lots that should not be counted for either party, Wilson has 173 votes, and Turner 169 votes. The findings that contestee did receive the highest number of votes cast in such judicial township for said office of constable, and that it is not true that contestant received a majority of said votes, are fully supported by the evidence, and the mere fact that the findings are incorrect as to the exact number of votes received by each of the parties does not require a reversal. The judgment appealed from is affirmed. We concur: SLOSS, J.; MELVIN, J.; HENSHAW, J.; LORIGAN, J.; LAWLOR, J. SHAW, J. I concur in the opinion of the CHIEF JUSTICE. I think, however, that something additional should be said in regard to the seeming conflict between subdivisions 4 of section 1211 of the Political Code and the preceding portions of the chapter bearing on the subject of improper marks on the ballot. With respect to all these inconsistencies the case calls for the application of the rule expressed in section 4484 of the Political Code that, where there are conflicting provisions in different sections of the same chapter or article, "the provisions of the sections last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article." The rule is founded in reason, and it exists independently of the Code. It therefore for like reasons applies to conflicting provisions of different subdivisions of a section. 1 Suth. Stat. Const. § 268. There is also the rule that specific provisions relating to a particular branch of a subject must govern that branch, "as against general provisions in other parts of the statute, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate." Harrigan v. Home Ins. Co., 128 Cal. 537, 58 Pac. 180, 61 Pac. 99; Franzden v. San Diego, 101 Cal. 321, 35 Pac. 897; Earl v. Bowen, 146 Cal. 762, 81 Pac. 133; Healy V. Superior Court, 127 Cal. 662, 60 Pac. 428. quires that the intention on the part of the voter to identify the ballot must appear. Similar reasons may be given regarding all of the other provisions supposed to conflict with subdivision 4 aforesaid. It may be further said, with respect to the provision of subdivision 8 of section 1197, as amended in 1911 (St. 1911, p. 404), and of subdivision 10 of the amendments of 1913 (St. 1913, p. 1157) and 1915 (St. 1915, p. 272), providing that there shall be printed on the ballot certain instructions to voters, one of which is that distinguishing marks and erasures make the ballot void is not an enactment of substantive law at all, but a mere provision that certain cautions shall be given to the voter himself. These instructions to voters have been carried down in the same form from the time when the statute provided that every distinguishing mark should invalidate the ballot, and it apparently has not been perceived that subdivision 4 aforesaid changes the rule in that respect. (171 Cal. 553) In re VANDERHURST'S ESTATE. JACOBS et al. v. VANDERHURST et al. (S. F. 7258.) (Supreme Court of California. Dec. 16, 1915. Modification of Opinion Jan. 12, 1916.) 1. APPEAL AND ERROR 1178-REVIEW-DE CREE OF DISTRIBUTION. While Code Civ. Proc. § 1714, abolished new trials in probate proceedings except in will contests, an appellate court may, on appeal from a decree of distribution, order the doing of anything which the probate court should have done in the exercise of its jurisdiction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. 1178.] 2. WILLS 761 - CONSTRUCTION - ADMISSI BILITY OF ACCOUNTS. A will declared that the testator had made advances to his deceased son, and to the son's he had made advances to other children, as evichildren as shown by his books of account, that denced by their notes, and that it was the testator's will that such advances should be deducted from the shares of such children. The books of account showed payment by the testator of monthly allowances to his two daughters, and also contained credits in favor of the daughters, practically balancing their accounts. The daughters admitted that they had not made any payments to the testator. Held, that where there were no notes of the daughters showing advance to charge them with the amounts paid as monthly allowances, the credits being disallowed, for the description of the notes were sufficiently definite to be binding. Since subdivision 4 is later in numerical order than any of the provisions conflicting therewith, it must, under the rule first stated, prevail over them, and, since it specifical-ments, the books of account were not admissible ly provides that the intention of the voter to identify his ballot must appear before it could be declared invalid because of an unauthorized mark thereon, and there is no other specific provision on that precise subject, it must govern that subject, under the rule last stated. 761.] [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1968, 1969; Dec. Dig. 3. WILLS 759-LEGACIES—ADEMPTION. Under Civ. Code, §§ 1351, 1397, declaring that advancements shall not be taken as adempApplying these rules, we will see that the tion of general legacies unless such intention is provision of subdivision 1 of section 1211 de- expressed, and that all gifts are made as adclaring that "in canvassing the votes any bal-vancements if expressed in the gift to be so lot which is not made as provided in this made, payments by testator of monthly allowances to his daughters, which were not evidencact shall be void" must yield to the later and ed by promissory notes, cannot be treated as adspecific provision of subdivision 4 which re-vancements, where the testator declared that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes advancements to his children were evidenced by | form to the findings. The cited section as notes. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1961-1966; Dec. Dig. 759.] 4. WILLS 759- ADVANCEMENTS TION. ADEMP Advancements made before a will was executed cannot be considered in distributing the estate, unless specified in the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1961-1966; Dec. Dig. 759.] 5. WILLS 487 - CONSTRUCTION - FORMAL WILLS. In construing a will, a former will which was revoked cannot be considered. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1023, 1026-1032; Dec. Dig. 487.] 6. WILLS 719-"CONTESTS"-WHAT ARE. That legatees opposed the petition of other legatees for distribution, claiming that they were not entitled to share under the will, does not show a contest of the will, but a proceeding for its construction; therefore the opponents will not be denied right to take under a provision, if any legatee or devisee should contest the will, his share should be $1. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1722-1725; Dec. Dig. 719. For other definitions, see Words and Phrases, First and Second Series, Contest.] Department 2. Appeal from Superior Court, Monterey County; B. V. Sargent, Judge. In the matter of the Estate of William Vanderhurst, deceased. Petition by Mary A. Jacobs and another for distribution, opposed by William M. Vanderhurst and another. From the decree of distribution, petitioners appeal. Reversed. amended merely fixes the procedure in a case of this sort by doing away with the cumbersome process of a motion for a new trial. It does not deprive this court of the right to examine the record and to direct the lower court to do anything which may be proper in the exercise of its probate jurisdiction. The amendment to section 1714, Code of Civil Procedure, merely conformed to the declarations of this court that usually in probate litigation motions for new trials and appeals therefrom needlessly raised difficult questions. Estate of Geary, 146 Cal. 107, 79 Pac. 855; Estate of Franklin, 133 Cal. 587, 65 Pac. 1081. [2] William Vanderhurst originally had a family of seven children. When his will was made in 1912, two of his sons had died, leaving children. The will was an elaborate one. After providing for certain specific legacies and gifts it bequeathed and devised to each living child one-seventh of the residue, and provided for two trusts, each of one-seventh of the said residue, for the benefit of the children of the two deceased sons. The tenth paragraph was the one about which the disagreement arose. It was as follows: "Inasmuch as I have from time to time, made advances to my deceased son Robert Lee Vanderhurst, and to his three children, named herein, amounting to the full sum of $4,954.50, as of my children, which advances to them, is repis shown by my books of account, and to others resented by their promissory notes now in my possession: It is my will, intention and desire that in the settlement and distribution of my estate, that the amounts so advanced by me as herein set forth, to my said children and grandother property that would come to them, or eichildren, shall be deducted from any money or ther of them, and that represented by the trust estate mentioned and described in the 'eighth' and that the surplus thus arising, be given and and 'ninth' sub-divisions of this my last will, distributed to my children, and said trustees for my grandchildren, in the same shares and proMELVIN, J. Mary A. Jacobs and Lillian portions as I have indicated in and by this my will, to the end that none of my children or M. Vanderhurst, daughters of William Van-grandchildren shall have or receive more than derhurst, deceased, appeal from a decree of an equal share of my estate." distribution in the estate of said deceased person. Joseph J. Webb, of San Francisco (John K. Alexander, of Salinas, of counsel), for appellants. Vincent Surr, of San Francisco, and J. A. Bardin, of Salinas, for respondents. Alexander & Alexander, of Salinas, for ex ecutors. The principal matter involved in this appeal is the action of the probate court in charging the two appellants with certain advancements. Miss Vanderhurst was thus debited with a sum in excess of $9,000 and Mrs. Jacobs with something over $2,000. The court interpreted this provision as meaning that the books of account might be examined for all purposes, and that all charges made therein against the two daughters might be regarded as advancements to them. The books, despite the objections of counsel for appellants, were admitted in evidence, not only to show the charges against Robert Lee Vanderhurst and his children and against those heirs who had given promissory notes, but for all purposes. The accounts showed that to each of the daughters William Vanderhurst had given a monthly al [1] Respondents make a preliminary objection to the consideration of the appeal. They say that appellants may only receive the aid which they seek by a new trial; that motions for new trial have been abolished in probate proceedings except in will contests | lowance, and had credited each with a like (section 1714, Code Civ. Proc.), and that on an appeal from a decree of distribution the court may not order a retrial of the issues, but is limited to discovery of discrepancies (if any exist) between the findings and the decree and a modification of the decree to con amount, so that according to the books their accounts were practically closed; the balances being merely nominal. The court, however, permitted evidence, which was drawn by respondents from the appellants themselves, that they had paid no money to their father, and thereupon the court disregarded the credits, but charged the two daughters with all sums received from their father. Commenting upon this ruling, counsel for respondents says in his brief: "Indeed, were the will silent as to the father's full intent to treat his children with exact justice, a stranger might blunder into the error of supposing that the artificial credits shown in the ledger were placed there to absolve these fair debtors from their obligations." as, where it is to papers not yet existent, or We fail to see how any other conclusion could be reached, after reading the will and examining the accounts, than that the testator intended to do that very thing-"to absolve" his daughters from all charges. But under the interpretation of the tenth clause of the will which we feel bound to give, the book of account was not admissible for the purpose of showing advancements to the ap-ence to "books of account." We find no lanpellants. The language of the will very aptly limits and specifies funds to be charged with payments made in the testator's lifetime as advancements. These are the trust estate created for the benefit of Robert Lee Vanderhurst's children, and the shares of those who had given notes to the testator. By no method of construction which we are able to discover may the language be given any other meaning. Advancements are to be charged against the shares of Robert Lee Vanderhurst and his children in accordance with the book accounts, and all notes are to be regarded as evidences of advancements. Respondents contend that the closing words of the paragraph compel a different interpretation. By the first part of the tenth paragraph the testator had provided a method of determining the amounts to be subtracted before division of the property and the words "to the end that none of my children or grandchildren shall have or receive more than an equal share of my estate" merely declare his purpose in charging these advancements. The mere fact that the court believed the method chosen might not achieve the purposed end would not justify charges against certain heirs which were not directed in the will. Such impositions may not be made by the court in an effort to achieve equal distribution. To permit such a course would be equivalent to allowing the court to make a will for the decedent. If the closing words of the tenth clause would justify the court in going to such lengths to achieve equal distribution, then might the specific legacies to the daughters with like reason be disregarded, because such legacies, in a sense, were opposed to an evenly divided bestowal of decedent's estate. [3] Respondents contend that the descriptions of the notes contained in the will are too vague to be of binding force, and in this behalf they cite certain cases. One of these is Estate of Plumel, 151 Cal. 82, 90 Pac. 192, 121 Am. St. Rep. 100, which correctly states the rule that reference in a will may be of such character as to exclude parol testimony; guage in the will, therefore, which justifies follows: Advancements ments, if expressed in the gift or grant to be "All gifts and grants are made as advanceso made; or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir." There were no promissory notes produced at the hearing in the probate court which the appellants, or either of them, had executed in favor of the testator. The will itself, as we have seen, did not charge them with any sums paid to them as advancements, and no writing was produced whereby they were chargeable under section 1397 of the Civil Code. Surely there was nothing in the books of account which would justify their admission under section 1397, Civil Code, or by which the testator evinced any intent to charge the items against his daughters as advancements rather than gifts or loans. tate of Hayne, 165 Cal. 573, 133 Pac. 277, Ann. Cas. 1915A, 926. On the contrary, the credits indicated that Mr. Vanderhurst intended the payments as gifts, except, perhaps, the trifling balances against the daughters, and those may be regarded as loans rather than advancements. Es [4] Moreover, it is a general rule that advancements made before the will was executed cannot be considered in distributing the estate unless specified in the will, because it is presumed that the testator had in view all previous advancements when he made his will and acted accordingly, so as to make the final division conform to his actual wishes. Estate of Hayne, supra; 1 A. & E. Enc. of Law (2d Ed.) p. 760, § 2; Bowron v. Kent, 190 N. Y. 432, 83 N. E. 472; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85. The judgment must be reversed because of the errors in charging appellants with any sums as advancements. This conclusion makes it unnecessary for us to discuss all of the matters appearing in the briefs. Some of them, however, require attention. [5] The court erred in admitting in evidence a former will executed by Mr. Vanderhurst in 1906 and revoked by the later will. The will before us must be interpreted by the language used therein, and cannot be varied or explained by an instrument executed several years earlier. Estate of Tompkins, 132 Cal. 175, 64 Pac. 268. [6] There was a provision in the will that in case any legatee or devisee contested it his or her share of the estate should be $1. Appellants argue that the respondents William M. and George B. Vanderhurst contested the will. The mere statement of this contention refutes it. They opposed the petition for distribution, but they did not seek, in any way, to contest the will. They merely sought interpretation of it. No other alleged errors merit discussion. The decree of distribution is reversed. We concur: HENSHAW, J.; LORIGAN, J. Modification of Opinion. PER CURIAM. Good cause appearing therefor, it is hereby ordered that the judgment of this court in the matter of the aboveentitled appeal be and hereby is amended to read as follows: "It follows herefrom that the court erred in charging the appellants with these advance⚫ments. Wherefore, and to this extent, the decree of distribution is reversed, with directions to the court in probate to modify its decree in accordance with this opinion and judgment." (171 Cal. 588), ROBSON v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al. (S. F. 7001.) (Supreme Court of California. Dec. 17, 1915.) 1. NEW TRIAL 163-EFFECT OF AWARD OF NEW TRIAL TO CODEFENDANT. Where, in a suit to foreclose a mortgage, in which successive purchasers of the mortgaged property, who had severally assumed payment of the mortgage, were made defendants, and a deficiency judgment was rendered against all of the defendants, one of the defendants who had filed no cross-complaint, and in whose favor no affirmative relief had been given, could not be affected by the award of a new trial to one of the defendants in so far as his liability on the deficiency decree as formerly rendered was concerned. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 330-332; Dec. Dig. 163.] 2. PROHIBITION 15-PERSONS BENEFICIALLY INTERESTED. In such case a defendant other than the one to whom a new trial was awarded was not beneficially interested, and was not entitled to MELVIN, J. This is a proceeding in prohibition. The petition was addressed to this court originally, and an alternative writ was issued. The facts are as follows: In September, 1908, the Hibernia Savings & Loan Society sued to foreclose a mortgage on real property. The original mortgagor was Theresa Lewin. Jacob Lewin was joined as her husband, and the other defendants, sued as successors to the interest of Mrs. Lewin in the order in which they were named and as persons who had assumed the payment of the note secured by the mortgage, were Kernan Robson (petitioner herein), Michael O'Toole, Curtis Hillyer (sued as C. H. Lieutemps), John G. Hoyt, the corporation known as Tilden, Swayne & Co., and Louis James. Other defendants were designated by fictitious names. The cause was tried, and judgment was given in favor of plaintiff. The court found that there had been successive conveyances, as pleaded, with corresponding assumptions of the indebtedness, and drew the conclusions of law that plaintiff was entitled to foreclosure and to a judgment declaring Theresa Lewin, Robson, O'Toole, Hillyer (sued as Lieutemps), and Hoyt personally liable for the amount of the mortgage debt. The judgment was entered October 5, 1911. On December 7, 1911, the motion of Hoyt for a new trial was served and filed. On December 8, 1911, the foreclosure sale took place, the plaintiff becoming the purchaser, and a deficiency judgment, which, on April 2, 1912, amounted to more than $14,000, was on that date docketed against Theresa Lewin, Robson, O'Toole, Hillyer, and Hoyt. The deed of the commissioner to plaintiff was executed December 18, 1912. Hoyt's motion for a new trial was denied on February 21, 1913. When said motion was called on the court's calendar on that date, Hoyt did not answer, because he had agreed with a member of the firm of lawyers representing plaintiff that there should be a continuance. This agreement was not known to the representative of that firm who appeared in court on February 21, 1913, and he asked that the matter be submitted. Thereupon the court denied the motion. On February 27, 1913, on the ex parte application of the plaintiff, the court set aside the order of February 21, 1913. On April 4, 1913, the court made and entered an order granting a new trial. This was based "upon stipulation filed," which stipulation was in the following language: "It is hereby stipulated that the judgment heretofore made, rendered and entered in the above-entitled action in favor of plaintiff may be vacated and set aside, and that a new trial may be granted in the above-entitled action. Dated April 4, 1913. Tobin & Tobin, Attorneys for Plaintiff." ris v. De Celis, 41 Cal. 331, it is said: 'If a motion for a new trial is decided by the court before it has been submitted, the order denying or granting the new trial should be set aside as improvidently made, if application is made therefor.' In Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605, it is said: "There is no doubt that and entered may, where the irregularity is apthe court in which an irregular order is made parent, on suggestion, motion, or ex mero motu, set it aside at any time before an appeal is taken from it.' In Hayne on New Trial, vol. order was improvidently or inadvertently made, 2, § 199, the author says: 'Where an appealable the aggrieved party may move the court below to set it aside, and may appeal from the order denying his motion. Thus, where a motion for a new trial was granted without any submission of the motion, and before the record upon the motion was completed, it was held to be proper practice for the aggrieved party to move upon affidavits to have the order granting the new trial set aside, and the order denying such motion was reversed [referring in note to case of Morris v. De Celis, 41 Cal. 331]. The fact that the order was made irregularly takes it out of Trial and Appellate Practice, $379. The late the general rule.' See, also, 2 Spelling on New It is conceded that the petitioner, Robson, had no notice of the application which result-case of Holtum v. Greif, 144 Cal. 521, 78 Pac. ed in the order of February 27, 1913, setting aside the order denying Hoyt's motion for a new trial, nor had he notice of the stipulation upon which was based the order of April 4, 1913. Respondents contend that the order setting aside the previous order by which Hoyt's motion for a new trial had been denied was fully within the jurisdiction of the court and was made in pursuance of a well-recognized power. The case of Whitney v. Superior Court, 147 Cal. 536, 82 Pac. 37, fully supports this view. In that case, as here, the court was dealing with an order made upon ex parte application of counsel, setting aside its former order denying the defendant's motion for a new trial. In that case, as here, the motion for a new trial had been called up by plaintiff's counsel in the absence of counsel for the moving party and in violation of the stipulation that it should not be brought to the attention of the court in that manner. Upon the theory that the court had lost jurisdiction to set aside the order denying the motion for a new trial, the successful litigant in the lower court (or his assignee) asked for a writ of execution, in spite of the fact that after restoration of the defendant's motion to the calendar and formal argument thereof the prayer of defendant had been granted, and a new trial had been ordered. This court declined to give a writ of mandamus to compel the clerk of the superior court to issue execution. Speaking of the litigation in the superior court, Mr. Justice Van Dyke, delivering the opinion of this court, said: 11, one of the cases relied upon by the petitioner, after stating the general rule that an made and entered cannot be set aside by the trial order granting or refusing a new trial regularly court, states that, if the orders 'have been entered prematurely or by inadvertence, they may be set aside on a proper showing. Odd Fellows' Sav. Bank v. Deuprey, 66 Cal. 170, 4 Pac. 1173, and cases cited.""" It is suggested that Whitney v. Superior Court, supra, may be distinguished from the case at bar because, after the motion had been restored to the calendar, the counsel of the respective parties to the litigation appeared and took part in the proceedings in the hearing of the motion for a new trial, and the plaintiff appealed from the order granting a new trial. But the court in that case was dealing with a question of jurisdiction which may not be conferred by acquiescence. It was clearly held that the court had the power to correct its action with reference to defendant's motion. The fact that after his objection to the jurisdiction of a court the litigant proceeds in the usual manner to try the cause or the proceeding does not preclude him from questioning the power of the court to proceed further. Arroyo Ditch & Water Co. v. Superior Court, 92 Cal. 52, 28 Pac. 54, 27 Am. St. Rep. 91. It was not the theory of the Whitney Case that the plaintiff in the litigation in the superior court was estopped to deny the jurisdiction of the court to set aside its own order inadvertently made. We see no reason to forsake the doctrine of the Whitney Case, which has been the settled law for more than a decade. That case was carefully considered and the opinion of Mr. Justice Van Dyke received the concurrence of four of the justices who are still on this bench. "The motion for new trial in that case was by the defendant. He was the moving party; It was brought up, as appears, in the absence of the defendant's attorney, without any argument, It is suggested, however, that the inadvertor opportunity upon the part of the defendant ence which resulted in the entering of the orto be heard, and under the circumstances it was der denying the motion for a new trial was right and proper for the court to do as it did-an inadvertence of a party relief from which set aside the order denying the motion for a new trial, and thereupon give the moving party might have been obtained under section 473, an opportunity to present the motion. In Mor- Code of Civil Procedure, upon due applica |