ond delivery, and is not operative until the conditions are performed and the second delivery is made. This doctrine is decisive of the question under consideration. If the deed is inoperative until the performance of the conditions, it follows that the estate is "not wholly divested," and passes by the terms of the will. In answer to this line of reasoning, counsel for appellants invoke the aid of authorities where it is held that to prevent injustice, or to prevent the defeat of the plain intention of the parties, courts of equity will allow the second delivery of the escrow to take effect by relation from the time of the first delivery. Let this be granted, and does not the proposition carry with it the conclusion that the act which consummates the divestiture is the performance of the condition and the second delivery? And this second delivery may be given so great a force as to be allowed to relate back in its effect to the first. But this doctrine of relation, which in some of the decisions is called a "fiction," is the exception to the rule applying to escrow instruments, and not the general rule. same, this was construed as a revocation of the will as to such property; and the further rule that such a transaction wrought a conversion of such property from real to personal estate. We are of opinion that the case at bar is controlled by the statute. Chancellor WALWORTH, in the case of Knight v. Weatherwax, 7 Paige, 182, places this construction upon a similar statute existing in New York. He had to view the same question here under consideration, and he says: "Whether the two lots were to be considered real or personal estate, after the making of the agreement to sell the same the interest of the testatrix therein passes to the objects of her bounty, as specified in the first clause of her will, in the same manner as if the agreement had not been made, subject to the complainant's right to a specific performance of the contract upon payment of the purchase money and interest, according to the terms of the agreement." We will now consider the two remaining questions brought up for our determination by this appeal. First. The appellants claim that said "Norma D. Chadwick is entitled, in addition to the legacies and bequests in her behalf contained in said will, to a dower interest in and to all lands and real property of which the said Walter F. Chadwick died seised, which dower interest should first be carved out of said real estate, prior to the distribution thereof to the devisees in said will." Second. That all property mentioned in the said will was at the death of the testator "community property, " and by reason thereof said wife, Norma D., was entitled to one-half of all of said property, in addition to the property devised to her by said will. Here are two claims put forth, predicated upon the proposition that, under the law as it then existed, the widow is entitled to dower, and in addition thereto is entitled to one-half of what is termed "community property." It is contended, also, by appellants, that if the title remained in the testator until the conditions were performed and the second delivery was made, the testator having died some months before the second delivery, the effect is that the title remained in the deceased until the condition was performed, and then passed from him to Broadwater, which is not consonant with reason, or with the rules of law; that if the testator died seised of said mining property, September 28, 1885, and the title did not pass to Broadwater until the second delivery, December 31, 1885, the title passed from the deceased on the latter date, which could not be, as the title could not remain in the deceased during the period from September 28 to December 31, 1885, and then pass from him to Broad water. Hence the title had to pass, if at all, from the first delivery. This position will not stand the test of legal rules and reason. When the testator died, his will became operative, and by virtue of the will and the law the title passed to the devisees, subject to such conditions as the testator had placed upon it in his transaction with Broad water. Comp. St. (Prob. Prac. Act,) §§ 461, 463. The testator had not only made a will touching the prop-al, the act covered and controlled the subject erty in question, but he had placed other conditions upon it, by virtue of which it might or might not pass away from him or his devisees. The law joins these two provisions together, and provides that both shall have effect upon the property. The will passes the property to the devisees, subject to the conditions. The conditions being fulfilled, the act of the testator carries the title away from the devisees to another. This conforms to the statute quoted supra. These provisions were evidently enacted to change a rule of long standing by which, if real property be devised, and, after the execution of the will, the testator makes a contract to sell the Proceeding in the order stated, first as to dower. In 1876 (Laws 9th Sess. p. 63) the legislative assembly of Montana passed an "Act concerning dower," which provided what interest in the lands of the husband the wife should be endowed of; when dower should attach; the manner by which it could be claimed and enforced, or relinquished, or superseded by other benefits; and, in gener of dower. While it is not directly disputed that this act has continued in force since its adoption, still this point is brought to the attention of the court, and should be determined. It does not appear that said act concerning dower has ever been expressly repealed; but the question arises as to whether it has been repealed by implication; and this arises from the fact that two general compilations of the statutes of Montana have been made since the passage of said act, in neither of which it has appeared. The first compilation of 1879, known as the "Revised Statutes of Montana," does not incorporate said “Act concerning dower." We must now examine and determine whether the repealing clause embodied in section B, c. 70, Rev. St., repealed the "Dower Act.” Section B is as follows: "All acts of the legislative assembly passed prior to said 21st day of February, 1879, or on said day, any portion of which is embraced in any section of said codification, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such codification having been repealed or superseded by subsequent acts, or not being general and permanent in their nature: provided, that the incorporation into said codification of any general and permanent provision taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect, any appropriation, or any provision of a private, local, or temporary character, contained in any of said acts, but the same shall remain in force; and all acts of the legislative assembly passed prior to or on said lastnained day, no part of which are embraced in said codification, shall not be affected or changed by its enactment." Proceeding to the Compiled Statutes of 1888, we find the repealing section (2072, c. 124) is verbatim with that of the Revised Statutes of 1879, except the change in date. It is unnecessary, however, to consider the latter compilation, except by way of illustration of this subject, for two reasons: First. All the facts involved in this consideration arose prior to 1887. Secondly. In 1887 congress passed an act providing for dower to the widow in this and other territories; thereby placing the question beyond repeal by our legislative assembly while we remained in a territorial condition. Act of congress entitled "An act to amend an act entitled 'An act to amend section 5352 of the Revised Statutes of the United States, in reference to bigamy, and for other purposes;' approved March 22nd, 1882." 24 St. at Large, 635. The question, then, is, did the repealing clause in the Revised Statutes of Montana of 1879 repeal the "act concerning dower," approved February 11, 1876, supra? The terms of such repealing clause, when carefully considered, are very clear, and show exactly what was intended to be repealed. "All acts of the legislative assembly passed prior to the twenty-first day of February, 1879, or on said day, any portion of which is embraced in any section of said codification, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof." So far, the repealing clause has not touched the "Act concerning dower." The subsequent portion of that clause, down to the proviso, is explanatory of what went before, in these words: 'All parts of such acts not contained in such codification having been repealed or superseded by subsequent acts, or not being general and permanent in their nature." proviso is here inserted in the section, which does not affect said "Act concerning dower;" A and the section closes as follows: "And all acts of the legislative assembly.passed prior to or on said last-named day, no part of which are embraced in said codification, shall not be affected or changed by its enactment." It is clear that no part of the "Act concerning dower" is embraced in said codification; and therefore we think it follows, without doubt, that said act is not repealed, but has stood in full force, although, from some cause it was not incorporated in said codification. We have nothing on which to base even an inference that it was the intention of the legis lature to repeal this "Act concerning dower." It was the law in full force when said codifi cation was made, and the subject of dowel is entirely wanting in the compilation of 1879. Repeals by implication are not favored by the law, and the strong leaning of the courts is against the doctrine. Potter's Dwar. St. 154-160, and cases there cited. Sections 6 and 7 of said "Act concerning dower" are decisive against the position that said Norma D. is entitled to dower in addition to the devise and bequests under the will. Said sections provide as follows: "Sec. 6. Every devise of land, or any estate therein, by will, shall bar her dower in lands, or of her share in personal estate, unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands, and her share in the personal estate. Sec. 7. When a woman shall be entitled to an election under this act, she shall be deemed to have taken such devise, unless within one year after the authentication or probate of the will she shall deliver or transmit to the court of probate of the prope: county a written renunciation, which may be in the following form, to-wit: 'I, A. B., widow of C. D., late of the county of territory of Montana, do hereby renounce and quit all claims to the benefit of any bequest or devise made to me by the late will and testament of my said deceased husband, which has been exhibited and proved according to law, (or otherwise, as the case may be;) and I do elect to take, in lieu thereof, my dower or legal share of the estate of my said husband; which said letter of renunciation shall be filed in the office of the probate judge, and shall operate as a complete bar against any claim which such widow may afterwards set up to any provision which may have been thus made for her in the will of any testator, in lieu of dower; and by thus renouncing all claims, as aforesaid, such widow shall thereupon be entitled to dower in the lands, or share in the personal estate, of her husband." It appearing by the record that the widow, Norma D., has not renounced her rights under the will, but, on the contrary, has taken thereunder, she is barred from now claiming dower. Upon the question of "community property," we find no difliculty in determining the rights of the appellant Norma D. Chadwick. under the facts presented in this case. The provision relied upon by the appellants is found in section 551, Prob. Prac. Act, as follows: "Upon the death of the husband onehalf of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and, in the absence of such disposition, goes to his descendants equally, if such descendants are in the same degree of kindred to to the decedent; otherwise, according to the right of representation." It is claimed by appellants that the whole estate which the testator devised and bequeathed was "community property." While we do not here decide or imply that the appellants' position as to what is "community property" is correct, it would appear that, if appellants' position is conceded for the purpose of this discussion, it would not change the rights of the widow, Norma D., as she has, by virtue of the will, more than one-half of the whole estate. We nowhere find provisions that would entitle the widow to one-half by virtue of the statute, and any part of the other half, which is otherwise disposed of by will. The statute implies the contrary by declaring that the "other half is subject to the testamentary disposition of the husband," supra. We are clearly of the opinion that the few, vague, and indefinite allusions of the probate practice act in reference to community property do not apply to the case at bar in such a way as to change the rights of the devisees under the will in question. We therefore do not feel called upon, in this action, to trace the question further, to determine what application these few statutory references to community property might have to other cases. This species of property right, called "community property," is certainly not indigenous to this jurisdiction; and, as an exotic, it has not been transplanted with sufficient root to develop a form having definite attributes or symmetrical proportions. The judgment of the court below is affirmed, with costs. (9 Mont. 223) STATE ex rel. THOMPSON v. KENNEY, State Auditor. (Supreme Court of Montana. Jan. 28, 1890.) CONSTITUTIONAL LAW-STATE LEGISLATURE-ELECTION OF MEMBERS-COMPENSATION-MANDAMUS TO STATE AUDITOR. 1. On application by a member of the legislature for a writ of mandate to compel the state auditor to audit and settle his account for mileage and attendance, an allegation merely that a controversy has arisen as to his election is immaterial. 2. The power to determine as to the election of its members being by Const. Mont. art. 5, § 9, given to the legislature, the courts, in the absence of such determination, will regard as a member the person having a certificate of election from the legally constituted canvassing board. 3. Act Cong. Feb. 22, 1889, provides for the admission of certain territories into the Union, and enacts (section 24) that all laws in force made by the territories shall be in force in the states, "ex cept as modified or changed by this act or by the constitutions of the states. " Ordinance No. 2, promulgated by the constitutional convention of Montana, and adopted by the people, together with the constitution, provides (paragraph 8) that the votes for members of the legislature shall be canvassed by the same board as the vote on the constitution, which board (paragraph 5) consists of the secretary of the territory with the governor and chief justice, or any two of them. Held, that Comp. St. Mont. § 1033, which provides for a canvass by the county commissioners, was superseded. 4. As the above act of congress (section 24) authorizes the constitutional convention to make provision "by ordinance" for the election of state officers, and as Const. § 17, "Schedule," refers to the state officers to be duly elected and qualified as provided by ordinance, the ordinance appointing a canvassing board has the force and effect of a constitutional provision. 5. Under Comp. St. Mont. div. 5, § 121, provid ing that the state auditor "shall audit all claims against the treasury, and when the law recognizes a claim, but no appropriation has been made therefor, shall settle the claim, and give the claimant a certificate thereof," it is his duty to audit and settle a claim by a member of the legislature for mileage and attendance; and he may be compelled to do so by mandamus, under section 566, authorizing that writ to compel the performance of an act which the law specially enjoins as a duty re sulting from an office. On application for writ of mandamus. E. D. Weed, McCutcheon & McIntire, and S. A. Balliet, for relator. Henri J. Haskell, Atty. Gen., for respondent. HARWOOD, J. This action was commenced in this court on the 17th day of January, A. D. 1890, by filing the relator's affidavit, upon which he prayed for the issuance of a writ of mandate directed to Edwin A. Kenney, auditor of the state of Montana, commanding him to forthwith audit and settle and issue relator a certificate for a certain alleged claim in favor of relator against the state of Montana in the sum of $339 for mileage and per diem for attendance as a member of the house of representatives of the legislative assembly of the state of Montana. The affidavit of the relator recites the fol. lowing facts: "That affiant, William Thompson, is over 25 years of age, now is, and has been for more than twenty-five years last past, a resident of the territory and state of Montana, and for three years last past has been a resident of the county of Silver Bow; the said county being one of the representative districts of the state of Montana. That at the election held in the territory of Montana on the first Tuesday of October, A. D. 1889, under the provisions of an act of congress entitled 'An act to provide for the division of Dakota into two states, and to enable the people of North Dakota and South Dakota, Montana, and Washington to form state constitutions and state governments, and be admitted into the Union on an equal footing with the original states, and to make donations of public lands to such states,' approved February 22, 1889, and as further provided for by the constitution, ordinances, and schedule framed by the constitutional convention for the state of Montana, and adopted by the people thereof, the relator, William Thompson, was a candidate for election to the office of representative in the legislative assembly of the state of Montana from said representative district, composed of the county of Silver Bow. That relator was voted for at said election, and was elected to the office of representative from said district. That the returns of said election were made by the various judges of election in said district to the clerk of said Silver Bow county, and that fifteen days thereafter the chairman of the board of county commissioners of said Silver Bow county, taking to his assistance two officers of said county, canvassed the returns of said election, and declared the result thereof, so far as county officers were concerned; and that, so far as the members of the legislative assembly were concerned, the returns of said election were made to the secretary of the territory of Montana. That, thirty days after said election, all votes for the members of the legislative assembly were canvassed by the governor, chief justice, and secretary of the territory of Montana, who then and there found, ascertained, declared, and certified that the affiant, William Thompson, was duly elected to the house of representatives of the legislative assembly of Montana as a member thereof; and that the said governor and secretary of the territory of Montana delivered to afliant a certificate, over their hands and seal of said territory, certifying and declaring that at such election aforesaid affiant had been elected a member of the house of representatives of the said legislative assembly. That on the 23d day of November, A. D. 1889, at 12 o'clock noon, pursuant to the proclamation of the governor of Montana, the legislative assembly of the said state was convened, and affiant appeared at the capital of the state at that time, and in conjunction with twenty-nine other persons, who had, as aforesaid, been ascertained, declared, and certified by the aforesaid canvassing board, composed of the governor, secretary, and chief justice of the territory of Montana, to have been elected from the various representative districts in said state, did meet as the house of representatives of the state of Montana, at the capital of said state, and in the place by them and the auditor of said state agreed upon, of which place of meeting previous public notice had been given. That then and there, in a room provided for that purpose, the relator and said twenty-nine other persons convened, and were called to order by the auditor of the state of Montana, and thereupon the thirty members proceeded to qualify and organize the house of representatives of the legislative assembly of the state of Montana, by the election of Aaron C. Witter, one of said members, as speaker of the house of representatives, and Benjamin Webster as chief clerk thereof. That such proceedings were then and there had by the members of said house as that a committee thereof was appointed on credentials, to which committee the said thirty members presented severally a certificate signed by the governor and secretary of Montana, and over the seal of the territory of Montana, certifying and declaring that each of them had been duly elected members of the house of representatives of the legislative assembly of the state of Montana. That said committee on credentials then and there reported to the said house that the said thirty members aforesaid, including affiant, were duly elected members of the house of representatives of the legislative assembly of the state of Montana, and entitled to seats therein, which said report was approved and adopted by the said house. That thereafter the said house continued to sit from day to day, from that date, to-wit, November 23, A. D. 1889, to the date of the signing of affiant's affidavit, to-wit, January 16, A. D. 1890; and that affiant has attended said sessions, from that time until the date of making this affidavit, as a member of said house of representatives, except on the 13th day of January, A. D. 1890. That affiant traveled the distance of seventy-five miles in going by the nearest usually traveled route from his residence to the capital of said state to attend said legislative assembly. That on the said 23d day of November, A. D. 1889, the affiant and ail of the said twenty-nine members took the oath prescribed by the constitution of the state of Montana as members of the legislative assembly of the state of Montana, and that the said thirty members have attended upon the various sessions of the said house. That on the 16th day of January, A. D. 1890, affiant presented to Edwin A. Kenney, who was then the auditor of the state of Montana, at his office, an account against the state for his services and attendance as a member of the house aforesaid, at the rate of $6 per day, and for mileage at the rate of 20 cents per mile for the distance traveled as aforesaid, as provided by law, and requested the said auditor to audit and settle the said claim, and give athiant a certificate thereof; but to audit and settle said claim, or give affiant a certificate thereof, or any part thereof, the said auditor did then and there refuse, nor would the said auditor approve said claim, or any part thereof." To which affidavit affiant attaches an account as "Exhibit A," which he verities as a copy of the said account presented to said auditor, and referred to in his affidavit. Upon this showing an alternative writ of mandate was issued out of this court requiring the said Edwin A. Kenney, auditor of the state of Montana, to forthwith audit and settle said claim against the treasury of the state of Montana, and give to said William Thompson a certificate thereof, or to show cause before this court at 10 o'clock A. M., January 20, A. D. 1890, why he had not done SO. To this process the respondent made his verified answer, wherein he expressly admitted in detail all the affirmative allegations set forth in the relator's affidavit; but in addition to such express admissions the respondent alleged other matters, as follows: "De fendant further says, that in the county of Silver Bow, which is a representative district, ten persons were apportioned to be elected members of the house of representatives. That as to the election of five of said persons no controversy has arisen; but as to the said relator, and four of his colleagues sitting with him in the house aforesaid, a controversy as to their election has arisen; and unless they are prima facie members of such house, and entitled to act therein, no quorum has been present in said house, and the organization thereof has been without legislative validity. That the said house is composed of thirty members, whose muniment of title is the ascertainment, declaration, and certificate of the canvassing board, consisting of the governor, chief justice, and secretary of the territory of Montana, as provided in ordinance number two, passed by the constitutional convention of the state of Montana. That on the 23d day of November, A. D. 1889, twenty-four persons, from various representative districts in the state of Montana, who had been ascertained and declared to have been elected members of said house of representatives by the governor, chief justice, and secretary aforesaid, under said ordinance of the constitution, did meet at another place in the capital of said state, and five members from the county of Silver Bow, one of whom assumed to have been elected in lieu of relator, met with said members last aforesaid, and having been declared not elected by the said canvassing board, provided for in said ordinance, did nevertheless assume to be members of the house of representatives, and did then and there present, as their muniment of title to said office, each a certificate signed by the county clerk and recorder of Silver Bow county, over his seal, certifying and declaring that such person was elected one of the representatives of the district of Silver Bow county, as representative in said house." To the foregoing new matter, set forth by respondent, the relator filed his replication, as follows: First, the relator "denies that any controversy has arisen as to his election and the election of four of his colleagues from the county of Silver Bow, as set forth in said answer; second, avers that at the time the said house was organized, and when said house passed upon the report of the committee on credentials, as set forth in relator's application, a quorum of said house was present, and acted therein." The parties rested their case upon the allegations, admissions, and denials in the pleadings above set forth, and upon the questions raised therein the case was argued, and submitted to the court for decision. At the commencement of the consideration of the questions involved herein it is proper to notice the scope and effect of the relator's replication. He denies therein "that any controversy has arisen as to his election, and the election of four of his colleagues;" but he does not deny the further facts set out in respondent's answer. Those specific facts al | leged stand unchallenged, and were urged upon the consideration of the court as ground for the refusal, on the part of the respondent, to audit and settle relator's claim, and to grant him a certificate thereof, as provided by law. The relator relied upon the facts alleged in his affidavit, expressly admitted by respondent's answer, as grounds for the relief which he prayed for. The effect of these pleadings raised questions of law only. No issues of fact were made upon which evidence could properly be introduced. The denial made by the relator's replication was nothing more than a denial of an immaterial allegation. Comp. St. Mont. Section 575 of the Code of Civil Procedure, relating to writs of mandate, provides as follows: "If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear, or fix a day for hearing, the argument of the case. This court is given original jurisdiction to hear and determine actions of this character by section 3, art. 8, of the constitution of Montana, as follows: "The appellate jurisdiction of the supreme court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said court shall have power, in its discretion, to issue and hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary and proper to the complete exercise of its appellate jurisdiction." In reference to the office of the writ of mandamus, the Compiled Statutes of Montana, (sections 566 and 567 of the Code of Civil Procedure) provide as follows: Sec. 566. It may be issued by any court in this state, "except a justice's, probate, or mayor's court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. Sec. 567. The writ shall be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It shall be issued upon allidavit on the application of the party beneficially interested." It must now be determined whether or not the act, the performance of which is here sought to be compelled, is one which the law especially enjoins upon the respondent as a duty resulting from his office as auditor of this state. This involves two propositions: First. Is the relator entitled, upon the facts shown, to have his said claim audited and settled, and to receive a certificate thereof? Secondly. Does the law enjoin upon the state |