author: BLAIR, J.

text:
    THE STATE ex rel. OWEN H. McNULTY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and KANSAS CITY.
    In Banc,
    April 7, 1919.
    1. CERTIORARI: Facts of Case. In determining upon certiorari whether a decision of a court of appeals is in conflict with its own last previous rulings, the Supreme Court cannot go beyond the opinion of the Court of Appeals to ascertain the facts,' and will not therefore go to the record before that court to ascertain whether or not its statement of the facts is in accord with the record in the case.
    2. -: -: As Set Forth in Motion. A motion for a rehearing filed in the Court of Appeals does not prove itself, and therefore the Supreme Court cannot on certiorari accept as true the facts stated in such motion.
    3. -: Conclusion of Law From Facts. The Supreme Court will on certiorari determine whether the facts stated in the opinion of the Court of Appeals justify the conclusion reached and whether in view of those facts the conclusion conflicts with its own prior decisions.
    4. -:-: Weight of Evidence. If the opinion of the Court of Appeals holds that as a matter of law the record in the case showed plaintiff’s conduct was done in pursuance ■ to a certain agreement, and there is nothing in- the facts stated to invalidate the holding, the Supreme Court will not rule that the opinion conflicts with its decisions holding that an appellate court in an action at law is not authorized to pass on the weight of the evidence.
    5. -: Conflict in Decision. If the question has not been decided by the Supreme Court in a manner contrary to the ruling of the Court of Appeals, whether that ruling be right or wrong, it cannot be quashed on certiorari. 0
    6. ESTOPPEL: Acceptance of Salary in Lieu of Legal Fees: Recovery. The case of Wood v. Kansas City, 162 Mo. 303, gives recognition to the idea that a contract, under which a notary public in the city treasurer’s office accepts a salary in lieu of uncertain notarial fees and agrees tliat tliese may be paid to the city, might constitute a valid agreement, or might amount to a waiver or estoppel against the notary in a subsequent suit brought by him to recover the fees, although by ordinance he was to receive the fees in payment for his services; and whether the ruling was right or wrong, if it is the last decision of the Supreme Court on. the subject, an opinion of the Court of Appeals which follows it will not be quashed on certiorari. Neither can it be quashed as in ' conflict with State v. Williamson, 118 Mo. 156, on the theory that an assignment of unearned salary is void, as against public policy, for in that case the contract was executory, whereas in the case at bar the plaintiff had during his entire clerkship received from the city the agreed salary in lieu of the fees which the ordinance said were to be paid to him, and the Wood Case had in effect held that an executed contract might operate as an estoppel.

      Certiorari.

    Writ quashed.

      Numa F. Heitman for relator.
    (1) The Court of Appeals exceeded its jurisdiction ' in setting aside the general finding of all the facts in issue in favor of McNulty, which was made by the lower court. Said finding of the lower court was based on substantial evidence and no declarations of law were asked, given or refused. In re Lankford’s Estate, 197 S. W. 147. (2) In said last previous ruling of this court this court holds that said finding of the lower court is incontrovertible on appeal.' In not following, said' rule the Court of Appeals exceeded its jurisdiction. In order to determine this jurisdictional question this court will examine the motion for rehearing and the Bill of' Exceptions, which is a part of the record, to determine whether or not the finding of the lower court was based on substantial evidence. 6 Cyc. 827; 3 Am. & Eng. Ency. Law, pp. 61, 62; State v. Ellison, 186 S. W. 1075; State v. Ellison, 176 S. W. 11; State ex rel. Tiffany v. Ellison, 266 Mo. 604. (3) Relator points out the evidence which supports the finding of the lower court, and which proves by the record that many of the recitations contained in the opinion complained of are absolutely without any support ‘in the record, and many other statements are flatly contradictory of positive evidence on which the lower court based its verdict, thus exceeding the court’s jurisdiction in another respect, to-wit, the credibility of the witnesses was for the lower court, and in another respect, to-wit, that the appellate court must not draw inferences to overcome the finding of the lower court where such finding is based on substantial evidence. The motion for rehearing points out that the Court of Appeals exceeded its jurisdiction in all these and many other respects which are made clear in the motion for rehearing, to which especial attention is urged. (4)' Both of said motions are made, a part of relator’s application and printed record herein. The Court of Appeals has returned to this court the pleadings, the bill of exceptions,- record and the entire record is now before this court, and this court will certainly examine the entire record to see wherein the Court of Appeals has exceeded its jurisdiction.- (5) Relator also asks the court to consider the “Statement and Brief for Respondent” filed by him, first in this court, and afterwards in the Court of Appeals, because it shows clearly wherein the Court of Appeals exceeded its jurisdiction. The opinion complained of ought to be quashed because on its face, and for the purposes of this point, conceding the facts to be as stated by said opinion, said opinion completely overlooks the previous rulings of this court holding that it is -contrary to public policy to permit any officer of the State to assign his unearned fees or salary. All executory contracts to sell official fees or salary are void because public policy demands that every official shall obtain his fees or salary at the time and in the manner prescribed by law. State v. Williamson, 118 Mo. 146; Beal v. McVicker, 8 Mo. App. 202. (6) What the law will not permit him to make an express contract to do, it will not permit him to do by way of waiver. This important public policy cannot be broken down by the law of waiver. Certainly if the law will not let McNulty make an express contract to sell or assign his unearned notary fees, it will not imply a contract on his part to violate the public policy which forbids the selling of unearned official fees; that public policy cannot be broken down by waiver, estoppel or by an express or by an implied contract. Sprague v. Rooney, 104 Mo. 356. (7) An obiter dictum, of the Wood case, does seem to sanction the idea that the notary public could waive or sell his unearned notary fees, but petitioner contends that said language must be regarded as obiter dictum because the question in case was largely a question of evidence. It is only the actual decision in the Wood case that is binding on the Court of Appeals, or even on this court. In holding and acting to the contrary, the Court of Appeals went squarely contrary to this court’s opinion in State ex rel. v. St. Louis, 241 Mo. 231, which says that the authority of every decision is limited to the facts of that decision. Applying said rule to this case it is apparent that McNulty was cast in the Court of Appeals, because said court followed obiter dictum instead of the actual decisions in the Wood case. In doing so said court destroyed a judgment which was absolutely just and also violated the following decisions: State v. Williamson, 118 Mo. 146; Wood v. Kansas City, 162 Mo. 303; Sprague v. Rooney, 104 Mo. 358-60; Shohoney v. Railway, 231 Mo. 156; Hayden v. Little, 35 Mo. 418; St. Louis v. Carmody, 151 Mo. 566; Ullman v. St. Louis Pair Assn., 167 Mo. 273; Jordan v, Davis, 172 Mo. 599; Baumhoff v. Railway, 171 Mo. 120; Easley v. Elliott, 43 Mo. 289; Wilson v. Railway, 46 Mo. 36; Mullins v. Kansas City, 188 S. W. 193; Ehríich v. Insurance Co., 88 Mo. 249; Noonan v. Insurance Co., 21 Mo. 89; Bales v. Perry, 51 Mo. 449; De Lashmutt v. Teetor, 261 Mo. 441; Haseltine v. Ausherman, 87 Mo. 410; Thompson v. Lindsay, 242 Mo. 53, 76; Roselle v. Beckemeir, 134 Mo. 380; Roselle v. Bank, 141 Mo. 36; Hobbs v. Boatwright, 195 Mo. 693; Black v. Neal, 112 Mo. 169; Kitchen v. Greenabaum, 61 Mo. 110; Karnes v. Insurance Co., 144 Mo. 413; Richardson v. Railway, 149 Mo. 311; Porter v. Jones, 52 Mo. 399.

      E. M. Harder, A. F. Smith and Benjamin M. Powers for respondent.
    (1) The decision of the Kansas City Court of Appeals is not in conflict with any decision of this court. In Wood v. Kansas City, 142 Mo. 303, this court held that the ordinance was in direct conflict with the statute which fixed the fees of a notary public, and that the ordinance was therefore invalid. In this McNulty case the city passed no invalid ordinance forbidding McNulty te recieve his notary fees, but those fees were voluntarily waived by McNulty. A question with reference to the right of a notary public to voluntarily waive his fees was. passed on by this court in the case of Leach v. Hannibal, etc. Co., 86 Mo. 27. It was held in; the Leach case that a notary public could waive his fees. This court in the Wood case did not overrule the Leach case. (2) 'In State v. Williamson, 118 Mo. 146, the question presented is entirely different from the question presented here. If, however, there were anything in the Williamson case that is contrary to the holding of this court in the Leach case the Court of Appeals was justified in believing that such contrary ruling is overruled by the action of this court in the Wood case affirming its original holding in the Leach case. (3) This court has held in a number of -cases that where an officer has accepted compensation in an amount different from that fixed by law, he has waived.any right to assert any further claim under the law. See decisions cited in opinion «of the Court of Appeals in this cáse. (4) We believe that if the question presented in this case had been presented to this court as an original proposition it would have reached the same conclusion that was reached by the Kansas City Court of Appeals. But the question presented in this case has not come directly under the consideration of this court. The facts in this case are very different from the facts in the Woods case. They resemble more closely the facts in the Leach case. And this court, in a/ certiorari proceeding does not quash the judgment of the court of appeals even though it might entertain a different view of the law from that entertained by the Court of Appeals, if it has not already passed upon the question at issue. State ex rel. Heine Safety Boiler Co. v. Robertson, 188 S. W. 101.
   BLAIR, J.

I. (a) Counsel contends that the statement of facts in the opinion of the Court of Appeals is out of accord with the record in that case, and urges that an examination of that record will establish this. In State ex rel. v. Ellison, 273 Mo. 218, this court adopted the doctrine that it would “not go beyond the opinion to ascertain the facts.” It thus appears that harmony of written opinions, not harmony of decisions, is the thing which this court bolds was intended by the framers of the Constitution. As the writer of this, has done, so must counsel in this case do — submit to the application of this rule as announced in the ease cited.

(b) It is urged that we must accept the facts stated in the motion for rehearing as true, else there is no use for our requiring such motion to be filed before our writ will issue. Such a motion does n°t Prove itself and, can be proved only by the record. The record we do not examine, as •pointed out, supra. The point must be ruled against relator.

II. Secondly, counsel contends the facts stated in the opinion of the Court of Appeals do not justify the conclusion reached and that the decision con-Slots with decisions of this court. 'This question requires that we set out the facts as stated by the Court of Appeals. They are as follows:

“When city taxes on real estate in Kansas City become delinquent, payment thereof is enforced by a sale of each, delinquent tract to a purchaser who pays to the city the unpaid tax, with interest, penaltiés and costs, and receives from the city treasurer a certificate of purchase acknowledged by him before one of the clerks in his office who holds a notary public’s commission for this purpose. For this acknowledgment the sum of fifty cents is included in the amount paid to the city by the purchaser, that being the fee allowed by statute to a notary for taking and certifying to an acknowledgment. These delinquent sales, and the consequent execution of the certificate of purchase, cover a period of about two weeks in November or December of each year; and at the close of said sales many certificates are acknowledged.
“Plaintiff was a clerk in the treasurer’s office from and including the year 1904 down to June, 1910, and was the notary before whom the treasurer acknowledged the certificates of purchase at the end of the two weeks 'of delinquent sales in each year, and also the tax deeds to such tracts as were never redeemed. On August 12, 1912, he brought this suit to recover from the city the sum of $2,850.50 as due him for acknowledgments taken, as above indicated, during the years 1908 and 1909. He recovered judgment in the trial court for the full amount sued for, and the city has appealed.
“It is admitted that the above sum represents the total amount of notary fees for such acknowledgments taken by plaintiff while in the treasurer’s office during those two years, and that the same were collected by the treasurer and paid into the general fund of the'city treasury. It is the contention of the city that plaintiff waived the right to receive payment of these fees and that he is now estopped from claiming them.
“In 1885 the Supreme- Court of this State held, in Leach v. Hannibal & St. Joseph Ry. Co., 86 Mo. 27, 56 Am. Rep. 408, that a notary public in the service of a railway company could waive his right to compensation for notarial services; that having entered into a contract of service to the railway company for a fixed salary, lie prima-faeie agreed to give the latter his entire time, and the notarial work having been done in that time, then, in the absence of any ‘agreement, or understanding, or line of conduct between the parties’ showing that such employee was to receive the statutory f,ees for the notarial service rendered his employer in addition to his stipulated salary, he could not recover of his employer for such notarial service, and in the absence of any such showing he would be deemed to have waived the right to claim such fees.
“Following this rule thus laid down, the city, in' February, 1892, passed an ordinance known as Ordinance No. 3910 which provided that one of the clerks in the treasurer’s office should be a notary public; that the salary paid by the city to him as a clerk should be payment in full for all services rendered by him, including those of a notarial character, and that all fees paid for such notarial work should be turned into the city treasurer.
“Under this ordinance, in April, 1892,' one Wood became a clerk in the treasurer’s office and was the notary who took acknowledgments during Ms stay therein, which was until February, 1893. He sued for his fees, and in Wood v. Kansas City, 162 Mo. 303, the Supreme Court held the above-mentioned ordinance void, and that since it was void it,was the same as if it had never existed, and Wood was not estopped from recovering his fees by reason of having accepted his salary for his services as clerk, for the reason that the ordinance was nothing, and he had done nothing to waive his fees or to create an estoppel. In the Wood case, 162 Mo. 1. c. 310, the court says:
“ ‘It is not claimed that he entered into any express contract, aside from the ordinance, by which Ms fees as notary were to be received and retained by defendant, and the ordinance being void there was no express contract at all with respect thereto, hence nothing to estop plaintiff from claiming them by reason of said ordinance.’
“And on page 311 the court, in distinguishing the Wood case from the Leach case, says that Leach may have ‘entered into a contract, express or implied, by which, in consideration of his employment at a fixed salary, he was to have no fee for such services. And, after having thus rendered the services, he could not of course recover the fees allowed him by law therefor. In the case at bar [the Wood case] there was no such 'contract.’
“In other words,'the Supreme Court held that in the Wood case there was no agreement or line of conduct on Wood’s part by which he consented that he would allow the city to have the notary fees- and accept in full of his services the fixed salary paid him, and hence he could not be denied his fees,, but was entitled to them in addition to his salary.
“ (1) We are of the opinion that the case we are now called upon to decide differs in this respect from the Wood case. In the case at bar not only did plaintiff make an express agreement to waive his notary fees and accept a stipulated salary in full for all his services, including those of a notarial character, but he thereafter continued on in the service of the city without change of terms, and under circumstances that necessarily imply that he waived the right to the notarial fees and accepted in lieu thereof a certain fiixed monthly sum paid to him as salary in full of all his services, including those of a notarial character. If he did this, he is not entitled to now turn around after his relations with the city have terminated, and nearly three years after the notarial services were performed, demand the fees therefor in addition to the money he received from the city with the manifest intention on his part, and the understanding implied from the circumstances, that he was not charging for his notarial services, but was accepting his monthly stipend in full of all services. The facts, which we think manifest that agreement, intention and course of conduct on his part are as follows: It is conceded that the certificates of purchase for each year were executed and acknowledged by the treasurer at one time, and the work of the notary in filling out and attesting the certificates or acknowledgments was done during his office hours as clerk in the treasurer’s office. If in doing this at any time he had to work overtime he was paid for such overtime in accordance with the regular rates prescribed for overtime work as a clerk.
“After the decision in the Wood- case the city, in Í901, repealed Ordinance No. 3910, hereinabove mentioned, which required the notary clerk to accept only his salary as clerk and directed the turning of the notary fees into the city treasury, and enacted an ordinance, No. 18581, which provided that the notary clerk in the treasurer’s office should enter into a contract agreeing to accept as compensation for his services as clerk the sum of $5 per month and that he should receive, in addition thereto, the notarial fees accruing in said office. Under this ordinance the notary clerk in the treasurer’s office got $5 per month and the notary fees. In this way such clerk’s compensation, instead of running from $75 to $90 per month as the other clerks in the office, ran up to a very large sum, depending upon the number of tracts sold for delinquent taxes. .
“In 1904, a certain city treasurer selected the plaintiff as ‘a young man that he could trust’and who would ‘keep his word with him’ and -do the square thing by him,’ and made a private agreement with plaintiff to appoint and make him the notary clerk if he (plaintiff) would agree to accept the $5 per month paid by the city, and $60 per month paid by the treasurer out of .his own pocket, and allow the notary fees to be kept by the treasurer.' This ‘gentleman’s agreement’ continued through 1904 and 1905, the plaintiff getting $5 per month from the city and $60 per month from the treasurer individually, and the treasurer getting the fund arising from the notary fees.
“In 1906, owing to some public complaint or discussion about advertising the delinquent lists in a paper of very limited circulation, the' treasurer advertised said list in one of the great dailies of the city, where every property owner had an opportunity to see their property was being advertised for taxes. The result was that a great rush was made by many to pay their delinquent taxes before their property was sold, and consequently there were few certificates of purchase to be acknowledged. The treasurer, in paying $60 per month to the plaintiff and keeping the notary fees, was losing money on his ‘gentleman’s agreement.’ Hence he proposed to the plaintiff that thereafter he would pay the plaintiff $75 per month out of the city’s funds and let the city keep the notary fees, and to this the plaintiff agreed. No ordinance was passed authorizing him to be paid more than $5 per month. So that during 1906 plaintiff received $75 per month from the city, $70 of which was wholly without authority or justification, except upon the theory that the plaintiff was allowing the city to keep the notary fees in return for which he was receiving the said monthly stipend regularly out of the funds of the city. No new terms or agreement were entered into by plaintiff. He continued on in the treasurer’s office the same as from the first, the only difference being that whereas he first got $5 from the city and $60 from the treasurer and allowed the treasurer to keep the fees, now he got $75 from the city and allowed the city to keep the fees. Thus there was a voluntary agreement on the part of plaintiff to waive his fees and take in lieu thereof the money paid him by the treasurer, and this agreement was carried on into effect between plaintiff and the city, whereby it took the place of the treasurer in paying plaintiff’s monthly salary and in retaining the fees for the notary'work. So that, thus far, plaintiff is in a vastly different situation from that of Wood in his case. He is in the position of having voluntarily agreed to waive his notary fees and to accept in lieu thereof money for which he gave no equivalent whatever except the fees he waived. This waiver was first to the treasurer and afterwards to the city, and during 1906 he got from the city $70 per month to which he was in no way entitled, and for which he gave no equivalent except the fees he allowed the city to take. And under that situation the city was giving him a sure thing as to the $70 and taking the chance on receiving enough fees to pay for or reimburse it for said amounts. Plaintiff did not ásk and has not asked any one for those fees.
“In April, 1907, the city passed a general omnibus ordinance fixing the compensation of all officers and employees in the city service. This ordinance said nothing about a notary clerk in said treasurer’s office, but did provide that five clerks' therein should each receive $900 per year, and ’ repealed all ordinances in conflict therewith. The effect of this ordinance was merely to authorize and validate the hitherto unan-' thorized payment of $70 each month to the plaintiff,, and while it does not say it is pursuant to and in accordance with the arrangement, theretofore existing between plaintiff and the city, yet there can be no question but that such was the case. Nothing was said by plaintiff to indicate that any other or different terms were required or expected. The plaintiff kept on in his clerkship aé before, drawing $75 per month, and the city retained the notary fees, and no claim was made for them nor any intimation that the old arrangement was not continuing the same as it had been.
“In 1908 a new treasurer went into office, but the plaintiff continued on in his clerkship and the record discloses no change in the arrangement, nor any intimation that there would be any change whereby plaintiff would claim the fees. At the beginning of 1909 the city passed an ordinance the effect of which was to raise the salary of fourteen clerks in the treasurer’s office to $90 a month each. Nothing was said therein about a notary in the office, nor as to what should be done about the fees, but under it plaintiff’s salary was raised to $90 per month and he continued to receive it from then until, in June, 1910, when he resigned. Still no change had been mentioned or intimated as to the fees, and it is manifest no change was thought of or' contemplated, and it is also manifest that the city would not have paid the $70 per month nor added an increase to that sum had there been a suggestion that plaintiff would afterwards demand, in addition to the salary of the clerkship, a sum which at the minimum was more than the amount he was getting. He continued as before to draw his salary and allow the fees to be retained by the city, in the same manner and under the same arrangement as had theretofore existed. His conduct throughout indicated that he had no intention of charging for the fees; the city had every right to believe that the old arrangement existed, and if plaintiff had any intention of claiming said fees he deliberately concealed it and made no move to disclose it for more .than two years after he left the city’s employ. It is true the fees were not due the city in the first place, but his notariál service was rendered the city treasurer, and while it was paid for the treasurer by the purchasers, and said fees originally were the plaintiff’s as a perquisite to his office of notary, yet he voluntarily agreed to allow them to go first to the treasurer and afterwards to the city in return for the fixed and certain monthly sums received. And by this arrangement, expressly entered into at first and later continued without notice of any change, he obtained money from the city which it otherwise would not have paid him, and to which he had no claim whatever except upon the theory and understanding that the fees for the notarial service which he rendered during his time, which belonged to the city, should go to it. Under these circumstances we do not think plaintiff is entitled to recover. ’ ’

This is followed by a citation and discussion of authorities.

The decisions of this court with which this part of the decision are said to conflict are State v. Williamson, 118 Mo. 146; Mullins v. Kansas City, 188 S. W. 193; Sprague v. Rooney, 104 Mo. 356, 360; In re Lankford’s Estate, 272 Mo. 1; State ex rel. v. St. Louis, 241 Mo. 231; Wood v. Kansas City, 162 Mo. 303; Parke, Davis & Co. v. Mullett, 245 Mo. l. c. 175, and numerous others of like character.

The opinion of the Court of Appeals shows that the court held as a matter of law that the record in the case before them showed that the notarial 'fees for which McNulty sued were turned into the city treasury under an agreement whereby McNulty was to accept a fixed salary of $75 to $90 per month and turn in the notarial fees; that the salary was paid to McNulty, and the notarial fees paid into the city treasury in accordance with this agreement.

(a) There is nothing in the facts stated in the opinion to invalidate this holding. Whether the record supports it is not a question we can examine in this kind of a proceeding, as pointed out in Paragraph I hereof. This disposes of the contention that the opinión conflicts with cases holding that an appellate court in an action at law is not authorized to pass on the weight of the evidence.

(b) In State v. Williamson, 118 Mo. 156, it was held that a contract for the “sale of unearned salary of defendant as a mail clerk in the United States post-office at Kansas City” was “absolutely null an(j y0id, as being against public policy.” The court stated that the “reason of the rule is that the public service may not be so good and efficient when the unearned salary has been assigned as when it has not been . . . ”

In Wood v. Kansas City, 162 Mo. 303, the opinion was written by the same judge who wrote the opinion in State v. Williamson. In the Wood case the action was bro^t to recover notarial fees arising from the same sort of notarial work.as those in this case. Wood was a clerk in the office of the treasurer of Kansas City. By ordinance he was required to turn the notarial fees into the city treasury and accept a fixed salary. It was held the ordinance was void and he might recover the fees. In that case it was pointed out that Wood had entered into no contract whereby the city was to pay a fixed salary and take whatever notarial fees he might earn in taking acknowledgments of sale certificates. This was one of the grounds upon which the court in the Wood case distinguished the case of Leach v. Railway, 86 Mo. 27. It is suggested this part of the opinion is 'obiter dictum. It seems to us to be a part of the actual decision. The holding was made in distinguishing a case on the authority of which one of the 'parties was insisting upon a result different from that reached in the opinion.

The Wood case, therefore, gives recognition to the idea that a contract whereunder a notary accepts a fixed salary in lieu of uncertain notarial fees and agrees these may be paid to another, might constitute a valid agreement, or might amount to a waiver or estoppel against the notary in case he later attempted to recover the fees. It is not necessary for us to attempt to determine whether this ruling is right or wrong. At the most it left the question open and we have found no other decision which countervails it in a case presenting the question as it was presented to the Court of Appeals in this case.

Relator earnestly- contends that a rule permitting waiver in circumstances like those in this case (and the Wood case) conflicts with the principle laid down in State v. Williamson and like cases. In that case the contract had not been executed, and Williamson was indicted on the theory that he had collected salary, belonging to his assignee and was. guilty of embezzlement. It was not unlike cases in which an effort is made to enforce executory contracts for assignments of unearned official salary. In this case the relator had accepted the salary he procured by agreement to turn notarial fees into the city treasury in consideration thereof (so the Court of Appeals held) and now seeks to recover the fees the city took under that agreement. Whether his carrying out such an agreement' and accepting the salary constitutes such a waiver as to preclude Ms recovery of the notarial fees from the city, even though it he conceded the agreement was originally void as against public policy, is a question this court has not passed upon except in the Wood case, and, in that case, the holding is certainly not out of accord with the holding of the Court of Appeals in the case at bar. The question not having been decided by this-court in a manner contrary to the ruling of thé Court of Appeals, the record cannot be quashed on the ground of conflict on this question. There is authority elsewhere tending to support the view of the law taken by the Court of Appeals. The writ is quashed.

All concur except Woodson, J., who dissents; Bond, G. J., concurs for conformity to existing rule.


source: Caselaw Access Project

author: WOODSON, J. GRAVES, J.

license: Public Domain

text:
    HANNA DESSAUER v. SUPREME TENT, KNIGHTS OF THE MACCABEES OF THE WORLD, Appellant.
    In Banc,
    April 7, 1919.
    1. LIFE INSURANCE: Validity of Subsequent Changes in Contract Made by By-Law. The contract rights between the parties to a life insurance policy relating to the benefits the member is to receive under his assessment policy cannot be destroyed, impaired or taken away from him by a by-law subsequently enacted by the association, even though the application for the policy and the policy itself contain a provision that the member is to be bound by and must conform to all laws of the order then in force or that may thereafter be enacted by it. Such provisions relate to and mean only such by-laws or rule's as may thereafter be enacted for the regulation and conduct of the affairs of the association and the duties of members, and have no reference to changes and alterations in the contract entered into with the member.
    2. -: -: Suicide. Where the fraternal association promised to pay the member a named sum only on condition that “he shall have in every particular complied with the laws of the order now in force or that may hereafter be adopted,” and one of the by-laws at the time the certificate was issued provided that in case the member committed suicide within five years after admission his beneficiary was to be paid only the assessments paid, and thereafter the by-law was so changed as to prohibit the payment of any mortuary benefit in case of suicide at any time, except twice the assessments paid, the association was not relieved from paying the benefit promised, by the suicide of the member more than five years after his admission to membership. A contract to pay indemnity cannot be impaired by a subsequent change in the bylaws except by the member’s express consent. [Overruling Dessauer v. Supreme Tent, 191 Mo. App. 76, and paragraph 2 of Claudy v. Royal League, 259 Mo. 1. c. 105.]
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      R. P. & C. B. Williams for appellant; D. D. Aitken, of counsel.
    (1) There is' no law or public policy prohibiting a member of a benefit society from contracting in advance that future laws may be passed by societies changing and modifying the indemnity in the original certificate, and if such stipulation, is made, the by-law will be enforced. Claudy v. Royal League, 259 Mo. 92; Shipman v. Protected Home Circle, 174 N. Y. 398; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 93 Mo. App. 78; Lewine v. Supreme Lodge, 122 Mo. App. 547; Westerman v. Supreme Lodge, 196' Mo. 738; Ellerbe v Faust, 119 Mo. 653. (2) The certificate application, and by-laws of a mutual benefit society constitute the contract with the member, and all must be read together in order to see all the terms and conditions of the contract. Westerman v. Supreme Lodge, 196 Mo. 738; Richmond v. Supreme Lodge, 100 Mo. App. &; Slater v. Supreme Lodge, 76 Mo. App. 387; Laker v. Royal Union, 95 Mo. App. 353; Shipman v. Protected Home Circle, 174 N. Y. 398. (3) There is no vested interest in a benefit certificate issued by a fraternal beneficiary association, and therefore its subsequent bylaws changing the contract or reducing its obligations does not disturb any vested rights. Westerman v. Supreme Lodge, 196 Mo. 1. c. 737; Masonic Benefit Association v. Bunch, 109 Mo. 560; Wells v. Mutual Benefit Association, 126 Mo. 630; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 93 Mo.’ App. 78; Shipman v. Protected Home Circle, 174 N. Y. 368; Casualty Co. v. Kacer, 169 Mo. 314; Grand Lodge v. (McPadden, 213 Mo. 284; Hofman v. Grand Lodge, 73 Mo. App. 47; Grand Lodge v. Reneau, 75 Mo. App. 492; 1 Bacon, Benefit Societies, see. 291a; Golden Star Fraternity v. Martin, 59 N. J. L. 207; Ables v. Ackley, 133 Mo. App. 603. (4) Where the member either in the application or certificate, agrees to be bound by after-enacted by-laws or the obligation of the s.ociety to pay is made subject to or liable to forfeiture, if the member shall not comply with laws, rules and regulations that may be subsequently adopted, as well as those in force at the time he joined, such after-enacted by-laws are valid and binding.' Claudy v. Royal League, 259 Mo. 92; Westerman v. Supreme Lodge, 196 Mo. 738; Ellerbe v. Faust, 119 Mo. 653; Shriek v. St. Louis Mut. Co., 34 Mo. 423; Allen v. Life Ins. Co., 8 Mo. App. 52; State ex rel. v. Grand Lodge, 70 Mo. App. 456; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 93 Mo. App. 78. The following is a list of authorities by states passing on after-enacted suicide by-laws, as well as after-enacted by-laws on kindred subjects, wherein the same principle is involved, sustaining such bylaws : Supreme Commandery v. Ainsworth, 71 Ala. 436; Fraternal Union of America v. Zeigler, 145 Ala. 287; Stohr v. Musical Fund Society, 82 Cal. 557; Bowie v. Grand Lodge, 99 Cal. 392; Schmierer v. Mut. Be-serve Fund Life Assn., 153 Cal. 208; Caldwell v. Grand Lodge, 148 Cal. 195; Brown v. Knights of the Protected Ark, 43 Colo. 289; Masonic Mut. Benefit Assn. v. Severson, 71 Conn. 719; Gilmore v. Knights of Columbus, 77 Conn. 58; Union Fraternal League of Boston v. Johnston, 124 Ga. 902; Supreme Tent, K. O. T. M. v. Hammers, 81 Ill. App. 560; Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340; Supreme Lodge, K. of P. v. Trebbe, 179 Ill. 348; Baldwin v. Begley, 185 Ill. 180; Theorell v. Supreme Court of Honor, 115 Ill. App. 3Í3; Murphy v. Nowak, 223 Ill. 301; Scow v. Royal League, 223 Ill. 32; Royal Arcanum v. McKnight, 238 Ill. 349; Garrety v. Catholic Order of Foresters, 148 Ill. App. 189; Ross v. Brotherhood of America, 120 Iowa, 692; Norton v. Order of Foresters, 138 Iowa, 464; Ury v. M. W. A., 127 N. W. 665; K. O. T. M. v. Nelson, 77 Kan. 629; Daughtry v. K. of P., 49 La. Ann. (Part II) 1203; Mathieu v. Mathieu, 112 Md. 625; Paine v. Society, 172 Mass. 321; Borgards v. Ins. Co., 79 Mich. 440; Brinnen v. Supreme Council C. M. B. A., 140 Mich. 220; Monger y. New Era Assn., 156 Mich. 645; Brown v. K. O. T. M., 167 Mich. 123; Ledy v. National Council, 129 Minn. 137; Supreme Lodge v. Stein, 75 Miss. 106; Domes v. Supreme Lodge K. of P., Miss. 466; Schrick v. Mutual Co., 34 Mo. 423; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 100 Mo. App. 78; Westerman v. Supreme Lodge, 196 Mo. 739; Ellerbe v. Faust, 119 Mo. 653; Allen v. Life Assn., 8 Mo. App. 52’; State ex rel. v. Grand Lodge, 70 Mo. App. 466; Claudy v. Royal League, 259 Mo. 92; Farmers’ Mut. Ins. Co. v. Kinney, 64 Neb. 808, 90 N. W. 926; Briggs v. Royal Highlanders, 84 Neb. 834; Supreme Council v. Adams, 68 N. H. 236; State ex rel. v. Camden Lodge, 73 N. J. L. 500; Poultney v. Bachman, 31 Hun, 49; Hutchinson v. K. O. T. M., 68 Hun, 355; Shipman v. Protected Home Circle, 174 N. Y. 398, 63 L. R. A. 347; Green v. Ins. Co., 139 N. C. 309; Tisch v. Protected Home Circle, 72 Ohio St. 233; Chambers v. Supreme Tent, 200 Pa. 244; Supreme Lodge v. La Malta, 95 Tenn. 157, 30 L. R. A. 838; West v. Grand Lodge, 14 Tex. Civ. App. 471; Eversberg v. K. O. T. M., 33 Tex. Civ. App. 549; Fugure v. Mut. Soc., 46 Yt. 362; Plunkett v. Supreme Conclave, 105 Ya. 643; Kline v. Knights & Ladies, 140 Pac. 72; Thomas v. Maccabees, 85 Wash. 665; Schmidt v. Supreme Tent, 97 Wis. 528; Hughes v. Wis. Odd Fellows, 98 Wis. 292; Loeffler v. Modern Woodmen, 100 Wis. 79; Curtis v. Modern Woodmen, 159 Wis. 303; Barrows v. Mut. Reserve Life Ins. Co., 151 Fed. 461; Order of U. C. T. v. Smith, 192 Fed. 102; Supreme Lodge v. Light, 195 Fed. 903; Wright v. Minn. Mut. Life Ins. Co., 193 U. S. 657; Supreme Lodge v. Minn., 240 U. S. 574; Holt v. Supreme Lodge, 235 Fed. 885.

      William S. Campbell for respondent.
    (1) Subsequent by-laws undertaking to reduce the amount to be paid under certain contingencies, such as death by suicide, do not take effect on previous contracts, and stipulations in the application and certificate of insurance that the member will comply with future regulations,- means the members will comply with such as relate to his duty as a member, but it does not mean that the association may interfere with the essential purpose of the contract, namely, the indemnity covenanted /to be paid. Zimmermann v. Supreme Tent, 122 Mo. App. 591; Mathews v. Modern Woodmen, 236 Mo. 349; Dietrich v. Modern Woodmen, 3.61 Mo. App. 101; Morton v. Supreme Council, 100 Mo. App. 92; Smail v. Court of Honor, 136 Mo. App. 434; Kavanaugh v. Royal League, 158 Mo. App. 243; Lewine v. Supreme Lodge K. of P., 122 Mo. App. 547; Pearson v. Knights Templar, 114 Mo. App. 288; Wilcox v. Court of Honor, 134 Mo. App. 547; Sisson v. Supreme Court of Honor, 104 Mo. App. 61; Young v. Railway Mail Assn., 126 Mo. App. 325; Campbell v. American. Benefit Club, 190 Mo. App. 249; Smith v. Supreme Lodge K. of P., 83 Mo. App. 526; Grand Lodge v. Sater, 44 Mo. App. 453; Hysinger v. Supreme Lodge K. of P., 42 Mo. App. 635; Dowdall v. Catholic Mutual Benefit Assn., 196 New York 408; Weber v. Maccabees, 172 N. Y. 493; Beach v. Supreme Tent of Maccabees, 177 N. Y. 100; Evans v. Southern Tier Masonic Relief Assn., 182 N. Y. 453; Ayers v. Order of United Workmen, 188 N. Y. 280; Olson v.. Court of Honor, 100 Minn. 117; Ruder v. National Council, 124 Minn. 431; Smyth v. Supreme Lodge K. of P., 198 Fed. 989; Knights Templar & Masons Indemnity Co. v. Jarman, 44 C. C. A. 93,104 Fed. 638; Parks v. Supreme Circle Brotherhood of America, 89 Atl. 1042; Newhall v. American Legion of Honor, 181 Mass. 117; Pokrefky v. Fireman’s Fund Assn., 121 Mich. 456; Heptasophs v. Rehan, 119 Md. 92. (2) It has been repeatedly held that the provision in the application of the member to comply with future by-laws and regulations means the member will comply with such by-laws, rules and regulations as relate to his duties as a member of the association, and that the order is powerless, by by-laws or' otherwise, to change or modify the essentials of the contract of insurance without the express consent of the member. Zimmermann v. Supreme Tent, 122 Mo. App. 591; Kavanaugh v. Royal League, 158 Mo. App. 243; Morton v. Supreme Council, 100 Mo. App. 92; Campbell v. American Benefit Club, 109 Mo. App. 249; Sisson v. Supreme Court of Honor, 104 Mo. App. 61.(3) An after enacted by-law which has the effect of materially changing the contract between the insured and the society, by greatly reducing the amount which his beneficiary would receive at his death, is an unreasonable change, and not biding upon the insured or his beneficiary. Kavanaugh v. Royal League, 158 Mo. App. 234; Lewine v. Supreme Lodge, 122 Mo. App. 547.
   WOODSON, J.

In due time and in proper form the defendant appealed the cause of the St. Louis Court of Appeals, which reversed the judgment and directed the circuit court to render judgment for the plaintiff for $744, the amount tendered by the defendant before the suit was instituted One of the judges of the Court of Appeals dissented from the opinion therein rendered and the cause was duly certified to this court.

The policy is dated August 14, 1900, and the material parts thereof are as follows:

“This certifies that Sir Knight Emmanuel Dessauer has been regularly admitted as a member of Hall Tent No. 8, located at St. Louis, State of Missouri, and that in accordance with, and under the provisions of the laws of the order, he is entitled to all the rights, benefits and privileges of membership therein, and that at his death one assessment on the membership, not exceeding in amount the sum of three thousand dollars, will be paid as a benefit to Hannah Dessauer, bearing relation to him of wife, upon satisfactory proof of his death, together with the surrender of this certificate, provided he shall have in every particular complied with the laws of the order now in force, or that may hereafter be adopted, and has not obtained his membership by fraud or misrepresentation as to his age, family history, physical condition, or occupation, when admitted to membership, as shown by his application which is'hereby made a part of this certificate.”

At the time of the issue of the policy the following by-law of the company was in force:

“Section 173. No benefit shall be paid . . . when death was the result of suicide within five years after admission, whether the member taking his own life was sane or insane at the time, or when the death of the member was intentionally caused by the beneficiary or beneficiaries of such member; provided that in case of suicide within five years after admission, all assessments paid to the Supreme Tent by such member shall be paid back to the beneficiary named in the certificate and such amount shall be the full amount that can be claimed in any such case.”

On July 20, 1904, about four years after the issuance of the policy, the following by-law was adopted by the company and remained in force until after the death of the insured:

“No benefits shall be paid on account of the death of a member who shall die by his own hand, whether sane or insane, provided, however, that the beneficiary named in life-benefit certificate, or the person legally entitled to the benefit, shall receive an amount equal to twice the amount contributed to the life benefit fund by the member during his lifetime.”

The insured knew of this by-law and continued to pay his assessments and dues up. to the 19th day of January, 1911, when he took his own life by shooting himself in the head.

I. There is but a single legal proposition presented by this record for determination, and that is, whether or not the by-law adopted July 20, 1904, is controlling in this case. Counsel for defendant contends that it is, while those for the plaintiff deny that proposition and assert that the by-law of August 14, 1900, in force at the date of the issuance of the policy, controls.

In the light of the decisions of the courts of this State, this can no longer be considered an open question. They are unanimous in holding that the contract rights between the parties regarding the benefits the member is to receive under the terms of the policy cannot be destroyed, impaired or taken away from him by a subsequently enacted by-law by the association, even though the application for the policy, and ■ the policy itself, contain a provision to the effect that the member is to be bound by and must conform to all the laws then in force, as well as such as may thereafter be enacted by the association; the provisions regarding such subsequently enacted by-laws have been construed and must be construed to mean such by-laws and rules as may be thereafter enacted for the government and regulation of the conduct and management of thq affairs of. .the association, and prescribing the duties of the members, and not for the purpose of changing, or nullifying contracts entered into with its members. Among the cases so holding are the following:

In Smith v. Supreme Lodge, 83 Mo. App. 512, l. c. 526, the court said: “The fact'that it reserved the right by the ássent of the member to make future bylaws obligatory upon him, could not justly be deemed to comprehend the right to abate its debt, for that would pro tanto destroy the contract between the parties and to permit one person to accept a consideration of a debt and subsequently to deny a material part or all of such debt, 'would authorize a patent fraud which the law does not deem to have been within the intent of a mere general agreement for changes in the contract.”

In Morton v. Supreme Council, 100 Mo. App. 76, l. c. 92, the court said: “Whatever the rule may be in other jurisdictions, in this one is that by-laws of the kind involved in this controversy do not materially alter or impair prior contracts of insurance, whatever the proviso of the ■ certificate may be in regard to future by-laws, on the theory above stated, that the intention of such a provision is to bind the insured simply by administrative or regulative enactments; not such as • go to the reduction or withdrawal of the consideration for which assessments are charged.”

In the case of Campbell v. American Benefit Club, 100 Mo. App. 249, l. c. 256, the court said: “Yet that the proper interpretation of the contract, and the true intent of the recital in the application, were to render obligatory upon the insured only after-adopted laws for the conduct of the order, duties of the members and the like, but not such as sought to impair or effect the existing contracts of insurance,-in our judgment, is supported by the weight of authority and is controlling and herein approved.”

In Sisson v. Supreme Court of Honor, 104 Mo. App. 54, l. c. 61, the court, in discussing this question, said: “But do not mean that the society may interfere with the essential provisions of the contract of insurance, and that it is powerless, by by-laws or otherwise, to change or modify the essentials of the contract of insurance without the express consent of the member. ’ ’

So in the case of Pearson v. Life Indemnity Co., 114 Mo. App. 283, l. c. 290, the court, in discussing the question of the effect of a subsequently enacted by-law on previous contracts, said: “I think it may be safely asserted that the doctrine of this court is that beneficiary associations doing an insurance business on the assessment plan are without authority to change or modify their contracts of insurance without the express assent of the members, and that this doctrine is supported by the great weight of authority elsewhere, as shown by the cases cited in the opinion of Morton v. Supreme Council, supra.” In the case of Zimmermann v. Supreme Tent, K. O. T. M., 122 Mo. App. 591, 1. c. 601, the identical question that is involved in this case was there presented, and the court, after reviewing the decisions to which we have referred above, said: “This court, however, has been consistent in holding that the benefit contracted for cannot be destroyed or impaired by a subsequently enacted by-law, though the member agreed in advance that his contract should be governed by subsequently enacted by-laws, on .the ground that a by-law which impairs the indemnity secured is unreasonable and could not have been in the mind of the member when he entered into the agreement. It seems most unreasonable that the member would agree in advance, that the very thing he was contracting for, to-wit, the benefit to accrue to his beneficiary, might be destroyed or impaired by the opposite party to the contract at any time in the future it might choose to do so, by passing a by-law. ’ ’

In the case of Lewine v. Supreme Lodge, 122 Mo. App. 547, l. c. 558, the court said: “And so it has held that the contract to conform to and abide by, or submit to the penalties of future by-laws did not author- ^ ize the subsequent modification of the contract of insurance by an after-enacted law reducing the amount to be paid in event of suicide; that such was an unreasonable exercise of power reserved under the language quoted, and that to hold such subsequent law valid would be an unreasonable interpretation of the language employed in the contract.”

In the case of Young v. Railway Mail Assn., 126 Mo. App. 325, l. c. 333, the court said:. “But conceding, for the sake of argument, that plaintiff was bound to comply with the by-laws of defendant, it is well settled law in this State that such an agreement does not bind a member to comply with by-laws adopted after the issuance of his certificate of insurance, if the subsequent "by-laws in any way impair his contract of insurance or impose upon him an additional burden.”

In the case of Wilcox v. Court of Honor, 134 Mo. App. 547, l. c. 557, the court said: “The suicide bylaw in force at the time the certificate was issued, entered into and formed a part of the contract of insurance, and we hold that the amended by-law on the subject of suicide did not in the least alter or change the contract in respect to suicide, and that the amendment was not intended to affect contracts of insurance then in force. Neither was the power reserved to the order, by thg application or certificate, or the by-laws, to substitute at any time an amended by-law on the question of suicide, which would change in the least the provisions of the contract of insurance. ”

In the case of Small v. Court of Honor, 136 Mo. App. 434, l. c. 442, the court said: “We think it would be most harsh and unreasonable to hold that the language employed in the certificate and application gave license to defendant to destroy or impair its obligation under the contract without the consent of the other party to that contract.”

In Kavanaugh v. Royal League, 158 Mo. App. 234, l. c. 243, upon this point the court after referring to the decisions of Illinois, which sustained after-enacted by-laws, said: “Though such be the rule in that State, the courts of Missouri decline to give effect to these provisions in the contract as sufficient to authorize the society to either reduce, impair or destroy the indemnity vouchsafed in the insurance certificate. Indeed, the doctrine with us is that it is an unreasonable interpretation or construction of such general-language contained in the application and certificate to declare it sufficient to signify the intention upon the part of the insured that the indemnity might be either impaired hr swept away by a future by-law on the subject of suicide.”

In the case of Dieterich v. Modern Woodmen, 161 Mo. App. 97, l. c. 101, the court said: “The association, from the very nature of its organization, has the inherent right to change its by-laws. In doing so, however, it is subject to certain restrictions. The change must be reasonable and in harmony with the general purposes of the organization, and must not interfere with the contract rights of its members.”

In the case of Mathews v. Modern Woodmen, 236 Mo. 326, l. c. 349, this court, in referring to the effect of an after-enacted by-law on previous contracts, in an •opinion written by Lamm, J., said: “If it impair the substantive property rights of the member in his insurance contract as that contract existed before its passage,' then, by the law of the land, it becomes inoperative in so far as it impairs the obligation of a contract previously entered into between the company and Mathews. Such is the rationale of Schmidt v. Supreme Lodge, 228 Mo. 675, supra. The question is there so exhaustively considered that ho new or further exposition is necessary. Our conclusion is, in any view of it, that said by-law should not control our disposition of this case.”

In Hysinger v. Supreme Lodge, 42 Mo. App. 627, l. c. 635, where the question of an after-enacted by-law ’ regarding the question of beneficiaries was considered, the court said: “Levin made a valid and binding contract of insurance, which the defendant was not at liberty to repudiate, so long, as he paid his dues and assessments, and otherwise ■ observed . the ■ rules and regulations of the order.”

In Grand Lodge v. Sater, 44 Mo. App. 445, l. c. 452, the question before the court was with reference to making the application a part of the contract by an after-enacted by-law, which was not a part of it at the time the certificate was issued. The court said: “At the time Sater became a member there was no such law. Hence, we are of the opinion that the one subsequently adopted in no way affected Sater’s contract with the order. As to other amendments to the constitution and by-laws, Sater was bound, but not so as to changes directly affecting his contract of insurance. An insurance contract, such as we have here, is as sacred as any .other contract, and it cannot be modified or changed by the society, except by the express consent of the member. ’ ’

In the ease of Knights Templar v. Jarman, 104 Fed. 638, affirmed in 187 U. S. 197, which was a case from the Western District of Missouri, the question of the effect, of an after-enacted by-law with reference to suicide was being considered, and the court said, 1. c. 644: “In the second place, we observe that it is not a reasonable interpretation of the clause above quoted from the application that the applicant intended to assent in advance to any changes in its constitution and by-laws which the compay saw fit to make, even ii they reduced the amount of indemity which the company had promised to pay in the event of his death, and thereby lessened the value of his policy. . . . It is not reasonable, however, to suppose that he intended to agree in advance that the company might, at any time, reduce the promised indemnity to any sum which it found convenient to pay.”

In the case of Smyth v. Supreme Lodge, 220 Fed. 438, affirming the same case in 198 Fed. 967, the court says: “I think courts should and will hold that bylaws are made primarily for governmental purposes and the proper regulation and conduct and the management of the affairs of the corporation or association, and not for the purpose of either making contracts or unmaking or changing or impairing the obligation of contracts already existing.”

In Supreme Council, Legion of Honor v. Getz, 112 Fed. 119, the court said: “These were to be binding upon Getz as upon all other members of the association, and, inasmuch as experience might show that for the accomplishment of these purposes changes in the bylaws might be expedient, it was provided" that Getz should agree to such amendments as might seem to the members to be necessary to further these ends. To this extent, and no further, we think the agreement goes. The contract with the Supreme Council had not yet been made, and we cannot conceive that it was in the mind of either party that the defendant, by this agreement, "should be free to abdicate any contract into which it might enter with the member, or that-the benefits which he might seek to obtain could be swept away at the will of the defendant and without his consent.”

In the case of Iowa State Traveling Men’s Association v. Ruge, 242 Fed. 762, a case from Missouri, decided in 1917, the question of an after-enacted bylaw was before the court, and the court said, at page 768: “The clause, however, was not a part of the constitution of the association nor- any of its by-laws when the certificate in question was issued, and appears only in an amendment to one of the company’s bylaws made some time after the issuance of the certificate. Admitting that by his application for membership in the defendant company, the insured agreed to such amendment of the by-laws, such an agreement at most would permit only an amendment germane to the original contract of the parties and would not authorize an, amendment that would impair or substantially disturb vested contract rights.”

In the case of Ayers v. Order of United Workmen, 188 N. Y. 280, as to the effect of an after-enacted bylaw, with reference to a member engaging in the liquor business, the court said at page 286; “While the defendant may doubtless so amend its -by-laws, for instance, as to make reasonable changes in the methods of administration, the manner of conducting its business and the like, no change can be made which will deprive a member of a substantial right conferred expressly or impliedly by the contract itself. That is beyond the power of the Legislature, as well as the association, for the obligation of every contract is protected from State interference by the Federal Constitution.”

In the case of Weber v. Supreme Tent of Maccabees, 172 N. Y. l. c. 493, where a by-law of the defendant association similar to the one in question was discussed, the court said: “Unintentional self-destruction, whether due to uncertainty or accident, after the lapse of a year from the making of the contract, was as much insured against as death from typhoid fever or consumption, and an amendment to its by-laws providing that the death of an existing member from any of these causes should render the policy void would deprive the party of vested contract rights. An amendment which effects such a result, we have recently held, may not be made, because it is an unreasonable amendment destroying contract rights, instead of regulating "the administration of the corporation and its membership within reasonable bounds.”

In the case of Olson v. Modern Woodmen of America, 164 N. W. (Iowa) l. c. 348, upon the point of the effect of an after-enacted by-law, the court said, in referring to the effect of the assent upon the part of the assured to be bound by subsequent by-laws, that it only meant that the member assented to the making of such by-laws as were reasonable, and said:' “It does not confer upon the society the power to destroy the contractual rights of a member, created by the certificate, or to unreasonably impair that obligation, or unreasonably reduce the indemnity which it has promised to pay, or unreasonably embarrass the assured’s beneficiary in reducing the amount stipulated to be paid in the certificate upon the happening of the event herein insured against. ... It cannot be a reasonable interpretation of the reserved power to say that after the issuance of the certificate, the society, by virtue of the reserved power, was therefore permitted to ,make any amendments to its by-laws which in fact created a new and different contract than that entered into, or in a material way unreasonably changed the contract as to- indemnity theretofore entered into, or one which rendered it impossible, under certain circumstances, for the beneficiary to recover on the certificate the amount stipulated in the certificate. Such interpretation would be unreasonable and such a by-law would be unreasonable so interpreted, since it would give to the society the power to make any by-law, even to the extent of destroying the contract which it had with the assured.”

In,the case of Sheetz v. Protected Circle, 256 Pa. 176, an after-enacted by-law was being construed by the court. It was argued that as the member through his accredited representatives from the local body of which he was a member had participated in the enactment of the amendments to the constitution he was bound by those changes. The court said: “This is unavailing, for the universally recognized rule is that, though a member of an association may know that certain amendments to the by-laws have been passed, and he may even have voted for them, it does not follow from this that he consents that they may have retroactive force, modifying the contract which he holds with the society. ’ ’

In Massachusetts in the case of Newhall v. American Legion of Honor, 181 Mass. 111, l. c. 117, the court said: “To state our opinion in a different form, whatever compliances with by-laws may be construed to mean, it does not mean absolute submission to whatever may be enacted in good faith, and it does not extend to permitting a direct deduction from the sum which on the face of the certificate any ordinary man would be led to suppose secure.”

There is no conflict between the doctrine announced in the foregoing cases, and that stated in the case of Claudy y. Eoyal League, 259 Mo. 92, and like cases. A most casual reading of the facts of that case will' clearly distinguish it from the case at bar, and the rule of law underlying each is as different as are the facts of each. In my opinion the Claudy case was correctly decided, and I have no'doubt but that the judgment of the circuit court in this case was proper.

I am, therefore, of the opinion that the opinion of the Court of Appeals in this case reported in the 191 Mo. App. 76, should be overruled, and it is so ordered.

For the reasons stated, the judgment of the circuit court is affirmed.

Bond, G. J., and Walker, J., concur; Graves, J., concurs in separate opinion, in which Blair, Faris and Williams, JJ., concur.

GRAVES, J.

(concurring.) — I concur fully in all

that is said in the majority opinion, except the sentence which reads: “There is no conflict between the doctrine announced in the foregoing cases and that stated in Claudy v. Royal League, 259 Mo. 92, and like cases.”

Paragraph two of the Claudy case, supra (259 Mo. l. c. 105), is in direct conflict with the general law of this State, and in direct conflict with the doctrine announced by my brother in this case. The effect of the ruling in the Claudy case is to permit these insurance companies to change the contract of insurance by a by-law passed after' the issuance of the contract. All the courts of this State have set their face against this doctrine. The rule in other states is not material in view of our long fixed rule. That portion of the opinion

in Claudy’s ease should be overruled.

Blair, Faris and Williams, JJ., concur in these views.


author: GRAVES, J.

text:
    HARRY TROLL, Public Administrator in Charge of Estate of LUCIA M. LAIRD, Appellant, v. THIRD NATIONAL BANK.
    In Banc,
    April 26, 1919.
    1. DEMURRER: General or Special. A demurrer to the petition, which states two of the grounds therefor designated in the statute, is not a general demurrer; hut if it states that “the plaintiff has no legal ground to sue,” that “the petition shows that plaintiff is not entitled to recover” and that “the petition does not state facts sufficient to constitute a cause of action” it is specific, hut nevertheless is broad enough to raise several questions for decision.
    2. PUBLIC ADMINISTRATOR: Right to Sue: Ancillary Administration: Admissions. Allegations that plaintiff is public administrator of the county, that as such he took charge of and was duly appointed and qualified as ancillary administrator of the estate of a person who at and prior to her death was a resident of another state, and that he is now proceeding to administer upon said estate, stand admitted by a demurrer which states that plaintiff has no capacity to sue and that his petition does not state a cause of action; so that unless the other facts alleged show that there was no estate to be administered by an ancillary administration, the plaintiff has a- right to sue. Such facts being necessarily admitted by the demurrer, the pleadings must show some other facts which disrobe the public administrator of the right to administer.
    3. ADMINISTRATION: Situs of Corporate' Stock: Demurrer. An allegation that the situs of the personal estate is in Missouri and is an asset of the estate in this State, is a legal conclusion, and is not admitted by a demurrer to the petition.
    4. -: -: In State of Corporation’s Domicile. Actual property represented by certificates of stock in a corporation has its situs where the corporation is, and not where the certificates chance to be. Where decedent resided and died in Illinois, owning certificates of stock in a national bank located in Missouri, the situs of the property represented by the certificates was in Missouri, although the certificates were not themselves in Missouri and have not been since decedent’s death.
    5. PUBLIC ADMINISTRATOR: Right to Sue: Collateral Attack. A public administrator who has taken charge of an estate committed to him by statute has a right to sue for the preservation of designated assets; and having instituted in the circuit court his suit for the recovery of property in this State belonging to a decedent who resided and died in another state, his right to act for 'the I estate in Missouri cannot be challenged in such collateral pro-1 ceeding. His right to so act can be questioned only in the probate; court.
    6. -; — : Eight to Act: Debts. If the decedent, who died in Illinois, left an estate in Missouri, it is immaterial, in determining whether' the public administrator has a right to act as ancillary adminis-1 trator of the domestic estate, whether or not decedent had creditors ; in Missouri.
    7. -: -: Estates of Testates: Exposure to Loss or Damage. By the fourth clause of Section 302, Revised Statutes 1909, the public administrator is authorized to take charge of money, prop-i .erty, papers or other estate left in a situation exposed to loss orj damage, when no other person has been appointed to administer on;, the same; and this clause, unlike the second and fifth, has'1 reference to estates of testates as well as to estates of intestates,*. and any such property with no one in charge thereof is exposed to] ‘ loss or damage.
    Appeal from St. Louis, City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Eeversed, and remanded.

      Henderson, Marshall & Becker for appellant.
    (1) Stock in a corporation are assets in the State where the corporation is domiciled and does business. Jellnick v. Huron Copper Mining Co., 177 U. S. 1; Richardson v. Busch, 198 Mo. 186. (2) The real situs of assets is where the debtor resides and the assets are located. McCarty v. Hall, 13 Mo. 480; In re Ames & Company, 52 Mo. 293. (3) The fact that the stock in controversy is that of a national bank makes no difference. A national bank is organized under the act. of Congress, but its domicile and habitation is in the State in which it is authorized to have its principal place of business. It cannot remove from that State to another. See. 5134^ Tit. Ch. 1, p. .3455., U]. S. Comp. Stat. 1901'. (4) The matter of debt or no .debts is nowhere pleaded, raised or intimated by either the pleadings of plaintiff or defendant. It is immaterial whether there are or are not debts. Becraft v. Lewis, 41 Mo. 552; Bartlett y. Hyde, 3 Mo. 491; Crohn v. Bank, 137 Mo. App. 715; Green v. Tittman, 124 Mo. 376; State ex rel. Hounsom v. Moore, 18 Mo. App. 406; Weeks v. Jewett, 45 N. H. 540; Wood y. Bagley, 13 Wend. 453; Marshall v. King, 24 Miss. 85; Allen v. Simmons, 1 Curtis, 122; Short v. Farmer, 4 Dev. & Batt. 122; Whit v. Ray, 4 Ind. 14; Miller v. Eastman, 11 Ala. 609; Murphy v. Hanrahan, 50 Wis. 485 ; Bradford v. Felder, 2 McCord, Cl. 168; Naylor v. Moffatt, 29 Mo. 127. (5) The property is in Missouri, and the certificates were merely the evidence of the property. The rule of law well established is that the ancillary administrator has title to the property within confines of the state creating said ancillary. adminstrator and that the domiciliary administrator has no title nor power, nor can he do any act effecting property, within ‘the state of the ancillary administrator. The Illinois administrator has no title to the stock in question, and having no title in himself he cannot transfer or assign the same to any one else so as to give his assignee power to maintain an action therefor or to claim title thereto. (6‘) The grant of letters testamentary or letters of administration has no effect beyond the territorial limits of the state or county in which the grant was made. So, therefore, the executor or administrator can do no act in a foreign country by virtue of such letters. Enchin v. Wylie, 10 H. L. Cas. 19; AttornyGeneral v. Hope, 2 Cl. & F. 84; Whyte v. Rose, 48 Eel. 842; Preston v. Melville, 8 Cl. & F. 1; Thourton v. Fowler, 3 Peere-Wms. 371; Atkins v. Smith, 2 Atk. 63; Scott v. Bentley, 1 Kay & J. 281; 1 Jur. N. S. 394; 24 L. J. Ch. 244; Taylor v. Benham, 5 How. (U. S.) 233; Harper v. Butler, 2 Pet. (U. S.) 239; Treeothick v. Austin, 4 Mason (U. S.), 16; Vaughan v. Northup, 13 Pet. (U. S.) 1; Melius v. Thompson, 1 Cliff. (U. S.) 125; Brownson v. Wallace, 4 Blatch. (U. S.) 465; Wood v. Gold 4 McLean (U. S.), 577; Swatzel v. Swan, 3 Mason (U. S.), 469; Bartless v. Hyde, 3 Mo. 490; Croslin v. Baker, 8 Mo. 437; State to nse v. Porter, 9 Mo. 352; Leakey v. Maupin, 10 Mo. 368; Hastings v. Meyer, 21 Mo. 519; Haylor’s Administrator v. Moffatt, 29 Mo. 126; Hanenkamp’s Administrator v. Borgonier, 32 Mo. 562; State to use v. Fulton, 35 Mo. 523; Smith v. Denny, 37 Mo. 20; Vastine v. Dinan, 42 Mo. 369; State ex rel. v. Moore, 18 Mo. App. 406; Becraft v. Lewis, 41 Mo App. 546; Boeger v. Langenberg, 42 Mo. App. 7; McCarty v. Hall, 13 Mo. 480; In re Henry Ames & Co., 52 Mo. 290; McPike v. McPike, 111 Mo. 480; Green v. Tittman, 124 Mo. 376; 13 Am. & Eng. Ency. Law (2 Ed.), p.-932.

      Thos F. Galt for respondent.
    (1) Appellant has no authority to demand of the respondent that it turn over to him the shares of stock prayed for. Richardson v. Cole, 160 Mo. 372; Walworth v. Abel, 52 Pa. St. 370; Needham v. Gillett, 39 Mich. 574; Woodhouse v. Phelps, 51 Conn. 521; Lewis v. Lyons, 13 Ill. 117. (2) The situs of shares of stock for the purpose of administration is at the domicile of the owner of the stock. Cook on Corporations, sees. 361, 375, 329, 12; Middlebrook v. Merchants Bank, 41 Barb. (N. Y.) 481, 3 Keys (N. Y.), 135; 18 Cyc. 1281; Bradley v. Bauder, 36 Ohio St. 28; Griffith v. Watson, 19 Kan. 23; Brown v. San Francisco Gas Light Co., 83 Cal. .429; R. S. 1909, sec. 321, 2984; South Bend Natl. Bank v. Lanier, 11 Wall. (U. S.) 369; Johnston v. Laftus, 103 U. S. 800; Savings Trust v. Natl. Bank, 89 Mo. 59.
   GRAVES, J.

The trial court sustained a demurrer to plaintiff’s petition. Both petition and demurrer are short, but they go to the vitals of the case, and are material. The petition reads:

“Plaintiff states that he is, and at all the times hereinafter stated,'was the duly elected and qualified Public Administrator of the City of St. Louis; that the defendant is,,-and at all the times hereafter stated, was a corporation duly organized under the acts of Congress of the United States as a national bank, having its domicile and residence and principal place of business in the City of St. Louis, and authorized by said act of Congress and by its charter to do a general banking business in the City of St. Louis; that during her lifetime, and at the time of her death, which occurred on September 9, 1909, Lucia M. Laird was the owner of thirty-three shares of the capital stock of the defendant corporation, of the par value of one hundred dollars each, but which was of greater real or market value than the par value, which plaintiff alleges upon information and belief to be of the value of three hundred and twenty-five dollars a share, and that as such owner of said stock said Lucia M. Laird was, and her estate now is, entitled to share in the earnings and proffits of the defendant; that said' stock ownership was evidenced by a certificate of stock, numbered, to-wit, 5334, issued by defendant to said Lucia M. Laird; that said Lucia M. Laird at and prior to her death was a resident of the State of Illinois, and had her domicile at the City of Alton, Illinois; and at the date of her death had the certificate aforesaid in her possession at her said domicile; that said Lucia M. Laird died at her said domicile on, to-wit, September 9,1909, testate, leaving valuable property in the State of Illinois, which is now being administered upon in said State by her executrix, and that said executrix has in her possession the certificate of stock evidencing the right of said Lucia M. Laird to share in the capital, earnings and profits .of defendant aforesaid, but plaintiff alleges that the situs of the property, right and asset aforesaid was' and is in' St. Louis, Missouri, and was and is an asset of the estate of said Lucia M. Laird in the State of Missouri and in the City of St. Louis, and can only be administered upon in the City of St. Louis, and never was assets of said estate in the State of Illinois; that on, to-wit, June 1, 1910, plaintiff as such public administrator took charge of and duly appointed and qualified as ancillary administrator of the estate of said Lucia M. Laird in the City of St. Lonis, Missouri, and has ever since been and is now proceeding to administer upon the said estate; that the title to the said thirty-three shares of stock in the defendant corporation and the right to share in the capital, earnings, profits and dividends thereon of the defendant corporation passed to and vested exclusively in plaintiff as such ancillary administrator, on the death of said Lucia M. Laird, on September 9,1909; that immediately upon becoming such ancillary administrator and taking charge of said estate plaintiff notified defendant of such fact and defendant agreed to recognize and treat plaintiff as such, and to pay plaintiff all dividends on said stock and to send to plaintiff all notices of stockholders’ meetings, etc., that heretofore plaintiff has demanded of defendant that it issue to him as such ancillary administrator a certificate evidencing the ownership of said thirty-three shares of stock of defendant corporation, but that defendant has failed and refused and still fails and refuses so to do; that since September 9, 1909, the defendant has declared dividends upon the stock of said corporation, aggregating large sums, the exact amount of which plaintiff cannot state, but which plaintiff states upon information and belief to consist of two dividends of four per cent each, upon the capital stock of defendant corporation, and which plaintiff has demanded from defendant, but defendant has failed, and refused, and still fails and refuses to account for or pay to plaintiff.
“Wherefore, plaintiff prays that the defendant be ordered, adjudged and decreed to disclose and state, but not under oath, an oath being expressly waived, how much, and when, if any, dividends have been declared by it on the capita,! stock of defendant since September 9, 1909; that defendant be ordered, adjudged and decreed to issue and deliver to plaintiff as such ancillary administrator of the estate of Lucia M. Laird, deceased, a certificate for thirty-three shares of the capital stock of the defendant corporation, arid to pay over to plaintiff all dividends that have been declared by defendant on said stock and properly applicable thereto since September 9, 1909, and that plaintiff have judgment for costs herein, and for such other and further orders and decrees as may be right and proper, and as to the court may seem fit and proper, and for general relief, and plaintiff will ever pray.”

The demurrer is, in a way a general one, and (omitting caption) reads: “Now comes the defendant in the above entitled cause, and demurs to the petition herein filed by the plaintiff, for the reason that the said petition does not state facts sufficient to constitute a cause of action, and for the further reason that the petition shows that the plaintiff is not entitled to the relief prayed for, and for the further reason that the petition shows, upon its face, that the plaintiff is not entitled to administer upon the estate of Lucia M. Laird.”

The whole case turns upon these pleadings. What plaintiff .avers as to. the facts, stands confessed by the demurrer.

I. The pleadings are fully set out in the statement to the end that the exact status might appear. The demurrer is not what we would call a general demurrer, because it covers at least two of the recognized grounds of demurrer in our statute. [Sec. 1800, R. S. 1909.] The statute gives seven grounds for- demurrer. The second one reads: “Or, second, that the plaintiff has not legal capacity to sue.” This ground is clearly covered by. the last allegation of the demurrer.

The sixth ground of demurrer as' found in the statute, supra, reads: “Or, sixth, that the petition does not state facts sufficient to constitute a cause of action.” This ground is clearly covered by the demurrer in this case.

There is added in the demurrer before us this language: “and for the further reason that the petition shows that plaintiff is not. entitled to the relief prayed for.” This, we take it, is but another method of stating that the petition does not state a cause of action.

So that to summarize the issues, as made by the pleadings, the petition is challenged (1) because it fails to state facts sufficient to constitute a cause of action, and (2) because plaintiff has not legal capacity to sue. These, however, are broad enough to raise several questions, and those ■ we will take in such order as will best subserve brevity of opinion.

II. First, as to plaintiff’s capacity to sue. The petition avers that plaintiff is the Public Administrator of the City of St. Louis. This fact stands admitted by the demurrer, as do all other well pleaded facts. The petition further alleges that plaintiff as such public administrator “took charge of and duly appointed and qualified as ancillary administrator . . . and is now proceeding to administer upon the said estate.” These facts stand admitted by the demurrer, so that if the other facts pleaded do noi show that there was no estate to be.thus administered upon, in the manner stated above, i. e. as an ancillary administrator, then there can be no question but that the public administrator has the right to sue. In other words, there must be shown in the pleadings some facts which disrobe the public administrator of the right to administer. Such public officer is elected for the express purpose of taking charge of certain designated estates, and in the collection and preservation of them has the right to sue. So that we will have to search the petition for facts which show that this officer, in the capacity herein designated, has no authority in this particular case, and cases falling into a like class. Right here come in several contentions.

First and foremost is the situs of the property. It is true that the plaintiff alleges the situs of the property is in Missouri, and is an. asset of the Laird estate in Missouri. It is suggested that this stands admitted by the demurrer. We are not impressed -with this idea. This portion of the petition is, to our mind, hut a legal conclusion drawn from the previously stated facts. Legal conclusions are not admitted by a demurrer. As to the situs of the property the facts pleaded show that Mrs. Laird died testate in the State of Illinois, owning these 33 shares of hank stock, and had the certificate thereof in her possession, in Illinois, to the date of her death. The question, is, was the property represented by the certificate of stock, located in Illinois, where the owner lived and held the certificate, or was it in Missouri, where the corporation was located, which corporation issued the certificate of stock. Vabliant, J., determined this question for our Court in Banc, in Richardson v. Busch, 198 Mo. 174. The identical question involved here is too ably discussed by that learned jurist to require further elaboration here. It was a case involving the right of the Public Administrator of St. Louis to certain stock in a New York corporation, the certificate of stock being in this State. The opinion fully reviews .authorities, both State and Federal, and concludes that the actual property represented by certificates of stock in a corporation has its situs where the corporation is and not where the certificate chances to he. The following conclusive words of Judge Vabbiant, are found at page 186 of the opinion: “The situs of the interest is the situs of the corporation.”

So in the case at bar, when Mrs. Laird died in Illinois, the situs of the property interest, represented hv the certificate of stock, was in St. Louis, where the corporation was domiciled. The Richardson case, supra, is a well considered case, and we can’t well escape its conclusions and their effect in this case. We therefore hold that Mrs. Laird, under the admitted facts, died possessed of property in this State.

III. Having concluded that Mrs. Laird died possessed of property in this State, the next question is whether or not, under the law, the plaintiff was emPowerec^ ac^ Having admitted by tbe demurrer that plaintiff had taken charge of the estate and was administering thereon, it might with much propriety be urged that his right to act for the estate cannot be challenged in this collateral proceeding. That question was broached in the Richardson case, supra, wherein Valliant, J. at page 180 of 198 Mo. said: “The first point made in the brief of appellant is that his authority as public administrator to take charge of the estate of the deceased, De La Yergne, cannot be questioned in a collateral proceeding. That ■is a correct statement of the law, but the rule of law is, not involved in this case. ’ ’ The italics are ours.

The statement italicized is borne out by the following: Leeper v. Taylor, 111 Mo. l. c. 321, and the Missouri cases therein cited: State to use Betts v. Purdy, 67 Mo. l. c. 93; McCabe v. Lewis, 76 Mo. l. c. 296; Dunn v. Bank, 109 Mo. l. c. 90; Vermillion v. LeClare, 89 Mo. App. l. c. 55; American Car and Foundry Co. v. Anderson, 211 Fed. 301.

This case law proceeds upon the theory that where the public administrator assumes to act and does act, the question of his power to act in the given case cannot be questioned in a collateral proceeding. The determination of whether or not he is rightfully acting in a given estate is a matter for the probate court. [State to use Betts v. Purdv, 67 Mo. l. c. 93; McCabe v. Lewis, 76 Mo. l. c. 296.]

In the Anderson case, supra, a Federal case from Missouri, it is said at page 307: “It is the settled law of Missouri that the authority of a public administrator to take charge of an estate cannot be assailed collaterally. [Dunn v. German American Bank, 109 Mo. 90, 18 S. W. 1139; Leeper v. Taylor, 111 Mo. 312, 19 S. W. 955; Wetzell v. Waters, 18 Mo. 396; Richardson v. Busch, 198 Mo. 184, 95 S. W. 894, 115 Am. St. Rep. 472; Vermillion v. LeClare, 89 Mo. App. 55.] ”

So that it could be with propriety held that the plaintiff having exercised his. judgment in determining to take charge of the Missouri estate of. Mrs. Laird, this judgment of his, with him actually acting in the estate, could not he questioned elsewhere than in the probate court. In plain terms, could not be attacked collaterally. We have compelled, and rightfully, the probate court to appoint the person entitled to administer, where the public administrator was assuming to act. [State ex rel. v. Holtcamp, 273 Mo. 125.] But this question is not here. The question here is collateral attack.

But we do not stop here. We have held that Mrs. Laird left an estate in Missouri. Whether she had creditors here, is immaterial; [Richardson v. Busch, 198 Mo. l. c. 184; Becraft v. Lewis, 41 Mo. App. l. c. 552.]

With an estate here, we find that the public administrator, in the first instance, is entitled to take possession of certain estates. [R. S. 1909, sec. 302.] The fourth clause of this section reads: “Fourth, when money, property, papers or other estate are left in a situation exposed to loss or damage, and no other person administers on the same.”

It has been urged, that this clause has reference to estates of intestates and not to the estates of testates. The clause contains no such restrictions. The second clause of the statute does have such a restriction, as also does the fifth clause, but not so with the fourth clause. The purpose of this fourth clause was to give the public administrator the power to act for the protection of the estate, whether the party died testate or intestate. This, because the foreign ‘ administrator or executor of a person dying testate in another State acquires no right to protect the Missouri estate. Our courts.are not open to him, but they are open to our public administrators, and other ancillary administrators appointed by our probate courts.

Nor will it do to say that an estate in Missouri (or elsewhere for that matter) with no one in charge thereof is not one “exposed to loss or damage” within the meaning of clause four of Section 302, Revised Statutes 1909. The mere allegation of the petition that it is hank stock does not negative the idea of the property being exposed to loss or damage. Bank stock often depreciates in value in a very short time. Any estate with no administrator to look after it is exposed to loss. We think this clause clearly authorized the public administrator to act.

So that we rule: (1) that Mrs. Laird left an estate in Missouri under the facts of the petition; (2) that the petition charges and the demurrer admits that plaintiff, as public administrator, was actually in charge of the estate, and that his right to administer could not he questioned in a collateral proceeding; (3) that under clause four of Section 302, Revised Statutes 1909, the public administrator had the power to act, and for that reason his right to act could not he questioned, unless for reasons shown in the probate court, and (4) ' that with these matters ruled in favor of the plaintiff, we can see no good reason why he should not have the relief prayed for in his petition, if his facts upon a final trial measure up to those pleaded.

The demurrer should have been overruled. Judgment is reversed and cause remanded for disposition in accordance with this opinion.

All concur, except Blair and Williams, JJ., not sitting.