allow such compensation as was reasonable, and in the performance of such duty that court could take evidence to determine the propriety or amount of any item contained in the statement made to them by the coroner; that is, the power was of a judicial nature, to hear and determine, and, because the record did not show that such power had been exercised erroneously, the result thereof could not be disturbed. The court did not declare that the remedy was by an action at law against the county, and such inference cannot be drawn from the opinion, but the contrary inference, was drawn by Mr. Justice Thayer in the case of Pruden v. Grant Co., 12 Or. 308, 7 Pac. 308. In Vincent v. Umatilla County, supra, this court also dismissed the writ, not because the claimant's remedy was by an action at law, but because the decision by the county court was correct as a matter of law. The special act under which the liability was alleged to have been contracted by the county required the county court at each of its sessions to audit, allow, and cause to be paid the necessary expenses of the militia company, but not exceeding a fixed amount. The judicial nature of the power thus imposed does not seem to have been questioned; but, on the contrary, it is expressly stated in the opinion that the case is very similar to the case of Mountain v. Multnomah County, 8 Or. 470. The distinguishing feature, however, is pointed out to be that in the former case there is an absence of any allegation in the record of the main facts, conditions precedent, upon which the county's liability depends under the statute. The decision is based upon the absence of such facts. It was not a question of remedy, but a question whether the trial court had exercised an admitted judicial power erroneously or not; and the conclusion reached by the majority of the court was that it had been correctly exercised, while Mr. Chief Justice Lord, dissenting, held it had not. For the same reason the other case cited is not in point. Where the authority is expressly conferred upon the county court to audit

and allow claims against the county, in the judicial sense, "to hear and determine," its refusal to pay such claims, in whole or in part, is the exercise of a judicial function"a decision"-which can be reviewed only by a writ of review. Crossen v. Wasco County, 10 Or. 111; Mountain v. Multnomah County, supra. The language of the statute now under consideration can admit of no doubt, not only as to what power was intended to be conferred, but also that the conclusion reached by a proper exercise of that power should be conclusive as a judicial determination. The language of the statute is that "compensation for the publication of such list of claims and proceedings shall be fixed by the county court." This is something more than the mere examination and allowance of a claim against the county as its fiscal agent. It not only involves the determination of the amount to be allowed, but also makes the result final and conclusive upon the parties by a decision or order. Zimmerman v. Canfield, 42 Ohio St. 463. This is not an arbitrary power, but calls for a judicial determination of the reasonable value of the work (Wolff v. Moses, 26 Misc. Rep. 500, 57 N. Y. Supp. 696), and the appropriate occasion for its exercise is at the time of making the appointment. To "fix" a compensation is to prescribe a rule or rate by which it is to be determined. Anderson's Law Dict. The "proviso" added to the words of the statute clearly indicate this. It reads: "Provided, that for each square of ten lines of brevier type (newspaper measure) or its equivalent, the cost in no case shall exceed fifty cents per square as aforesaid." In Cricket v. State of Ohio, 18 Ohio St. 9, the court, construing a proviso of the Constitution of that state, which provided that "the General Assembly, in cases not provided for in this Constitution, shall fix the term of office and the compensation of all officers," etc., say at page 21 of the opinion that "the duty enjoined by this section in regard to fixing the compensation of officers does not require the General Assembly to fix the sum or amount which each officer is to receive, but only requires that it shall prescribe or 'fix' the rule by which such compensation is to be determined."

It is apparent from a consideration of the whole act that, although no time is expressly mentioned when compensation shall be fixed by the court, the intent is that it should be done at the time of the selection of the newspaper, and should be the result of a judicial inquiry and determination and be reasonably compensatory for the work to be done. The court cannot arbitrarily select any newspaper, but must name the one making proof, as specially pointed out in section 2638, B. & C. Comp., that it is possessed of the largest circulation. Neither can the court arbitrarily fix a measure of compensation, but the law presumes that the rate fixed shall be reasonably compensatory. The statute fixed a maximum rate, beyond which the court cannot

go, and conferred power upon it to fix a lower rate; but the county court not having done so at the time of making the appointment, and having made no finding as to what was a reasonable rate when passing on plaintiff's claim, it is only fair to presume that the court was satisfied with the reasonableness of the statutory rate. Indeed, this case has been tried and presented by the counsel for the county upon the apparent theory that there was no question as to the correctness of the amount of work done and the reasonable value thereof, as stated in plaintiff's bill, but that plaintiff was still bound by his previous offer to do the work for the sum of $1. This undoubtedly was the theory upon which the county court acted when passing on the bill. If it desired to question the facts stated in the bill, it should have made findings thereon, and made them a matter of record. That duty was not upon the claimant, but upon the county. And now to send this case back so that it may dispute these facts we think would be doing plaintiff an injustice. At the inception of this matter, the county court seems to have acted upon the erroneous assumption that it had some discretion as to whom it would let the work and that it had a right to let the work to the lowest bidder. The parties undoubtedly made their respective offers under that belief, but, having discovered the error, the court rightly rescinded its order of January 6th, and proceeded according to law. If there ever was any binding obligation upon plaintiff by reason of his offer, he was certainly relieved from it when the court rescinded the order. Hence the action of the court in rejecting the principal part of plaintiff's bill or claim and allowing a nominal sum was not a proper exercise of the special jurisdiction conferred, and the circuit court committed no error in setting its order aside.

Some objection is made to the form of the judgment entered by the circuit court, it being an ordinary money judgment, whereas, it is urged, it should be no more than a determination by the court of the amount due and the entry of an order directing its allowance and payment by the county court. The judgment entered can have no other effect; for execution against the county could not issue, and payment can be secured only through a further order of the county court directing the issuance of a warrant for the amount.

The Judgment should be affirmed.

the property was sold or taken off the market, to give the brokers written notice. The memorandum did not authorize the brokers to sell, or to secure a purchaser, and nothing was said therein about their having any right to enter into a contract of sale or conveyance. The brokers secured a purchaser, who made a deposit, the brokers signing a receipt therefor; but defendant refused to convey. Held that, in an action to compel a conveyance, evidence to prove the custom of brokers having similar instructions and memoranda, and evidence that during the 30-day period during which the brokers held the memorandum defendant stated to a third party that the brokers had been given exclusive right for 30 days to sell the property, was inadmissible.

2. BROKERS-SALE OF LAND-AUTHORITY.

Defendant told brokers that he wished to sell his land, and agreed to let the brokers have exclusive handling of the same for 30 days, signing a memorandum containing data as to the description of the property, and as to the terms on which the brokers might sell the same, or secure a purchaser therefor, agreeing that, if the property was sold or taken off the market, he would notify the brokers in writing. The memorandum did not authorize the brokers to sell the property, or to secure a purchaser. Held, that the brokers were not authorized to bind defendant by an agreement for the sale and conveyance of the property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 136.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by C. T. Sylliaasen and wife against C. J. Hanson. Judgment for defendant, and plaintiffs appeal. Affirmed.

S. S. Langland, for appellants. C. E Piper, for respondent.

ROOT, J. Plaintiffs instituted this action to compel specific performance by defendant of an alleged contract to sell certain real estate. From a judgment of dismissal, plaintiffs appeal.

On June 1, 1906, F. M. Jordan & Co., real estate brokers, approached respondent with a proposition to list the property in question for sale with said firm. Respondent said he wished to sell the property, and agreed to comply with the request of said agents to let them have the exclusive handling of the same for a period of 30 days. A memorandum in writing was then filled out, containing various data as to the condition and description of the property, and as to the terms upon which the brokers might sell the same or secure a purchaser therefor. There was no language in this memorandum directing or authorizing the brokers to sell the same, or to secure a purchaser, and nothing was said therein about the brokers having any right to enter into a contract of sale or conveyance. The memorandum did not purport to be an agreement or contract. Below the data mentioned was the following: "If property be sold or taken off the market, I agree to give notice in writing to F. M. Jordan." This was signed by respondent. On the 30th of June Jordan & Co. secured a purchaser in the person of appellant C. T. Sylliaasen, who upon that date made a deposit of $250 with