peared to be the same as on the date of the signing of the will, some ten days earlier.

There was very little conflict in the testimony, the showing made by the proponents being, as admitted by them in their brief, "not of a very strong character." But even if there had been a dispute on every item of testimony, we do not doubt that the proof offered by the contestants was ample to justify the trial court in finding that Loveland was not mentally competent to make a will. Entirely apart from the adjudication of incompetency, it appeared that the testator's faculties had been so far impaired that he had no clear idea of the character or amount of his property and was unable to remember, for even a few days, the provisions contained in the will which he had signed. The will itself contained statements and provisions which, when read in the light of existing conditions, indicated a want of comprehension of the signer's relations to the persons named in the will. But, in addition, we have the adjudication of incompetency, following closely upon the execution of the will. There is no need to discuss appellants' claim that this adjudication was not conclusive on the question of Loveland's competency to make a will. The lower court did not assume to give it such effect. What it did was to admit such adjudication in evidence as showing that at the date of the adjudication, Loveland was so far incompetent as to justify the appointment of a guardian. This may not estab- V lish the want of capacity sufficient for the making of a will (Rice v. Rice, 50 Mich. 448, [15 N. W. 545]), and of course could not fix the status of the person affected as incompetent to make a will on a date prior to that of the adjudication. But it is certainly evidence proper to be considered on the issue of want of testamentary capacity at the time of the appointment of the guardian. (Ames v. Ames, 40 Or. 495, [67 Pac. 737]; Chase v. Spencer, 150 Mich. 99, [113 N. W. 578]; Schindler v. Parzoo, 52 Or. 452, [97 Pac. 755]; Small v. Champeny, 102 Wis. 61, [78 N. W. 407]; Terry v. Duffington, 11 Ga. 337, [56 Am. Dec. 423].) And where there is testimony tending to show that the mental condition of the person has not changed between the date of the act in question and the appointment of a guardian, the appointment, although later in time, is admissible on the issue of capacity when the act was done. Here the connection between the time of the

incompetency proceedings and that of the making of the will was sufficiently established both by direct testimony that the mental condition of Loveland had not changed in the interval separating the two dates and by the general aspect of the case, indicating, as it did, that any mental weakness on the part of Loveland was the result of that gradual decay which sometimes accompanies advanced age. (Schindler v. Parzoo, 52 Or. 452, [97 Pac. 755]; Giles v. Hodge, 74 Wis. 360, [43 N. W. 163]; Deleglise v. Morrissey, 142 Wis. 234, [125 N. W. 452].)

Complaint is made of the action of the trial court in denying to the proponents permission to file an amended answer to the contest. Leave to file this pleading was not asked until after the case had been submitted and decided, and the refusal to allow the filing might well be sustained on the ground that no adequate excuse for the delay was offered. Furthermore, the filing of the amended answer would have accomplished nothing. The original answer of the proponents was open to the construction that it failed to deny the allegation of Loveland's mental incapacity to make a will. It was sought by the amended answer to correct the defect by raising a distinct issue on this point. But it appears that the trial had proceeded throughout the taking of testimony on the theory that the competency of Loveland was in issue. After the evidence was in, the court declined to grant the contestants' motion for a judgment on the pleadings, and passed on the question of competency as one of fact. The appellants were, therefore, given every advantage which they could have gained by the interposition of their amended answer, and it would have been useless to grant them leave to formally raise an issue which had been decided against them on sufficient evidence.

admitting or rejecting Miss Davis, a stenog

Some of the rulings of the court in testimony are assailed as erroneous. rapher employed by Mr. Freitas, one of the proponents, testified that she had met the decedent ten or fifteen times at the office of Mr. Freitas, and from conversations there had with him, had formed an opinion with regard to "his condition physically and mentally." The entire acquaintance covered a period of only ten or twelve days. An objection to her stating her opinion was sustained, the court basing its ruling on the ground that she was barred from testifying by the pro

vision of subdivision 2 of section 1881 of the Code of Civil Procedure. We are inclined to think that, on the state of facts shown by the record, the offered testimony did not come within the inhibition of the section cited. But the ruling was not of sufficient consequence to justify a reversal. The showing that Miss Davis was an "intimate acquaintance" of the decedent, and thus qualified, under section 1870 of the Code of Civil Procedure, to express an opinion regarding his "mental sanity" was so slender that the exclusion of her testimony for want of foundation in this particular would have been proper. It is true that this objection was not made, and may therefore be regarded as waived. If, however, the witness had been allowed to state that, in her opinion, Loveland was of sound mind, the fact remains that her opinion would have been based upon so brief and casual a knowledge of the decedent that we can hardly believe that the trial court would, by this testimony, have been materially influenced in its determination of the ultimate issue of competency.

Appellants attack a ruling sustaining an objection to a question put to witness Parkinson, calling for his opinion respecting the competency of decedent. But, as it appears that, at a later stage, the witness was permitted to state his opinion that Loveland was competent, the ruling complained of was not injurious.

A will made by Loveland in 1907 was introduced in evidence. The respondents sought to show that, at the date of the former will, the decedent was of sound mind. The offer of testimony to this end was properly rejected. The contestants had not attacked Loveland's competency at any time prior to 1910, and, if his state of mind when he made the former will was relevant at all, the proponents had the full benefit of the presumption of sanity, which, in the absence of any evidence to the contrary, is controlling. (In re Wilson, 117 Cal. 262, [49 Pac. 172, 534]; Estate of Dole, 147 Cal. 188, [81 Pac. 534; Code Civ. Proc., sec. 1961.)

There was no error in permitting the witness Thompson to testify to his observation of Loveland's "appearance" with reference to physical and mental condition. This is not opinion evidence. (People v. Manoogian, 141 Cal. 592, [75 Pac. 177]; DeArellanes v. Arellanes, 151 Cal. 443, [90 Pac. 1059].) Similar rulings on the testimony of other witnesses

may be supported either on the same ground or on the ground that, where the witnesses were permitted to give their opinions, they had sufficiently qualified as "intimate acquaintances." The appellants make no other points.

The judgment and the order denying a new trial are affirmed.

Shaw, J., and Angellotti, J., concurred.

[L. A. No. 2885. In Bank.-April 30, 1912.]

LOUISE S. BRADBURY, Respondent, v. AUGUSTUS B.
HIGGINSON, Appellant.

LANDLORD AND TENANT-REPUDIATION OF LEASE BY TENANTS-REMEDIES OF LANDLORD-ACTION FOR RENT MEASURE OF DAMAGES FOR BREACH.-Where a lease is repudiated by the tenant and the premises abandoned, the landlord may pursue one of two courses: he may rest upon his contract and sue his tenant as each installment of rent, or the whole thereof, becomes due, or, he may take possession of the premises and recover damages, which damages will be the difference between what he may be able to rent the premises for and the price agreed to be paid under the lease. Where he sues for damages, he cannot in advance recover the full price to be paid for the unexpired term, but the amount of his recovery is limited as above indicated.

ID.-LEASE OF "APPURTENANCES" TO DWELLING-HOUSE-WATER-SUPPLY

SYSTEM-LANDLORD NOT OBLIGATED TO REPAIR.-Under a written lease of a dwelling-house and grounds "with the appurtenances," the tenant would have the right to the use of water that was being supplied to the premises from a water system owned or maintained by the landlord, but under the term “appurtenances" there could not be implied an agreement on the part of the landlord to keep in repair the water system or the pipes leading to the leased premises. An obligation on the part of the landlord to make such repairs cannot be imported into the terms of the lease under a parol agreement to that effect.

ID. LIABILITY FOR RENT WHEN TENANT ABANDONS PREMISES.-The gen-
eral common-law rule is that rent, as such, is not payable until it
falls due under the lease, and this rule is not altered by the fact that
the tenant has abandoned the premises and notified the landlord that
he will abandon the lease.

ID.-ACTION FOR DAMAGES FOR ABANDONMENT ALLEGATION OF DAM-
AGES-PRAYER FOR JUDGMENT.-A complaint in an action by the

landlord to recover damages for an alleged abandonment by the tenant, in a sum amounting to the aggregate rent for the unexpired term, is insufficient, in the absence of an allegation of the amount of damages suffered by reason of the tenant's repudiation, or any facts from which the amount of such damage may be inferred. A mere prayer for judgment in such amount is not the equivalent of an allegation of the damage suffered.

ID. NON-PAYMENT OF RENT DUE FOR UNEXPIRED TERM.-In such an action for damages, allegations showing the non-payment of rent due for a part of the expired term, do not warrant a judgment for the landlord in that sum, in the absence of an allegation that tho premises could not have been rented, during the rest of the term, for an amount equal to that provided by the lease.

APPEAL from a judgment of the Superior Court of Santa Barbara County. S. E. Crow, Judge.

The facts are stated in the opinion of the court.

B. F. Thomas, for Appellant.

Canfield & Starbuck, and Grant Jackson, Amicus Curiæ, for Respondent.

SLOSS, J.-Upon an appeal from a judgment in favor of plaintiff, the district court of appeal for the second appellate district reversed the judgment. An opinion prepared by James, J., was filed, Shaw, J., concurring, and Allen, P. J., merely concurring in the judgment of reversal. Two main propositions were considered in the opinion, the conclusion of Mr. Justice James being favorable to the appellant on one of these, and in support of the respondent's contentions on the other. Both parties were dissatisfied, and each filed a petition to have the cause transferred to and heard in this court. An order of transfer was made.

The opinion of Mr. Justice James reads as follows:"Plaintiff brought this action to recover the sum of six hundred dollars from defendant. It is alleged in the complaint that defendant on December 13, 1904, leased from plaintiff the house and premises known as 'Eagle's Nest' at Montecito in Santa Barbara County, for the term of five years, at a monthly rental of one hundred dollars, which was payable on the first day of each month in advance. It was alleged further that pursuant to the terms of the lease the