author: GRAVES, C. J.

text:
    In Matter of Estate of JAMES CAMPBELL; JOHN S. LEAHY, Administrator Pendente Lite, Appellant, v. FLORENCE A. CAMPBELL et al; MERCANTILE TRUST COMPANY, Executor.
    In Banc,
    April 27, 1918.
    ,1. PASTIES TO ACTION: Interloper: Appeal from Order Appointing Administrator Pendente Lite. Tlie circuit court, on an appeal from an order of the probate court, acquires jurisdiction only of the particular order or judgment appealed from and the parties thereto. Where certain persons filed in the probate court an application for ' the appointment of an administrator •pendente lite,- on the ground that they had instituted suit in the circuit court contesting decedent’s will, the whole contest in the probate court was one between the applicants for the suspension of the testamentary executor and the appointment of an administrator 'pendente lite, on the one side, and such executor and the devisees, on the other, and from the order sustaining the application an appeal was taken to the circuit court by the executor and devisees, the jurisdiction of the circuit court, and of the Supreme Court on appeal, is confined to a consideration of that application, and to that proceeding the administrator pendente lite, appointed after the order of suspension was made, is not a party, was not and could not have been a party in the probate court, and is not entitled to appeal from the judgment of the circuit court denying the application, but his motion in the circuit court to dismiss the appeal was that of a mere interloper; and his appeal from its judgment must be dismissed.
    2. MOOT CASE; Appeal: Dismissal. An appellate court should dismiss an appeal in a case which has become a moot case by reason of events which have occurred subsequently to the appeal.
    3. -: Determined by Record in Another Case, And the appellate court may examine its own records in another case for the purpose of ascertaining that the instant case has become a moot case.
    4. -: Administrator: When Entitled to Fees. Administrators are not paid for being qualified to act, but they are paid for services actually rendered to the estate. They are not to be paid for services to be performed nor for a willingness to perform, nor for being qualified to perform, but only for services actually performed.
    5. -: Administrator Rendente Lite: Dismissal of Appeal After Will Has Been Sustained. Where application was made to the probate court for the appointment of an administrator pendente lite of decedent’s estate, on the ground that the applicants had filed suit in the circuit court to contest the will, and from an order sustaining the application the testamentary executor and , legatees appealed to the circuit court, where the application was denied, from which judgment the administrator pendente lite, who had done-nothing towards administering the estate except to file bond at the time of his appointment, appealed to the Supreme Court, and thereafter the suit contesting the will was by that court decided adversely to the contestants before the submission of his appeal, he, by that decision, instantly became ’functus of-ficio, and his appeal a mere moot case, and he has no claim to fees that will save his appeal from dismissal.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.
    Appeal dismissed,

      Wm. C. Marshall, Major & Bevelle, Chas. P. Williams and Geo. B. Webster for appellant.
    (1) The affidavits for appeal below, filed in the probate eonrt were, if anything, only from the order of the probate court, suspending the executor. (2) The right to an appeal is statutory. State ex rel. v. Wood-son, 128 Mo. 514; State ex rel. v. Talty, 139 Mo. 379; Kansas City v. Railroad, 189 Mo. 261; Star Bottling Co. v. Exposition Co., 240 Mo. 634. The fourth clause of Sec. 3956', R. S. 19019, was relied upon, to a large extent, below. This cannot, consistently with our decisions, b;e given an unrestrained meaning. Baker v. Runkle’s Executor, 41 Mo. 394; State v. Hosier, 61 Mo. 544; In re Duty’s Estate, 27 Mo. 43; Baptist Church v. Robberson, 71 Mo. 348; In re Crouse, 140 Mo. App. 545; State ex rel. v. Fowler, 108 Mo. 465; In re Flick, 212 Mo. 275, 136 Mo. App. 164; State v. Reddish, 148 Mo. App. 721; State v. Holteamp, 185 S. W. 203; Marshall v. Shoemaker, 164 Mo. App. 429; Looney v. Browning, 112 Mo. App. 195; Sheridan v. Fleming, 93 Mo. 321; Railroad v. St. Louis, 92 Mo. 160; Aldridge v. Spears, 101 Mo. 400; Haynes v. County Court, 135 Mo. App. 108; Scott County v. Leftwich, 145 Mo. 26; State v. Fraker, 166 Mo. 140. It is plain from the foregoing, that the fourth clause of Section 3956 must be limited by construction. (3) Addressing ourselves to its construction, it is plain in the first place that it must be limited to such' orders and judgments as are final in their nature, (a) Upon general principles. Baker v. Runkle, 41 Mo. 394; Woerner on Administrations (2 Ed.), sec. 545; 2 Ency. P. & Pr. 52; Loveland on Appellate Jurisdiction, sec. 39. (b) By the general statutory policy of this State. R. S. 1909, secs, 289, 395, 463, 473, 2038, 2054, 2055, 20,90, 2380, 4091, 4118, 4142, 4198, 4207, 4255,, 4289, 4297, 4315, 5292, 5293. (c) By the express interpretation of this very statute. Haynes v. County Court, 135 Mo. App. 113; Coleman v. Farrar, 112 Mo. 72; Scott County v. Leftwich, 145 Mo. 31; In re Crouse, 140 Mo. App. 551; Aultman v. Seiberling, 31 Ohio St. 201. It thus adds nothing to the last clause of Sec. 289, R. S. 1909? (4) It is further plain that Section 289 is a part of a special code or scheme of laws. Expressio unius exclusio alterius est. In re Duty’s Estate, 27 Mo. 43; First’Church v. Rob-berson, 71 Mo. 340; Aldridge y. Spears, 101 Mo. 406; In re Crouse, 140 Mo. App. 555; In re Brinkwirth’s Estate,, 186 S. W. 1050; State ex rel. v. G-rover, 108 Mo. 469; Marshall v. Estate of Shoemaker, 164 Mo. App. 437; Morris y. Morris, 128 Mo. App. 676; In re Estate of Rooney, 163 Mo. App- 389. (5) Section 3956 does not undertake to confer jurisdiction, but to prescribe the court to which appeals shall go when expressly provided for. In re Estate of Rooney, 163 Mo. App. 389; Morris v. Morris, 128 Mo. App. 676. (6) An appeal will not lie, under the fifteenth clause of Section 28i9', from the order of suspension, which is the act of the law. Wherever a status is created by the law, it is clearly contrary to the policy of the law to allow an appeal. (7) The effect being the same, the reasoning is the same with respect to an order appointing the administrator pendente lite. That order is not final, any more than, or as much as,, an order appointing an interlocutory receiver in chancery proceedings. Greeley v. Railway, 123 Mo. 157; Bank v. Whitney, 121 U. S. 284. (8) The proceeding to appoint an administrator pendente lite is not only ex parte but it is not a case wherein a final decision can be rendered within the meaning of Clause 15, Sec. 289, R. S. 1909. Haynes v. County Court, 135 Mo. App. 108; Barnett v. County Court, 111 Mo. App. 693; State ex rel. v. Guinotte, 156 Mo. 519. (9) No appeal will lie, under the general language of Clause 15, Section 289, because it would nullify the adjudged purpose back of Section 21, which is a particular statute,, designed to secure uninterrupted administration. Rogers v. Dively, 51 Mo-. 196. (10) Such an appeal will not. lie, under the fifteenth clause, because it would nullify the adjudged purpose of section 21, to put the estate into the hands of a neutral and disinterested person. State ex rel. v. Imel, 243 Mo. 186; Hawkins v. Cunningham, 67 Mo. 415. (11) No appeal will lie from an order appointing an administrator pendente lite over property remaining’ in the custody of the probate court, because it is not contemplated that the circuit court should substitute its judgment and discretion in appointing a custodian for property not in its custody. B'arnett v. County Court, 111 Mo. App. 693. (12) The rulings in this State plainly indicate that no appeal will lie. State ex rel. v. Moehlenkamp, 133 Mo. 137; Woerner, Law of Administration, sec. 545¡, p. 1198; State ex rel. v. Imel, 243 Mo. 186; State ex rel. v. 'Eowler, 108 Mo. 465 ; State ex rel. v. Holtcamp, 267 Mo. 420; Flick v. Schenk, 212 Mo. 275; In re Flick, 136 Mo. App. 164; State ex rel. v. Reddish, 148 Mo. App. 721; Marshall v. Estate of Shoemaker, 164 Mo. App. 429. (13) There is no appeal under clause 9 of Section 289. To suspend is not the same as to revoke. State ex rel. v. Moehlen-kamp, 133 Mo. 137; State ex rel. v. Moehlenkamp, 133 Mo. 137. State ex rel. v. Imel, 243 Mo. 185; Robards v. Lamb, 89 Mo. 303; In re Ellmaker’s Estate, 4 Watts (Pa.), 34-36; Ex parte Worthington, 54 Md. 361; Cole v. Woodin, 18 N. J. 20; Marshall v. Estate of Shoemaker, 164 Mo. App. 429; State v. Melvin, 166 Mo. 565. (14) A person does not have to be a technical party in order to be entitled to take an ■ appeal; it is sufficient that the judgment injuriously affects his rights — that he is “aggrieved” thereby. In re Switzer, 201 Mo. 66; In re Whicker, 187 Mo. App. 102; Thomas v. Elliott, 215 Mo. 603; State ex rel. v. Shelton, 238 Mo. 297. (15) In the present proceeding there were no technical parties and tha.t the matter was not inter partes at all. The proceeding in the probate court was the appointment of a temporary administrator to conduct and administer property under the control of the court, which property was without any qualified or authorized executor or administrator at all. To that proceeding there were no parties, any more than there can be said to be parties to a proceeding to probate a will or to appoint a regular executor or administrator. All are in tbe nature of proceedings in rem, binding upon tbe world until reversed or set aside in a direct proceeding authorized by law. They result in tbe establishment of a status binding upon creditors, debtors, heirs and devisees alike, until so reversed or set aside. Any other holding would be disastrous indeed. Weor-ner on Administration (2 Ed.), sec. 263, sec. 227; Sehouler on Wills and Administrations (5 Ed.), sec. 112Ü-A; Woerner and Wislizenus on the Law of Decedent’s Estates, sec. 349; Quidort v. Pergeauz, 18 F. J. Eq. 477. Such being the nature of the proceeding in the probate court,, such equally must have been its nature upon , appeal to the circuit court. If the appellant was aggrieved by the judgment to which he, with all the world, was privy, he certainly had a right of appeal. (16) Was the appellant aggrieved by the judgment below? John S. Leahy was appointed by the probate court administrator pendente lite of the estate of James Campbell, deceased. He qualified and gave bond as required by the order of appointment. That completed appointment invested Leahy with an official capacity and with official functions with respect to that estate. It was his official duty and his official privilege to exercise his functions in the administration of that estate. Let us assume now that the law of Missouri permitted no appeal from such an appointment. That was appellant’s contention below,, and that is his contention here. If that contention is well founded, any attempt to prevent the exercise by him of his official functions and duties, or to nullify his official character (upon the maintenance and assertion of which the performance of such official functions and duties depended) by any person, or by any method, unauthorized by law (whether by pretended appeal or otherwise) should have been resisted by him in his official capacity. If this is not true, then no officer of this court should-resist any attempt to strip him of the official functions and duties with which he was here invested, but snch officer should accept the decree and findings of such courts without any attempt at defense,, without any effort to maintain his rights, and should at once bow in utter .and complete subservience to their unwarranted fiat, If no appeal did lie, then every step in connection with that appeal was coram non judice and void. Nevertheless, by the judgment of the circuit court, the appellant was effectively prevented as such temporary administrator from the performance of his duties— from the administration of the property composing the estate — to which, in his official capacity, he was rightfully entitled. He was further prevented by such unauthorized action of the circuit court from earning as such official the fees and commissions which would have been allowed to the temporary administrator for his services. To say, therefore, that he was not a party aggrieved or that because he was not a technical party to this proceeding, and, therefore, could not appeal, would be in conflict with the fundamental doctrine of our whole system of appellate procedure. Furthermore, Leahy, administrator pendente lite, appeared as a party to the proceeding in the circuit court without any objection. He was permitted to file motions, make objections to evidence, introduce evidence, file motion for rehearing, which was argued and overruled on its merits, given leave to file a bill of exceptions,, o. k.’ed by the very counsel who now raise^ this technical point, granted an appeal and allowed to file an appeal bond. Having been thus treated as a party, it seems incongruous that the adverse side should now take the position that while he had the right to be heard below, he has no right to be heard here. In the next place, the right of appeal here is to be construed in connection with the statute granting an appeal from the probate to the circuit court. Finally, in all the cases (even in those cited and relied on by the respondents) the administrator pendente lite was treated as a proper party where his appointment was called in question. (17) The questions involved in this record are not moot, but substantial. An administrator pendente lite is entitled, under the statute, to the same fees and compensation during the time he serves, or is entitled to serve, as is provided for the regular administrator. Hawkins v. Cunninghamj, 67 Mo. 415. If appellant in this case has been entitled since his appointment to serve as administrator pendente lite, he is entitled to whatever fees and compensation the law provides for services of an administrator or executor during that period, and with an estate of this size and value, such fees constitute a substantial and valuable interest, and entitle him to be heard on such legal questions as may in this or some subsequent proceedings be vital to their collection.

      Judson, Green & Henry, Schnurmacher & Rassieur, Samuel A. ■ Mitchell, Morton Jourdan Sullivan &i Cromwell and Edw. V. P. Schneidérhaihn for respondents.
    (1) The statute prescribes who may contest validity of will and how. R. S. 1909, sec. 555. (2) Plaintiff^, to- contest a will, must he “interested” within the meaning of the law. Lamb v. Helm, 56 Mo. 428; Hogan v. Hinchey, 195 Mo. 532; State ex rel. Damon v. Mc-Quillin, 246 Mo. 693; G-ruender v. Prank, 267 Mo. 718. (3) The power of the probate court to appoint an administrator pendente lite is derived from Sec. 21, R. S. 1909. And this is dependent on Section 555. R. S. 1909, secs. 21, 555; Catholic Church v. Toebben, 82 Mo. 418; State ex rel. v. McQuillin, 246 Mo. 693; State ex rel. v. Moehlenkamip, 133 Mo. 134; Gruender v. Frank, 267 Mo. 718. (4) Section 21 does not automatically suspend letters. R. S. 1909, sec. 21; Lamb v. Helm¡, 56 Mo. 420; State ex rel. v. McQuillin, 246 Mo. 674, 1. c. 688; State ex rel. v. Moehlenkamp, 133 Mo. 134; Hanley v. Holton, 120 Mo. App. 393. (5) Sec. 289, R. S. 1909;, makes provision for appeals from decisions of the probate court, enumerating fourteen instances in which appeals may he had. The “ninth clause” allows appeals from all orders “revoking” letters testamentary or of administration.- (a) Suspension is revocation and has always been treated as such. Secs. 55 and 56, 1909, apply for settlement, as in the case of revocation. State ex rel. v. Moehlenkamp, 133 Mo. 134; State ex rel. v. McQuillin, 242 Mo. 688; Han-ley v. Holton, 120 Mo. App. 393'. (b) There is a distinction), as respects the right of appeal between appointment and revocation. Hall v. County Court, 27 Mo. 329; State ex rel. v. Allen, 92 Mo. 20; G-rover v. Fowler, 108 Mo. 465; Flick v. Schenk, 212 Mo. 275. (c) This right has been judicially recognized and was never questioned. No case has denied it. Eogers v. Dively, 51 .Mo. 193; Lamb, Admr., v. Helm, 56 Mo. 420; Archor v. Sullenger, 137 Mo. App. 373. (d) The recognition is good evidence of what the law is. Venable v. Eailway, 112 Mo. 125; Donnell v. Wright, 199 Mo. 316 ; Julian v. Kansas City Star, 209 Mo. 102. (6) The appeal was from a final decision of a matter arising under the provision of the Administration Act. Section '289¡, in its fifteenth clause provides for an appeal “in all other cases where there shall be a final decision of any matter arising, under the provisions of Articles 1 to 13, inclusive of this chapter.” McCrary v. Men-teer, 58 Mo. 446; Seymour v. Seymour, 67 Mo. 303 ; Hawkins v. Cunningham, 67 Mo. 415; In re Estate of McCune, 76 Mo. 200; State ex rel. v. Moehlenkamp, 133 Mo. 134; State 'ex rel. v. Bland, 189 Mo. 215; Han-ley v. Holton, 120 Mo. App. 393; Hawkins et al. v. Troll, 15'6 Mo. App. 153; In re Estate of Eooney, 163 Mo. App. 392. (7) The right of appeal is sustained by the express langunage of Section 3956 definding appellate jurisdiction of the.circuit court in all cases not expressly prohibited by law. E. S. 1909, sec. 3956; Hall v. Audrain County, 27 Mo. 329; McVey v. McVey, 51 Mo. 406; Colville v. Judy, 73 Mo. 651; Cox v. Drake, 34 .Mo. App. 81; State ex rel. v. Wiethaupt, 238- Mo. 155 ; Fitzmaurice v. Turney, 256 Mo. 187; Brockman v. Webb, 189 Mo. App. 475. (8) The right of appeal is favored in the law. State ex rel. v. Bland, 189 Mo. 197, 215 ; In re Switzer, 291 Mo. 87.
   GRAVES, C. J.

The ease now here originated in the prohate conrt of the city of St. Lonis. J ames Campbell died June 12, 1914, leaving a will, by the terms of which the Mercantile Trust Company was made the executor. This will was on June 16, 1914, dnly probated in the probate court of the city of St. Louis, and the Mercantile Trust Company duly qualified as executor, and letters testamentary were issued to it by that court, and said Mercantile Trust Company entered upon the discharge of its duties as such executor. Whilst the Mercantile Trust Company had possession of and was administering upon the estate of' the said James Campbell, Margaret C. Harrison aiid others instituted a suit in the circuit court contesting this will. The filing of this suit was in the following October.

After the filing of this contest proceeding the present case originated in the probate court by the filing of the following petition:

In the Probate Court, City of St. Louis, State of Missouri.
September term, 1914.
In the Matter of the Estate of James Campbell, deceased. No. 43709.
To the Honorable Charles W. Holtcamp, Judge of said Court:
And now come Margaret C. Harrison, Mamie S. Spargo, James G. Campbell, Archie W. Campbell and Genevieve Baker, petitioners, and respectfully represent that on the 3rd day of October, 1914, they caused to be filed in the office of the clerk of the circuit court of the city of St. Louis, Missouri, a petition, as required by law, to contest the will of James Campbell, deceased, which said will was probated herein on the 18th day of June, 1914, and the title of which said cause is as follows, to-wit:
“In the Circuit Court of'the City of St. Louis, Missouri,
December Term, 1914.
“Margaret C. Harrison, Mamie C. Spargo, James C. Campbell, Archie W. Campbell and Genevieve Baker, Plaintiffs.
vs.
“Florence A. Campbell, Lois Ann Burkham, Wife of Elzey G. Burk-ham, Mercantile Trust Company, purporting to be Executor and Trustee of the purported will of James Campbell, deceased, and St. Louis University of the City of St. Louis, Missouri, Defendants.”
Your petitioners therefore pray that an administrator ‘pendente Ute he appointed herein, as by statute provided, to take charge of the property of said estate and to administer the same according to law. And your petitioners will ever pray, etc.
Margaret C. Harrison,
Mamie C. Spargo,
James C. Campbell,
Archie W. Campbell, and Genevieve Baker,
By L. Frank Ottofy,
Their Attorney.

This petition was contested in the prohate conrt. Mr. Leahy was not a party to that contest, and in the very nature of things conld not have been a party. The probate conrt in an opinion filed made the following statement.

“The authority of the Mercantile Tru-st Company as executor under the will of James Campbell is hereby suspended and it is ordered to settle to such suspension with the administrator pendente lité and John S. Leahy is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased,, npon giving bond with sufficient surety approved by the court in the sum of ten million dollars, the court reserving the right to increase his said bond if at any time during the administration of the estate the reasonable value of the assets of said estate should require additional surety.”

The same in modified form was included in a final order made the day Mr. Leahy tendered his bond and had the same approved. This modified order fixing a temporary and a'final bond will be noted in the opinion-This order was entered of record a day or so after the filing of the opinion mentioned, supra.

It is important here to note the appeal which was actually taken. Four parties appealed from the order of the probate court, but it is important to get the appeal which they actually took. They all appealed from that portion of the order of the probate court suspending the Mercantile Trust Company as' executor. Mrs. Campbell and Mrs. Burkliam {nee Campbell) joined in one affidavit. In tbeir affidavit they appealed, in the language of the affidavit, “from the order of October 22, 1914, suspending and revoking letters testamentary of Merchantile Trust Company, executor of the last will of said James Campbell, deceased.”

The affidavits of the other two appellants, Mercantile Trust Company and St. Louis University, are mbre general, but it is clear that their appeal was to the same effect as that of Mrs. Campbell and Mrs. Burkham. In fact, the order of the probate court granting the appeals so shows. This order as to Mercantile Trust Company reads: “I do further certify that on the 28th day of October, 1914, in vacation, after the adjournment of said court for the September term, 1914, thereof, and within ten days thereafter, the Mercantile Trust Company, executor of the last will of James Campbell, deceased, filed in my office an affidavit and bond for an appeal from the order of said court, of date October 2%, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of said James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.” The italics are ours. The order granting the appeals to Mrs. Campbell, Mrs. Burk-ham and the St. Louis University are in the same language, and they need not be quoted. Leahy was never a party to the contest, unless the order appointing him had the effect of making him a party. ,

The judgment of the circuit court, which is appealed from in the case before us, contains this language: “therefore, the application of the contestants to suspend the letters testamentary of the executor under said will for the appointment of an administator pen-dente lite is denied.”

The application referred to in this judgment we have set out in full above. It is the application of Margaret C. Harrison et al. This application the pro-hate eonrt sustained, and this application on trial de novo in the circuit court, said circuit court, by the judgment above, denied. Neither Margaret C. Harrison, nor either of her four co-appellants, took any appeal from the judgment of the circuit court denying their application. They remained mute, satisfied with the judgment from which this appeal was taken. Leahy alone undertakes to appeal. This sufficiently outlines the case. . , , :

I. We are of the opinion that Leahy was not a party to the proceeding disclosed by this record, and for that reason his appeal should be dismissed. We have purposely and at length set out the record in this case, to the end that it might be seen who were the real parties interested in this proceeding. No appeal was taken from the order appointing Leahy' administrator pendente lite. The probate court’s order we have set out in the statement so shows. This record says that the Mercantile Trust Company and the other appellants “filed in my office an affidavit and bond for an appeal from the order of said court, of date October 22, 1914, suspending the letters testamentary granted to the Mercantile Trust Company, as executor of the last will of sa-id James Campbell, deceased, to the circuit court, city of St. Louis, which said affidavit and bond were duly approved by the judge of said probate court and said appeal allowed.”

So ran all the appeals taken. No appeal was taken from that portion of the said order designating Leahy as administrator pendente lite. The circuit court never tried that matter, as its judgment shows, because that court .by its judgment only said: “Therefore, the application of the contestants to suspend the letters testamentary of the executor under said will and for the appointment of an administator pendente lite is denied.” The whole question in the circuit court was that portion of the probate court order which suspended the letters testamentary of tlie Mercantilie Trust Company. Tlie whole thing decided there, was that the application of Margaret C. Harrison et al. should be denied. The contest in the probate court and in the circuit court was one between Margaret Harrison et ah, applicants for an administrator pentente lite, on the one side, and Mercantile Trust Company, testamentary executor, and the devisees under the will, on the other side. Leahy was not a party to this fight in the probate court and could not have been in the very nature of things. Even after he was appointed no appeal was taken from that portion of. the order. The circuit court only acquired jurisdiction over the matter litigated and fought out in'the probate court, from which the appeal was taken. The appeal bonds given did not act as supersedeas to any other matter.

In Branson v. Branson, 102 Mo. l. c. 620, Black, J., has well said: “The'statute provides in express terms that the appeal in probate matters shall not be a super-sedeas in any other matter relating to the administration of the estate, except that from ivbich the appeal is specially taken; and the proceedings had in thé circuit court must be certified back to the probate court. [R. S. 1879, secs. 297, 300.] It is, therefore, clear that the appellate court acquires jurisdiction only of the particular order of judgment appealed from. It is that order and that only which it can consider. Nor does the appellate court carry into effect its own order, but its decision is certified to the probate court, which proceeds in conformity therewith. ’ ’

To reiterate it should be said the contest in the probate court was not whether Leahy should or should not be administrator pentente lite. That contest involved but one question, and that question was, whether or not an administrator pentente lite should be appointed. Not the question whether Leahy should or should not be appointed. In other words the thing to be determined in the probate court was whether, or not, under the facts, there was a place to be filled by an administrator pentente lite, and not as to who should fill the place. Upon this issue, made by the written petition of Margaret Harrison et ah, the lines were sharply drawn. The Mercantile Trust Company, Executor^ and the devisees of the will were on one side, and Margaret Harrison et al. on the other. Prospective appointees to the place, if such place was found'to exist, were not interested parties to the proceedings, and could not he parties to the contest. If they could not he in the probate court, they could not he in. the circuit court upon appeal, because the circuit court could only try anew the matter tried in the probate court. Leahy was never a party to that controversy, and his motion in the circuit court to dismiss the appeals was that of an interloper. Cases like In re Switzer, 201 Mo. 6fi, and others relied upon to demonstrate Leahy’s right to appeal to this court, have no application to the facts of this case.

II. The most serious question in this ease, is that we are called upon to determine an absolutely moot ease. We may, for the sake of the argument upon this point, grant the right to Leahy to appear in the circuit court and to appeal to this court, and yet his appeal to this court should now be dismissed, because his case has become a mere moot case.

It is urged in appellant’s briefs that the case of State ex rel. v. Imel, 243 Mo. 178, has no application to this case because the facts are different, and that it is no authority against the contention of appellant in this case. It is true that Imel’s case and this case are not “gray mules” cases. But Imel’s case is authority, and the very strongest authority, for the proposition that this court will not hear and determine a mere moot case. [State ex rel. v. Imel, 243 Mo. l. c. 189.] On this page Lamm, J., collates the cases, both in and out of Missouri, sustaining the proposition. To the interested this reference will suffice. . It is likewise authority for the rule that an appellate court should dismiss the appeal in a case which, has become a mere moot case by reason of events which have occurred subsequent to the appeal. For this rule the learned judge has likewise collated the case law, and from the case law thus formulated the rule: “And where, as in this case, events have happened making it impossible for an appellate court to grant effectual relief on appeal, the appeal will be dismissed, although such facts do not appear on the record, but appear extrinsically.”

Now it may be true that Leahy’s case has not become a moot case by treading the exact pathway described in the Imel case, but if by any pathway it has reached the status of amere moot case the rule in Imel’s case applies.

Let us get the facts and occurrences in' the Leahy case. His appointment thus appears from the probate record: “that John S. Leahy be and he is hereby appointed administrator pendente lite of the estate of said James Campbell, deceased, remaining unadminis-tered, pending such contest, and that he now give bond, as such administrator, in the sum of ten thousand dollars, and upon his receiving the assets of said estate his bond as such administrator is to be increased to the sum of ten million dollars. And thereupon comes said John S. Leahy, administrator pentente lite as aforesaid, and tenders his bond as such administrator in the sum of ten thousand dollars, which bond being examined by court is approved and ordered to be filed and recorded. ’ ’

So far as the record before us shows Leahy never got further than giving the $10(,000 bond mentioned in this order. He never qualified under the order, so as to receive and hold the assets of the estate. It is not contended that he ever got possession of the estate. Our records show -that- the will case was finally determined here, adverse to Margaret Harrison et al., prior to the submission of the instant case. Vide State ex rel. v. Imel, 243 Mo. l. c. 187 and 189, for our authority to examine our own records.

Discussing the section of law authorizing the appointment of an administrator pentente lite, this court in Hawkins v. Cunningham, 67 Mo. l. c. 417 and 418, has thus described such an administrator: ‘£ This section distinguishes betwixt an administrator appointed pending the contest of a will and the executor appointed by the will or an administrator with the will annexed. The latter is termed the regular administrator. The administrator appointed while the suit is pending is only a temporary or special administrator. In the ease of Lamb v. Helm, Admx., 56 Mo. l. c. 433, this court said: ‘Such special administrators occupy more nearly the position of a receiver who acts under the direction of the court,, than they do the position of a general administrator.” To like effect in State ex rel. v. Imel, 243 Mo. l. c. 186.

Now when this court dismissed the appeal of Margaret Harrison et al. in the will contest case, as it did prior to the submission of this case, the alleged appointment of John S. Leahy, appellant here, was at once vacated. "We again quote from the learned opinion in Imel’s case, 243 Mo. l. c. 186: “By analogy, his office is said to be in the nature of a receivership; and, when the contest is at an end and the validity of the will established, his term of office expires and his right to act ends. The executor or regular administrator c. t. a. becomes again qualified to act in the administration of the estate. So, when that time comes the provisional administrator is functus officio. He must step down and out instanter, settle and turn over ‘the money ánd property of the estate to the executor or regular administrator, who,, by that token, comes into his own again. [R. S. 1909, sec. 21, supra; Robards v. Lamb, 76 Mo. l. c. 194; Robards v. Lamb, 89 Mo. l. c. 311; State ex rel. v. Moehlenkamp, 133 Mo. l. c. 138 ; Lamb v. Helm, 56 Mo. l. c. 432; Hawkins v. Cunningham, 67 Mo. 415.]”

In the instant case Mr. Leahy never had possession of the Campbell estate. He never performed a single duty imposed by law upon administrators or executors, nor did lie a single act in tlie line of a receiver. He neither collected nor distributed a single penny of ■ this estate, to the time the law rendered him (to use the language of Imel’s case, snpra) “functus officio.” He may have partially qualified himself to act by giving the first limited bond required by the order appointing him, but he never acted. Administrators and receivers’ are not paid for being qualified tó act, but they are paid for services to the estate actually rendered. In. the case of administrators, Section 229 fixes the services to be performed and the pay therefor, and as to receivers the court fixes the compensation on the basis of services performed, and not on the basis of services to be performed, or -on a willingness to perform services. From the time of his appointment to the date of his- statutory demise not a service to this estate was rendered by Mr. Leahy. This is not a case where an officer in a contested election holds his office until ousted. In such case the successful contestant may be entitled to recover for what he would have earned. This is not such a Gase and cannot be governed by the same rules. Administrators and receivers must serve the estate before they are entitled to compensation. Their compensation, under the law, is based upon actual service in the preservation and distribution of the estate. "Willingness to perform does not suffice.

Now is this a moot case? What could we do by our judgment? We could not change the fact that, by operation of law, Mr. Leahy was rendered powerless to act, when the appeal of Margaret Harrison et al. in the will case was dismissed. We could not change the fact that Mr. Leahy has performed no services for the estate, for this fact is emblazoned on every page of this record. We could not change the law. that it is only for services actually performed that an administrator or receiver‘is entitled to compensation. The most that we could do would be to say that there was a period during which Mr. Leahy might have rendered services to the estate, but that period expired before Ms appeal was submitted to us for our consideration. We can’t restore him to Ms place. He can’t claim for services which, he never rendered, and the time has passes for him to render any services to the estate. These thing’s make the case before us a moot case pure and simple, and the appeal should be dismissed, as in the Imel case supra.. i

III. Whilst I think it can be demonstrated with the accuracy and precision of an Indian’s arrow, that an appeal will lie from the probate court to the circuit court from an order suspending the letters testamentary of an executor under a will, yet if either of the two propositions above is well founded, such a discussion would be a useless one, and we therefore pass it. But for the reasons expressed in paragraphs one and two, supra, the appeal herein should be dismissed.

It is so ordered.

All concur, except Blair and Williams, JJ., who dissent; Bond, Jconcurs in paragraph two and the result.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE STATE ex inf. JAMES M. HAW, Prosecuting Attorney, v. THREE STATES LUMBER COMPANY, Appellant.
    In Banc,
    April 27, 1918.
    1. CORPORATION: Charter Rowers: Holding Title to Lands. A foreign corporation whose charter purposes, as expressed in its articles filed with the Secretary of State, are "to purchase, lease, build, construct, alter, maintain and operate, rent and sell sawmills, grist and feed mills, sash, door, blind and furniture factories, etc.,’’ cannot lawfully retain title to lands after it has ceased to do a lumber, sawmill and furniture business in this State, either in its own name or in the name of another; and if just before the expiration of six years after it has ceased to do business in this State, it attempts to evade the law by making a colorable deed to another, vesting him with the title, to be held for the use of its stockholders in proportion to their corporate stock, it is liable to punishment in the manner provided by statute.
    2. -:-: Etc. The “Etc.” used in said charter after the other words defining the powers of the corporation, embraced only other purposes of like character to those specifically named.
    3. -: -: Subsequent Charter. A filing of a charter with the Secretary of State by the foreign corporation, after suit has been brought for a violation of the laws of this State, by which it attempts to establish its right to'hold lands in this State for other purposes than those expressed in so much of its charter as it originally filed with the Secretary of State and upon which it secured 1 a license, will not avail as a defense.
    4. -: -: Holding Land in Mortmain. One of the purposes which the provision of the Constitution declaring that no corporation shall “hold any real estate for any period longer than six years, except such as may be necessary and proper for carrying on its legitimate business,” was to prevent land lying in practical mortmain.

    5. -: -:-: Effect of Judgment: Subsequent Proceeding. An imposition of a fine of five thousand dollars on a corporation for holding lands for purposes other than those expressed in its charter and in violation of the Constitution, will not preclude the State from taking subsequent proceedings, in case of the company’s further default to cause a transfer of the title of the lands so as to promote the complete alienability thereof contemplated by the Constitution.
    Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.
    AFFIRMED.

      J. G. Wilson, Wm. H. Fitshugh and Judson, Green & Henry for appellant.
    (1) As tlie company was lawfully in the State, doing business therein, it was necessarily acting under its Wisconsin charter, with all the powers contained therein^ subject to the laws of this State. Being authorized by its charter to engage in the business of buying and selling land, including timber land, the corporation could not, by owning land, violate the Missouri statute when this was necessary and proper for the conduct of its business. Thompson on Corporations, secs. 6685, 2382; Land Co. v. Tilton, 19 Fed. 73. (2) The fundamental principle is clearly recognized in the State of Missouri that the measure of the powers of a corporation is to be found in its charter, and the powers therein granted may be exercised in other states than that if its creation, subject to the laws of such states; and this is true of the power to deal in and hold real estate. Missouri Co. v. Rhinhart, 114 Mo. 218; State v. Tobacco Co., 177 Mo. 1; State ex rel. v. Cook,' 181 Mo. 596; Smooth v. Bankers Life Assn(, 138 Mo. App. 438. (3) The charter of the defendant company, which must be the measure of its powers in this State, subject to the laws of the State, includes the following: “1. To purchase, lease, build, construct, order, maintain and operate, rent and sell sawmills, planing mills, sash, doorj, blind and furniture factories.' 2. To purchase, sell, lease and re-lease and rent land and all manner of real estate . . . including . . . timber lands ... to develop, operate and improve such lands.” (4) The company thus had the express charter power to b.uy and hold lands in Missouri, and if the measure of defendant’s powers is to be found in the certificate issued by the Secretary of the State of Wisconsin, the same result would follow. Thus, this cer-toficate stated that the defendant was authorized “to purchase, lease, build, construct, order¡, maintain and operate, rent and sell sawmills, grist and feed mills, planing mill, sash, door, blind and furniture factories, etc., etc.” It is common knowledge and,, therefore, a fact of which the court will take judicial notice, that the purchase and ownership of timber lands is essential to the economical and successful operation of saw-millsj and the operators of such mills are continually purchasing timber lands in advance of their immediate requirements. Such a power is clearly incidental and necessary to the exercise of the principal power. Cook on Corporations (6 Ed.), p. 11; Thompson on Corporations (2 Ed.), sec. 2381; Callaway Company v. Clark, 32 Mo. 305; Weelder v. First National Bank, 42 Mo. 581; Green Bay Co. v. Union Co., 107 U. S. 413 ; Railroad v. Howard, 7 Wall. 392; Ford Co. v. Smith Co., 151 U. S. 294. The nse of the abbreviation “etc., ;etc.”, at the end of the powers enumerated in the certificate, clearly indicates other powers not inconsistent with the power expressed and of their general nature. Doty V. Telephone Co,, 123 Tenn. 329; In re Skyler, 104 Mass. 426 ; Railroad v. Berry, 96 Ky. 604; Tepp .v. Tillinghart, 7 R. I. 434; Lathers v. Kehoe, 39 Hun, 576. (5) As it is clear that defendant company lawfully acquired these lands, the only question that remains is whether their holding was necessary and proper for the purposes of the business of the defendant. This condition does not mean that a .corporation, in acquiring timber lands, is limited in its holdings to those necessary for its immediate use. Such a constructon would be disastrous to a lawful and necessary business. Its future use and availability are rightly to be considered. Commonwealth v. Louisville Co., 13¡9I Ky. 689; Thompson on Corporations (2 Ed.), sec. 2386, 2387 and 2431; School Board v. King, 127 Ky. 824; Sauchy v. Gunder, 150 Ill. App. 604; McQuaide v. Enterprise Co., Ill Pac. 927; Ronaldson v. Bynum, 122 La. 687; People v. Car Co., 175 Ill. 125. (6) The words “necessary and proper” do not mean that a corporation may not, in good faith, look to the future as to the requirements of its business, just as an individual could. Necessary and proper to a business means no more than appropriate to that business at present or in the future. McCullough v. Maryland, 17 U. S. 316; Lancaster v. Green, 24 Nebr. 98; Legal Tender Cases, 79 U. S. 457; United States v. Fisher, 6 U. S. 92; Marteris v. Mar-teris, 20 N. J. Eq. 431; Thayer v. Hedges, 23 Ind. 141; Docks Co. v. Pennsylvania, 53 N. J. Eq. 142 ; Colton v. Lein Co., 6 Fla. 610. (7) The suggestion, that the “legitimate business” requisite for the holding of lands by a corporation in this State, must be itself located in Missouri so that defendant conld not nse Missouri timber in its mill at Burdette, Arkansas, is obviously untenable. The statute was intended to prevent speculative holdings, and not to embarrass legitimate business, whether located on one side or the other of the state line. (8) The conveyance to Gilchrist, in 1902 in trust for the then stockholders of the company (naming them and the number of shares held by them), the corporation being solvent, and no rights of creditors being involved, was obviously exactly what the law would have required if the lands were not necessary and proper for the defendant to own in its business. The corporation, as such, has had no legal or equitable title to the lands since that transfer. If the- company wished to discontinue business with these lands, it did exactly what the law would require it to do in such cases. Richards v. Coal Co., 221 Mo. 149. And even if the State had forced the company out of business under a quo warranto proceeding, such would have been the course. State v. Delmar Club, 200' Mo. 71; State v. Oil Co., 218 Mo. 360'.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General,' for respondent; Jarnés M. Haw, of counsel.
    (1) If appellant did not comply with the laws of this State, it was not authorized to do business in this State, and could not, therefore, hold land in this State except in violation of our Constitution. Constitution 1875, art. 12, sec. 7; sec. 3037 and 3039', R. S. 1909. Foreign corporations which do business in this State do so by grace and not by right;, and must in so doing conform to its laws. 19 Cyc. 1220; Ehrhardt v. Robertson, 78 Mo. App. 4:12; Cravens v. Insurance Co., 148 Mo. 604; Daggs v. Insurance Co., 136 Mo. 391. A foreign corporation, must, among other things and as conditions precedent to authority to engage in business in this State, comply with the following requirements: 1st; file a copy of its charter of articles of as-socia.ti.on duly authenticated, together with, 2d, a sworn statement under its corporate seal particularly setting forth the business which it proposes to carry on in his State; and 3d„ a sworn statement, by the principal officer or agent in Missouri, of the proportion of the capital stock of said corporation which is represented by its property located and business transacted in Missouri. Defendant did not comply with earlier the first or second requirement of the statute. It did not file its charter or article of assoeiatiori. It did not file its statement particularly setting' forth the business which it proposed to carry on in Missouri. See. 3039,, R. S. 1909. Defendant having failed to comply with these conditions' precedent, had no right to hold this land or transact any kind of business in this State. All of its acts were void and particularly so as against the State. Ehrardt v. Robertson Biros., 78 Mo. App. 407; Zinc & Lead Co. v. Lead Co., 221 Mo. 7; Parke, Davis & Co. v. Mullett, 245 Mo: 168; 19 Cyc. 1220; Downing v. Ringer, 7 Mo. 586. Defendant’s subsequent compliance with the statute did not change the status, of defendant at the time of the institution of the suit. The status of defendant at the institution of the suit remains unchanged throughout. Zinc & Lead Co. v. Mining Co., 221 Mo. 18 State ex rel. v. Pond, 135 Mo. App. 85; Parke Davis & Co. v. Mullett, 245 Mo. 172. The provisions of the statute not being complied with, and being conditions precedent, the certificate of the Secretary of State was without authority of law, conferred no rights as against the State, and defendant could not set it up a defense in quo warranto proceedings. State ex rel. v. Insurance Co.„ 49 Ohio St. 440, 16 L. R. A. 613; 19 Cyc. 1284. “Etc.” in such certificate cannot mean anything in the face of our statute which says': “Particularly setting forth the business of the corporation . . . which it proposes to carry on in this State.” Sec. 3039, R. S. 1909. If it be held to mean anything under such a statute, then certainly it cannot be extended further than ejusdem generis.
      Doty y. Telephone Co., 123 Tenn. 340; Tepp v. Tilling-hart, 7 R. I. 434; Lathers v. Kehoe, 39 Hun, 576. Whatever may he the view of it, the holding of the land was ab imito without authority of law as against the State. (2) No corporation shall engage in business other than that expressly authorized in its charter, nor shall it hold any real estate for any period longer than six years, except such as may be necessary and proper for carrying on its legitimate business. Constitution 1875, art. 12, sec. 7. Defendant purchased land in 1894 and used it in its business in this State until 1897. Since 1897 is has not been used by defendant in connection with any business, but in 1902„ just before the six years constitutional limitation expired, it conveyed the same by quit-claim deed to Gilchrist. The evidence conclusively shows, and the court below held, that Gilchrist held for defendant and defendant was the owner thereof. Sec. 2867, R. S. 1909. The conveyance to Gilchrist and Gilchrist’s declaration of a trust was a device to evade the statutes and therefore futile. 19 Cyc. 1247, 1286; Com. v. Railroad, 114 Pa. St. 340; Rough v. Breitung, 117 Mich. 48; Meyers v. Wetzel, 35 S. W. 8916;. Coleman v. Turnpike,, 49 Cal. 522,10 Cyc. 11236,1137; Gust v. Hoppe, 210 Mo. 293; State to use v. O’Neill, 151 Mo. 67; Rock Island Natl. v. Western Lbr. Co., 134 Mo. 463; Martin v. Estes, 132 Mo. 402; Roberts v. Barnes, 127 Mo. 405; Johnson v. Realty Co., 167 M'o. 325; Johnson v. Realty Co., 117 Mo. 581. In fact, the defendant, having failed to comply with the statutory conditions precedent, could not transact any business in this state and its deed to Gilchist was void and conveyed no title as against the State. Laws 1891, p. 75, R. S. 1909, sec. 3039; Parke, Davis & Co. v. Mullett, 245 Mo. 168; Amalgamated Co. v. Zinc Co., 221 Mo. 1; Mill & Lumber Co. v. Sims, 197 Mo. 507; Tri-State Amus. Co. v. Amusement Co., 192 Mo. 404; Machinery Co. v. Ramlose, 210 Mo. 631. A stockholder is so far an integal part of the corporation that,, in view of the law, he is privy to the proceedings touching the body of which he is a member. Johnson v. Realty Co., 177 Mo. 581. Had the stockholders, or Gilchrist for them, owned the land, there would have been some settlement between them and defendant in the years elapsing since 1902. Johnson v. Realty Co., 177 Mo. 581. (3) The policy of this State is against perpetuities. Such being the case, the laws with reference to this subject should be construed so as to prevent the evil of perpetuities. Commonwealth r. Property Co,, 121 S. W. 399; School Board v. King, 127 Ky. 824; School Board v. Railroad, 124 Ky. 506; Carroll v. East St. Louis, 67 Ill. 568; Trust Co. v. Lee, 73 Ill. 142. An implied power of a corporation exists only to enable the corporation to accomplish the purpose of its existence, and cannot be invoked to authorize acts only remotely connected with the specific purpose for which the corporation was created (or licensed). Canal Co. v. Allen, 273 Ill. 318; Church v. Dixon, 178 Ill. 260; Commonwealth v. Box Co., 152 Ky. 291; Bank v. Commonwealth, 143 Ky. 816. (4) Provisions such as article 12, section 7, Constitution of Missouri, and Revised Statutes 1909, section 3037, are aimed at. needless inactivity, in corporate ownership of lands, it being intended that the (foreign) corporations must put it to the use for which it was acquired and allowed by the charter,, or to dispose of it so that somebody else might put it to some purpose. Commonwealth v. Box Co., 152 Ky. 291; Commonwealth v. Traction Co., 140 Ky. 388; Ins. Co. v. Commonwealth, 147 Ky. 72.
   BOND, J.

I. The State of Missouri, upon the information of its attorney in Mississippi County, charges in quo warranto, that the defendant, a Wisconsin corporation, filed a certificate of its corporate purposes with the Secretary of State,, on January 3, 1894, to-wit:

“To purchase, lease, build, construct, alter, maintain and operate, rent and sell sawmills, grist and. feed mills, planing mills, sash, door, blind and furniture factories, etc.”

That procuring, in accordance therewith, a license to do business, defendant thereafter failed to comply with the laws of this State in the matter of filing' its charter, maintaining a public office and making reports of .its business; that defendant- also violated the Constitution of this State in the tenure of real estate not “necessary and proper” for the conduct of “its legitimate business” for more than six years and that in attempted evasion of the Constitution it put the title to 20,090 acres of land, which it held in this State, in one Gilchrist, who was thereafter a nominal titleholder for .the benefit of the corporation and through whom it bought and sold for itself lands in this State; that said conveyance was made to Gilchrist August 18, 1902, a little less than six years after defendant ceased to do any business in this State other than as incident to the ownership of said land through said trustee. The information prayed a forfeiture of the corporate rights and property and for such other judgments and orders as to the court might seem meet and proper.

The answer admitted defendant to be a corporation organized in Wisconsin, admitted it did not file its articles of incorporation or corporate purposes when it sought admission into this State, except as stated above in the information; denied that it was the owner of any real estate in Mississippi County, Missouri,-six years before the filing of the information, and denied that its conveyance thereof to .Gilchrist in 1902 ' was for the fraudulent purpose of evading the Constitution of this State. The answer set up that it did, however, file'its articles of incorporation in this State on March 28, 1911, under which it was entitled to acquire and dispose of lands and real estate within the United States, and other things. The answer also set up that the lands originally purchased by defendant were valuable at that time only for timber and that it erected a sawmill thereon in 1894¡, and continued to operate it until it was destroyed by fire in 1887, and did not rebuild the same nor further conduct the saw-milling business in this State for commercial reasons, b.ut did build a sawmill at Burdette, Arkansas, about eighty miles distant from the lands it owned in Mississippi County; that since 1897 defendant has transacted no business in the State of Missouri, other than “such as was incident to the ownership of said lands and timber so long as it held the same.”

The reply took issue and also averred that defendant was estopped to deny that its lawful power to do business in this State was confined to the things mentioned in the statement which it filed with the Secretary of State when it obtained a license from him in 189’4.

Upon the trial the court, among other things, found that the defendant had violated the Constitution and statutes of Missouri by holding the lands described in the information for more than six years, which were not necessary and proper for carrying on its legitimate business, and that its conveyance to G-ilehrist in 1902, and the declaration of trust made by him, were for the purpose of evading the Constitution and laws and statutes of Missouri and fraudulent and void. Wherefore the court fined defendant $5000 and costs of suit and ordered execution, to reverse which judgment defendant has- appealed.

II. It is wholly unnecessary to discuss what right's an'd powers defendant might have enjoyed in this State under a land-buying and land-purchasing charter such as it did not file when it obtained a license to do business here, but only filed after the happening of matters charged in the information and the institution of that proceeding on behalf of the State. What is actually produced as its plea for a. right to do business in this State was a statement (copied above) that it was incorporated to build and operate sawmills, furniture factories, “etc.” In accordance with these specific objects it was licensed to do business in this State. That was the effect of the license then given to it by the Secretary of State, for he had no legal authority or power to authorize it to exercise any other franchises than those comprised in the statement of its corporate purposes filed with him. The addition of the word “etc” embraced only other purposes of like character to those specifically named. [Doty v. Telephone Co., 123 Tenn. l. c. 340.] In pursuance of the authority thus given, defendant entered upon the sawmill and logging business in this State and prosecuted the same until 1897, when after a fire destroying the plant, it declined to rebuild, hut established a sawmill eighty miles distant in the State of Arkansas. It did not thereafter use any of the timber on the land owned in this State, as an adjunct of the sawmill in Arkansas, but shortly before the lapse of six years from the discontinuance of its business here, it conveyed all the lands to one of its stockholders (Gilchrist) to hold for all the stockholders in proportion to their shares in the corporation. The only reasonable view to take of this act is that the defendant thereby intended to do one of two things: first, to make a bona-fide transfer of the title to said lands, in compliance with the Constitution and laws of this State, or, second, to make a colorable transfer^ of the title to said lands for the purpose of evading the Constitution and laws of this State. Which of these two motives characterized the act in question is readily determinable from a consideration of the circumstances attending its performance. Before examining these specifically, it may be noted that the positions taken in the learned brief for defendant are somewhat inconsistent. According to one theory, defendant, in good faith, conveyed an indefeasible title in fee to Gilchrist in 1902. According to the other contention made in the brief, defendant claims the right to own the land in question under the broad provisions of its charter in Wisconsin, as shown by a belated copy filed March 28, 1911, after the bringing of this suit. It is only necessary to discuss the first of these propositions, the issues as to which were decided adversely to the defendant by the trial court; for if that judgment is upheld, it can make no difference as to its rectitude that defendant, after the bringing of the suit, sought to show (by subsequently filing its charter) a right to retain title to the lands in question contrary to the terms of its deed to Gilchrist. After a careful consideration of the testimony we cannot escape the conclusion that the learned trial court was correct in its findings as to the object and purpose of the deed from defendant to Gilchrist. We think the deed to Gilchrist was a pure pretense. It was made with seeming calculation just before the lapse of the six years after defendant retired from transaction of any and all business in this State. The title thus vested in Gilchrist purported to be subject ,to direction as to conveyance by him, which should be given by the stockholders as such, of the defendant corporation. These facts are susceptible of only one construction, which is that defendant recognized that its status in this State) after the cessation of its. business in 1897, as to its right to retain the land acquired here, fell within the provisions of the following clause of the Constitution of this State:

“No corporation shall engage in business other than that expressly authorized in its charter or the law under which it may have been or hereafter may be organized, nor shall it hold any real estate for any period longer than six years, except such as may be necessary and proper for carrying on its legitimate business.” [Constitution, art. 12, sec. 7.]

That this was a colorable conveyance by the defendant is further demonstrated by the fact that from the time- it was made until the present, it has kept on its books a separate account of the alleged Gilchrist trusteeship, which shows that all the taxes and disbursements on account therefor, have come from the coffers .of the corporation. This account shows in the aggregate some thirty-one thousand dollars,, with no evidence of interest charged, or closure. It also appears that the corporation claimed the right to receive the money for alleged trespasses on the land, after its deed to Gilchrist, though suits therefor were brought'in his name. The resolution under which the conveyance was directed authorized it to he made for the consideration of one dollar. There is no evidence of the record or production of the trust declaration on the part of Gilchrist until after this suit. The evidence does show by the testimony of its assistant secretary and treasurer, that the understanding was that defendant would eventually operate this timber and that Gilchrist knew of that intention on the part of defendant. It was further shown by the witnesses for defendant that none of the timber on the land in question was ever used in connection with the Arkansas sawmill. And it further appears that this land has lain in practical mortmain from the time of the deed to Gilchrist, one of the. mischiefs which the Constitution is designed to prevent. The lands in question, during the twenty-four years since its original purchase, have been held in practically a solid body and appear to have increased in value from fifty thousand dollars tó approximately a million. By the holding device adopted by defendant it has reaped the benefit of the exploitation and enhancement of value that has and must come to the lands in that portion of the State from the State systems of drainage and Government systems of levees which have b.een and will be established.

A careful consideration of this record has impressed us that the trial court was not only warranted by the undisputed testimony in the record in the imposition of a fine of only five thousand dollars,, but acted with leniency in thus limiting the fine for the misconduct of defendant. That judgment is not, however, to be held to preclude the State from proper proceedings hereafter (in case of further default of defendant) to cause a transfer of the title of the land in question so as to promote the complete alienability thereof contemplated by the Constitution.

The judgment of the trial court is affirmed. It is so ordered.

All concur, except Faris, J., not sitting.