rectory provision as will lead to the conclusive presumption that the injury must have followed. A substantial compliance with the terms of directory provisions is, after all, required. And such a substantial compliance is not had by strictly following some provisions, while essentially failing to observe others. There must be a reasonable observance of all the prescribed conditions.

It is the duty of the courts so far to adhere to the substantial requirements of the law in regard to elections as to preserve them from abuses subversive of the rights of the electors. And under this view the ques tion becomes a broader one than can be disposed of by answering that in the individual case no harm resulted. Thus, in Knowles v. Yates, 31 Cal. 82, the contention of appellants was that, admitting that there was no fraud, and that the votes were cast by qualified electors, still the fact that in certain precincts the polls were opened, without reason, at long distances from the appointed places, was enough in itself to call for the rejec tion of the votes, and this court so held. Likewise, in the case of People v. Seale, 52 Cal. 71, where no question of fraud or injury was involved, but where at an election, called for voting a school tax, the polls were opened at 1 o'clock P. M., and closed at 6, instead of being opened at one hour after sunrise, and kept open until sunset, as the law then required, this court, without hesitation, declared the election invalid.

In this case we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance and lack of appreciation of the responsibilities of their positions, and we may say further, for such is the evidence, that no harm is shown to have resulted from their conduct; but, looking to the purity of elections and integrity of the ballot-box, we are constrained to hold that conduct like this amounts in itself to such a failure to observe the substantial requirements of the law as must invalidate the election. And, while reluctant so to hold in this instance, we are confirmed in the opinion by considera.

tion of the fact that any other interpretation would add grave perils to the safe conduct of our elections which are already harassed by dangers enough. The votes of Lake precinct should, therefore, have been rejected.

5. Upon all the ballots cast in Cecilville precinct there appeared the following, written in the blank space under the office of justice of the peace: "G. G. Brown

Republican." The evidence discloses that this writing was all done by the same person, and, further, that there was but one person in the precinct lawfully assisted in the making of the making of his ballot under under the provisions of the code. (Pol. Code, sec. 1208.) The record, unfortunately, does not disclose who did the writing, nor whether it was upon the tickets when they were put into the voters' hands. Left, then, to the presumption of the performance of duty by public officers, it must be held that the officers put legal tickets into the hands of the electors, and that the writing was afterward put upon them. But an elector unable to write can, under our present laws, have a name inscribed upon his ballot in only one legal way, and that is by pursuing the method prescribed by section 1208 of the Political Code. This requirement is clearly mandatory, since it is further declared that "any ballot which is not made as provided in this act shall be void, and shall not be counted." (Pol. Code, sec. 1211.) In Attorney General v. May, supra, the supreme court of Michigan, construing a similar statute, held that inspectors of election had no right to assist in the marking of ballots, except in the manner provided by law, and that ballots marked in any other than the prescribed manner were void. In the present state of the evidence only the ballot of the voter lawfully assisted should be counted. It must be held, therefore, that the other ballots of Cecilville precinct should not have been counted. What is here said is addressed to the evidence as it appears in the record. It may be that upon a new trial additional evidence will remove the objections now found.

The other points do not require consideration. They

CVIII. Cal.-8

are either covered by what has been said, or do not involve But for the foregoing reasons the judgment is reversed and the cause remanded.

error.

TEMPLE, J., VAN FLEET, J., and HARRISON, J., concurred.

MCFARLAND, J., concurring.-I concur in the judg ment, and also in the opinion of Mr. Justice Henshaw, except as to the Cecilville precinct. It will be observed that there is no evidence tending to show when "C. C. Brown, Republican," was written on the ballots. If there be a distinguishing mark on a ballot when it is voted the ballot should not be counted; but if the mark be placed on the ballot after it had been properly voted, then, at the trial of a contest, it should be counted. Now, upon the trial in court of an election contest, if a marked ballot be found and there is no evidence as to the time of the marking, must the court presume that it was marked before it was voted? Such a rule would afford an evil-disposed person who could get temporary access to the ballots after they had been counted an easy and safe method of changing the result in a close contest by simply marking, and thus invalidating, a few ballots in which the votes were for the prevailing party. Of course, fraud should be carefully guarded against, but it seems to me that the rule contended for would be much like closing a wicket and leaving open a barn door. I do not see that there are any presumptions upon which the problem can be solved. If we presume that the ticket was not marked when the election officers gave it to the voter we must also presume that it was not marked when those officers counted it; and if we are also to presume that the ballots were afterward so securely kept that no one could get access to them it is evident that all the presumptions taken together afford no aid in the solution of the question. In the case at bar it is not contended that there was any actual fraud committed, even in the matter of

voting for justice of the peace; and, before throwing out votes honestly cast for superintendent of schools, I am inclined to think that there should have been some evidence tending to show that the marking of the votes for justice of the peace was done before the ballots were voted. And it is quite probable that such evidence could readily have been obtained. The returns should show whether or not the said ballots were counted for Brown, and the election officers ought to be able to throw some light upon the question whether the ballots were marked when they were examined during the process of counting.

GAROUTTE, J., concurred.

[No. 15754. In Bank.-July 12, 1895.]

IN THE MATTER OF THE ESTATE OF ROBERT SMITH, DECEASED.

WILL-CONSTRUCTION-DISPOSITION OF COMMUNITY PROPERTY-ELEOTION OF WIDOW.-Of two permissible constructions of a will that which favors the conclusion that the testator is disposing only of his own half of the community property will be adopted; but where the testator undertakes in terms to dispose of all the property of the community, and declares that the will is made with full knowledge of the property rights of the husband and wife, and with her consent, though such declaration does not bind the wife, it is sufficient to put her to an election whether or not to take under the will. 1D.-TIME OF ELECTION-DISTRIBUTION OF ESTATE-PREVIOUS ELEOTION ESTOPPEL.-The widow may elect to take her half of the community property upon distribution of the estate, unless by former acts in dealing with the property she is estopped from making it, by a previous election to take under the will, and such previous election is to be tested by the rules of estoppel.

ID.-FINDINGS-ELECTION TO TAKE UNDER WILL-CONCLUSION OF LAW.-Where the court finds the acts of the widow, from which it concludes that she had elected to take under the will, the result reached is properly placed among the conclusions of law, and if regarded as a finding, it being declared by the court to be drawn from the facts previously stated, if those facts do not support the conclusion it must fall.

ID.-FACTS CREATING ESTOPPEL TO ELECT UPON DISTRIBUTION.-Before the widow can be denied her right to elect upon distribution to take her half of the community property it must be found that, with the knowledge of her rights, by unequivocal acts evincing her intent,

she has so dealt with the property left her by the will, that it would be inequitable to permit her to avoid those acts and disclaim her intent.

ID. ACTS NOT ESTABLISHING ESTOPPEL-CONVEYANCE OF LIFE ESTATE-DECLARATION-KNOWLEDGE OF FACTS.-The conveyance by the widow of "all her interest in the property mentioned in the will as vesting a life estate therein upon the widow," to the sons of her deceased daughter, and a declaration to one of her grandsons that she wished the will to stand, are not sufficient to establish an implied election, or election by estoppel, to take under the will, it not appearing clearly that she recognized by her deed the life estate in the land devised to her, or that she had full knowledge of the facts concerning the properties and of her right to elect at the time she made the statement to her grandson.

ESTATES OF DECEASED PERSONS-PRESENTATION OF CLAIMS-DEATH OF COEXECUTOR DEBT TO ESTATE-DISTRIBUTION-OFFSET.-Where one of two executors of the estate of a deceased person dies, having in his hands a portion of the funds of the estate, which could not be identified as a trust fund, it is necessary that a claim should be presented against his estate by the remaining executor of the estate of the original decedent; and, if the time has expired for presenting claims against the estate of the deceased executor, the amount due from him to the estate of the original decedent cannot be deducted from his distributive share of that estate.

ID. COLLECTION OF ASSETS IMPROPER DEDUCTION FROM DISTRIBUTIVE SHARE.-Assets cannot be collected upon the distribution of an estate, and a sum due from the estate by a devisee to whom distribution is made, which is not an advance to the devisee, cannot be deducted from the share of the estate to which the devisee is entitled upon distribution.

APPEAL from a judgment of the Superior Court of San Benito County. JAMES N. BREEN, Judge.

The facts are stated in the opinion of the court.

N. C. Briggs, and John L. Hudner, for Appellants. The testator could not devise his wife's part of the property without her consent, she having received nothing under the will in place of her right. (In re Gilmore, 81 Cal. 240; In re Gwin, 77 Cal. 314: King v. Lagrange, 50 Cal. 332; Estate of Silvey, 42 Cal. 210.)

Montgomery & Jefferson, for Respondent.

The estate of Robert Smith, deceased, was merely a creditor of the estate of William R. Smith, deceased, (Lathrop v. Bampton, 31 Cal. 23; 89 Am. Dec. 141; Roach v. Caraffa, 85 Cal. 436.) Assets cannot be collected on