acre at so much per acre. [2] Where, as here, it is shown that the parties undertook the one to convey, and the other to receive, a tract of land at so much per acre, the words "more or less" in the instruments involved in the transaction cannot be said to conflict with the intent of the parties that payment should be made for the exact amount of land conveyed, be it "more or less" than the round number chosen to describe the acreage. (Hutchings v. Moore, 61 Ky. (4 Met.) 110; Paige v. Sherman, 6 Gray (Mass.), 511; Barnes v. Gregory, 1 Head (Tenn.), 230.)

It is suggested rather than clearly contended that the findings of the trial court in the particulars stated rested in part upon parol proof which tended in a measure to alter or vary the terms of the written agreement of the parties and that, therefore, such proof was inadmissible. [3] The answer to this suggestion, however, is to be found in the fact that the record does not show any objection to such proof upon the ground that it was parol and proffered for the purpose of varying or altering the agreement of the parties. [4] Moreover, "this . . . is a case where the writing itself, through mistake, does not express the intention of the parties who entered into it, or one of them, and does not therefore contain the real contract between the parties." (Kee v. Davis, 137 Cal. 456, [70 Pac. 294].)

[5] The contention is made that the complaint does not state a cause of action because it fails to aver that the mutual mistake pleaded as a cause of action did not arise from the negligence of the plaintiff. No demurrer, general or special, was interposed by the defendants. If it be granted that such an allegation was essential to the statement of the plaintiffs' cause of action, still the fact that the plaintiffs' carelessness or neglect did not contribute to the mistake involved is fairly inferable from all the allegations of the complaint. Therefore, in the absence of a demurrer, the complaint must be held sufficient to support the judgment. (Hyland v. Hyland, 19 Or. 51, [23 Pac. 811].)

The judgment appealed from is affirmed.

Wilbur, J., and Melvin, J., concurred.

[L. A. No. 5992. In Bank-April 17, 1919.]

JOHNNIE WAITE, Respondent, v. THOMAS WAITE, Appellant.

[1] DIVORCE-RESIDENCE OF PLAINTIFF-PLEADING.-In an action for divorce the plaintiff must allege that he or she has been a resident of the state and of the county in which the action is brought for the periods provided by section 128 of the Civil Code.

APPEAL from a judgment of the Superior Court of Los Angeles County. Russ Avery, Judge. Reversed.

The opening brief for appellant made the point that the complaint did not allege that the plaintiff had been a resident of the state one year or of the county three months next preceding the commencement of the action as required by section 128 of the Civil Code.

Marshall Stimson and Noel C. Edwards for Appellant.

Chas. S. Darden for Respondent.

THE COURT.-[1] The respondent herein confesses error, and asks that the interlocutory judgment appealed from be reversed for the reason set forth in appellant's opening brief.

The point made for reversal in the appellant's opening brief appears to be well based and requires a reversal. The plaintiff should be allowed to amend her complaint in the lower court.

The judgment appealed from is reversed.

Shaw, J., Olney, J., Wilbur, J., Lawlor, J., Melvin, J., Lennon, J., and Angellotti, C. J., concurred.

[L. A. No. 6032. Department One.-April 18, 1919.]

In the Matter of the Estate of W. L. MINEAR, etc., Deceased.

[1] ESTATES OF DECEASED PERSONS-WILL-INTENTIONAL OMISSION TO PROVIDE FOR CHILDREN.-Where a testator, after declaring that he is a single man and has never been married, provides that if there should be any other or others than the ones he had named in his will claiming to be his "lawful heirs" and can and do prove that they are such, he gives to each of them the sum of five dollars, he thereby shows an intention to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise.

APPEAL from a decree of the Superior Court of San Diego County. W. A. Sloane, Judge. Affirmed.

The facts are stated in the opinion of the court.

Ernest F. Baker, William Weinstein and Jacob Weinberger for Appellants.

Eugene Daney, S. W. Switzer, Johnson W. Puterbaugh, and M. H. Fleming for Respondent.

OLNEY, J.-The decedent in this case died, leaving a will disposing of all of his estate to parties other than the appellants. The latter claim to be children of the testator and that they are entitled as such to inherit in spite of the will under section 1307 of the Civil Code, which provides that "When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section."

The sole question in this case is, therefore, whether or not it appears from this will that the omission of any provision for the appellants was intentional. The material portions of the will upon this point are two: First, "I am a single man, I have never been married," and, second, "Now if there should be any other or others than the ones that I have named in my will above that claim to be my lawful heirs and can

and do prove that they are to each of them I will $5.00 five dollars if there should be any such.' The point is made that this case is to be distinguished from the Estate of Lindsay, 176 Cal. 238, [168 Pac. 113], where a clause almost exactly the same as the second clause in the present will was involved on the ground that it appeared from the will itself in the Lindsay case that there were children and that, therefore, the testator by the general clause providing for a gift of five dollars to anyone who should establish heirship must be taken to have had his children in mind, but that in this case there is no reference in the will to children and that, therefore, the general expression "my lawful heirs" must be taken not to have reference to children, and it must be presumed that the testator had forgotten his children and unintentionally omitted to provide for them.

[1] It seems to us very clear that this contention is not sound; that it is in fact refuted by the language of the will, "I am a single man. I never have been married." Taking the two provisions together, we think it is perfectly clear that what the testator in effect said was this: "I never have been married, therefore I have no children. But if any persons other than those named in my will prove they are my heirs (either as children or otherwise) I give each of them $5.00," The true construction of the will we believe to be that the testator intended to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise.

The decree appealed from is affirmed.

Shaw, J., and Lawlor, J., concurred.

[L. A. No. 4738. Department One.-April 19, 1919.] W. S. TOLBARD, Appellant, v. JOHN C. CLINE, as Sheriff, etc., et al., Respondents.

[1] INJUNCTION-EXECUTION SALE-HUSBAND AND WIFE-TRANSFER IN FRAUD OF CREDITOR.-In this action by a husband against a sheriff to enjoin the sale under execution of certain real property at the instance of a judgment creditor of the wife, it is held the evidence supports the findings that the original conveyance of the property

which was taken in the wife's name was intended as a gift to her, and that her subsequent conveyance to a third party, who in turn conveyed it to the husband, was for the purpose of defrauding such creditor.

[2] PLEADING AMENDMENT-DISCRETION.-The amendment of a pleading lies within the sound discretion of the trial court.

[3] ID.-AMENDMENT OF ANSWER-ESTOPPEL.-It is not an abuse of discretion to permit an answer to be amended during the trial to set up an estoppel, although the matter embraced in the estoppel was known to the defendant when the original answer was filed.

'APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Leslie R. Hewitt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Alfred W. Allen and Fred W. Heatherly for Appellant.

Lee C. Gates and W. S. Allen for Respondents.

LAWLOR, J.-This action was brought to enjoin the defendants from selling certain property against which an execution had been levied. The case was tried before the court sitting without a jury. Judgment was entered in favor of the defendants. The plaintiff appeals from the judgment and from the order denying his motion for a new trial.

On March 7, 1913, Mrs. Lillie Ward, one of the defendants herein, leased to Mrs. R. A. Tolbard, wife of the plaintiff, an apartment house for "five years from March 7, 1913, at three hundred dollars per month, payable in advance." The rent for the first and last month of the term was paid on the execution of the lease.

At the time of making the lease the two pieces of property which are involved in this action stood in the name of Mrs. Tolbard. This property is situated in the city of Long Beach. "Parcel A," also referred to as the "home place,' was deeded to Mrs. Tolbard "as her separate estate," while the deed to "Parcel B" was silent as to whether or not it was to be her separate estate. The evidence showed without conflict that both parcels were paid for by the plaintiff out of community funds.

On May 4, 1914, Mrs. Tolbard deeded the property to Mrs. Iola Thompson, who later transferred it to the plaintiff.

CLXXX Cal.-16