The provision for the distribution of the license taxes is as follows: "License taxes, one-half of which shall be for territorial and one-half for county purposes, shall be imposed each year as follows." Id. p. 707, § 96.

Then follows an extended list of taxes on a variety of licensed occupations. The act provides for a poll-tax as follows:

.66

"A poll-tax of one dollar shall be assessed against every able-bodied male inhabitant of this territory over the age of twenty-one years, whether a citizen of the United States or an alien, and collected in the same manner as other taxes." Id. p. 712, § 113.

The duty of the sheriff, as ex officio collector, in paying over tax moneys collected by him, is provided for in the act as follows:

"On or before the tenth day of each month the collector shall pay to the county treasurer all moneys due the county for taxes and licenses, or otherwise, collected by him for county or school purposes, remaining in his hands on the first day of that month, and to the territorial treasurer all moneys due the territory on any account in his hands on the first day of that month.' p. 698, § 56.

Id.

There being no provision in this act as to what disposition shall be made of the money collected as a poll-tax, the question arises whether it should be applied to school purposes, under the revenue act of 1872 aforesaid, and paid to the county treasurer, or whether the provisions of that act, that the poll-tax should "be applied to school purposes exclusively," as well as all of its other provisions, was repealed by the aforesaid act of 1882, thus leaving the poll-tax without any express provisions of law as to its disposition; and, in the latter case, whether, by implication merely, it should be paid over to the territorial treasurer, and applied to general territorial purposes. The poll-tax is a part of the system for raising a revenue, and the repealing clause of the act of 1882 repealed all previous laws "regarding the raising of revenue," by a poll-tax as well as by a property and license tax. And it also repeals all prior laws in regard to the distribution of the revenue arising from property and license taxes, since it contains plain and unambiguous provisions as to its disposition; but does it repeal the provisions of the act of 1872 as to the disposition of the poll-tax? In the act of 1876 a modification of the poll-tax was made in regard to persons the value of whose property did not exceed $300; but this could not effect the prior law as to the disposition of the revenue from that source. So the act of 1882 makes a modification of the poll-tax, but such modification alone cannot affect its distribution.

In construing statutes, the legislative intent, if clearly ascertainable, must of course govern; and if uncertain or ambiguous, then the probable intent, as near as it can be ascertained, should control judicial construction. In cases of this kind prior legislative enactments on the same subject, though repealed, are often resorted to in order to determine the probable legislative intent in a doubtful statute of a later date. A case of this kind arose at an early day in Massachu

setts. Prior to 1783, the statute of 12 Wm. III. c. 7, in regard to devises, was in force as common law. During that year (1783) the legislature of that state passed an act on the subject of devises containing a repealing clause as follows: "All acts and laws, so far as they relate to the devising any estate, are repealed."

It was doubt

ful whether the statute of 12 Wm. III. c. 7, was within this repealing section, as all the provisions of that statute vest distributive shares in the cases there mentioned, where in fact there was a will; but on reference to the act of 1783, in which was the repealing clause, it was found to be entitled "An act prescribing the manner of devising lands, tenements, and hereditaments," and that it re-enacted the provisions of the statute of 12 Wm. III. c. 7, excepting the third section. It was held that the legislature intended to repeal the statute of William; and as the third section of that statute had not been re-enacted, it was further held that a marriage without issue was no longer as to the widow a revocation of a will made before marriage. Church v. Crocker, 3 Mass. 21. On this subject, in Eaton v. Green, 39 Mass. 530; 22 Pick. 531, the court said:

"It is a familiar rule of construction where any section or clause of a statute is doubtful, its meaning is to be ascertained, if may be, by taking into consideration the whole statute, and even the preamble, in order to discover the probable intention of the legislature. ** * * The general system of legislation upon the subject-matter may be taken into consideration in order to aid the construction of a statute relating to the same subject; and all statutes in pari materia, whether they be repealed or unrepealed, may be considered with the same view."

This doctrine was affirmed in Holbrook v. Bliss, 91 Mass. 75, and quoted as authority in the late case of Ex parte Kan-gi-shun-ca, 3 Sup. Ct. Rep. 396.

In Savings Bank v. Collector, 3 Wall. 495, it was decided that in interpreting a section of the statute which remains in force, resort may be had to a proviso in it, though the proviso be repealed.

In the light of these adjudications, there can be no doubt that in the absence of any express provision in the revenue act of 1882, as to the disposition of the revenue arising from the poll-tax, a resort may be had to the act of 1872 to determine the probable intention of the legislature on the subject under the act of 1882. The fact that in the latter revenue law there are express provisions as to the distribution of the revenue from all sources except the poll-tax, and none in regard to that tax, is a circumstance tending to show there was no intention to change the law as to the application of the polltax. The repealing section of the act of 1882, above quoted, is somewhat peculiar; it contains two repealing clauses; one is, "All laws and parts of laws in conflict herewith are hereby repealed." If the repealing action ended there, it would have left the provision of the act of 1872, applying the poll-tax to the county school fund, in force, beyond any doubt. The other and additional repealing clause is as follows: "And all laws and parts of laws heretofore in force regard

ing the raising of revenue from taxation or from license are by this act repealed." A law is a rule of action prescribed by the legislature. A complicated revenue act like ours, prescribing as it does the modes of assessment, collection, paying over, and the distribution of taxes by the various officers designated by law for the purpose, contains several separate and distinct rules of action; and in that sense the revenue act may be regarded as containing several separate and distinct laws. There is one law for the assessment of the property tax; another for the assessment of the poll-tax; several others for the assessment of the various license taxes; another for the collection of taxes; others for the distribution of the tax moneys; and still others for the payment of the same to the respective county and territorial treasurers. Repealing the laws or rules of action in regard to the various modes of raising revenue, which relate alone to the assessment and collection of taxes, does not of itself necessarily repeal the law or rule of action as to the distribution of the revenue after it has been raised. It is quite clear that before the revenue arising from the poll-tax can be legally paid into the territorial treasury, it must be reasonably certain that by the act of 1882 it was the intention of the legislature, among other things, to change the application of the poll-tax from the county school fund to the territorial treasurer. It is certainly very difficult to arrive at that conclusion from the legislation on the subject. The act of 1872 appropriated the poll-tax, whatever it might be, to the school fund exclusively, and in the plainest and most explicit terms. By that act the policy of the territory on the particular subject was settled. And it is against the rules of statutory construction to consider a change as having been effected from vague implications. All the circumstances and the various provisions of the statutes, in pari materia, duly considered, I am of the opinion that there has been no legislative intention to change the law of distribution of the poll-tax, and that so much of the law of 1872 as appropriates the same to the county school fund' is still in force.

BELL, J. This case came to the supreme court upon a pro forma judgment entered in the court below. The case was not there examined, it being understood that the question had been decided in another district, but that no appeal had been taken from that judg ment, and it was desired that the question should be reviewed by this court. After an examination of the authorities in the light of the learned opinion of my associate, Judge BRISTOL, I am fully in accord with the views he expresses. The judgment of the court below should be reversed, and the case sent back, with instructions to enter judgment absolute for the plaintiff.

(3 N. M. [Gild.] 204)

PEREA and others, Adm'rs, etc., v. DE GALLEGOS.

Filed February 27, 1884.

Where a husband, being insolvent, conveys real estate to his wife, who continues to hold the same after his death, a single creditor of the husband, who has obtained a judgment in the probate court against the estate, cannot by a bill in equity have the conveyance declared a trust for his benefit, and have a receiver turn the widow out during the pendency of the suit. If the conveyance is fraudulent, the proper course is to have it set aside and apply the proceeds of the sale of the premises to all the debts of the decedent.

Probate courts may allow claims against the estates of deceased persons; but it is doubtful if they have the authority, or can be empowered under the organic act, to entertain actions at law to recover judgments against administrators in sums mentioned herein ($10,809) and enforce the collection thereof by their own execution.

Catron & Thornton, for appellants.

Breeden & Waldo, for appellees.

BRISTOL, J. The record discloses the following facts:

Jose Leandro Perea, now deceased, filed a bill in equity in the lower court, during his life-time, against the appellee, Candelario Montoya de Gallegos. A summary statement of so many of the material facts alleged in the bill as are necessary to be considered is in effect that in 1868 the appellee was married to and became the lawful wife of one Manuel Gallegos; that they lived together as man and wife until his death, which occurred about the year 1876; that for a long time prior to his death said Manuel Gallegos was insolvent, and had not property sufficient to pay more than one-third of his indebtedness; that prior to his death, and during such insolvency, and while he was indebted to various creditors to the amount of about $30,000, among which creditors was said Jose Leandro Perea, to the amount of about $4,000, the said Manuel Gallegos conveyed by deed to his said wife, now the appellee, certain pieces or parcels of real estate described in the bill; that said conveyance was executed without consideration, and for the purpose of covering up his property and defrauding his creditors; that at the date of the death of said Manuel Gallegos he was indebted to said Jose Leandro Perea to the amount of $10,809.40 on a judgment rendered by the probate court, and that the same is still due and unpaid; that the said Jose Manuel Gallegos left no estate out of which said indebtedness could be paid other than the real estate so, as aforesaid, conveyed to the appellee; that the appellee still holds and is possessed of said real estate under said conveyance, and is utterly insolvent and unable to respond in damages for rents, and profits. The prayer of the bill is that the appellee be declared a trustee, and to hold the said real estate so conveyed to her, and the rents and profits thereof in trust for the use and benefit of said Jose Leandro Perea until his said demand shall be fully paid off and discharged; that she be decreed to account for all rents, issues, and profits by her received from said real estate, to be applied towards such payment; that a receiver be appointed to take charge of said real estate, with authority to lease, rent, and manage the same and receive the rents, issues, and profits thereof pending the litigation, and that said real estate be sold and the proceeds applied on and towards the payment of the indebtedness so as aforesaid due and unpaid to said Jose Leandro Perea.

A demurrer to the bill was interposed, the specific grounds of which are as follows:

"(1) The judgment upon which said complainant bases his right to bring said bill is not such a judgment as will support a bill of that nature. (2) There is not shown any privity to exist between the said complainant and the said defendant by which any trust has been created or can attach as against said defendant. (3) It does not appear from said bill that said complainant was in any way connected with the transactions by which defendant acquired the premises in question. (4) It does not appear in said bill that there is any judgment or lien in favor of said complainant upon, or any estate or interest of any kind whatsoever in, said premises, in said complainant, by reason whereof any trust can be implied in favor of or result to said complainant. (5) It does not appear by said bill that the complainant ever acquired any lien upon the said real estate, or that he obtained any judgment upon his alleged demand in the life-time of the said Jose Manuel Gallegos, so as to give him any right in or upon said real estate."

At this stage of the proceedings Jose Leandro Perea, the complainant, died, and upon his death, being suggested, the now appellants, Jesus Maria Perea, Mariano Perea, and Pedro Perea, as administrators of the estate of said Jose Leandro Perea, were substituted as complainants. The demurrer was heard and sustained by the court below, and a decree entered dismissing the suit. The case is here on appeal from that decree.

The only questions that are necessary to consider are whether, upon this demurrer, the suit ought to have been dissmissed absolutely so as to constitute a bar to any further proceedings in equity for relief, on the statement of facts contained in the bill; whether the appellants ought to have had leave to amend the prayer of their bill upon the demurrer being sustained; and, in case of dismissal, whether it ought not, at least, to have been "without prejudice." The facts alleged in the bill, if true, and the demurrer admits them to be true, clearly entitles the appellants to equitable relief, though perhaps not in the mode indicated in the prayer of the bill. It would not, under the circumstances, be equitable to turn the widow out and place a receiver in possession of the premises pending the determination of the suit. Neither can we see the propriety of treating the conveyance of the premises to the appellee, under the circumstances alleged in the bill, as creating a resulting trust in the appellee for the benefit of the appellants. If the conveyance is fraudulent as against creditors, as the allegations of the bill, if true, seem to indicate, it would be proper for a court of equity to entertain a suit for the purpose of annulling the conveyance as against creditors on the ground of fraud, and decreeing a sale of the premises and applying the proceeds to the payment of debts contracted by Manuel Gallegos, during his life-time, provided it appears that there is no personal estate out of which to pay the same. bate courts have the undoubted right to pass upon and allow claims against the estates of deceased persons; but it is doubtful whether they have authority, or that the legislature, under the organic act,

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