MANN V. KEENE GUARANTY SAY. BANK.
name and upon which magistrates had certified her acknowledgments. One of her daughters signed her name to these various veyances, and allowed them to be delivered without objection or protest. Her son-in-law, acting as guardian for a minor child, accepted a mortgage which she executed in 1889 as security for $3,000 of his ward's money. Between 1886 and 1890 one of her sons, acting as a notary public, certified her acknowledgments to five deeds. Ten different magistrates took and certified her acknowledgments of the execution of conveyances while she was suffering from lhis disease. Actions frequently speak louder and more truthfully than words, and it is difficult to contemplate the treatment accorded to Mrs. Parham by the members of her family and the magistrates of her vicinity without great doubt whether she was so incapable of conducting simple business transactions as some of the witnesses for the appellants now testify. The question is not whether her mental powers were impaired. It is not whether or not she had ordinary capacity to do business. It is whether she had any-the smallest-capacity to understand what she was doing and to decide intelligently whether or not she would do it. Rugan v. Sabin, 10 U. S. App. 519, 3 O. O. A. 578, and 53 Fed. 415, 421; Stewart v. Lispenard, 26 Wend. 303; Ex parte Barnsley, 3 Atk. 168; Hill v. Nash, 41 Me. 586; Jackson v. King, 4 Oow. 216; Dennett v. Dennett, 44 N. H. 531. Perhaps this rule and the reason for it have never been better expressed than by Senator Verplanck in Stewart v. Lispenard, supra, when he said:
"To establish any standard of intellect or information beyond. the possession of reason in its lowest degree, as in itself essential to legal capacity, would create endless uncertainty. difficulty, and litigation, would shake the security of property. and wrest from the aged and Infirm that authority over their earningsor savings which Is often their best security against injury and neglect."
In view of the testimony to which we have adverted, we are unwilling to hold that the court below committed any error in the application of the law or made any mistake in the consideration of the evidence when it concluded that the legal incapacity of Mrs. Parham was not clearly established. Where the trial court has considered conflicting evidence, and made its finding and decree thereon, they must be taken to be presumptively correct, and, unless an obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand. Tilghman v. Proctor, 125 U. S. 136,8 Sup. Ct, 894; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Furrer v. Ferris, 145 U. S. 132, 134, 12 Sup. Ct. 821; Warren v. Burt, 12 U. S. App. 591, 7 C, C. A. 105, and 58 Fed. 101; Plow Co. v. Carson, 36 U. S. App. 456,18 C. O. A. 606, and 72 Fed. 387; Farmers' Loan & Trust Co. v. McClure, 49 U. S. App. 43, 24 C. C. A. 66, and 78 Fed. 209, 210. The legal presumption was that Mrs. Parham was sane and capable. All who knew her so treated her while she lived. The decree of the court simply gives legal effect after her death to the existence of a fact which all seem to have conceded during her life. It ought not to be disturbed. A motion was made ,to, dismiss this appeal,
86 FEDERAL REPORTER.'
but a 'careful consideration of the merits of the case has led us tOo theS'ame result as would a granting of the motion. For this reason we hMe given it no consideration. The decree below is affirmed, with costs. ' '
HOW A'RTH 'T. ELLWANGER.
SAME v; KENT. SAME v.
(Circuit Court, N.D. New York. March 31, 1898.) , Nos. 3,211-3,213. Under the constitution and ,statutes of Washington, which provide: "That each stockholder of any banking · ' . . association shall be individually and personally liable. equally and ratablY,and not one for another, for all the contracts. debts; andengagenients. of such corporation or association accruing Whl}.e ![ltockholders to. the extent of the amount of their stock therein, Il<t the ,par value tjlereQf, .In .addition to the amount invested in such sllal'es;"..;..an action' toenfor<;e'such liability may be maintained by a receiver. ' ,' ,. , ,. ' : . 2. SAME-LEVY' Ol' ASSEsSlrENT. The order$' anddecree<1' of the'superlQr collrt of Washington in appointing baDk, IlBCertaining the deficiency, and directing a receiver of aJ;l Insolvent an a.ssessIJ;lent on stockholders, ar,e IJlnding on stockholders Who are not '" " , parties to the proceedings. 1.
BANKS ANDBANll;ING-LIABILITY OF STOCKHOLDERS-SUIT BY RECEIVER.
At Law;, ,Tried; by, the court. These actions are brought against the ,defendants who :were stockholders of of Tacoma, Wa$,., a Uability created by the law the Traders' of that stll,te .!-Vaking them; responsible ratably to the extent of thelr'$tock'fpr all debts ,of the bank while they remained stockholders. at Tll,e(lefendants are The plaintiff,.is ac1tillen of citizens of New. York,restdiIlg at :1;tQchester. , On the 19th' day of May, 1894, the plaintiff was appointed receiver of the Traders' Bank by an order of the superior court, of Washingtonmllde du: 4n action commenced against said bank by Henry Hewett,Jr.. and ·Gl¥lrge Browne in which It was adjudged that the bank had suspimded business and was Insolvent. The plaintiff dUly qualltl,ed as receiVel"atId has since acted assueh.On the 12th of September, 1894, tlie court made fin order 'In said aCtion permitting certain stockholders to intervene of tbe bank. On the for the beuelit,of thetnseltes and.' all 2()th of October all the (iefllndants, , B. W lodworth, were by order of the court upon their own petition made parties to the said action. After applying all the property of the, bank to the payment of its debts there remained a deficlencY,which, ;on Martlh IT,,118m, :was .adjusted and 'adjudged by the court to be' the: sum lof $131,670. ,'j)bei plaintU'I' was tllEjreupon directed by the lID o.f per cent. and bring court to levy uP9n suit against those wpp, afterdemap.d, refused tC1 pay. The amounts assessed' the ,respe<;titely were,' dnly demanded and payment " . , " , I " i I. " · thereof refused.
f?r M. B:. McMath,'for defendant
' ' ;WOOdW?fth,' ','
OOXE,!?istrict: Judge; ,It ftiot'disputed 'that the defendants were, stockhoW.ersof' tlie' the bartkbecame insol'Vent,' that tne'plaintiff Ii ppoiWfed' that a large" deficiency 'was tIui.t' an I l1siessment ''\ths levied by the receiver· upon