He had been working about the mill since the 4th day of September, 1890, and had been engaged in operating the saw in question since the 1st day of November, 1890, being five and a half months employed in the mill and three and a half months operating the saw. Yet he testified that he never looked at the rope, although it was in sight of him; that he had no time to look at it. When a man is employed to operate machinery, and the machinery is under his control, it is his duty to exercise at least common prudence. It is presumed that the ordinary instincts of self-preservation will prompt a man to do this, and if he does not, he must suffer the consequences of his own negligent acts. In this case, according to plaintiff's testimony, we think he was grossly negligent, and that such negligence was the direct cause of the injury sustained. The judgment will, therefore, be reversed, and the cause remanded with instructions to dismiss the action. ANDERS, STILES, HOYT and SCOTT, JJ., concur. [No. 979. Decided December 21, 1893.] J. D. LOWMAN AND MARY R. LOWMAN, Appellants, v. D. PRACTICE-DISMISSAL OF ACTION- - RIGHT OF PLAINTIFF DEMUR- The filing by plaintiff of a motion to dismiss his action after the sustaining of a demurrer to the complaint is a waiver of any error of the court in ruling upon the demurrer. It is error for the court to deny plaintiff's motion for the dismissal of his action and grant defendant's motion for dismissal, after the sustaining of a demurrer to the complaint, and such error will be presumed prejudicial unless the contrary affirmatively appears. 7 407 31 178 Opinion of the Court-HOYT, J. Appeal from Superior Court, King County. Preston, Carr & Preston, for appellants. P. P. Carroll, for respondents. The opinion of the court was delivered by [7 Wash. HOYT, J.-A demurrer to plaintiffs' complaint was sustained by the court, whereupon the plaintiffs, instead of filing an amended complaint, filed with the clerk a motion to dismiss the action. Pending the action of the court upon such motion, defendants moved the court for a judg ment upon the pleadings. The court denied the motion on the part of plaintiffs, and granted the one made by the defendants. Plaintiffs have appealed from the judgment so rendered, and here argued—(1) The question as to whether or not the demurrer to their complaint was properly sus tained; and (2), as to whether or not the court committed error in denying their motion to dismiss and granting the motion for judgment made by defendants. The plaintiffs are not in a position to raise the first question. Instead of standing upon their complaint, and allowing judgment to be entered against them, and appealing therefrom, they entered a motion to dismiss the action, and having elected so to do must be held to have waived any error growing out of the action of the court in ruling upon said demurrer. The action of the court in ruling upon the motions filed by the respective parties was in our opinion erroneous. The plaintiffs had an absolute right to have their action dismissed when they filed their motion therefor. See 409, Code of Procedure. It is possible that the judgment entered at the instance of the defendants would have no greater force than would one of dismissal upon motion of plaintiffs, yet the judgment entered should be reversed, and the cause remanded with instructions to grant the motion of the plaintiffs, for the Dec. 1893.] Opinion of the Court-STILES, J. reason that such a course may be necessary to protect rights which they were entitled to have protected by a dismissal at their instance. The court refused them a right given them by the statute, and it will be presumed that such action was prejudicial unless the contrary affirmatively appears. DUNBAR, C. J., and STILES, SCOTT and ANDERS, JJ., concur. [No. 1006. Decided December 21, 1893.] ALICE S. HILL, Executrix, Appellant, v. ELIZABETH HILL et al., Respondents. WILLS CHILDREN NOT NAMED OR PROVIDED FOR EFFECT ON Sec. 1465, Gen. Stat., providing that, if any person die leaving a will in which his surviving children or their descendants are not named or provided for, he shall be deemed to have died intestate so far as such children are concerned, applies to the testator's community, as well as to his separate, property. Under the settled construction of § 1465, Gen. Stat., providing that "every such testator, so far as he shall regard such child or children, or their descendants, not provided for, shall be deemed to die intestate," proof of the testator's intention to make such provision, outside of the language of the will itself, is inadmissible. Appeal from Superior Court, King County. Junius Rochester, and Fishback, Elder & Hardin, for appellant. Charles F. Munday, for respondents. The opinion of the court was delivered by STILES, J.-The appellant asks a construction of the will of her husband, William C. Hill, deceased, as between her Opinion of the Court-STILES, J. [7 Wash. self and the respondents, children of her and the said William C. The deceased left a will in which all of his property was devised to the appellant, no mention being made therein of any of his children. Certain of this property is community real property in this state. The will was executed December 17, 1888, and when found and offered for probate in 1890 there was also found, in a sealed envelope with it, a letter signed by the deceased, and dated December 26, 1888, which letter was addressed to appellant, and made certain recommendations to her with regard to the management of the property devised to her, and of the children, three out of nine of whom were named. The court below held, following the cases of Bower v. Bower, 5 Wash. 225 (31 Pac. Rep. 598), and Barnes v. Barker, 5 Wash. 390 (31 Pac. Rep. 976), that the deceased died intestate as to his children, and this appeal is from the construction thus given to the will. · Appellant submits two propositions 1. Does the statute (Gen. Stat., § 1465), which was construed in the above cited cases, apply to community property which we unhesitatingly answer in the affirmative. The only way in which a deceased person can dispose of property in this state is by will. The term "testamentary disposition is used in both the law of the property rights of married persons (Code of 1881, $2411), and the law of descent of real property (Id., § 3303; Gen. Stat., § 1481), but the meaning is "disposition by will." The very same statute, which used the words "testamentary disposition,' also used the word "will" in a negative way to convey the same meaning. Code, 1881, 2409. But, without this, the common usage the world over is to employ the words "will," "testament," and "last will and testament," as exactly synonymous. Again, the fact that during the life of the husband and wife Opinion of the Court-STILES, J. Dec. 1893.] the property acquired by purchase is held by either in common, or is community property, does not destroy its quality as property, which, subject to debts, may be disposed of by will to the extent of one-half by either spouse. The statute, for the purpose of such disposition, speaks of it as "his or her half of the community property," and of the descent of "it" to the children or the survivor. Gen. Stat., § 1481. Wherever the ownership of such property may be during the life of the husband and wife, the power to dispose of one-half of it by will is at all times as full and complete, though inchoate, as though each undivided half were the property of an unmarried person. So, too, the statute of wills, although passed in 1854, long before the community property system was thought of in this state, applies equally to such property. Gen. Stat., § 1458, empowers any adult of sound mind to devise all of his or her estate, real and personal, and this includes any and every kind of property, whether theretofore conceived of or not; and the provisions of § 1465 limit and qualify the power of devise as to community property as well as to any other over which the testator has anything more than a mere testamentary power. 2. It is submitted that there is a difference between our statute, Gen. Stat., § 1465, and that of any other state on this subject, which ought to cause a change in our former rulings excluding parol proof to show that a testator had provided for his children otherwise than by his will. The point made is a new one, and is based upon the language of the statute, which, at the vital portion, reads thus: "Every such testator, so far as he shall regard such child or children, or their descendants, not provided for, shall be deemed to die intestate," etc. The Oregon and Missouri statutes, which are otherwise like ours, omit the word "he." Appellant's contention is that the sense of our statute is: "Every such testator shall be deemed to die |