The cause was tried with a jury. At the close of plaintiff's evidence in chief the defendant moved for a nonsuit on the ground of contributory negligence of the child's parents in allowing him to go upon the street without any person exercising proper care or control over him. The court denied the motion. The jury returned a verdict for plaintiff, awarding him one thousand dollars. The defendant moved for a new trial, which was denied; and he appeals from the judgment and from the order refusing a new trial.

There is no question that the evidence tended to prove negligence on the part of the defendant. Therefore, the burden of proving contributory negligence of the parents of the child devolved upon the defendant, unless it had been made to appear by the evidence for plaintiff. But there was no evidence of negligence of the parents, except the facts above stated.

In the case of Schierhold v. North Beach etc. R. R. Co. 40 Cal. 447, the court, speaking of the negligence of parents in a case like this, said: "The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It can very seldom happen that the question is so clear from doubt that the court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff. It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury and pass upon the facts. And the nonsuit should only be granted in such cases where the evidence of the misconduct on the part of the injured party is so clear and irresistible as to put the case on a par with those cases where a nonsuit is granted for a failure to introduce evidence sufficient to go to the jury, upon some point essential to the plaintiff's case. . . . . The question whether there was negligence on the part of the parents of the child, in allowing him to be in the streets unattended, ought to have been submitted to the jury. This depended, not only upon his age, but his intelligence and physical

OXIII. CAL.-24

ability, and we cannot say, as matter of law, there was negligence in this particular case."

In Huerzeler v. Central Cross etc. R. R. Co., 139 N. Y. 494, the court held: "It was not negligence, as matter of law, for the mother of a child (a little over five years of age) to permit her to be in the street" that it was a question of fact for the jury to determine. (See, also, Kline v. Central Pac. R. R. Co., 37 Cal. 400; 99 Am. Dec. 282; Meeks v. Southern Pac. R. R. Co., 52 Cal. 602; McQuilken v. Central Pac. R. R. Co., 64 Cal. 464; Higgins v. Deeney, 78 Cal. 578.) I think the court did not err in denying the nonsuit.

The only other point presented by appellant is that the evidence was insufficient to justify the verdict.

Upon all the issues as to which the evidence is claimed to be insufficient it was substantially conflicting. It clearly tended to prove negligence of the defendant. It tended to prove that he was intoxicated and, under the circumstances, was driving at a reckless speed, and that with proper care he might have avoided the accident. There was no other evidence of contributory negligence on the part of the plaintiff or his parents than that above stated, and there is no pretense that the case was not fairly submitted to the jury.

I think the judgment and order appealed from should be affirmed.

HAYNES, C., and SEARLS, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

MCFARLAND J.. TEMPLE, J., HENSHAW, J.

[S. F. No. 100. Department Two.-July 20, 1896.]

371

J. MILTON PAINTER, APPELLANT, v. THEODORE
P. PAINTER ET AL., RESPONDENTS.

APPEAL FROM JUDGMENT-REVIEW OF EVIDENCE-LAPSE OF TIME-RENDITION OF JUDGMENT.-Where an appeal from the judgment is taken more than sixty days after rendition of the judgment, which takes place, within the meaning of section 939 of the Code of Civil Procedure, when the findings are filed, and judgment is ordered, the evidence cannot be reviewed upon such appeal; and, where the judgment is not entered in time to allow an appeal therefrom to be taken within sixty days from its rendition, the evidence can be reviewed only upon motion for a new trial. WILL-DEVISE OF PARTNERSHIP INTEREST-COMMUNITY PROPERTY-PRETERMITTED HEIR-AFTER-BORN CHILD.-A will devising all of the partnership interest of the testator in firm property, exclusive of real estate, to his copartners, the interest of the testator in the partnership being community property, does not carry the wife's interest therein, neither does it carry the interest therein inherited by an after-born child of the testator, who is pretermitted from the will, not having been provided for nor mentioned therein.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. V. COFFEY, Judge.

The facts are stated in the opinion of the court.

Edward J. Pringle, for Appellant.

The court erred in holding that the widow took half of the community property as survivor, and half of the remainder under the will, and that she was entitled to one-half of so much of the testator's interest in the firm as was community property. (Morrison v. Bowman, 29 Cal. 349; In re Stewart, 74 Cal. 101; Estate of Gilmore, 81 Cal. 240; Estate of Smith, 108 Cal. 115.) The evidence was insufficient to justify the findings. The evidence may be reviewed, as judgment was not entered until 1894, nor was any order for judgment entered in the minutes. (McLaughlin v. Doherty, 54 Cal. 519; Broder v. Conklin, 98 Cal. 361.) The intent was to include Eugene Painter in the codicil, and he is there provided for. (Civ. Code, sec. 1306.)

Fox, Kellogg & Gray, for Respondents Dallam and others.

The evidence cannot be considered, as the appeal was not taken within sixty days from the rendition of judgment. (Code Civ. Proc., sec. 939; Gray v. Palmer, 28 Cal. 416; McLaughlin v. Dougherty, 54 Cal. 519; Estate of Cork, 77 Cal. 220; 11 Am. St. Rep. 267; Schurtz V. Romer, 81 Cal. 247; Crim v. Kessing, 89 Cal. 487, 488; 23 Am. St. Rep. 491; Secord v. Quigley, 106 Cal. 149; Thompson v. White, 76 Cal. 382.) Appellant's first point supra, is clearly answered by the will itself, and by the authorities cited by appellant, and by Estate of Frey, 52 Cal. 660. The use of the words "my sons" does not show an intention to provide for an unborn child.

MCFARLAND, J.-The deceased, Jerome B. Painter, was a brother of the plaintiff, and also of the defendant Theodore P. Painter. At the time of his death, in February, 1883, the deceased and the defendant Theodore P. Painter were copartners in a firm called "Painter & Co.," engaged in the business of manufacturing and selling printing presses, type, and other printers' materials. On March 11, 1864, the deceased made his will; and at that time plaintiff was also a copartner in said firm, but he afterward withdrew from the copartnership. The firm owned a large stock of machinery, type, materials, and fixtures necessary to carry on its business, and also some real property which was worth at the time of the death of the deceased about six thousand six hundred dollars. The first clause of the will is as follows: "1st. I give and bequeath to my brothers, J. Milton Painter and Theodore P. Painter, all my share, right, title and interest of, and in and to, the copartnership of Painter & Co., the stock thereof, its business, goodwill, and all interests, of whatever nature, connected with them as partners (except real estate), debts due us and moneys out at interest, for their own use and benefit, upon the express condition that they assume all debts standing against the concern, and pay

off that certain mortgage on property, S. W. cor. of Washington and Sansome streets"; and the only interests or rights of plaintiff which are involved in this action are those which belong to him as legatee under said first clause of said will. These embrace only his claim to his share of the personal assets of the copartnership. He has no proprietary interest in the real property of the firm, for he is not a partner; and by the will said real property is not devised. It appears that down to the time of the withdrawal of plaintiff from the firm the interest of the deceased in the copartnership was one-half, and the interest of each of the other two one-fourth; and it does not appear whether or not his interest was increased after said withdrawal.

The averments of the complaint necessary to be noticed are, in brief, these: It is averred that the deceased in his lifetime borrowed, from time to time, large sums of money from said firm and paid and agreed to pay interest thereon; and that at the time of his death, on account of such borrowed money and some other items of account, he was indebted to said firm in the sum of thirty-three thousand five hundred and thirty-four dollars and sixty-two cents. It is further averred that the share of the deceased in the personal assets of said firm are not sufficient to repay his said indebtedness; that the executors and executrix, or some of them, claim that the deceased was not indebted to said firm in any sum of money whatever; that the defendant Theodore P. Painter, as surviving partner, is engaged in liquidating the affairs of said copartnership, and claims that it is necessary for him to sell all of the stock on hand, machinery, type, materials, fixtures, general assets and goodwill of the business in order to repay the said amount due from the deceased to said firm and to settle the accounts of the deceased with the firm, and threatens so to do; and that if he be permitted to do so the legacy to plaintiff will be wholly defeated. It is further averred that plaintiff, as such legatee, is entitled to de