Union of Los Angeles”, does not describe exactly either one of the corporations appearing to claim the legacy. The words "Los Angeles" come at the end of the designation and thus distinguish it from the first named corporation and from the others as well. This of itself created an ambiguity. There were three corporations with names none of which correspond exactly to the designation given in the will and the inquiry at once arose which one of these three came within the intention of the testator. [1] It comes exactly within the case provided for by section 1340 of the Civil Code, that is, a case where no person or property exactly answers the description. In that case, the section provides that the omissions and mistakes must be corrected if the error appears either from the face of the will or from extrinsic evidence. In this case extrinsic evidence was introduced consisting of the testimony of Mr. Avery, who drew the will. He testified that Mr. Little informed him that he wanted to give a bequest to an organization. which owned and conducted the Temperance Temple on the hill at Broadway and Temple streets; that he did not know the name himself and that he then telephoned to the Temple, was answered by some one, inquired as to the correct name of the society that was conducting the Temple and was informed that it was The Woman's Christian Temperance Union of Los Angeles. Thereupon he wrote in the will the words which made the legacy payable to the Woman's Christian Temperance Union of Los Angeles. Evidence was given in addition to the effect that the society for which he inquired, and which owned and conducted the Temperance Temple on Temple and Broadway was not The Woman's Christian Temperance Union of Los Angeles, but that its correct name is The Woman's Christian Temperance Union of Southern California.

From this evidence the court decided that the testator intended to give this legacy to the corporation described as the Woman's Christian Temperance Union of Southern California, but which is designated by the above name in the will, a mistake which could be corrected under section 1340.

There is some suggestion that evidence of this character is not admissible. The case of Estate of Dominici, 151 Cal. 181, is direct authority for the proposition that in case of an ambiguity of this kind the instructions of the testator given to the persons who drew the will at the time it is drawn, and the occurrences that took place at that time may be proven to ascertain the person to whom the legacy is to be given and for the purpose of ascertaining the true intent of the will. In Estate of Donnellan, 164 Cal. 16, similar authority may be found. There are other cases to the same effect. It is the opinion of the court that under these decisions and under section 1340, the evidence was properly introduced and that it is amply sufficient to sustain the finding of the court that the true intent was to give this bequest to the Woman's Christian Temperance Union of Southern California.

The order of distribution is affirmed and it is ordered that the remittitur issue forthwith.

L. A. No. 4049. Department One. April 15, 1915. *HARRY H. SINNIGE, Plaintiff and Respondent, v. HELEN AGATHA OSWALD and FREVERT-BLEDSOE FURNITURE COMPANY (a Corporation), Defendants and Appellants.

[1] LEASE-WRITTEN CONTRACT-TENDER AND ACCEPTANCE OF REDUCED RENT FOR CERTAIN PERIODS-FUTURE RENTS NOT REDUCED.— The tender and acceptance of smaller installments of rent than reserved in a written contract of lease as satisfaction in full of the installments thus paid, is not sufficient to establish a change in the contract so as to affect the amount of future installments, in the absence of written change to such effect.

[2] ID.-CONTRACT OF GUARANTY-AUTHORITY TO EXECUTE-PLEADING ADMISSIONS IN ANSWER-EFFECT OF.-In an action to recover judgment for several installments of rent reserved in a lease, the overruling of an objection to the admission in evidence of a contract of guaranty attached to the lease, on the ground of want of showing of authority of the president of the corporation guarantor to execute the contract, is without error, where the answer denies the guaranty of payment except to a certain amount, and further alleges that the contract was made subsequent to the lease and was made without consideration.

[3] ID.-REHEARING OF APPEAL-ADOPTION OF PORTION OF OPINION OF DISTRICT COURT OF APPEAL.-On the rehearing of this appeal the opinion of the district court of appeal (19 Cal. App. Dec. 462) is adopted in part.

[4] ID.-ID.-GUARANTY OF PAYMENT OF RENT TO CERTAIN AMOUNT -CONSTRUCTION OF CONTRACT-CONTINUING GUARANTY.-A contract of guaranty attached to a lease which guarantees to the lessors the payment of the rent specified in the lease at the times and in the manner therein stated "up to the amount of $1,000", is a continuing guaranty applicable to any delinquency in the payment of rent, and is not satisfied upon payment of more than $1,000 of such rental.

[5] ID.-ACTION FOR RENT-PLEADING SUPPLEMENTAL COMPLAINT -RENT ACCRUING AFTER COMMENCEMENT OF ACTION-TRIAL WITHOUT OBJECTION-EFFECT OF.-Where a supplemental complaint is filed in an action to recover rents for the purpose of recovering rent which has accrued after the commencement of the action, and the defendants answer such pleading, and go to trial without objection, they cannot raise the objection to such pleading for the first time after judgment.

Appeal from the Superior Court of San Diego County-C. N. Andrews, Judge.

For Appellants-L. L. Boone, John J. Brennan.

For Respondent-Hoff & Chatterson.

Mr. Justice Sloss delivered the opinion of the court, Justices Shaw and Lawlor concurring.

This cause comes here on an order for a rehearing after decision by the district court of appeal for the second appellate district. That court filed an opinion which states the essential facts, and makes satisfactory disposition of most of the legal questions presented.

From that opinion we quote:

"The plaintiff brought this action to recover judgment for several instalments of rent claimed to be due from the defendant

*On hearing after judgment in District Court of Appeal, Second District (19 Cal. App. Dec. 462).

Helen Agatha Oswald as lessee of an apartment house. Plaintiff owns the property as grantee from the lessors and is also assignee of the lessors' right under the lease. Judgment was obtained against Mrs. Oswald for the full amount of rent claimed, and against defendant Frevert-Bledsoe Furniture Company for one thousand dollars, claimed under a written guaranty of the payment of the rent to the extent of one thousand dollars. The defendants appeal from the judgment and from an order denying their motion for a new trial.

"The lease was for ten years and was made in March, 1912, while the house was in course of construction, and the rent began on May 1, 1912, at the specified rate of $347 per month. Rent in excess of $1000 was paid before the time when the instalments became due that are involved in this action. Rent for May, June and July, 1912, was paid at the $347 rate. Thereafter rent was paid to the lessors and subsequently to the plaintiff at the rate of $317 per month, to and including April, 1913. Defendants claim that the lease was changed, by reduction of the rent, for the entire term, bringing it down to $317 per month. There was not at any time a written modification of the terms, but the smaller amount was accepted from time to time and receipts in full were given for the instalments then paid.

"The complaint herein was filed on June 11, 1913, for the sum of $347, as rent of May, 1913, and for the further sum of $347 as rent of June, 1913. On October 10, 1913, a so-called supplemental complaint was filed demanding the same sum of $347 as July rent. The only demurrers were to the original complaint and were overruled. The action was tried upon the first complaint and the supplemental complaint and the answers of the defendants.

[1] "The finding that there was no change in the terms of the lease in the alleged particular of reducing the rent is sustained by the evidence. Concessions of the kind that were shown by the defendants, when supported by a consideration, are valid to the extent that a lower rent has been tendered and accepted as satisfaction in full of the instalments thus paid. They are not sufficient to establish a change in the written contract so as to affect the amount of future instalments of rent where no such change of terms has been made in writing. (Estate of McDougald, 146 Cal. 196, 199.)

[2] "The contract of guaranty attached to the lease reads as follows:

"In consideration of, and as an inducement to, said lessors' leasing the property described in the foregoing lease to said lessee, the Frevert-Bledsoe Furniture Company, a corporation, hereby agrees to and does assign and transfer to said lessors its interest in the furniture purchased or that may be hereafter purchased by said lessee from said corporation, for use in said building herein before described, and which may be placed therein by said lessee, to the extent and amount of the payment or payments which have been or which shall hereafter be made thereon by her to said company; and the said corporation hereby agrees to and does guarantee to said lessors the payment of the rent in said

lease specified at the times and in the manner therein stated up to the amount of One Thousand Dollars ($1,000), which said guarantee is to hold good and to be in full force and effect until said furniture is fully paid for and until said lessee executes and delivers to said lessors the chattel mortgage provided for in the foregoing lease, contemporaneously with and as a part of which lease this agreement is executed.

Frevert-Bledsoe Furniture Co.,
By W. L. Frevert, President."

"When this document was offered in evidence counsel for the defendant Furniture Company admitted that the signature was that of W. L. Frevert, and that he at the time of signing was president of defendant corporation, but objected to the admission of the instrument in evidence upon the ground that no authority had been shown of the president of the company to execute a contract of guaranty, and particularly this contract of guaranty. The answer of this defendant denied that it guaranteed the payment of said rent at the time or in the manner stated in said lease, or at all, 'except that the lessors should be paid up to the amount of $1,000', and further alleged 'that said agreement made by it was subsequent to the making of said lease and was made without consideration'. In view of these admissions, the court did not err in overruling the objection above stated."

[3] We adopt the foregoing portions of the opinion of the district court of appeal as our opinion on the points thus discussed. Our views on the remaining questions are as follows.

[4] The defendant Furniture Company contends that its contract of guaranty did not extend beyond the sum of $1,000 agreed to be paid by the principal as rent under the lease; and that since the evidence shows payment by the lessee of more than $1,000 of such rental it follows that the guaranty is fully satisfied.

This contention cannot, we think, be sustained. The lease covered a term of ten years, and contemplated monthly payments during that period. The purpose of the guaranty was to provide the lessor with security for these successive payments of rent. The total rental aggregated over forty thousand dollars, and the words "up to the amount of $1,000" were designed to fix a limit to the guarantor's total liability. The guarantor was not binding itself beyond $1,000, but up to that point it guaranteed "the payment of the rent in said lease specified". The rent guaranteed was the rent for the entire period, not merely for the first three months. This, we think, would be the fair construction of the instrument, if the words just quoted stood alone. The correctness of the interpretation is the more apparent upon a consideration of the further provision that the guaranty is to hold good until the furniture is fully paid for and a chattel mortgage thereof delivered to the lessor. It is perfectly plain from the record that the parties did not contemplate that the furniture would be fully paid for and the mortgage executed before the lapse of many months. Until this was done the lessor was to have the guaranty as security. It certainly was not intended that, if the tenant paid rent for the first three months, the lessor should be without any

security, whether by way of mortgage or of guaranty, for the balance of the term. The fair meaning of the instrument, taken as a whole, is that the lessor is to have the security of the $1,000 guaranty, until it can be replaced by a chattel mortgage on the furniture.

[5] A supplemental complaint was filed by leave of court, asking recovery of rent for the third month (July), accrued after the commencement of the action. Perhaps the subject matter was not properly brought into the case, but the defendants answered the supplemental complaint on the merits, and went to trial without making any objection to the presentation of evidence offered to sustain the allegations of the pleadings. They cannot be permitted to raise the objection for the first time after judgment. (Groom v. Bangs, 153 Cal. 456.)

The judgment includes rents for the entire month of July, 1913. It appears that the lessor demanded and the tenant surrendered possession of the premises about the middle of that month. The appellants contend that there should be a proportionate abatement of the July rent. The respondent has stipulated that such abatement may be allowed and we need not therefore pass upon the correctness of the contention thus made. Pursuant to this stipulation the judgment against both the lessee, Mrs. Oswald, and Frevert-Bledsoe Furniture Company, the guarantor, should be reduced to $867.50.

It is ordered that the judgment be modified as above indicated and that as so modified it stand affirmed.

The order denying a new trial is affirmed.
The appellants are not to recover costs.

L. A. No. 3978. Department One. April 15, 1915. In the Matter of the Estate of PHILLIP K. MOORE, Deceased.

[1] PROBATE LAW-FAMILY ALLOWANCE-REMARRIAGE OF WIDOW PRIOR TO APPLICATION-RIGHT TO ALLOWANCE NOT LOST-CONSTRUCTION OF CODE. Under the provisions of sections 1464, 1466 and 1467 of the Code of Civil Procedure a widow is entitled to an allowance for her support out of the estate of her deceased husband from the date of his death to the date of her remarriage, and the fact that she did not make application therefor until after her remarriage does not prevent her from receiving such allowance.

[2] ID.-ID.-ID.-ID.-HOMESTEAD LAW INAPPLICABLE.-The cases relating to homesteads are not applicable to such an allowance, as the homestead looks to the future enjoyment and is made for the purpose of securing to the widow a place in which to live during the time she may require it.

Appeal from the Superior Court of Los Angeles CountyJames C. Rives, Judge.

For Appellant-Waldo M. York, Harry M. Irwin.

For Respondent-Charles Lantz.

Mr. Justice Shaw delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

The decedent Moore died, according to the evidence, on Feb