ruary 4, 1910. His widow was appointed administratrix of his estate and qualified and continued to act as administratrix until February 23, 1912, when she resigned. She remarried a Mr. Fraser on October 9, 1911, and after that marriage, but on the same day, she applied for the order in controversy here for the payment of an allowance out of the estate of Moore for her support during the period of her widowhood, that is for the period elapsing from Moore's death in 1910 to the date of her remarriage in 1911. The court made an order granting her an allowance of $60 a month, payable out of the estate of the decedent, amounting to $1210. Upon her resignation Mr. Lantz was appointed administrator of the estate. She filed an account of her administration and that account was settled in March, 1912. It made no mention whatever of the order for a family allowance. It shows, however, that no funds were on hand at the time out of which any allowance could have been paid. Subsequently Mr. Lantz filed his account of his administration claiming credit for $1210 paid to the widow in satisfaction of the allowance. That item was objected to by the other parties interested in the estate. The court overruled the objection and settled the account, allowing the item. From that order this appeal is taken.

Section 1464 of the Code of Civil Procedure provides that on the husband's death the widow is entitled to a reasonable provision for her support until letters of administration are granted and the inventory is returned. Section 1466 proceeds to declare that if the property of the estate set apart, meaning the household furniture and homestead, is insufficient for her support, the court must make a reasonable allowance out of the estate for her maintenance during the settlement of the estate. Section 1467 further declares that "such allowance, whenever made, may, in the discretion of the court or judge, take effect from the death of the decedent". [1] It is clear from these provisions that the widow is entitled to an allowance which may be retroactive, covering the period from the date of the death of the decedent. She does not lose her right to an allowance by failing to apply for it. Under any reasonable construction of these sections she is entitled to it during the entire period of widowhood. If she had made her application the day before her marriage and had obtained it, we do not presume it would be contended that she was not entitled to the money thereby allowed. The fact that she waited until after her marriage before making the application does not prevent her from receiving the allowance. The fact of her marriage did not deprive her of the right to apply for and secure the allowance. This right is not a vested right in the property of the decedent; it is a mere right to prefer a charge, and the allowance may or may not be granted. She may or may not enforce it. But if she gets the order before the estate is closed she is not deprived of the right by a remarriage before obtaining the order.

[2] The cases relating to homesteads are not applicable to this question. The homestead, as counsel for respondent has said,

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. She loses that right when she marries some one else. Therefore, when she does not make application until after she marries, the right is gone. The same is not true in case of a family allowance. This case is an illustration of it. There was no property to pay a family allowance, yet under the policy of the law the estate was bound to support her so long as she remained the widow of the decedent and until the close of the administration. The necessity for her support existed all the time and she would be entitled to resort to the statutory provision in order to obtain credit and secure necessaries. The case of Bacon v. Perkins, 100 Mich, 183, is to the same effect. In that case the statute appears to be the same, in effect, as ours, and the case is authority for the conclusion here reached.

The order is affirmed.

L. A. No. 3459. Department One. April 16, 1915. LEATHEY ANDERSON, a Minor, by Nels Anderson, Her Guardian ad Litem, Plaintiff and Respondent, v. LOS ANGELES TRANSFER COMPANY (a Corporation), Defendant and Appellant.

[1] NEGLIGENCE FINDING OF JURY-RULE ON APPEAL. The question of negligence is one of fact for the jury, and its finding cannot be overturned where the evidence is conflicting or where, although the evidence is without conflict, different inferences may reasonably be drawn therefrom.

[2] ID.-ACTION FOR DAMAGES-PERSONAL INJURIES-COLLISION WITH AUTOMOBILE-NEGLIGENCE-CONFLICTING INFERENCES.-It is held in this action for damages for personal injuries from being struck by an automobile while standing in a street awaiting the approach of a street car, that the facts shown in the record were sufficient to justify the inference that the driver of defendant's car was guilty of negligence in running at the rate of speed at which he was going, without turning to avoid the plaintiff whom he saw standing in the street, and that on the other hand, the evidence equally justifies the inference that the plaintiff acted reasonably in assuming that the defendant's car would not continue in its course until a point of time when it would be too late for her to get out of the way, and that, when that time came, she attempted, with due care, but unsuccessfully, to escape.

Appeal from the Superior Court of Los Angeles County-Fred V. Wood, Judge.

For Appellant-Morton, Hollzer & Morton.

For Respondent-Crouch & Crouch.

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

This is a suit for damages for personal injuries. The plaintiff was standing in the street, awaiting the approach of a street car, when she was struck by defendant's automobile. The evidence is conflicting in some respects, but there was testimony tending to show that the plaintiff, a girl of fourteen, was standing at a place where she had a right to be; that the defendant's automobile, running at a speed of twenty miles an hour, came toward her in the same direction as the street car for which she was awaiting; that the plaintiff saw the automobile approaching, but did not succeed in getting out of the way in time to avoid being struck by it. The verdict was in favor of the plaintiff and the defendant appeals from the judgment and an order denying a new trial. The only point raised on the appeals is that the evidence shows that plaintiff was guilty of contributory negligence and the defendant was not guilty of negligence.

The rules of law governing this class of cases are thoroughly well settled, and it is unnecessary to cite authorities. [1] The question of negligence is one of fact for the jury, and the finding of the jury cannot be overturned by the court where the evidence is conflicting or where, although the evidence is without conflict, different inferences may reasonably be drawn from it. [2] We are satisfied that the facts shown in the record were sufficient to justify the inference that the driver of defendant's car was guilty of negligence in running at the rate of speed at which he was going,

without turning either to the right or the left to avoid the plaintiff, whom he saw standing on the street. On the other hand, the evidence equally justifies the inference that the plaintiff acted reasonably in assuming that the defendant's car would not continue in its course until a point of time when it would be too late for her to get out of the way, and that, when that time came, she attempted, with due care, but unsuccessfully, to escape. In short, it is a case where conflicting inferences may be drawn, and this court must sustain the findings of the jury.

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

April 16, 1915.

L. A. No. 4125. Department One. In the Matter of the Estate of CHARLES HEADWOOD SCOTT,

Deceased.

WIFE-FORFEITURE IN

[1] PROBATE LAW-WILL-DEVISE ΤΟ EVENT OF REMARRIAGE-VOID CONDITION.-Where a testator by the first clause of his will gives all his estate to his wife, and then provides that "should she wish to marrie agane then 75 per cent of the hole amount at my death will go to my children", he thereby imposes a condition in restraint of marriage which renders the proviso absolutely void under section 710 of the Civil Code.

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

For Appellant-Chase, Overton & Lyman,

For Respondent-Cancel B. Scott and Mrs. T. D. Ogg.
Notified no attorneys of record for respondent.

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

In this case the testator made a will in the following words. "I give all my Earthly Positons both real and persnel to my wife Eliza V. Scott. Should she wish to marrie agane then then 75 per cent of the hole amount at my death will go to my children known as C. W. Scott of Detroit, Mrs. Thomas Ogg of Glendale of California, Cancel B. Scott of California, $5.00 five dollars to Mrs. C. B. Sayles of Detroit Michigan."

con

The court below held that this will did not contain a dition in restraint of marriage and distributed the estate upon that construction, giving the widow a qualified estate conditional upon her remaining unmarried.

[1] The court is of the opinion that this was not a correct construction of the will and that the effect of the expression beginning with the words "should she wish to marrie agane" is that if she should marry she would by that act forfeit seventyfive per cent of the estate given to her in the previous clause. This makes it a condition in restraint of marriage and therefore absolutely void under section 710 of the Civil Code. The first part of the will, the clause giving her all his estate, is the effective part of the will.

The order is reversed.

Crim. No. 1910. In Bank. April 16, 1915.

In the Matter of the Application of RALPH M. RICHARDSON for a Writ of Habeas Corpus.

[1] MUNICIPAL CORPORATIONS-ORDINANCE OF CITY AND COUNTY OF SAN FRANCISCO-LICENSE ON NICKEL-IN-THE-SLOT MACHINES-NATURE OF ORDINANCE-REVENUE PURPOSES.-An ordinance of the city and county of San Francisco imposing a license fee or tax of $2 per annum upon every person owning or having control of any machine which delivers articles of merchandise in small quantities upon the deposit of a piece of money in such machine, and providing that the license shall be valid only for the use of the machine at a particular place of business or location, and that every machine so licensed must have conspicuously attached to it a metallic tag showing the number and time for which issued, is not an ordinance enacted in the attempted exercise of the police power of regulation, but is one for revenue purposes only.

[2] ID.-ID.-ID.-TAX UPON VENDORS OF SMALL ARTICLES OF MERCHANDISE-DISCRIMINATORY ORDINANCE-TAX UPON MODE OF SALE AND DELIVERY.-The imposition of such a tax upon the vendors of small articles of merchandise who use such machines in making their sales and deliveries without any reference whatever to the amount of business done, and exempting those vendors who sell and deliver the same articles of merchandise in other ways, is discriminatory, and, therefore, invalid.

[3] ID. LICENSE TAXES FOR REVENUE PURPOSES-ESSENTIALSMETHODS OF SALES AND DELIVERIES-IMPROPER BASIS OF CLASSIFI CATION. It is elementary that there must be equality and uniformity in the imposition of license taxes for revenue purpose, and any classification providing different charges for those engaged in the same business, a charge for some and exemption for the others, must be one founded upon some natural and reasonable distinction pertinent to the matter, and a difference in the methods of making sales and deliveries does not furnish a proper basis for classifi cation of vendors of merchandise.

Application for writ of habeas corpus prayed to be directed against David A. White, Chief of Police of the City and County of San Francisco.

For Petitioner-B. B. Blake and Willard P. Smith; and Fred J. Goble, amicus curiae.

For Respondent-A. L. O'Grady and Jno. Floyd.

The petitioner was convicted in the police court of the city and county of San Francisco of a violation of the provisions of section 2 of ordinance No. 765, as amended by ordinance Nos. 1471 and 1537 (N. S.) of said city and county, and adjudged to pay a fine of $5, and in default of payment of such fine to be imprisoned for one day. Having refused to pay such fine he was taken into custody, and on his petition a writ of habeas corpus was issued to determine the question of the legality of his imprisonment.

The charge against petitioner was that he operated, owned and controlled a certain machine, to-wit: a match machine, with a nickel-in-the-slot attachment, at No. 230 Market street, without first having procured a license therefor from the tax collector of the city and county, as required by said ordinance. The complaint sufficiently states an offense under the provisions of section