text:
    SAMUEL H. COHEN and MAURICE H. COHEN, Appellants, v. JULIA HERBERT et al.
    Division Two,
    July 1, 1907.
    1. WILL: Joint Tenancy: Tenancy in Common. Under tbe statute and a will by which testator devised property in 1874 to his “said daughters, Julia and Victoria jointly,” they became tenants in common; and upon the death of Victoria without children and intestate her interest descended, not to Julia alone as the survivor, but to the brothers and sisters of Victoria in equal parts, her mother being dead.
    2. -: Probated in Another State: Record Here. Where a will executed In another State according to the laws of Missouri was probated and recorded in that State and an authenticated copy of such record was filed in this State in the county where the land is situated, a copy of this last record furnishes conclusive proof of the will.
    •3. -: Probate: Judicial Act. The judgment of probate by a court having probate jurisdiction is a judicial act, and is binding upon all the world until set aside in the manner and within the time prescribed by law, and cannot be attacked collaterally.
    4. -: -: -: Single Woman: Subsequent Marriage. The will of an unmarried woman, who subsequently marries, admitted to probate in New York and thereafter recorded in this State, cannot at any time be revoked by a suit in ejectment against the devisees, and can only be revoked by a direct suit to set the will aside brought within five years after it was filed for record in this State. Notwithstanding by the statutes, both of this State and of New York at the time of its execution, the will was revoked by her subsequent marriage, its probate in New York was a judicial act and a judgment of a court of competent jurisdiction, which could be set aside only by a direct suit brought for that purpose within the time prescribed by statute.
    Appeal from St. Loáis City Circuit Court; — Horn Jas. B. Kinealy, Judge.
    •Afpirmed.

      Herman A-. Haeus'sler and Harry H. Haeussler for appellants.
    (1) Appellants, at the death, of their sister Victoria, were each entitled to the one-eighth of the property in question. The will of the father gave to respondent Julia, and her sister Victoria, the property in common, and not as joint tenants, and so the court below held. Lemmons v. Reynolds, 170 Mo. 227; Rodney v. Landau, 104 Mo. 251; Davis v. Smith, 4 Har. (Del.) 68; sec. 4600, R. S. 1899, same as at date of will; 2 Wagner’s Stat., p. 1352, chap. 140', sec. 12. (2) The will of Victoria made and executed whilst a femóme sole was revoked hy her subsequent marriage to respondent Herbert, both under the laws of New York and Missouri. Sec. 4607, R. S. 1899, same as at date of will; 2 Wagner’s Stat. p. 1365, chap. 145, sec. 6; 4 N. Y. Rev. Stat. 1901, p. 4889, sec. 44; Brown v. Clark, 77 N. Y. 369; Matter of Davis E'st., 1 Tuck. (N. Y.) 107; Lathrop v. Dunlop, 14 Hun 213; Crum v. Sawyer, 132 111. 457; Duryea v. Duryea, 85 111. 41; Swan v. Hammond, 138 Mass. 45; Blodgett v. Moore, 141 Mass. 75. (3) The antenuptial marriage contract between Victoria and her husband, Richard Herbert, did not prevent the revocation of the will made by her prior to her marriage. Under the statutes a woman’s subsequent marriage revokes her prior will without regard to her intention. Hence, the fact that the will was made in contemplation of the marriage, and left the property to the intended husband, does not prevent its being revoked. Fransem’s Will, 26 Pa. St. 202; Walker v. Hall, 34 Pa. St. 488; Crum v. Sawyer, 132 111. 457; Duryea v. Duryea, 85 HI. 41; Am. Bd. of For. Mis. v. Nelson, 72 111. 564. (4) A will to be of any validity as a transfer of title to land, must be a valid will under the laws of the State where the land is located, and must be executed, attested and probated in the manner prescribed by the law of the State where the land is located. Keith v. Keith, 97 Mo. 223; sec. 4634, R. S. 1899; Cabanne v. Skinker, 56 Mo. 357; Richardson v. De-Giverville, 107 Mo. 433; Graven v. Allen, 100 Mo. 293. (5) The taking by appellants of the deed of trust executed July 31, 1876, by respondent, Julia Herbert, did not estop appellants from claiming an interest in the property and disputing respondent’s sole ownership; for the truth would appear from the reading of the entire deed, and Julia Herbert neitlier acted upon nor altered her situation because of same. Rosencranz v. Dry Goods Co., 175 Mo. 518; Harrison v. Reynolds, 183 Mo. 533; Perldnson v. Hóolan, 182 Mo. 189; Knox v. Railroad, 58 Hun 517; Nicoll v. Burke, 45 Super. Ct. 526; Bowers v. Smith, 8 N. Y. Supp. 226.

      Rowell & Zumbalen for respondents.
    (1) (a) The judgment of a court of competent jurisdiction, admitting to prohate the will of a married woman made while she was single, is, until set aside and annulled in the manner provided hy law, a conclusive adjudication that the instrument is the valid and unrevoked will of the testatrix, binding upon all the world. 1 Woerner, Am. Law of Administration (2 Ed.), sec. 277; In re Broderick’s Will, 21 Wall. (U. S.) 503; Simmons v. Saul, 138 IT. S. 439 ; Jourdan v. Meier, 31 Mo.'40; Dillworth v. Rice, 48 Mo. 124; Poplin v. Hawke, 8 N. H. 124; Parker v. Parker, 11 Cush. (Mass.) 519; Cochran v. Young, 104 Pa. St. 334; Wilson v. Donnelly, 119 Ind. 565; Bowman v. Allen, 113 HI. .53; Chicago T. & T. Co. v. Brown, 183 111. 420. (b) Such a will, executed, attested and proved in another State, in accordance with the requirements of the statute of Missouri, concerning the execution, attestation and probate of wills, has, when an authenticated copy thereof, and of its probate have been filed in the recorder’s office of the county in Missouri where the land lies, the force and effect of a proved domestic will, and will pass title to the land here, unless set aside in a direct proceeding. G. S. 1865, p. 528, sec. 3, p. 529, sec. 20, p. 530, sees. 33, 34, 29, 35; Applegate v. Smith, 31' Mo. 166; Keith v. Keith, 97 Mo. 223; Fenderson v. Missouri Tie & T. Co., 104 Mo. App. 290; Cold Storage Co. v. Winsor, 148 Ind. 682. (c) A will made by an unmarried woman in contemplation of marriage and in pursuance of a power to dispose of property reserved to her in an ante-nuptial contract, operates as the execution of a power of appointment, not as a testamentary disposition of an estate, and hence is not affected by her subsequent marriage. 2 Jarman on Wills, 129; Fellows v. Allen, 60 N. H. 439; Webb v. Jones, 36 N. J. Eq. 163; Noyes v. Southworth, 55 Mich. 359; Hunt’s Will, 81 Me. 275; McMahon v. Allen, 4 E. D. Smith (N. T.) 552; Lant’s Appeal, 95 Pa. St. 279; Osgood v. Bliss, 141 Mass. 474; Hudnall v. Ham, 183 111. 486; Stewart v. Mulholland, 88 Ky. 38. (2) Appellants are estopped to claim that the will of their sister was revoked by her subsequent marriage, by reason of the fact that they elected to claim under the will and have received the legacies therein given them. Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287; 1 Woemer’s Am. Law of Adm. (2 Ed.) marg. p. 500; Utermehle v. Norment, 197 U. S. 40; Branson v. Watkins, 96 Ga. 55; Fry v. Morrison, 159 111. 244; Madison v. Larmon, 170 111. 65; Drake v. Wild, 70 Vt. 52; Fisher v. Boyce, 81 Md. 46. (3) Appellants are estopped to assert any ownership to the property by their solemn recognition of Julia Herbert’s ownership of the whole title contained in the deed of trust to which they are parties. Clamorgan v. Greene, 32 Mo. 285; Stevenson v. Saline County, 65 Mo. 425; Freeman v. Auld, 44 N. Y. 50; Rossell v. Wickham, 36 Barb. 386; Williams v. Swetland, 10 Iowa 51; Todd v. Eighmie, 38 N. Y. Supp. 304; Wileoxen v. Osborne, 77 Mo. 621; Stimson v. Bank, 28 Mo. 259; Smith McCord D. G. Co. v. Farwell Co., 50 Pac. 149 ; Railroad v. Donovan, 104.Tenn. 465; Tack Co. v. Bank, 111 Ga. 703; Wedge v. Moore, 6 Cush. (Mass.) 8. (4) Defendant Julia Herbert has been in open-, notorious, exclusive, continuous adverse possession of the property since 1876, claiming title to the whole, and appellants are therefore barred by the Statute of Limitations. Warfield v. Lindell, 30 Mo. 286, 38 Mo. 580; Dunlap v. Griffith, 146 Mo. 283; Hutson v. Hutson, 139 Mo. 229; Hendricks v. Musgrove, 183 Mo. 300; Clymers v. Dawkins, 3 How (H. S.) 690; Clark v. Courtney, 5 Peters (U. S.) 354; Brown v. Brown, 14 Lea (Tenn.) 253; Rogers v. Winton, 2 Humph. 122; Knowles v. Brown, 69 Iowa 11; Thornton v. Bank, 45 Me. 176; McCann v. Welch, 106 Wis. 142; Unger v. Mooney, 63 Cal. 586.
   GANTT, J.

This is an action in ejectment to recover two-eighths of the premises known as number 305 North Broadway, in the city of St. Louis, Missouri, being a lot of twenty-nine feet on the west side of Broadway, by a depth of one hundred and two feet, the south line thereof being twenty-eight feet north of Olive street, and for partition thereof between the parties. The parties in interest are all the surviving children of Hyam H. Cohen, deceased, .under whom they all claim.

The first count is in the ordinary form for ejectment.

The second count alleges that the plaintiffs and defendants Julia Herbert and Elizabeth Henriques are owners in common of said premises, the plaintiffs and Elizabeth Henriques each owning one-eighth thereof, and defendant Julia Herbert owning five-eighths thereof; that defendant Richard J. Herbert is the husband of Julia Herbert, and defendant Peter Oakes the tenant in possession under a lease from Julia Herbert; that Julia Herbert’s interest is subject to a deed of trust securing two notes for nine thousand dollars each, one of them being payable to each of the plaintiffs; that Hyam H. Cohen, the father of plaintiffs and of defendants Julia Herbert and Elizabeth Henriques, died owning said premises on May 10, 1874, and by his will devised the same to defendant Julia Plerbert, and her sister Victoria Cohen; that said Victoria died intestate on May 7, 1876, leaving, as her sole heirs at law, the plaintiffs and the defendants Julia and Elizabeth; that defendant Julia has, ever since her sister’s death, collected the rents and income and has failed and refused to account to plaintiffs for their portions of the same; and prays for partition and an order of sale.

Defendant Elizabeth Henriques made default.

The answer of defendant Oakes admits his possession of the premises as tenant of Julia Herbert, and denies all other allegations of the petition.

The answer of Julia and Richard J. Herbert admits that they are husband and wife, admits the tenancy of Oakes under said Julia, and denies all other allegations of the first count of the petition. It admits that Hyam H. Cohen, father of the parties, died seized of the premises on May 10,1874; admits that said Julia has, since her sister Victoria’s death, collected the rents, and denies all other allegations of the second count of the petition. Said answer then sets up the following defenses of new matter, viz.:

“1. That said Hyam H. Cohen by his will, duly admitted to probate, devised said premises to his daughters Julia and Victoria, as joint tenants, and that upon the death of the said Victoria, defendant Julia Herbert acquired the whole of said property by right of survivorship.

“2. That said Victoria Cohen by her will, duly admitted to probate in the State of New York, by a court having jurisdiction of the subject-matter and the parties, an authenticated copy of said will and the- probate thereof having been duly filed in the recorder’s office of St. Louis county, Missouri, devised whatever interest she had in said property to defendant Julia Herbert, and bequeathed to each of the plaintiffs, Samuel H. and Maurice H. Cohen, one-third of the proceeds of the sale of all her bonds, stocks and property, and that said Samuel H. Gohen and Maurice H. Cohen each received and took the interest given to them by said will.

“3. That, on February 19l, 1875', Victoria Cohen entered into an ante-nuptial contract with Richard J. Herbert, whereby she conveyed her interest in said premises to Samuel Cohen in trust for her sole and separate use and benefit, free from all rights of her intended husband, and for such other uses as she might from time to time appoint, with power to said Victoria to devise the same or any part thereof by her last will; that on February 23, 1875, said Victoria exercised said power of appointment so reserved, by appointing her interest in said premises to defendant, Julia Herbert, in and by her last will and testament.

“4. That plaintiffs are estopped to claim any interest in said premises, other than as mortgagees in a certain deed of trust dated July 31,1876, made by Julia Herbert to secure a loan from each of the plaintiffs; that by said deed of trust, which was signed by plaintiffs as cestuis que trust, they acknowledged Julia Herbert to be the sole owner of the said premises, and acknowledged that the same had been devised to said Julia and Victoria Cohen as joint tenants, and that defendant Julia Herbert, relying upon plaintiffs’ acknowledgment of her sole ownership, afterwards spent large sums of money in improving said property.

5. That defendant Julia Herbert now is, and for more than twenty-five years past has been, in actual, open, notorious, exclusive and adverse possession of the said premises, claiming title to the whole thereof.”

The reply denied all the new matter set up in the answer.

A jury was waived and trial had before the Hon. James B. Kinealy. The plaintiffs offered in evidence the will of Hyam H. Cohen, which was‘duly admitted to probate in the city of New York July 27, 1874, and an authenticated copy thereof and of its probate filed in the office of the recorder of deeds of the city (then county) of St. Louis, Missouri, on September 1, 1874.

By said will, the testator devised the property in suit to his “said daughters Julia and Victoria jointly,” and he also gave to said Julia and Victoria five twenty-second parts jointly, and his daughter Elizabeth, eight twenty-seconds, his son Samuel four twenty-seconds, and Maurice five twenty-seconds of the proceeds of the sale of his other lands, houses, bonds and stocks.

It appears that Victoria Cohen married E. J. Herbert, February 24,1875, and died on May 7,1876, leaving neither children nor mother nor father surviving her. She was survived by her two brothers, the plaintiffs, and her two sisters, Julia and Elizabeth. On November 14, 1877, the defendant Julia married Eichard J. Herbert. At the time of her death, Mrs. Victoria Herbert lived in New York, and left a last will and testament which she had executed on February 23, 1875, the day before her marriage to E. J. Herbert was solemnized. After her death, this will was duly probated in New York and in it the plaintiff Samuel H. Cohen was named as one of the executors and he qualified and acted as such, and the plaintiff Samuel H. and Maurice Cohen each took and received one-third of the said Victoria Herbert’s residuary estate as legatees under her said will, besides specific legacies of plate and jewelry. By the said will Mrs. Victoria Herbert devised her interest in the property in question to her sister Julia, and gave one-third of the proceeds of the sale of all her bonds, stock, etc., to her brother Samuel H. Cohen, and one-third to' her brother Maurice H. Cohen, and named her brother Samuel H. Cohen and Eichard J. Herbert as her executors in New York. On July 31, 1876, the defendant Julia Cohen, now Herbert, borrowed from each of the plaintiffs the sum of nine thousand dollars and executed and delivered to them as security for the same a deed of trust covering the whole of the property in question; since that time she had regularly paid to the plaintiffs the interest on the loan secured by said deed of trust. The principal of said loan was used by Julia Cohen in the erection of a five-story building upon the lot in suit. The defendant Samuel H. Cohen attended to the erection of this new hnilding for her. It was finished in 1877, and sometime afterwards was destroyed by fire. The defendant R. J. Herbert collected the insurance upon this property for his wife Julia, and she used' the insurance money in rebuilding the premises. It also appears that Victoria Cohen and her intended husband R. J. Herbert, on February 19, 1875, entered into a marriage contract properly signed and acknowledged by them and recorded in the recorder’s office in the then county Ci of St. Louis on March 3, 1875. By this contract, Victoria» Cohen conveyed to Samuel H. Cohen, as trustee, her undivided one-half interest in the property in' suit for the sole and separate use and benefit of the said Victoria free from all rights of her intended husband and for such other use as she might thereafter appoint by last will or otherwise.

The decree of the surrogate’s court of New York shows that said will was offered for probate by Samuel H. Cohen, one of the executors named therein; that on said application the surrogate court did ascertain by satisfactory evidence who were the husband and only heirs and next of kin of the deceased and their respective residences and did thereupon issué a citation to said husband, heirs and next of kin requiring them to appear and attend the probate of said will on May 25, 1876; that satisfactory proof was made of the service of said citation in the mode prescribed by law • that no one appeared to .oppose the probate of the will, whereupon the surrogate took the proof of said will, and, on May 26, 1876, adjudged and decreed “that the instrument offered for probate in this matter is the last will and testament of the said testatrix, and as such is valid as a will of real and personal estate, and the same is hereby admitted to probate as a will of real and personal estate. ’ ’ This will was executed in accordance with, the requirements of the laws of Missouri, and probated in conformity to the requirements of statutes of this State. It further appeared that R. J. Herbert and Samuel H. Cohen administered the personal estate, and paid the legacies given by her said will to the legatees named therein, and made their report and settlements to the surrogate’s court of New York, October 24, 1878. The . deed of trust of July 31, 1876, given by Julia Cohen to secure the plaintiffs the repayment of the eighteen thousand dollars she borrowed from them, covered the whole property in question and contained the following recital: “Being the same property acquired by Hyam H. Cohen, father of the first party, by deed recorded in the recorder’s office of the county of St. Louis in book number 182, page 140, and by him devised to the first party and her sister Victoria, now deceased, and the survivors of them, as may be seen by the will of the said Hyam H. Cohen and Victoria Herbert, duly filed and recorded in the probate court of the said St. Louis county.” This deed of trust contained the statutory covenants of warranty and seizin, and was signed, sealed and acknowledged by both Samuel H. Cohen and Maurice H. Cohen, and recorded in St. Louis county on August 31, 1876.

Julia Herbert testified that she had been in the ■sole possession of this property from the death of her sister down to the present time, receiving all the rents and income therefrom and paying all the taxes and repairs; that she and her sister Victoria came into the possession of the property in July, 1874; that at the time of Victoria’s death they were intending to tear down the old building and erect upon the property a five-story, iron and stone business building; that immediately after Victoria’s death, she (Julia) proceeded to cairy out this plan and sent her brother Samuel out here from New York to make arrangements for the building; that she borrowed the eighteen thousand dollars secured by deed of trust, from her brothers, for the purpose of putting up a new building, and that it was used by her for that purpose; that the new building was completed in the spring of 1877, and she placed it in the hands of J. E. Kaime & Brother, to rent for her; that said building was destroyed by fire on. December 17,1878, whereupon she sent her husband., R. J. Herbert, to collect the insurance money and make arrangements for rebuilding it; that she collected fifteen thousand dollars insurance, which was all put into the new building, together with five or six thousand dollars additional money advanced by her; that her brothers Samuel and Maurice never made any claim to any ownership in this property until shortly before the institution of this suit, in the fall of 1902; that in 1902, she was making arrangements to pay oft the deed of trust held by her brothers, by borrowing the money from another source; that, to make this new loan, it became necessary to have the title examined; that the title examiner reported certain objections to her title, based upon the wills of Hyam H. Cohen and Victoria Cohen, and that for the purpose of removing such .objection she requested her brothers and sister Elizabeth to execute to her a quitclaim deed and they then, for the first time, claimed an interest in said property.

David F. Kaime testified that Mrs. Julia Herbert ' placed the property in his hands in the spring of 1877, and he has had charge of it ever since for her; that he collected the rents, paid the taxes and made repairs, and has remitted the balance to Mrs. Herbert; that during the whole of that time, the property has been assessed in the name of Mrs. Julia Herbert; that he occasionally met Samuel and Maurice Cohen during the years he has had charge of the property, and on such occasions they would speak to him about the property, referring to it as “our sister Julia’s property on Broadway.” That neither of them claimed to him to own an interest therein until shortly before the bringing of this suit; that in the summer of 1902, he had the title investigated for the purpose of making a new loan on the property for Mrs. Herbert and the investigator reported the title defective and in- consequence of such report, witness advised Mrs. Herbert to get her brothers and her sister to make her a quitclaim deed.

The defendants'offered in evidence certain sections of the statutes of New York, the first of which defines the surrogate court to he a court of record, the second defines the jurisdiction of a surrogate as follows: “First, to take the proof of wills; to admit wills to probate. Second, to grant and revoke letters testamentary. ' Third, to direct and control the conduct and settle the accounts of executors. Fourth, to enforce the payment of debts and 'legacies and to distribute the estate of the deceased.” The third section provides that a will executed by an unmarried woman should be deemed revoked by her subsequent marriage.

The court gave and refused certain declarations of law, which will be noticed in the course of the opinion. The court found the issues in favor of the defendants and rendered judgment for the defendants on both counts of the petition. From this judgment, the plaintiffs have prosecuted this appeal.

I. As to the first proposition advanced by the plaintiffs, to-wit, that by the will of Hyam H. Cohen, his daughters Julia and Victoria became tenants in common of the property in controversy, and that upon the death of Victoria without children and intestate, if the court should find from the evidence that she did die intestate as to said property, then one-half of said premises descended to the brothers and sisters of Victoria in equal parts, there is no controversy, as our statute, section 4600, Revised Statutes 1899', which was the same at the time of the execution of the will of Hyam H. Cohen, provides: “Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy. ” [Rodney v. Landau, 104 Mo. 251; Lemmons v. Reynolds, 170 Mo. 227.]

II. The decisive question in this cause is, did Victoria Cohen Herbert die intestate as to the real estate in controversy herein? That she made a will which was executed, attested and probated in the surrogate’s court of New York county in the State of New York, in the manner prescribed by the laws of Missouri, at that time, General Statutes of Missouri, 1865, page 528, section 8, and page 520, section 20, is conceded, or at least fully appears by the evidence in the cause. And that a copy of said will and of the judgment admitting it to probate properly authenticated according to the Act of Congress, was recorded in the recorder’s office of the then county of St. Louis, on June 6, 1876; as required by section 34, General Statutes 1865, page 530, also appears. The statute of this State in force at that time, sections 33 and 34, page 530, General Statutes 1865, as at present, dispensed with the probate anew in this State of wills admitted to probate in another State, provided they were executed, attested and proved in the manner required by our laws. And in lieu of probate anew in this State provided the “authenticated copies of such wills and the probate thereof, shall be recorded in the same manner as wills executed "and proved'in this State, and shall be admitted in evidence in the same manner and with like effect. ” Accordingly, it has been ruled that where a will executed in another State according to the laws of Missouri had been probate'd and recorded in the former State and an authenticated copy of such record was filed in the county where the land was situated in this State a copy of this last record furnished conclusive proof of the will. [Applegate v. Smith, 31 Mo. 166; Keith v. Keith, 97 Mo. 223; and Fenderson v. Missouri Tie & Timber Co., 104 Mo. App. 290.] And it is the uniform ruling of this court that when a will has been probated in the court having probate jurisdiction, the judgment of probate is a judicial act and like any other judgment of the court of competent jurisdiction, it stands as a judgment binding upon all the world until set aside in the mode and within the time allowed by our law, and its validity as a will cannot be attacked collaterally. [Jourden v. Meier, 31 Mo. 40; Dilworth v. Rice, 48 Mo. 124; 1 Woerner, Law of Administration (2 Ed.), sec. 145; In re Broderick’s Will, 21 Wall: (U. S.) 503.]

But the plaintiffs contend that both by the laws of New York and of this State at the time of the execution of her will by Victoria Cohen said will was revoked by her subsequent marriage to the defendant Richard J. Herbert. [G. S. 1865, p. 528, sec. 6, now sec. 4607, R. S. 1899; 2 Wagner’s Stat. 1872, p. 1365, sec. 6; R. S. New York, 1901, vol. 4, p. 4889, see. 44; 2 R. S. N. Y. 64, sec. 44.] The learned counsel for the plaintiffs have cited us to various decisions of the New York courts, notably Brown, v. Clark, 77 N. Y. 369; Matter of Davis’s Estate, 1 Tucker’s Surrogate Rep. (N. Y.) 107, and Lathrop v. Dunlop, 4 Hun 213, to establish the proposition that the subsequent marriage of Victoria Cohen revoked her will. Now as to these cases Brown v. Clark was an appeal from the order of the Supreme Court reversing a decree of the surrogate, which had denied probate to an instrument presented as the last will and testament of Mary J. Clark Proctor, deceased. Mary J. Clark executed said instrument as her last will on August 25, 1873; subsequently she married Mr. Proctor. After her marriage and on December 7, 1876, she executed a codicil. She died October 1,1877. The surrogate court held that the will was revoked by the subsequent marriage of the, testatrix and in this, opinion the Court of Appeals concurred, both on the ground that by the common law, the marriage of a woman operated as an absolute revocation of her prior will (Forse and Hembling’s case, 4 Coke 61; Hodsden v. Lloyd, 2 Bro. Ch. 534, and 2 R. S. N. Y. 64, sec. 44), and that the testamentary capacity conferred upon married women by the statute of that State did not repeal either the common, law or the statute providing that the marriage of a femme sole revoked her will. It will be observed that the question arose on a direct application to probate the will and not as to the effect of a probate. To the same effect is the case of Davis’s Estate in First Tucker. In that ease the will was adjudged revoked by the surrogate court pending the proceedings in that court and as soon as the fact of the subsequent marriage was made to appear. Lathrop v. Dunlop, 4 Hun 213, was an appeal from a decision of the surrogate court refusing to admit to probate the will of Mrs. Jessie Dunlop Empson. It appears that Miss Dunlop duly executed her will and afterwards married and about two months after her marriage died. Her will was presented for probate and refused on the ground of subsequent marriage, so that the case in principle is like unto Brown v. Clark, supra.

To the same effect is Swan v. Hammond, 138 Mass. 45, which was a direct appeal from the probate court admitting a will made by a single woman who had subsequently married, to probate. The court held that the subsequent marriage was a revocation. And so also was the case of Blodgett v. Moore, 141 Mass. 75. The case of Crum v. Sawyer, 132 Ill. 457, was a bilk in equity brought by the surviving husband of Mrs. Crum to enforce a contract made between a husband and wife during coverture. It appears that the wife prior to her marriage had executed a will and a codicil and it was held that the subsequent marriage revoked and annulled her will. But there was no probate of the said will and hence the question now before us was not involved in that case, so that, we recur to the original proposition, what was the effect of the judgment of the surrogate court of New York county admitting to probate the will of Mrs. Victoria Cohen Herbert, notwithstanding the law of Missouri at that time provided that the subsequent marriage of a single woman would revoke her will made prior to her marriage? We have already seen that by the laws of this State the judgment of a probate court admitting a will to probate has the full force and effect of a judgment of any other court of competent jurisdiction and the will of the testator or testatrix stands as his or her will until set aside in the mode and within the time allowed by law and its validity as a will cannot be attacked collaterally. That the will might have been successfully attacked when it was offered for probate in the surrogate court cannot avail the plaintiffs at this time, unless the rule forbidding a collateral attack upon a judgment of a court of competent jurisdiction is entirely disregarded.

The question is not a new one in other jurisdictions in this country. Thus in Poplin v. Hawke, 8 N. H. 124, the court said: “The first question is whether M. Thom took anything under the last wills of Abigail Braves and Betty Thom. These wills were made during the lives of their husbands; and it has been settled in this State . . . that a married woman has no power to devise lands by will. If, then, the question was on the allowance of the wills of Abigail Braves and Betty Thom, it must be held that they had not power to devise, and the instruments be rejected. But both these wills have been allowed and proved in the probate court. The decrees of allowance stand unreversed, and those interested in the estate have taken no appeal. . . . The statute of 1793 did-not declare, in express terms, the effect of a decree of the probate court, allowing and approving-of a will purporting to contain, a devise of real estate. But, from the provisions of the act, it is not doubted that it was intended the decree, unless appealed from, should be conclusive in passing the title of the estate, according to the provisions of the will, and bind all persons interested. The construction of those provisions may come up incidentally in suits at law, but the power and capacity of devising by any person seized; the sanity of the testator; the due attestation, and all questions relating to the validity of the will itself, are proper subjects of adjudication, upon the hearing, when the will is presented for probate. This • must necessarily be the case.”

In Parker v. Parker, 11 Cush. (Mass.) 519, it appeared that the will was made in New Hampshire by a married woman, admitted to probate there, and a copy of the will and such probate recorded in Massachusetts, as provided by. statute of the latter State. Under the law of both said States, a married woman had no capacity to make a will. Held: That the New Hampshire probaté, filed and recorded in Massachusetts where the land was, unappealed from and unreversed, was final- and conclusive upon the heirs of the testatrix, and that they could not deny the legal capacity of the testatrix to make such a will.

In Cochran v. Young, 104 Pa. St. 334, it áppeared that a will devising real estate was duly admitted- to probate on September 5, 1862. On February 11, 1881, a codicil óf á later date disposing of the same property in a different manner, was admittéd to probate-. An action of ejectment was brought by the devisee under the codicil against the grantee of the original devisee under the first probate. Held: the probate of the original will, not having been contested within five years as allowed by statute, was conclusive upon all parties and was not revoked by the subsequent pro-' bate of the codicil. The court said: “We are bound to accept, the will of October 22, 1861, as the testator’s last will and testament; its validity cannot now be questioned as to the realty devised under it. We have no right to assume that the paper of June 18, 1862, was his last will, simply because it bears a later date than the former; the presumption is otherwise, and that presumption is now conclusive.” .

In Winslow v. Donnelly, 119 Ind. 565, the court said: “The appellants seek a decree quieting title, and allege in their complaint that their title is clouded by a devise to the appellee. They aver that the will containing the devise was procured by the fraud of the devisee. . . . The complaint also alleges that the will ‘was duly admitted to probate in the district court of Cedar county, Iowa, and a duly authenticated copy of said will, and the probate thereof, had been filed and recorded, under the provisions of the statute of this State, in Parker county.’ The trial court did not err in sustaining the demurrer to the complaint. The judgment of the district court of Cedar county, Iowa, precludes the appellant from attacking the will in an action to quiet title.”

In Bowen v. Allen, 113 Ill. 53, the action was ejectment. The plaintiff offered in evidence the will of Ann Quinn, admitted to probate by the Marion County Probate Court, which judgment was affirmed on appeal to the circuit court. It was shown that the will was made while she was unmarried, and that she subsequently married. Under the Ulinois law the subsequent marriage operated as a revocation of the will. The court said: “It is also urged that the marriage of testatrix after its execution revoked the will. This is concluded by the judgment of the circuit court, establishing and admitting the will to probate. This was a question to be considered in that case, and no doubt was. The question tried there was, whether it was the will of testatrix, and after hearing the evidence, on the trial, it was found that it was, and that finding must stand until the judgment is reversed or otherwise annulled by some regular proceeding had for the purpose. As long as it stands unreversed and unimpeached, it imports verity in all collateral proceedings. We must, therefore, receive and act upon it as the last will of testatrix.”

In Cold Storage Co. v. Winsor, 148 Ind. 682, under a statute in terms very much like section 35, page 530, General Statutes of Missouri, 1865, it was held that where the will of a married woman had been admitted to probate in New York, and a copy thereof and of its probate filed in Indiana where the land was situated, such will could be contested in the latter State within three years of the filing thereof, on the ground that the will was, under the Indiana statute, revoked by the subsequent birth of issue to the testatrix.

Under the General Statutes of 1865, sections 29 to 35, page 530, the plaintiffs in this case might have contested the will of Victoria Cohen Herbert within five years after said will was filed for record in this State, upon the ground on which they now seek to avoid its force and effect. But having failed to avail themselves of the remedy in the mode and within, the time provided by our laws, the will of Victoria Cohen by which her interest in the real estate in suit in this case was devised to the defendant Julia Herbert, must be given full force and effect and held to have passed her undivided interest therein to her sister Julia, as has been recently held by this court in. Stevens v. Oliver, 200 Mo. 492; reaffirming Jourden v. Meier, 31 Mo. 40; Stowe v. Stowe, 140 Mo. 594; and Stevens v. Larwill, 110 Mo. App. 140, wherein it was said: “The suit for partition cannot be regarded as a contest of the will. The will was duly probated and can be contested only by a proceeding in the manner required by sections 4622 and 4636, Revised Statutes 1899.” It goes without saying that the count in ejectment herein is also a collateral attack upon the judgment of the surrogate court which was duly filed and recorded in the office of the recorder of deeds of the city (then county) of St. Louis, on June 6, 1876. Accordingly it must be ruled that the. circuit court committed no error in refusing the second instruction requested by the plaintiffs.

The learned counsel on both sides have discussed other interesting propositions in this case, to-wit: whether the plaintiffs are not estopped by reason of their having received and taken their share of their sister Victoria’s estate under the laws of the State of New York, and by their conduct in having loaned their said sister Julia $18,000 on this property -and taken her deed of trust conveying the whole of the same to secure the said loan. Counsel on both sides have also discussed whether the Statute of Limitations has or has not barred the right of the plaintiffs to recover in this case, and whether the possession of the said Julia Herbert has or has not been adverse to plaintiffs’ rights: And on the part of the defendants there is an able and learned discussion as to whether or not the will of the said Victoria, although not good as a will, may not be held a valid execution of the power of appointment reserved to her in her ante-nuptial contract with R. J. Herbert. We have considered the briefs on these points, but inasmuch as we have reached the conclusion that the judgment of the surrogate court of the county of New York probating the will of Victoria Cohen and the subsequent filing of the same and the probate thereof in the office of the recorder of deeds of St. Louis county and the failure of the plaintiffs to contest that will within five years after its recording in St. Lonis .county, conclusively established the title of Julia Cohen Herbert to the undivided one-half of the property in question, we deem -it entirely unnecessary to decide the propositions so ably discussed by- the respective counsel. The judgment of the circuit court must be and is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    JULIUS VOGELER, Administrator of LOUIS L. SOLOMAN, Appellant, v. MONTAGUE PUNCH, Respondent, and COPPER CROWN MINING COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. EQUITY: Finding of Facts. While the finding of facts by the trial court in an injunction case is -not binding upon the appellate court, yet if it fairly and, for all the. purposes of the appeal, substantially states the material facts disclosed at the trial, it may be adopted by tíie appellate court.
    2. CORPORATION: Stock: Unlawful Issue. Where the stock of a corporation is issued as full paid and non-assessable, for money, property or labor grossly disproportionate in value to the par value of the stock, such issuance of stock is unlawful as against creditors and stockholders not consenting thereto.
    3. -: -: Paid for In Labor. Stock in a business corporation may be paid for by services rendered.
    4. -: Power to Contract. A corporation, unless prohibited by statute, has the general capacity of contracting which the common law concedes to every one ordinarily competent to enter into binding engagements.
    5. -: Stock: Payment. The courts will treat that as payment for stock of a corporation which the parties agreed should be payment.
    6. -: Lawyer: Services to Be Paid for in Stock. Some months before the incorporation of a copper mining company, afterwards capitalized for two million five hundred thousand dollars, defendant an attorney, was employed by the company’s secretary, with the consent of its president, who were the chief parties in interest, to draw the papers and do the work preliminary to the incorporation, and to continue for one year to act as legal adviser, with the understanding that he was to receive as compensation two thousand shares of the company’s stock, of the par value of twenty-five dollars each, to be issued as full paid and non-assessable. He did this preliminary work, revamped by-laws prepared by the company’s counsel in Michigan, where the company was incorporated, attended * directors’ . meetings and acted as legal adviser for several months after the incorporation, and then his further services were refused. With the knowledge of all the directors, two certificates of stock, of one thousand shares each,' were issued and delivered to him, and one he sold, and the company issued to the buyer in lieu thereof sixteen certificates aggregating one thousand shares. The stock never had any market value within the legal meaning of the term, but some of it sold about the time of the incorporation of the company for seven dollars and at about the time the stock was issued to defendant it could not have been sold for more than two dollars and fifty cents. Held, that the services, rendered by defendant to • the corporation, after he had subscribed for the stock, were a good consideration in payment therefor, being in accordance with the agreement to that effect, and were not disproportionate in value to the par value of the stock received by him, and the stock still held by him should not be cancelled.
    7. -: -: Confidential Relation: No Consideration Paid: Parties to Suit: Pleading. If a promoter of a corporation, or other person standing in a confidential relation to it, procure the issuance of stock to himself, without consideration, such stock is fictitious and void, and may be cancelled by a court of equity. But usually such suit must be brought by the corporation itself, and in the absence of a charge of fraud or collusion it will be presumed that the directors acted for the best interests of the company. Before a single stockholder can maintain such a suit, he must allege and prove that the corporation had refused.to sue, or that the defendant was in control of the company.
    8. -: -: Cancellation: Suit By Stockholder: Pleading. An allegation in the petition, in a suit brought by a stockholder to have cancelled stock issued to defendant, that plaintiff “has endeavored unsuccessfully by application to the company to secure relief and protection from the wrongs and against the dangers mentioned” therein, is no better than no allegation, for it is a mere averment of a legal conclusion. The law requires that the efforts to induce such action on the part of the company or directors, and the cause of the failure of the stockholder’s efforts, should he stated with particularity.
    9. -: -: -: -: -: Cross-Bill By Company. And a cross-hill filed by the company, to which the defendant appeared, which charges no fraud, does not state a cause of action for cancelling stock issued and delivered to defendant.
    Appeal from St. Louis City Circuit Court. — Now. O'Neil By cm, Judge.
    Affirmed.

      Collins S Chappell and Brownrigg & Mason for appellants.
    The court erred in holding that Punch became on January 12,1903, and continues to be the lawful owner and holder of certificate No. 35 for one thousand shares of the capital stock of said company, and in refusing the prayer of said petition and cross-complaint for the cancellation of said stock, because: (1) Where the stock of a corporation is issued as full paid and non-assessable, for money, property or labor, grossly disproportionate in value to the par value of the stock, such issuance of stock is unlawful. Garrett v. Mining Co., 113 Mo. 339 ; Van Cleve v. Berkey, 143 Mo. 136; McClure v. Paducah Iron Co., 90 Mo. App. 567; Shields v. Hobart, 172 Mo. 491; Rumsey Mfg. Co. v. Kaime, 173 Mo. 551; Dynamite Co. v. Andrews, 97 Mich. 471; Bank v. Stove Polish Co., 105 Mich. 538; 2 Thompson on Private Corporations, secs. 1562, 2048; Morawetz on Private Corporations, secs. 87, 303-306; Chubb v. Upton, 95 U. S. 665; Upton v. Triblicock, 91 U. S. 45; Fisk v. Railroad, 53 Barb. 515; 10 Cyc. 767. (2) If a promo-tor or director of a company or other person standing in confidential relation to it procure the issuance to himself of stock of the corporation without consideration, such stock is fictitious aud void, and may be can-celled by a court of equity in a suit at the instance either of the corporation itself or of a stockholder. South Joplin, .etc., Co. v. Case, 104 Mo. 572; Ester v. Sawyer, 146 Mo. 302; Garrett v. Mining Co., 113 Mo. 330; Morawetz on Corporations, see. 286; Campbell v. Morgan, 4 111. App. 100; Wood v. Union, etc., Association, 63 Wis. 9; Railroad v. Schuyler, 17 N. Y. 592; Fisk v. Railroad, 53 Barb. 514; Chandler v. Bacon, 30 Fed. 538; Railroad v. Bank, 22 Weekly Law Bulletin, 248. (3) Contracts which promoters of a corporation assume to make on its behalf before it comes into existence are not binding upon, the corporation unless ratified by the corporation itself with full knowledge of all the facts. Hill v. Gould, 129 Mo. 116; Pitts v. Steel Mercantile Co., 75 Mo. App. 231; Davis and Rankin v. Creamery Ass’n, 63 Mo. App. 481. (4) A corporation • cannot be charged with knowledge of any of its officers or agents with respect to a matter in which, prior to its incorporation, they participated in a scheme to perpetrate a fraud upon it. Bank v. Lovett, 114 Mo. 519; Johnson v. Shortridge, 93 Mo. 227. (5) Even if the company could be held to have ratified this contract, the contract being ultra vires, the company would not be estopped to repudiate it unless the contract had been fully performed and unless its repudiation would operate as a fraud. Bowman Dairy Co. v. Mooney, 41 Mo. App. 665; St. Louis Mfg. Co. v. Hilbert, 24 Mo-. App. 343; Gray v. Gray, 83 Mo. 106; St. Louis v. Schulenberg, etc., Co., 98 Mo. 613.

      T. J. Rotue for respondent.
    (1) (a) The general rule is that the stockholders of a corporation have no' right to maintain or defend actions for or against a corporation. This duty the law devolves on the directors as the trustees and agents of a corporation, and in the absence of a charge of fraud or collusion, it will be presumed that the directors are acting for the best interests of the corporation, and the suit must be brought by the corporation itself, and not by' the stockholders. The stockholder must have exhausted all the means within his reach to obtain redress within the corporation itself. Albers v. Merchants’ Exchange of St. Louis, 45 Mo. App. 218; Meyer v. Bristol Hotel Co., 163 Mo. 59; Loomis v. Railroad, 165 Mo. 469; Hawes v. Oakland, 102 U. S. 450'; Ready v. Smith, 170' Mo. 172; Dimpfell v. Railroad, 110 U. S. 209; Cook, Stock, Stockh. & Corp. Law, sec. 684; 12 American Digest (Century Ed.), sec. 702, and cases cited, from States of Kansas, Maine, Mass., N. Y., and Penna.; Swope v. Villard, 61 Fed. 417; Warren v. Rubber Shoe Co., 166 Mass. 97; 10 Ency. Law and Proc., pp. 975', 6, 7, 8. (b) Stockholders must act in good faith in suing in name of corporations. 1 Spelling on Ex. Rem., sec. 747. (c) After stockholder has knowledge or is chargeable with knowledge of an ultra vires, fraudulent, or negligent act of the directors, he must institute his suit, if at all, within a reasonable time thereafter. If it is evident that the stockholder is waiting to see if the unauthorized act will be profitable to the corporation, the court will refuse to grant him any relief. Cook, Stock, Stockh. and Corp. Law, sécs. 732, 733, note 3; Steger v. Davis, 27 S. W. 1071. (d) Where discovery of a fraud is an obvious duty and easily accomplished, its non-discovery is gross laches and will not toll the Statute of Limitations or the defense of laches. Loomis v. Railroad, 165 Mo. 495; Kroenung v. G-oehri, 112 Mo. 648; Ready v. Smith, 170 Mo. 172. (2) (a) The corporation itself, after issuing its stock as paid-up stock, and declaring it so to be, cannot subsequently repudiate that declaration and agreement and proceed to collect, either from the person receiving the stock, or his transferees, the unpaid part of the par value. It is estopped from so doing. As between the parties it is a legal and valid agreement and violates no principle of public policy. This is the rule where no rights of creditors are involved. Hill v. Coal & Mining Co., 124 Mo. 166; Dickerman v. Northern T. Co., 176 U. S. 121; 1 Cook on Corporations, sec. 30, p. 93; sec. 38, p. 99; Liebke v. Knapp, 79' Mo. 22; Bank v. Gus-tin, etc., Co., 42 Minn. 327; Northern Trust Co. v. Columbia, 75 Fed. 936; Wells v. Green Bay Co., 90 Wis. 442; Scoville v. Thayer, 105 U. S. 144; Lorillard v. Clyde, 86 N. Y. 384. (b) 1. Payment of shares in a corporation may be made otherwise than in money, and may be in whatever, considering the situation of the corporation, represents for that corporation, a fair just, lawful and needed equivalent for the money subscribed. Leibke v. Knapp, 79 Mo. 22; Woolfolk v. January, 131 Mo. 631. 2. Stock may be paid for by a director in a company after he had subscribed for stock, by services rendered thereafter, and in the absence of fraud, a corporation will be bound by its estimate of the value of the services. 1 Cook on Corporations, sec. 20, p. 85; Doak v. Stahlman, 58 S. W. 741; Saunders v. U. S., etc., Co., 25 Wash. 475; Divine v. Universal Sew. Mach. Co., 38 S. W. 93; Cook, Stock, Stockh. and Corp. Law, secs. 13, 44, 47; Thompson, Liab. Stockh., sec. 134. (3) (a) An attorney may recover, as upon implied promise, reasonable compensation for services rendered in the preparation of articles of incorporation and other acts in connection with the organization of a company of which he became a director and officer, if such services are accepted, and this, although evidenced by no formal recorded action on the part .of the directors fixing compensation by corporation. Taussig v. Railroad, 166 Mo. 28. (b) Managing officers of corporations have power to employ attorneys and counselors, without express delegations of power or formal resolutions to that effect. Southgate v. Railroad, 61 Mo. 94; Rosenbaum v. Gilliam, 101 Mo. App. 134; Tanssig v. Railroad, 156 Mo. 28, 186 Mo. 269: (c) “The rule is that a party, although a director or other officer of a corporation, may recover the reasonable value of necessary services rendered to a corporation, entirely outside of the line and scope of his duties as such director or officer, performed at the instance of its officers whose powers are of a general character, upon an implied promise to pay for such services, when they were rendered under such circumstances as to raise a fair presumption- that the parties intended and understood that they were to be paid for, or ought to have so intended and understood.” Taussig v. Railroad, 166 Mo. 28; Wagner v. Edison Electric Co., 177 Mo. 62; Coal Co. v. Watson, 107 Mo. App. 453; Taussig v. Railroad, 186 Mo. 276. (4) Stockholders, as such, have no implied power to represent the corporation, though they may be appointed agents, but their voluntary acts may be adopted and ratified and thereby become the acts of the corporation. Jones v. Williams, 139 Mo. 1; Cook on Stockholders, sec. 709'; Hill v. Cóal Mining Co., 119 Mo. 9; Pullman Co. v. Railroad, 115 U. S. 587.
   BURGESS, J.

This is a suit in equity, and was instituted by Louis L. Soloman, a stockholder of the defendant Copper Crown Mining Company, against Montague Punch and the said Copper Crown Mining Company for the cancellation of a certificate for one thousand shares of the capital stock of said company of the alleged par value of twenty-five dollars each. The plaintiff, Soloman, having died during the pendency of the suit, it was revived in the name of his administrator, Charles M. Dewey. The latter having also died during the pendency of the suit, it was revived in the name of Soloman’s administrator cle bonis non, Julius Vogeler, the present plaintiff.

The petition upon which the case was tried alleges in substance that the Copper Crown Mining Company is and has been, since the twentieth day of July, 1902, a corporation organized under the laws of the State of Michigan. That the defendant Punch is in possession of and claims to be the owner of certificate No. 35 of the stock of said corporation, purporting to be for one thousand shares of said stock, full paid and non-assessable. That said Punch has been endeavoring to sell and dispose of the stock represented by said certificate, and is now about to sell and dispose of the same. That' Punch is not the owner of said stock, and has paid nothing to the company for the same. That said stock certificate, which has been for some time signed in blank by the president and secretary of the company, but not filled out for any number of shares or in the name of any person, was on the eighteenth day of September, 1902, filled out for one thousand shares in the name of Punch, and was on the twelfth day of January, 1903, delivered to Punch by M. J. Hopkins (the president of the company). That the certificate was a part of the treasury or reserve stock of the corporation, being a portion of that stock which was reserved for sale in order to raise funds to carry on its mining operations. That there was never any action. by the board of directors authorizing the said Hopkins or anyone else to fill out and deliver the said certificate to Punch, but that said delivery was made by the said Hopkins to Punch upon his own motion, all of which matters and facts were well known to Punch. That prior to the incorporation of the company, Punch entered into an agreement with M. J. Hopkins and one W. R. Hopkins that the company should be incorporated under the laws of the State of Michigan, that Punch should do the legal work necessary in the matter of said incorporation and organization and continue during the first year of said corporation’s existence to render all necessary legal services and advice in connection with the same. That Punch, at the time said agreement was made, represented that he had acquaintances and connections which would enable him to procure and: induce investment by other persons of the necessary funds to carry out the development of the mining business, in which it was proposed the company should engage. That said agreement between Punch and the Messrs. Hopkins was never made known to the other stockholders of the corporation or its board of directors. That Punch drew up and prepared the articles of incorporation and placed himself thereon as a' subscriber for two thousand shares of the stock thereof. That thereafter and until he obtained possession of the said certificate of stock he continued to act as the legal adviser of the said M. J. and W. R. Hopkins, and pretended to act as counsel and attorney for said corporation. That subsequent to drawing the articles of incorporation, he wholly failed and neglected to perform his duties as attorney; that he failed and neglected to prepare drafts of minutes of the first meetings of stockholders and directors and of by-laws to be submitted to the board of directors, as he promised to do. That in September, 1902, he began to urge the Messrs. Hopkins to issue two thousand shares of the stock of the company to him; that in order to induce them to do so, he represented to them that certain persons were willing to invest in the company and would invest, if he could convince them that he was largely interested therein, which statement was false. He further stated to the Messrs. Hopkins that as a matter of law he was entitled to have such stock issued to him. That they fully relied upon him, and upon faith in his statements and advice delivered to him said certificate No. 35 for one thousand shares of the stock of the company, and also another certificate of the stock of the company for one thousand shares. That shortly thereafter, Punch sold or pretended to have sold the latter certificate to a third person. That the latter certificate for one thousand shares was transferred to such third person on the books of the company by W. R. Hopkins without authority from the directors. That Ptmch has never paid anything to the company for either of said certificates of stock. That the company and its officers are now recognizing Punch as a stockholder in the company. That the plaintiff has endeavored unsuccessfully to secure from the company relief against the assertion by Punch of his claim of ownership of said certificate. That if Punch is permitted to sell or dispose of said certificate, the plaintiff’s rights as a stockholder of said company will be seriously injured, and he will be greatly damaged, and that he is without adequate remedy at law, etc. The prayer of the petition is that the court order that said certificate be surrendered and cancelled, and that until the determination of the suit, Ptmch be enjoined from asserting any rights as a stockholder by virtue of said certificate or from disposing of it or attempting to dispose of it. Upon this petition, a temporary injunction was issued as,prayed.

At the time of the institution of this suit, there was in force against the defendant company a peremptory writ of mandamus issued by the circuit court of the city of St. Louis against the company in a suit instituted by Punch, commanding the company in substance to recognize Punch’s rights as a stockholder under the same certificate. This peremptory writ of mandamus was, upon a motion in arrest of judgment, afterwards quashed.

Punch’s answer to' the petition was a general denial.

The defendant, the Copper Crown Mining Company, filed an answer and a cross-bill, the allegations of which are substantially the same as those contained in the plaintiff’s petition, and substantially the same relief was prayed for.

Before the taking of evidence was commenced, the plaintiff requested the court to make a written finding of facts and of the law after all the evidence had been ' submitted.

After hearing the evidence, the court rendered the following decree, and made the following findings of facts and of law:

“This cause coming on for hearing upon the pleadings and testimony herein, it is ordered and adjudged and decreed, that the said Montague Punch, one of the defendants herein, became on January 12, 1908, and continues to be, the lawful owner and holder of certificate No. 35 for one thousand shares ($25,000') of the capital stock of said Copper Crown Mining Co. (a corporation), a defendant and cross-complainant herein, issued by its authority for legal services rendered and to be rendered to it by him, and that he is a stockholder in said company and as such is now, and was continually, entitled from January 12,1903, and prior thereto, to' all the rights and privileges of a stockholder in said company, and that neither the plaintiff nor said Copper Crown Mining Co. is entitled to any relief in this action and that the injunction granted in Division No. 2 of this court is dissolved and the petition of the plaintiff and cross-complainant, said Copper Crown Mining Co., are dismissed and the costs of this proceeding are taxed against said plaintiff and against said company.

“And in rendering said judgment and decree the court made findings of law and facts as follows, to-wit:

“The original plaintiff, L. L. Soloman (now deceased) was, on August 31, 1903, the date this suit was filed, the owner of seventy-one shares of stock of the defendant and cross-complainant, the Copper Crown Mining Company, a mining company incorporated July 18,1902, under the laws of the State of Michigan, with a capital stock of two million, five hundred thous- and dollars, consisting of one hundred thousand shares of the par value each of twenty-five dollars.

“Some months before its incorporation, Montague Punch, the defendant, and an attorney at the St. Louis Bar, had been employed (with the consent of Dr. Hopkins, by W. J. Hopkins, one of the promoters of the company, and its secretary when organized) to draw the papers and do the work preliminary to the incorporation, and to continue for one year to act as its legal adviser, with the understanding that he should get as compensation two thousand shares of the company’s stock, issued as full paid and non-assessable. He did this preliminary work, also drafted minutes, revamped by-laws prepared by the company’s Michigan counsel, and after the incorporation attended directors’ meeting and acted as the company’s legal adviser until the early part of 1903, when his further services were refused by the company.

“The incorporators and board of directors for the first year were Dr. M. J. Hopkins (also the president), W. J. Hopkins his brother (also the secretary, and who did not give his testimony in this case), Julius Yogeler (the father-in-law of Dr. Hopkins), W. T. Ross (both of these got their stock as promoters), and defendant Punch, who subscribed for two thousand shares, which he was to pay for by said legal services. The Hopkinses were the chief parties in interest. All, as directors, knew that Mr. Punch was acting as counsel for the company and said directors also knew that the stock, two thousand shares in two certificates Nos. 35 and 156, of one thousand shares each, was issued to him for services rendered and to be rendered as aforesaid. No minute book was in evidence, and such minutes as were kept, seem to have been kept on slips of paper.

“One certificate (No. 35) was dated September 18, 1902, the other (No. 156) January 12, 1903, and both were delivered to Mr. Punch on the last-named date. In February, 1903, he sold one thousand shares (certificate 156) to one Jacob Lippe, through a broker, for one thousand dollars, and the company issued to said Lippe sixteen certificates aggregating one thous- and shares, in lieu of said single certificate. Defendant still holds certificate No. 35.

‘ ‘ The stock never had any market value, in the legal meaning of that term, but some of it sold as high as $7. In September, 1902, and January, 1903, it could not be sold at a price to exceed two dollars and a half, and that price could not have been readily obtained.

“On June 15, 1903, the company, in writing, refused to recognize Mr. Punch as a stockholder, and on June 20 he began a mandamus proceeding in Division No. 6 of this court to compel recognition by the Copper Crown Mining Company of his rights as a stockholder in virtue of said certificate No. 35. The company denied in its return that he was a stockholder. After a hearing, a peremptory writ was issued on August 31, 1903, but motions for a new trial and in arrest were sustained on September 21, 1903, because the court erred in granting a peremptory writ that did not conform in its requirements to the alternative writ. That case is still pending. On September 23, 1903, the company called on Mr. Punch to pay on the two thousand shares he had subscribed for an assessment of six dollars per share.

“Mr. Soloman did not seek relief through the corporation only to be'denied, as alleged in the petition; on the contrary, after the order in the mandamus case of August 31, 1903, granting the peremptory writ, it was agreed between the company and Mr. Soloman that the latter should bring this action as the quickest and best way to effect their common purpose of having defendant Punch judicially declared not a stockholder in said company.

“The court finds and declares the law to be that •under the facts found the defendant, Mr. Punch, became on January 12, 1903, and continues to he, the lawful owner and holder of certificate No. 35 for one thousand shares of the capital stock of the Copper Crown Mining Company issued hy its authority for services rendered and to he rendered, and said company could not against his wishes refuse to further receive his services and thereby, affect his rights as stockholder.

‘ ‘ The court finds that neither the plaintiff nor said Copper Crown Company is entitled to relief in this action.

“The injunction heretofore granted' in Division No. 2 of this court is dissolved, and the petition of the plaintiff and cross-complainant of said Copper Crown Mining Company are dismissed and the costs of this proceeding ordered taxed against plaintiff and said company.”

In due time plaintiff and the Copper Crown Mining Company filed their motions for new trial and in arrest, which were overruled, and they bring the case to this court hy appeal for review.

"While the finding of facts hy the court was authorized hy section 695, Revised Statutes 1899, it is not binding upon this court in this equity proceeding; hut as it fairly and, for all the purposes of this case, substantially states the material facts disclosed upon the trial, it will, therefore, he adopted hy this court.

It is well settled that when the stock of a corporation is issued as full paid and non-assessahle, for money, property or labor, grossly disproportionate in value to the par value of the stock, such issuance of stock is unlawful as agaiust the stockholders not consenting thereto, and creditors. [Garrett v. Kansas City Coal Mining Co., 113 Mo. 330; VanCleve v. Berkey, 143 Mo. 109; Shields v. Hobart, 172 Mo. 491; Rumsey Mfg. Co. v. Kaime, 173 Mo. 551; McClure v. Paducah Iron Co., 90 Mo. App. 567; Chubb v. Upton, 95 U. S. 665; Upton v. Tribilcock, 91 U. S. 45.]

Bnt the court found that some months before the incorporation of the Copper Crown Mining Company. Montague Punch, the defendant, an attorney at the St. Louis Bar, had been employed (with the consent of Dr. Hopkins) by W. J. Hopkins, one of the promoters of the company (and its secretary when organized), to draw the papers and do the work preliminary to the incorporation, and to continue for one year to act as its legal adviser, with the understanding that he should get as compensation two thousand shares of the company’s stock, issued as full paid and non-assessable; that he did this preliminary work, also drafted minutes, revamped by-laws prepared by the company’s Michigan counsel, and, after the incorporation, attended directors’ meetings, and acted' as the company’s legal adviser until the early part of 1908, when his further services were refused by the company. That Punch and two other promoters got their stock as such. That Punch got two thousand shares which he was to pay for by said legal services. That Dr. M. J. Hopkins and W. J. Hopkins were the chief parties- in interest, and that all, as directors, knew that Punch was acting as counsel for the company, and that said directors also knew that the stock, two thousand shares in two certificates, Nos. 35 and 156, of one thousand shares each, was issued to him for services rendered and to be rendered. That one certificate (No. 35) was dated September 18, 1902, the other (No. 156), January 12, 1903, and that both were delivered to Punch on the last-named date. That in February, 1903, he sold one thousand shares (certicate No. 156) to one Jacob Lippe, and that the company issued to* said Lippe sixteen certificates aggregating 1,000 shares in lieu of said single certificate, and that defendant still holds certificate No. 35. That the stock never had any market value in the legal meaning of the term, hut some of it sold as high as $7; that in September, 1902, and January, 1903, it could not be sold at a price to exceed $2.50, and that even that price could not have been readily obtained.

The court’s finding of facts is clearly supported by. a preponderance of evidence, but even if it were close, we should be inclined to defer to the finding of the court.

It has always been held by this court that stock in a business corporation may be paid for by services rendered. Any other doctrine than this would place a corporation under a disability not contemplated by law. A corporation, unless prohibited by statute, has the general capacity of contracting which the common law concedes to every one ordinarily competent to enter into binding engagements. [Liebke v. Knapp, 79 Mo. 22; Woolfolk v. January, 131 Mo. 620.]

There was no fraud found by the chancellor to have been practiced upon the directors of the company by Punch in obtaining the stock, or any part of it; and although, by agreement of the parties, the stock was to be partly paid for in services to be thereafter rendered the company by him, the company refused his services, and the courts will, under such circumstances, treat that as payment which the parties agreed should be payment. [Thompson on Liability of Stockholders, sec. 134.] The services rendered by Punch to the corporation, after he had subscribed for stock, were a good consideration in payment therefor, being in accordance . with an agreement to that effect. [Cook on Corporations (5 Ed.), sec. 20, p. 85.] So a corporation may lawfully agree to issue stock to a person in payment of services in procuring a loan for the corporation and guaranteeing payment of the same. [Doak v. Stahlman, 58 S. W. 741.] The rule is, “That a party, although a director or other officer of a corporation, may recover the reasonable value of necessary services rendered to a corporation, entirely outside of the line and scope of his duties as such director or officer, performed at the instance of its officers, whose powers are of a general character, upon an implied promise to pay for . such services, when they were rendered under such circumstances as to raise a fair presumption that the parties intended and understood that they were to be paid for, or ought to have so intended and understood.” [Taussig v. Railroad, 166 Mo. 1. c. 34; Wagner v. Edison Electric Ill. Co., 177 Mo. 62; Coal Co. v. Watson, 107 Mo. App. 1. c. 453; Taussig v. Railroad, 186 Mo. 269, 276.] Under the facts as found, there is no ground for holding, or to justify the contention, that the services rendered and which were to be rendered by Punch were disproportionate in value to the par value of the stock, or that they were not reasonably commensurate with the par value of the stock received by him.

Another insistence is that if a promoter of a company, or other person standing in a confidential relation to it, procure the issuance to himself of stock of the corporation, without consideration, such stock is fictitious and void, and may be cancelled by a court of equity in a suit at the instance either of the corporation itself or of a stockholder.

The almost universal doctrine is that such a suit must be brought by the corporation itself, and that its stockholders cannot maintain or defend an action for or against it. This duty the law imposes upon the directors, as the trustees and agents of the corporation of which they are members, and in the absence of a charge of fraud or collusion it will be presumed that the directors acted for the best interests of the corporation. The discretion of the directors or the majority of the stockholders as to acts mtra vires cannot be questioned by single stockholders unless fraud is involved. This proposition of law is clearly, firmly and very properly established beyond any question.” [Cook on Stockholders and Corporation Law (3 Ed.), sec. 684; Meyer v. Bristol Hotel Co., 163 Mo. 59.] In Albers v. Merchants Exchange of St. Louis, 45 Mo. App. 1. c. 218, it is said: “Exceptions to this rule' have been recognized, where the circumstances are such that the action cannot be brought in the corporate name. Such an exception generally arises in cases where the directors, who are guilty of the breach of trust, own of control a majority of the shares, so that they can perpetuate themselves in power, keep control of the corporation, and defy the minority. In such cases the minority would be remediless, if the courts of equity did not open their doors to them. But courts of equity cannot assume the management of all the corporations in the country; and, if they were to- open their doors to every dissatisfied or dissenting-stockholder, in cases where he should fail to disclose facts making it clear that no redress could be had through regular corporate action, litigation of this kind' would be be endless; for, as was forcibly said by Mellish, L. J., if a mere irregularity in the business of a company ‘gives a right to every member of the company to file a bill to have the question decided, then, if there happens to be one cantankerous member, or one member who loves litigation, everything of this kind will be litigated; whereas, if the bill must be filed in the name of the company, then, unless there is a majority who really wish for litigation, the litigation will not go on. ’ [MacLougall v. Gardiner, L. R. 1 Ch. Div. 13, 20.] It is, therefore, a settled principle of equity jurisprudence that, before a court of equity will open its doors to a single stockholder, although he comes, as he must, not only on behalf of himself but also in behalf of all the other stockholders, to an inquiry into grievances of this kind, he must show that there is no other road to redress; and he does not show this, unless he shows that all remedies within the corporation itself have been exhausted.” The same rule is announced in Bulkley v. Big Muddy Iron Co., 77 Mo. 105, and Slattery v. Trans. Co., 91 Mo. 217.

In order to maintain this action it devolved upon plaintiff to allege and prove that the corporation had refused to sue, or that the defendant, Punch, was in control of the corporation.

In Hawes v. Oakland, 104 U. S. 1. c. 460, it is said: “But in addition to the existence of grievances which called for this kind of relief, it is equally important that, before the shareholder is permitted, in his own name, to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain an action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it. The efforts to induce such action as complainant desires on the part of the directors, and of the shareholders when that is necessary, and the cause of failure in these efforts should be stated with particularity. ’ ’

The mere allegation in the petition that plaintiff “has endeavored unsuccessfully by application to the company to secure relief and protection from the wrongs and against the danger mentioned in the petition” is no better than no allegation, especially as the law requires that the efforts to induce such action on the part of the company or directors, and the canse of the failure in his efforts, should he stated with particularity. Instead of specific allegations in regard to these matters, we are left entirely to conjecture what kind of relief or protection plaintiff sought at the hands of the company. ‘ ‘ The allegation quoted is simply the averment of a legal conclusion, not “the statement of issuable facts; . . . not, therefore, either traversable or demurrable, and is to be treated as no statement at all, and consequently obnoxious to attack by general demurrer. . . . Nor will it do' to say that defendant should have moved to have made the pleading more definite and certain. He might indeed have done this, but was not compelled to do so. The primary duty of making the pleading definite and certain is on the party drawing the pleading, and he cannot, by his remissness, cast upon his opponent the onus of doing what his own duty demands, a duty which consists in expressing his meaning clearly and unmistakably.” [Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 1. c. 397.]

Nor does the evidence show any proper effort upon the part of the plaintiff to get the company to institute suit to cancel the certificate of stock.

It is, however, contended that, even if the plaintiff’s bill were insufficient on account of failure to show sufficient effort on his part to procure action by the company, or even though the evidence did not show sufficient effort to justify the court in granting relief at the suit of a stockholder, yet, inasmuch as a cross-bill was afterwards filed on behalf of the company, and as the defendant appeared to the cross-bill, and the cause was heard thereon as well as upon the original bill, that was sufficient to give the court jurisdiction to decree whatever relief was justified by the pleadings and the evidence. With respect to this contention, it is sufficient to say that there is no allegation of fraud in the cross-bill either upon the part of the defendant or the officer of the company who issued to him the certificate of stock, nor was there any fraud shown by the evidence or found by the court to have been practiced by defendant in obtaining the stock, and it is only upon this ground that it would have the power to cancel it.

Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.