Volume 267 — Missouri Reports

Louis City Circuit Court.- — Hon. B. D. Fisher, Judge. (1) (a) In a dedication to the public of property by an individual, the law construes the grant strictly as against the public. Spires v. Los Angeles, 150 Cal. 64; Hopkinsville v. Jarrett, 156 Ky. 777, 50 L..R. A. (N. S.) 465; Riverside v. MacLean, 210 111. 308, 66 L. R. A. 288-; Jones v. Jackson, 104 Miss. 449.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) The court erred in failing to instruct the jury on the theory that deceased may have gone to his death hy accident or misfortune, and on the evidence in the case defendant was entitled to such instruction. State v. Reed, 154' Mo. 122; French v. Commonwealth, 88 S. W. 1070'; Sec. 4452, R. S. 1909; State v. Cook, 3 L. R. A. (N. S.) 1152.

<p>Appeal from St. Louis City Circuit Court. — Hon. W. T. Jones, Judge.</p> <p>(1) Section 4725-, R. S. 1909, was repealed and. reenacted by the General Assembly in 1911 (see Laws 1911, p. 198). Tbe amendment of 1911 does not make tbe act set out in tbe information, nor testified to in the evidence, a crime. The act charged did not constitute an offense at common law nor does it constitute an offense under tbe statute. Since tbe statutes of Missouri do not undertake to define tbe meaning of the phrase, ‘ ‘ The abominable and detestable crime against nature,” but merely prescribe a punishment, we must go to tbe common law to ascertain tbe meaning of tbe words used. 12 Cyc. 141; State v. Rader, 262 Mo. 129; 8 Am. & Eng. Ency. Law, 276; Brandon v. Carter, 119-Mo. 572; State v. Hartley, 185- Mo. 669; Sec. 8047, R. S. 1909; United States v. Freight Assn., 58 Fed. 58; Ex parte Vincent, 26 Ala. 145; Commonwealth v. Chapman, 13 Metcf. (Mass.) 68; State v. Cowley, 67 Vt. 322. (2) At common law tbe phrase “Tbe abominabl-e and detestable crime ag'ainst nature ’ ’ was clearly defined. It was sodomy when committed with mankind and buggery or bestiality when committed with an animal. Tbe act described in the information and referred to in tbe testimony in tbe case was neither of these offenses. Tbe use of tbe mouth does not constitute sodomy. Tbe act must be per anum. Bishop’s Crim. Law, secs. 1191-1196; Ausman v. Veal, 10 Ind. 356; People v. Boyle, 116 Cal. 658; Prindle v. State, 31 Tex. Crim. 551; Wharton on Crimes, secs. 575-579; Russell on Crimes, 937; Commonwealth v. Poindexter, 133 Ky. 720; McLean’s Crim. Law, 1153; Davis v. Brown, 29' Ohio St. 312.6; Estes v. Carter, 10 Iowa, 400; Kinnanv. State, 125 N. W. (Neb.) 594. (3) The testimony of Dr. A. C. Vickery over the repeated objections of the defendant as to the physical condition of the rectum and vagina of the prosecuting witness was clearly inadmissible and could, serve no other purpose than the purpose of inflaming the minds-of the jury against the defendant. Evidence of other crimes committed by the defendant are clearly- inadmissible. Here we have testimony of a crime not committed by the defendant, but by some other person with which the defendant is not in the remotest manner connected by participation, conspiracy or otherwise. Even the attorney for ..the State said that the purpose of this testimony should be covered by an instruction which the court failed to give. State v. Hyde, 234 Mo. 200; State v. Myers, 174 Mo. 352; State v. Weaver, 165 Mo. 1; State v. Faulkner, 175 Mo. 546; State v. Spray, 174 Mo. 569; R. S. 1909, sec. 5-231; State v. Taylor, 118 Mo. 171. (4) The State was permitted on cross-examination, in spite of repeated objection thereto, to examine the defendant touching matters not brought out on the examination in chief. R. S. 1909', sec. 5-242; State v. Mc-Graw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Palmer, 88 Mo. 568; State v. Graves, 95 Mo. 510; State v. James, 216 Mo. 404. (5) The State’s attorney was allowed over the objection of the defendant to comment in his address to the jury on matters regarding which the defendant did not testify, and in regard to the flight of the defendant regarding which there was no testimony. State v. James, 216 Mo. 405-; State v. Fairlamb, 121 Mo. 150.</p> <p>(1) The information charges a felony under the statute (Laws 1911,_ p. 19$) and is sufficient. State v. Katz, 266 Mo. 493; State v. Wellman, 253 Mo. 311; State v. Kelly, 192 111. 119-; State v. Honsleman, 168 111. 172; State v. Means, 125 Wis. 650;. (2) No objection was made to the instructions given. No instructions were refused. Therefore, the only question, relative to the instructions, that this court will review is ■whether or not they cover all the law- of the case. State v. Douglas, 258 Mo. 281. The given instructions fully cover every issue in the case. (3) There was no reversible error in the trial court’s rulings upon the admission of testimony. The testimony as to the physical condition of prosecutrix, as shown by the examination of the dispensary physician, Dr. Vickery, was admissible. Kelly’s Crim. L. & Pr., sec. 541; State v. Scott, 172 Mo. 536; State v. Murphy, 118 Mo. 7; State v. Reed, 237 Mo. 224; State v. Mathews, 98 Mo. 128; State v. Fields, 234 Mo. 626; State v. McKinney, 254 Mo. 453'. In the cross-examination of accused, there was no prejudicial error, (a) It was legal cross-examination. State v. Keener, 225' Mo. 500; State v. Donnington, 246 Mo. 354; State v. Eisenhour, 132 Mo. 148; State v. Harvey, 131 Mo. 345; State v. Benning, 91 Mo. 85; State v. Cunningham, 154 Mo. 174; State v. Foley, 247 Mo. 638-, State v. Myers, 221 Mo. 598; State v. Miller, 156 Mo. 76. (b) Even if held to be erroneous, this cross-examination was not prejudicial to accused, and, therefore, not reversible error. State v. Baldwin, 247 Mo. 635; State v. Corrigan, 262 Mo. 209; State v. Barrington, 198 Mo. 81; State v. Brooks, 92 Mo. 582.</p>

— No». Frank Kelly, Judge. (1) The court erred in overruling the application for a continuance filed by the defendant on the ground of the sickness of Mrs. Baum, a most important witness. State v. Hesterly, 182 Mo.' 32; State v. Maddox, 117 Mo. 667; State v. Dewitt, 152 Mo. 8-5; State v. Warden, 94 Mo. 650; State v. Bradley, 90 Mo. 160.

— Hon. William C. Ellison, Judge. (1) Prosecutrix’s character for chastity was in issue. It could he established by her general reputation regardless of any nice distinction between ‘ ‘ character” and “reputation.” 2 Wig-more on Evidence, section 1620; Carroll v. State, 74 Miss. 690; In re Vandiver, 4 Cal. App. 654; State v. Connor, 142 N. C. 705; State v. Kelley, 191 Mo. 691. ■ In the following cases the evidence was admitted but the question was not discussed.

— Ron. E. M. Dearing, 'Judge. (1) The record in this case discloses that, on the Erst day of the March term, 1914, of the circuit court of Stoddard county, the same being the return term of the information, defendant filed his application for a change .of venue under R. S. 1909, see. 5198. That application has never been disposed of, but is still pending.

<p>1. FAILURE TO SUPPORT WIFE: No Element of Vagrancy. Section 4789, Revised Statutes 1909, declaring, among other things, that “every able-bodied married man who shall neglect or refuse to provide for the support of his family . . . shall be deemed a vagrant” and upon conviction punished by imprisonment or fine, is a statute defining vagrancy, and cannot be used to enforce a civil liability; nor is a husband who honestly tries to obtain work and is unable to procure sufficiently remunerative employment to propertly support his family, a criminal or a vagrant, nor can he be punished under said statute. [Disapproving Marolf, v. Marol'f, 191 Mo. App. 239, so far, if at all, as it conflicts with this holding.]</p> <p>2. -: -: Placing Wife With Sister to Board. A husband who at a time when he was receiving sixty dollars per month put his wife and child with her sister under an agreement to pay her twenty dollars per month for their board and lodging, and paid the amount regularly for three months, and who, having lost his position, after two or three weeks’ effort to secure employment obtained a position at a hotel at five dollars a week, cannot be convicted for failure during the next three months to pay to his wife or her sister any part of the five dollars, his purpose being to discharge his obligation to his wife’s sister as soon ás he was able.</p> <p>3. -: -: Wife With Money. The gift of one thous- and dollars by the wife to her sister within the time her husband was unable to obtain remunerative employment simply has a tendency to show the wife was not in destitute circumstances.</p>

— Hon. G. B. Faris, Judge. (1) The original petition upon which said-judgment was rendered, failed to state any facts sufficient to constitute a cause of action against defendants in that cause: 1st, because the petition, being based upon a verbal contract for the sale of real estate, failed to ple'ad facts which would take it out of the Statute of Frauds, and no proof of facts could be offered which would take it out of the statute without being pleaded; 2nd, because the…

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) There can he no douht as to the right of a taxpayer, suing on behalf of himself and all other citizens and taxpayers who are similarly interested with him, to have relief by injunction for the prevention of an illegal or unauthorized diversion of public funds belonging to the municipality. 2 High on Injunction (4 Ed.), 1237; Dillon, Municipal Corporations, sec. 1579 et seq.; Newmeyer v. Railroad, 52 Mo.'81;…

— Hon. B. H. Dyer, Judge. (1) Deeds of minors are not void bnt only voidable, at their election upon attaining their majority, respectively. Their respective deeds were operative, sufficient to pass, and did pass, to their respective grantees, and those claiming under them, whatever right, seizin, title and estate, said grantors respectively, though minors, may have had in the property described in the petition at the date thereof.

St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The intent of the testatrix must govern if it clearly appears from the language of the will. Sec. 583, R. S. 1909; Finley v. King, 3 Pet. 346; Sanitarium v. McCune, 112 Mo. App. 337. (2) The law was then and is now that the bequests of shares of stock which were owned by the testatrix are specific legacies. . Waters v. Hatch, 181 Mo. 262; Sanitarium v. McCune, 112 Mo. App. 332; White v. Winchester, 6 Pick.

— Hon. G. IN (1) The deed from Angeline Patterson to defendant and wife was made to partition her fatter’s estate and the husband took no title thereby. Propes v. Propes, 171 Mo. 407. She took by descent from her father. Palmer v. Alexander, 162 Mo. 127. Her directions to have the deed made to both her husband and herself did not affect the title or estate. Propes v. Propes, supra; Snyder v. Elliott, 171 Mo. 362; Whitsett v. Wamack, 159 Mo. 14.

<p>1. WILL: General Incompetency of Witness: Husband of Legatee. A will must stand or fall as a whole; and if the husband of the principal devisee is a competent witness for any person in a suit by which the validity of-the will is being contested, his testimony would inure to her benefit.</p> <p>2. -: Husband of Legatee: Competency as Witness. Property, both real and personal, devised to a married woman by a will, is her separate property, and can be sold or mortgaged without reference to her husband; and in a suit contesting the validity of the will, by which she is made the principal legatee •and he is given nothing, he is competent to express his opinion, as a non-professional witness, based upon what he observed while in testatrix’s presence, as to her sanity.</p> <p>3. -: Instruction: Incapacity: Undue Influence: Submitted in Alternative. An instruction for the proponents of a will, telling the jury that if testatrix “was not of unsound mind and incapable of making a will, or that the said paper writing was not procured to be made and executed by undue influence, then you must find that said paper writing was the will” of said testatrix, is' palpably erroneous. The two grounds of contest being charged, and there being testimony to sustain both, the instruction required the jury to sustain the will if they found either charge was not supported by the evidence, whatever they might find as to the other charge.</p> <p>4. -: -: Incapacity: Monomania. An instruction telling the jury that if they find from the evidence that at the time of making the will, the mind of testatrix “was unsound or impaired in any one or more particulars, yet practically sound and unimpaired in all others, still you will not . be warranted in finding that she was thereby mentally incapacitated from making a will,” is misleading, since it authorized the jury to sustain the will, even though her mental impairment had gone to the extent of rendering her incapable of understanding the nature and extent of her property.</p>

— Hon. E. B. Woolf oik, Judge. (1) The Drainage Act of 1913 is constitutional notwithstanding it only provides for notice by publication. The proceeding is not one to take anybody’s land or property, but is a proceeding to establish a public corporation for reclamation purposes, and no notice at all is necessary in order to constitute due process of law.

— Hon. Thomas F. By an, Judge. . (1) The court erred in submitting the case to the jury and in failing to instruct the jury to find the defendant not guilty, which instruction was asked by defendant at the close of,,the State’s case, because the evidence was not sufficient to establish the contract of marriage. State v. Heed, 57 Mo. 252; State,v. Reeves, 97 Mo. 668; State v. Eckler, 106 Mo. 593; State v. Long, 238 Mo. 393; State v. Bruton, 253 Mo. 361.

— Hon. Thomas J. Seehorn, Judge. The action falls within Sec. 1888, R. S. 1909, providing what actions may be brought within ten years, and falls within the first paragraph thereof, “an action upon any writing, whether sealed or unsealed, for the payment of money or property.” Miner & Frees v. Howard, 93 Mo. App. 569; Shinn v. Wooderson, 95 Mo. App. 6; Howe v. Mittelberg, 96 Mo.

— lion. Thomas F. Ryan, Judge. (1) It is the inflexible rule in criminal pleadings that in all indictments or informations for felonies, nothing can he left to intendment or implication, and judged hv this rule, the information in the present case is insufficient.

— Hon. W. 8. G. Walker, Judge. No persons but those who are owners of swamp, wet or overflowed lands or lands subject to overflow are qualified signers and petitioners in a proceeding to organize and incorporate a drainage district. Laws 1913, p. 233, sec. 2. The acreage majority must be swamp, wet or overflowed lands or lands subject to overflow, and such land must lie in a contiguous body. Laws 1913, p. 233, see. 2.

<p>1. NEGOTIABLE NOTE: Notice- of Infirmities. Notes made, payable to the maker and indorsed in blank by him become payable to bearer and negotiable by delivery; and a transferee-before maturity with actual knowledge of a. concurrent de-. pendent agreement, and a transferee after maturity without actual knowledge, take the notes with notice of the agreement and that it makes them non-payable.</p> <p>2.--: Concurrent Dependent Agreement. A negotiable. promissory note and a concurrent collateral agreement, con-, nected by direct reference or necessary implication, the stipu-. lations of which are mutual and dependent, are to be construed, together as one entire contract; ■ and a transferee of the note, after maturity, without actual knowledge of the agreement, can-, not recover, if the agreement, when so construed, bars a re-recovery.</p> <p>3. -: —;-: Option to Surrender Stock for Notes. The. maker of negotiable notes received a concurrent written agree-, ment, signed by a corporation and its president, reciting that., the maker had purchased one hundred shares of the capital stock of the company, for which he had given his two notes, in settlement, due in six months, and guaranteeing that the maker, at their maturity might, at his option, surrender the, stock, whereupon the notes would be cancelled and returned to him. The certificates of stock, indorsed -in blank, were at-, tached to the notes, and the notes were transferred to a bank,, whose cashier had full actual knowledge of the agreement. Shortly afterwards the bank went into the hands of a receiver,, who, after the maturity of the notes, sold them to plaintiff.. Held, that the notes and agreement did not constitute independent contracts, but they are dependent, and the agreement con-, stitutes a defense to an action on the' notes; and since the payee of the notes, when the agreement was delivered, was, the holder, and the holder signed the agreement, the rule is. not changed by the fact that another also signed it.</p> <p>4. GUARANTEE. The fact that the makers of an agreement, “guarantee” certain things does not of itself constitute the agreement a guaranty. The word may be used simply to give, emphasis and not to change the plain character of the agree-, ment.</p> <p>5. NEGOTIABLE NOTES: Conditioned on Return of Stock: Failure to Return as Part of Defense. Where negotiable. .notes, given for the purchase of certificates of stock of a cor-, poration, indorsed in blank, attached to the notes and delivered with them to the payee, were accompanied by a con-, current dependent agreement that upon the maturity of the. notes the certificates could be surrendered and the notes can-, celled, and that agreement is set up as a defense to an action on the notes, the instructions may authorize a finding for de-. fendant without requiring a finding that he returned the, stock or relinquished his right to it, since the certificates were, already in possession of the holder of the notes, and it was. impossible for defendant to tender the physical return of the stock.</p> <p>5. -; -: Evidence of Demand for Return of Notes. And, under such circumstances, evidence that the maker demanded from the signers of the concurrent dependent agreement (the corporation and its president) the return of the notes, in .accordance with the agreement, and being told they were in possession of a bank as transferee had his attorney to .demand them from the bank, was competent to show an effort .on defendant’s part to comply with the agreement, as far as he .could.</p> <p>1. -: -: Evidence of Election. And evidence that, when defendant was approached by the attorney of the corporation on the theory that he was a stockholder, he announced that .he had elected to surrender the stock and cancel the notes in accordance with the agreement, could not have prejudiced the rights of a holder of the notes with notice of the agreement.</p> <p>8. EVIDENCE; Hearsay. A general objection that all the testimony on a particular subject contained in two depositions was hearsay should not be allowed if part of it is clearly not hearsay.</p>

Mandamus. (1) Relator owns the portion of the Wabash Railroad situated in Missouri and is not only authorized by section 13, article 12, of the Constitution to carry persons and property as a common carrier “between any points within this State,” hut is required to do so by section 14 of the same article, which declares relator “a common carrier” and its railroad “a public highway.” Sec. 3078, R. S. 1909; Brown v. Railroad, 137 Mo. 537; Dietrich v. Murdock, 42 Mo. 284;…

Mandamus. (1) Wlien a court lias rendered final judgment in a cause and overruled a motion for a rehearing and the term has ended with no motions pending, the jurisdiction of the court over the judgment is at an end. This rule applies to appellate courts.

<p>1. PROHIBITION: Circuit Courts. The Supreme Court is given authority by the Constitution to prohibit, by its writ of prohibition, circuit courts and other inferior tribunals from exercising jurisdiction which they do not legally have.</p> <p>2. -: Justice of Peace: Title to Office. The Constitution gives the Supreme Court exclusive jurisdiction in cases involving title to any office under this State, and the office of a justice of the peace is such an office.</p> <p>3. -: Jurisdiction of Appeal. Jurisdiction to hear and determine upon appeal the original case out of which the application for a writ of prohibition arose, is not a prerequisite to the right of the. Supreme Court to issue the writ.</p> <p>4. JUSTICE OF PEACE: Election Contest: Jurisdiction. The county court, except in cities of three hundred thousand inhabitants, has jurisdiction to hear and determine a contested election for the office of justice of the peace; but such court is an inferior tribunal, and the grounds of its jurisdiction must appear affirmatively upon the face of the record.</p> <p>5. --: Notice of Election Contest. The service of notice of contest for the office of justice of the peace, fifteen days before the term of the county court at which the election is to be contested, is, by the statute, made essential to the validity of the proceeding; and where only twelve days’ notice is given to contes tee the court has no jurisdiction, and the proceeding must be dismissed.</p> <p>6. -: -: Amendment. Notice of contest of less than fifteen days cannot be made sufficient by an amendment fixing the time of hearing at fifteen days from the date of service. It is only where jurisdiction has been obtained by proper notice, in the manner pointed out by the statute, that an amendment may be made to a notice of contest.</p> <p>7. -: -: Appeal. If the county court had no jurisdiction over the contest for the office of justice of the peace, because notice of contest was not timely served, the circuit court acquired none by reason of an appeal.</p>

<p>JURISDICTION: Non-Resident Corporation: Service. For the reasons stated in the minority opinion of the St. Louis Court of Appeals, 175! Mo. App. 1. c. 679 et seq., in this case, the judgment is reversed, and the cause remanded, in order to give plaintiff opportunity to obtain valid service on defendant corporation.</p>

— Eon. James EL Slover, Judge. (1) The Postal Telegraph-Cable Company “was. bound to deliver to appellant the money,” not its check, nor a draft, nor an order on itself. Robinson v. Tel. Co., 24 Ky. L. Rep. 456; Tel. Co. v. Cougar, 84 Ind. 178.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The Board of Education is a public corporation formed for a special and limited purpose; its charter is found in the statutes, which must he construed by the. same rules as are applied to other statutes. Heller v. Stremmel, 52 Mo. 311; State v. Lockett, 54 Mo. App. 202; Peers v. Board, 72 111. 508; Smith v. Proctor, 130 N. Y. 319; McQuillin, Mun. Corp., sec. 114..

— Hon. B. H. Dyer, Judge. (1) The deed of trust, and the note that it secured was given by M. J. Hassler and S. C. Hassler, and under the laws the interest of either of them could have been sold, or, either could have been sued without joining the other one. The failure of the trustee in his notice of sale and his trustee’s deed to mention the name of S. C. Hassler shows failure to foreclose ánd convey that interest.

<p>1. CONSOLIDATED SCHOOL DISTRICT: Area: Pleading. No consolidated school district can. he formed unless it contains an area of at least twelve square miles, or has an enumeration of at least two hundred children of school age; and when its directors are called upon collectively, and directly hy the State in a suit in the nature of quo marrmto, to show a right to exist, their answer unless it states one or the other of these necessary statutory requirements, is insufficient.</p> <p>2. -: -: -: Assumed at Trial. But if no point was made, either at the trial or in the appellate court, that the answer of the directors, sued hy the State in quo warranto to determine the validity of the organization of an alleged consolidated school district, does not contain an allegation that the district contains an area of at least twelve square miles, and if both plaintiff and defendants proved, conclusively, without objection, that the area of said district is more than twelve square miles, the court will assume on appeal that the answer was amended so as to include such necessary allegation.</p> <p>3. -: Filing Papers: Indorsement by Depositary. The petition, notice, plat, proceedings of meeting, etc., required by section 3 of the Consolidated School District Act (Laws' 1913, p. 721) need not be indorsed “filed” in order to be filed with the county clerk and county superintendent. Indorsement on the paper of the fact of filing is not a necessary element of filing, unless the statute specifically so says.</p> <p>4. -: Validity of Organization: Recital in Minutes: Manner of Voting. If the minutes of the special meeting to organize a consolidated school district state that the vote was taken by ballot and that a certain number of votes were cast, of which a certain number were for consolidation and a less number against it, the organization will not be held invalid on the sole ground that the minutes do not recite that each voter advanced to the front of the chairman and deposited his ballot in a box provided for that purpose, nor because they do not recite that the tellers announced each ballot aloud. The statute (Sec. 10865, R. S. 1909) does not require the minutes to recite the details of each act constituting the statutory requirements of the meeting.</p>

— Ron. Clarence A. Burney, Judge. (T) The court erred in permitting plaintiff to testify that in his opinion undoubtedly the brakes were set on the engine thereby causing the drag to stop suddenly. Permitting him to answer this question and give his conclusion of the most vital fact in issue in the case was glaringly prejudicial to the defendant. Landers v. Railroad, 134 Mo.

— Hon. T. J. See-horn, Judge. (1) Instructions 7 to 13, inclusive, given on behalf of the defendant, and Instruction 5 for plaintiff, as modified, properly declared the law applicable to the case and it was error on the part of the court to grant a new trial on account of error in the instructions. Minnier v. Railroad, 167 Mo. 120; Spencer v. Bruner, 126 Mo. App. 102; Brunke v. Tel. Co., 115 Mo. App. 39.

- — Hon. W. A. Powell, Judge. (1) Under the Constitution defendant had the right to make the publications complained of, being responsible for all abuse of that liberty. Mo. Constitution, art. 2, sec. 14. (2) Under the allegations of the petition plaintiff had no right to an injunction against the defendant. Life Assn. v. Boogher, 3 Mo. App. 173 ;. Flint v. Smoke Burner Co., 110 Mo. 492.

<p>1. ADMINISTRATION: Removal Causes: Ascertainment Before Appointment. Section 50, Revised Statutes 1909, announcing the causes for which letters testamentary or of administration may be revolted, is not to be read intb and made a part of section 14, which designates persons who cannot qualify as; executor or administrator. The probate court cannot refuse to appoint an executor named in the will on the ground that such person if appointed could be removed for the causes mentioned in section 50.</p> <p>2. -: Executor: Renunciation. The person named as executor in a will may renounce his right to be appointed, either by an express renunciatiop, or by acts and conduct in pais.</p> <p>3. -: -: -: Determination a Judicial Matter. The probate court must determine from the facts whether the person nominated executor in the will has renounced his right to be appointed, and in doing so exercises a judicial function; his act must not be arbitrary, or an abuse of power, or wholly unsupported by facts showing a renunciation; but if such facts áre present, the appointment of another cannot be annulled by mandamus brought by the named executor to compel his appointment.</p> <p>4. -: Title to Estate: Domiciliary and Ancillary Executor. The executor who has duly qualified in the domiciliary jurisdiction succeeds to the title of all testator’s estate, wherever situated, and continues to hold such title until an ancillary administrator is appointed, whereupon the title to the estate in the ancillary jurisdiction vests in the latter.</p> <p>5. -: Executor: Acts of Renunciation: Recall. Testator ■ died in Ohio, leaving a will which named relator and two women as executors. All qualified in Ohio, but within a few days relator filed his resignation, which was accepted. He did not qualify in the. Missouri city in which he lived and where the most of testator’s property was situate. He also immediately resigned as director of the corporation in which testator’s Missouri assets were principally invested, and avowedly severed all relations with the management and preservation of the estate, and did other things which tended to establish a renunciation in pais: ’ Held, that the probate court did not act arbitrarily, in holding relator had renounced his rights under the will and in appointing another administrator with the will annexed; and the renunciation being complete, it could not be recalled, but was lost to relator forever.</p> <p>6. WILL: Intention as to Executors. The rule that the expressed intention of the testator must be the guide in construing a will, applies to every part of it — to the expressed desire that a nominated executor should administer the whole estate, the assets in the State where testator died and those in other States, as well as to other parts of it.</p> <p>7. ADMINISTRATION: Executor: Renunciation of Domiciliary Right: Is Renunciation of Ancillary Right. A resignation in the domiciliary jurisdiction by an executor named in the will who is qualified under the laws of the various jurisdictions in which the estate is located, is a renunciation of his right to administer so much of the estate as is ' situate in the ancillary jurisdiction in which he resides. So that where relator, a resident of this State, who was named executor in the will of a testator who died in Ohio, qualified in that State and soon afterwards resigned, his resignation, there accepted, operated automatically as a renunciation of his right to administer so much of the estate as was located in this State.</p>

Louis City Circuit Court. — Hon. Hugo Muench, ¿Pudge. (1) Tbe legal status of tbe child of an adopted child is that of grandchild to the adoptive parent.

— Hon. Fred Lamb, •Judge. (1) The court erred in overruling defendant’s motion to quash the information. The information did not contain an essential element of the offense, viz., the intent. This information is based on the first subdivision of Sec. 4550, R. S. 1909. State v. Lentz, 184 Mo. 234; 15 Cyc. 491. When the intent with which an act is done is a necessary ingredient of the offense it must be alleged in the information.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) A shareholder’s liability to creditors of a corporation is determined by the statutes of the State in which the corporation was incorporated, and the construction of its statutes by the court of last resort of that State is followed in all jurisdictions. Meyer v. Mining Co., 192 Mo. 162; Hodgson v. Cheever, 8 Mo. App. 318; Bagley v. Tyler, 43 Mo. App. 195; Guerney v. Moore, 131 Mo. 650; Leucke v. Tredway, 45 Mo.

<p>1. PARTIES TO ACTON: Suit to Quiet Title: Right of Person in Interest to Intervene. Section 2541, Revised Statutes 1909, is a part of the Act of 1873, Laws 1873, p. 49, relating to the right of persons whose deeds or other evidences of title are lost or destroyed, to have the title adjudged to them and the record title restored to them, and does not apply to proceedings under section 2535, and does not authorize one who claims title by adverse possession to intervene and file an answer in a suit to quiet title.</p> <p>2. -: -: -: Section 1733, One who is not united in interest with any other party to the suit to quiet title is not authorized by section 1733, Revised Statutes 1909, to intervene, nor to be joined either as plaintiff or defendant.</p> <p>3. -: -: -: Section 1732: Adversary Interests. Section 1732, Revised Statutes 1909, does not authorize one in possession of land and claiming by adverse possession to interevene and to be made a party defendant to a suit to quiet title brought against the -record title owner by one who bases his title upon the Statute of Limitations by actual possession and does not ask for possession. Such an intervenor does not (1) have or claim an interest in the controversy adverse to the plaintiff, nor (2) is he a necessary party to a complete determination or settlement of the question involved, nor (3) is such a suit one for possession of the real estate.</p>

— Hon. N. M. Pettmgill, Judge. (1) The Sage Banking Company was and is, under the laws of Missouri, a corporation, or corporate or artificial entity, separate and apart from D. H. Sage, individually, its organizer, and its assets, therefore, are not, and cannot be, affected by, nor subjected to, any proceeding in bankruptcy in and by any Federal courts. Sec. 11, art. 12, Mo.

; — Hon. J. D. Bar•nett, Judge. . (1) The court erred in permitting the • witness Doepke to testify, over defendant’s objections, to conversations between witness and defendant’s agent had prior to and at the time of the issuance of the policy with reference to the effect and bindirig force of the terms and conditions thereof.

— Hon. W. K. Amide, Judge. (1) The admission of the testimony as to the value of the Davies County eighty-acre pasture was ■error. It was not within the issues; such damage was speculative and remote. 13 Cyc. 23; Wynant v. Krouse, 53 L. R. A. 626; Caldwell v. Evans, 85 111. 170; Krenger v. Blank, 62 Mich. 70; Loker v, Damon, 17 Pick. 284; Saunders v. Brosius, 52 Mo. 50.

<p>1. BILL OF EXCEPTIONS: Bystanders. Bystanders who may-sign a bill of exceptions upon the refusal of the judge to do so, as the word is used in the statute (Sec. 2031, R. S. 1909), mean disinterested spectators, and do not include persons who were not present at the trial.</p> <p>2. -: Wrongfully Signed: Withdrawal. A bill of exceptions signed by persons who were not bystanders in contemplation of the statute, because they were not present at the trial, is no bill at all; and if filed or deposited with the clerk, may be withdrawn in order that it may be properly signed.</p> <p>3. -: Bystanders: Jurors. Members of the trial jury, under a reasonable construction of the statute, are bystanders, and may sign the bill of exceptions upon the judge’s refusal to approve it.</p> <p>4. -: -: Affidavits: Part of Record. Affidavits of bystanders in support of or against the truth of a bill of exceptions which the judge has refused to sign, taken and filed as required by section 2035, Revised Statutes 1909, are a part of the record on appeal and are subject to review in determining the truth of said bill.</p> <p>5. -: -: ——: Equal Number for Each Side. Where the judge refused to sign the bill of exceptions because it was untrue, and a number of bystanders made affidavit to its truth and an equal number to the contrary, the trial judge will be upheld on appeal if said affidavits are so nicely balanced in their substantive facts as to present an irreconcilable conflict; but when the affiants in support of the bill, one of whom was the official stenographer, were disinterested and possessed opportunity to acquire full and impartial knowledge, and those in opposition were interested and possessed no such opportunity, the matters preserved in the bill are entitled to review.</p> <p>6. REMARKS OF COUNSEL: Will Contest: Attack on Contestant. In a suit to set aside a will on the sole grounds of the mental incapacity of the testator and of undue influence exercised upon his mind, it is improper to permit counsel for proponents to say in his argument to the jury of and concerning contestant: “He was a,spendthrift son. He never did anything for the support of the family. He took from his mother’s estate so far as he could, and his family had to leave the city to get rid of him, or to get rid of his attempts to get the family’s money. He was not a success in business life.” Whether true or false, the remarks were not relevant to the issues, and therefore unauthorized, and being a personal reflection upon contestant were improper. But they were not reversible error, where there is a preponderance of affirmative evidence that the testator was of sound mind and subject to no undue influence, and little substantial error to the contrary.</p> <p>7. WILL CONTEST: Evidence: Will of Testator's Father. In a suit by a disinherited contestant to set aside his bachelor brother’s will, made in 1909 in favor of his mother, sisters and-another brother, on the ground of incapacity and undue influence, a will made by the father of testator and of contestant in 1875 is not admissible as having a tendency to disprove testimony offered by proponents and improperly admitted by the court to the effect that contestant was indebted to his mother, the fact being that such indebtedness was by way of an advancement by the mother to contestant on account of his prospective share in his father’s estate.</p> <p>8. EVIDENCE: Improperly Admitted for One Side: Rebuttal By Other. The admission of improper testimony on the one side does not authorize the admission of improper testimony in rebuttal on the other.-</p> <p>9. CONDUCT OF JUDGE: Testy Remarks to Witness. Frequent testy remarks made by the court to appellant while he was on the witness stand, though seemingly improper in -the cold record, will not be held, in the absence of a showing of the conduct and manner of the witness, to be prejudicial error; especially, where the court cautioned the jury not to consider his words and manner towards the witness.</p> <p>10. REOPENING CASE: Discretion. The reopening of the case after both sides have closed and a peremptory instruction has been offered by plaintiff, to permit the introduction of other' testimony, is a matter largely within the discretion of the trial court, and does not constitute reversible error unless the discretion has been abused, to the injury of the losing party.</p> <p>11. WILL: Contrary to Testator’s Understanding. Where the will was drawn in accordance with the bachelor testator’s instructions and he read it over and expressed satisfaction with it, and then was told by his lawyer that in the event the remaindermen survived the life tenant and died without issue the property would go under the statute to his brothers, and thereupon he requested that it be executed, the court cannot peremptorily instruct the jury to find for contestant on the ground that the will was not testator’s will. Besides, it is not necessary that testator have the knowledge of the will’s scope and bearing possessed by his legal adviser.</p> <p>12. -: -: Instructioh: Contrary to Will Itself. Where the will of the unmarried testator cancels his brothers’ debts, gives the property to his mother for life and in remainder to his sisters, and provides that if the mother survives the sisters and they die without issue the property is to be disposed of according to the mother’s will, it is not error to refuse to submit to the .jury the question whether it was the testator’s intention to provide that, if his sisters survived his mother and died without issue, his property should go to his brothers. Such question should not be submitted to the jury, although testator was informed by his lawyer before executing the will that the property, in such contingency, would go to his brothers.</p> <p>13. REVERSAL OF JUDGMENT: No Material Error. Notwithstanding errors were committed at the trial the judgment will not be reversed unless they materially affect the merits of the case.</p>

Louis City Circuit Court. — Hon, George C, Hitchcock, Judge. (1) The court erred in finding or holding that the plaintiff corporation was organized, incorporated and existed for benevolent and charitable purposes, and not for religious purposes. It is a religious corporation. Sec. 8, art. 2, Const. 1875; Sec. 3432, E. S. 1909 (Sec. 1394, E. S. 1899); Proctor v. Board of Trustees, 225 Mo. 56;' Klix v. St. Stanislaus Parish, 137 Mo.

— Eon. John M. Williams, Judge. (1) The court erred in not giving .the instructions asked by defendants in the nature of a demurrer to the evidence, for the reason that the petition is fatally defective in failing to allege that plaintiffs were interested in the disposition or devolution of the estate of deceased, and no evidence was given or offered to show such interest.