Howell referred to in said appellants' petition, and upon which was indorsed the substance of the order and proceedings alleged in that petition as having been made and taken place on said tenth day of January, 1884.

The appellants assigned a number of errors alleged to have occurred in the probate proceedings, some of which are very apparent. It was improper in the outset to appoint Lewis Johnson as administrator of the estate until after Margaret Howell declined to accept. Her neglect to qualify during the time between the date of her appointment and the time of the appointment of Johnson might be regarded as a declination, but it would have been much better to have had her file a renunciation first. Lewis Johnson, after his appointment, had no right to resign, except in the manner pointed out in the statute. An administrator cannot put aside the trust at his own volition. He has no right to consider his own convenience merely in such a case. He must first comply with the requirements of the statute before he has the right to ask leave of the court to resign, and it is not until then that the court can allow it. Section 1079, Civil Code. There are, however, two provisions of the Code which authorize the county. court to remove an executor or administrator. Sections 1062, 1068. The former section authorizes it upon the application of any heir, legatee, devisee, creditor, or other person interested in the estate; and the latter section would seem to authorize the court to remove him upon its own motion, though the grounds for the removal are the same in both cases. It is claimed by the respondents' counsel that it was under these sections that Johnson was removed, and it appears from the proof that Mrs. Howell did, on said tenth day of January, 1884, institute a proceeding to remove him; and, from the nunc pro tunc order, that the said court, at said date, made an order for his removal, though it was not entered of record until the twenty-sixth day of April, 1884. The proceeding was a very lax affair, however, and shows that a very loose practice was indulged in; a kind of practice that should never be tolerated in administering upon the estate of a dead person, if in any case; yet we would not be justified in deciding that such proceedings did not take place as the county court has adjudged. That court has said, in effect, that a petition was, on said tenth day of January, 1884, filed by Mrs. Howell to remove Johnson as such administrator; that it was properly verified; that Johnson was in court on that day and assented to it; and that the court then made an order revoking his appointment. The petition may not have been sufficient to warrant the revocation of the letters of administration, but the court certainly had jurisdiction of the subject-matter and of the parties, and the decision of the court thereon cannot be attacked collaterally.

It was claimed upon the argument that this was a direct proceeding; but I do not think it could be so regarded in any event between the present parties, whatever might be the case had it been insti

tuted by Johnson. The appointment of the respondents to administer upon the estate is in the same condition. That act of the county court was evidently erroneous. It could not regularly appoint Mrs. Howell and McDaniel at any time between the expiration of the 30 days and of the 40 days mentioned in section 1054 of the Code; but the appellants could only take advantage of the irregularity by applying for the appointment within that time. Their right now to have the respondents removed is confined to the causes specified in said section 1062 of the Code. If the respondents have neglected their trust, they can be removed at the instance of the appellants, but not in consequence of the irregularity referred to, unless they are able to establish that the appointment was a void act. But I do not think that view can be maintained. The county court has exclusive jurisdiction in the first instance to grant and revoke letters testamentary and of administration, (Code, § 869,) and granting administration out of the order provided in section 1053 of the Code would be erroneous, but not a nullity. The party entitled to precedence could certainly waive the right, and would do so under the statutes of this state, unless the application was made within the time specified in said section 1053. The appellants, under the circumstances of this case, had no standing to question the authority of the respondents to administer upon the estate in question, nor to apply for their removal except for some cause specified in said section 1062. They claimed in their petition that the respondents had been unfaithful to and had neglected their trust, but they failed to substantiate it. The respondents are legal administrators of the said estate, and their acts in administering upon it are as valid as though the appointment of them had been regular in the first instance.

The judgment appealed from will therefore be affirmed.

WALDO, C. J., concurring. The marginal note to Blackborough v. Davis, 1 Salk. 38, says: "Administration void when granted by a wrong, ordinarily, and voidable when granted to a wrong, person." So, if administration be granted to another, a former administration unrevoked, the latter grant is void. Griffith v. Frazier, 8 Cranch, 9; Matthews v. Douthitt, 27 Ala. 273. Hence, while the grant of administration to Howell and McDaniel, relatively to the appellants, simply, is at most voidable only, yet, relatively to Johnson, if his letters be not revoked, it is void. The probate court has power to revoke administration only for just cause. 1 Williams, Ex'rs, 576; Gen. Laws Or. 319, 320. But, barring section 1079, it should seem that the administrator may, with the consent of the court, resign his trust. In McGowan v. Wade, 3 Yerg. 375, the records showed the following entry: "This day came Robert Wade and James Wade, and, with the assent of the court, surrendered the administration," and it was held a good revocation; and see Marsh v. People, 15 Ill. 286, 287. It hardly seems to follow necessarily in all cases that a res

ignation, to be valid, must be made in conformity with section 1079, requiring notice of intention to resign to be published. The powers of the probate court are not created by the statute. They are enlarged, limited, or varied. This section seems intended to apply where the administrator has entered on the execution of the duties of his trust, and has assumed actual fiduciary relations towards the estate. If so, the conditions implied by the statute must exist before the rule it prescribes shall be held to govern.

Now, Johnson did nothing under his appointment; assumed no actual fiduciary relations to the estate. It should seem, therefore, that the power of the court to revoke his letters (he consenting) is not affected by the statute, and consequently that his letters were legally revoked. If this be so, the appointment of Howell and McDaniel is not void, and the only question is whether it be voidable. When the statute provides that the person specified in subdivision 1 of section. 1058 shall be deemed to have renounced their right to the administration unless they apply therefor within the 30 days, I take it that the provision should be construed rather as a rule of evidence than as a positive rule of law, and that the court may appoint any of the persons specified in said subdivision 1, after the 30 days, in preference to those specified in the subdivision following; that such persons do not become unqualified persons after the 30 days. Under this view Margaret Howell was not unqualified, and the appointment only became irregular because McDaniel was joined with her. Thus, in Brown v. Wood, Aleyn 36, cited 1 Williams, Ex'rs, 580, administration granted to a sister next of kin, and to her husband, was irregular because, "if she should die before him, he should continue administrator against the meaning of the statute." But in this case, no application having been made for the revocation of the letters until long after the time when the court had full power to appoint McDaniel, the irregularity has been waived; and the appellants cannot now be heard to question the appointment. "Parties are not required to insist upon every privilege which is given or right which is secured to them. It is a general rule that at their pleasure all irregularities and defects may be waived." Clark v. Montague, 1 Gray, 448, 449.

It would follow that Howell and McDaniel are now administrators of right.

LORD, J., did not sit in this case.

(8 Colo. 194)

SUPREME COURT OF COLORADO.

QUIMBY and others v. BoYD, Jr., and others.
Filed March, 1885.

1. PLEADING AND PRACTICE-MOTION FOR NONSUIT-ELECTION OF GROUND.
A defendant having elected to rest his motion for a nonsuit upon the ground
of insufficiency of evidence, is after verdict estopped to say upon appeal that
it should have been sustained on the ground of a defect in the pleadings.

2. SAME-DEFENDANTS-MOTIONS — JUDGMENT NON OBSTANTE VEREDICTO-ARREST OF JUDGMENT.

A motion for judgment non obstante veredicto is not a proper motion to be interposed by a defendant. The proper motion for a defendant, when the verdict was for the plaintiff, is in arrest of judgment.

3. SAME-DEFECTIVE PLEADING-FAILURE BY DEFENDANT TO TAKE TIMELY ADVANTAGE OF IT.

A plaintiff having failed to file a replication to defendant's answer, and the defect not being availed of by defendant at the time, but the cause permitted to proceed upon the defective pleadings, it is too late upon appeal to raise for the first time the specific point that there was no issue to try.

4. SAME-NEGLECT TO SUMMON CO-DEFENDANT-EFFECT OF GENERAL VERDICT FOR PLAINTIFF.

A verdict generally for the plaintiff, in a case where one of the defendants named in the pleadings and process has, as a matter of fact, not been served with a summons, is not bad.

5. SAME-DEFENDANTS SERVED WITH PROCESS NOT PREJudiced by NEGLECT TO

SERVE CO-DEFENDANT.

Defendants who have been formally summoned are in no manner prejudiced by a general verdict for plaintiff, in a case where, and for the reason that, one of the co-defendants has not had service of summons made upon him.

6. SURVEYORS' MONUMENTS-TREES.

A tree is a fixed natural object; and, as a monument, it is as firmly planted in the ground and as durable as a post or stake.

7. INSTRUMENTS OF WRITING-UNCERTAINTY OF MEANING-PRESUMPTION.

Where a deed or other instrument is susceptible of two constructions, one of which the law could carry into effect, while the other would be in contravention of some legal principle or statutory provision, the parties will always be presumed to have intended the former.

8. SAME-AMBIGUITIES.

Ambiguous instruments or acts shall always, if possible, be construed so as to have a lawful meaning.

Appeal from the district court of El Paso county.
W. J. Sherman, for appellant.

Markham, Patterson & Thomas, for appellee.

BECK, C. J. The first question demanding our consideration is whether the appellants, who were defendants below, were entitled to judgment notwithstanding the submission of the cause, without objection from them, to a jury for trial, and a verdict in favor of plaintiffs, for the reason that the new matter set up in their answer to the complaint was not put in issue by a replication. Under section 75 of the Code of Civil Procedure, (Comp. 1883,) the defendants were entitled to have every material allegation of their answer taken as true, since no replication was filed thereto. But counsel for

plaintiffs contend that this right was waived by defendants, by their failure at any stage of the trial to call the attention of the court to the fact that no replication had been filed, and by their attempt to prove the affirmative allegations of the answer just as if the same had been controverted by a replication.

The truth of the above proposition is denied by counsel for defendants, who affirm that they sought to take advantage of the condition of the pleadings at every stage of the trial. They indignantly repel the insinuation that they themselves overlooked the fact that no replication had been filed, and that they are now raising this specific objection for the first time in this court. As proof to the contrary, they refer us to their motion for nonsuit entered at the close of plaintiffs' direct testimony; their instructions asked and refused; their motion for judgment notwithstanding the verdict; and their motion for new trial.

There can be no question that the answer contained new matter which the defendants were entitled to have taken as true, if not traversed by a replication. The complaint charged them with an illegal entry upon the Paymaster lode mining claim, the property of the plaintiffs, and of an unlawful appropriation thereof. The answer denied these allegations, and stated affirmatively that the premises in question had long been abandoned and forfeited by failure of the plaintiffs to perform the necessary annual labor required by law, and that at the time of the entry of the defendants the premises comprised a portion of the unoccupied public domain, and were subject to relocation. The answer alleges a valid relocation thereof by the defendants under the name of the "Monticello Lode."

In this state of the pleadings, unless the omission to file a replication was capable of being waived and was waived, there was no issue for a jury to try, and the result of the trial must be regarded as of no legal significance whatever. The defendants were entitled to judgment upon their answer, as held by Judge HALLETT in Newman v. Newton, 3 Colo. Law Rep. 193. No such judgment was asked, however, but the defendants went to trial just as if the issues were properly made up. We will say further, in this connection, that a critical examination of the entire record leads inevitably to one of two conclusions, to-wit: that the fact that no replication had been filed to the answer must have been overlooked by defendants' counsel; or that they must have sought to take advantage of the default without calling the attention of the court and of the opposite counsel to this specific fact. Otherwise, why was not a motion for judgment upon the pleadings interposed in the first instance, instead of voluntarily going into trial upon the merits? Why was not the specific defect now relied upon pointed out in the motion for nonsuit,-the motion for judgment notwithstanding the verdict, or the motion for a new trial? And why was not this defect in the pleadings alluded to in the instructions asked for the defendants?