Pa.) CASLOW v. STRAUSBAUGH paid, suit was brought against them by the receiver in the United States Circuit Court for the Southern District of New York to collect the amount assessed against them. In that suit they contended that the statute of Minnesota, which permitted an assessment to be made against them without service of process upon them, deprived them of their property without due process of law, and that the Minnesota court was therefore without jurisdiction to make the order of assessment against them. This contention was overruled by the court, and judgment went against the defendant. The United States Supreme Court, upon a review of that judgment, declared that it was not necessary that a stockholder should be served with process in the action wherein the assessment was made, for the reason that no personal judgment was rendered against him in that proceeding; that it had reference to a corporation of which he was a member by virtue of his holding stock therein, and had for its purpose the liquidation of the affairs of the corporation, the collection and application of its assets to be administered for the benefit of creditors; that in such case it had been frequently held that the representation which a stockholder has by virtue of his membership in the corporation is all that he is entitled to; and that it had already been decided by the court, in Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739, 33 L. Ed. 184, and Great Western Tel. Co. v. Purdy, 162 U. S. 336, 16 Sup. Ct. 810, 40 L. Ed. 986, that when an assessment is necessary to be made upon unpaid stock subscriptions for the benefit of creditors, the court may make the assessment without the presence or personal service of stockholders. [2] A decree of the character sought by the receiver in the present proceeding is conclusive upon the stockholders as to the fact that an assessment is necessary, as to the amount of money required to be raised by the assessment, and as to the pro rata of each share of stock upon which the assessment is made; but it is open to a nonresident, against whom an assessment has been made as a stockholder, and who has not been served with process, or submitted himself to the jurisdiction of the court, when the receiver attempts to enforce the assessment against him, to show that he was not a stockholder, or that he had paid his stock subscription in full, or that he had a valid set-off against the assessment. Swing v. Consolidated Fruit Jar Co., 74 N. J. Law, 145, 927 GILSON et al. v. APPLEBY. (Court of Errors and Appeals of New Jersey. Nov. 21, 1911.) Appeal from Court of Chancery; Garrison, Vice Chancellor. Action by Herbert C. Gilson and others, receivers, against William R. Appleby. From an order overruling a plea to the jurisdiction, defendant appeals. Affirmed. Hartshorne, Insley & Leake, for appellant. J. Merritt Lane, for respondents. sents for consideration and determination the PER CURIAM. The appeal in this case presame questions discussed and decided in our opinion, delivered on the appeal, in the case of Gilson et al., Receivers, v. J. Charles Apus will be affirmed for the reasons stated in pleby, 81 Atl. 925; and the order now before that opinion. (82 N. J. L. 526) GILSON et al. v. APPLEBY. (Court of Errors and Appeals of New Jersey. Nov. 21, 1911.) Error to Supreme Court. Action by Herbert C. Gilson and others, receivers, against William R. Appleby. There was a judgment, and the parties aggrieved Affirmed. bring error. J. Merritt Lane, for plaintiffs in plaintiffs in error. Hartshorne, Insley & Leake, for defendant in error. PER CURIAM. Our opinion, in Gilson et al., Receivers, v. J. Charles Appleby, 81 Atl. 925, delivered at the present term, expresses our view upon the questions involved in the case now under consideration; and that view leads to an affirmance of the judgment now before us. (233 Pa. 69) CASLOW et al. v. STRAUSBAUGH. (Supreme Court of Pennsylvania. July 6, 1911.) WILLS (8 600*)-CONSTRUCTION-ESTATE CONVEYED-FEE SIMPLE. Where a will gives to testator's wife all his real estate and personal property, to have and to hold or to sell and convey at her own will and accord, and to pass title and have the use of the proceeds during her natural life, and there is no gift to any other person, and no disfee in the real estate. position of the remainder, she takes an absolute [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1335-1339; Dec. Dig. § 600.*] Appeal from Court of Common Pleas, York County. Action by Jacob Caslow and another, as executor and executrix of Margaret Caslow, Subdeceased, against Isaac Strausbaugh. mitted on case stated. From a judgment for plaintiffs, defendant appeals. Affirmed. Samuel Caslow, husband of Margaret Caslow, died on March 11, 1888, seised in fee of the land in question. By his will he gave his real and personal property to his wife. Margaret Caslow died on March 15, 1910. leaving a will by which she authorized her *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes executors to sell her real estate at public or private sale. The executors contracted to sell the land in question to the defendant, who refused to pay the purchase money, alleging that the title was not marketable. Argued before FELL, C. J., and MESTRE ZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. James St. Clair McCall, for appellant. Jos. R. Strawbridge, for appellees. bonus and make the new rate applicable to an Act April 29, 1874 (P. L. 79) § 11, authorized the formation of corporations with a capital stock of $1,000,000, and fixed the rate of bonus at one-fourth of 1 per cent. Act May 3, 1899 (P. L. 189), and Act Feb. 9, 1901 (P. L. 3), made applicable by their terms to "companies heretofore incorporated upon any increase of their capital stock hereafter authorized," fixed the rate of bonus at one-third of 1 thorized the increase of the capital stock of corper cent. Act June 8, 1891 (P. L. 223), auporations to $10,000,000. Subsequent acts removed the limitation as to the amount of stock. Held, that a corporation, organized in 1889 with a capital stock of $1,000,000, on increase of its stock in 1909 to $2,000,000, will be required to pay a bonus of one-third of 1 per cent, on the increase, the time of the actual increase and not the time of the legislative authorization for the increase controlling the rate. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 65; Dec. Dig. § 19.*] CORPORATIONS (§ 19*)- ORGANIZATION BONUS-AMOUNT. A corporation organized in 1889 with a capital of $1,000.000, which in 1903 decreases its stock to $75,000, and in 1909 increases it to $2,000,000, is only required to pay a bonus on which no bonus has been paid. on the additional capital stock of $1,000,000 PER CURIAM. The question presented by this appeal is whether the widow of the testator took a fee under the following clause of his will: "And lastly, I give and bequeath unto my beloved wife Margaret all real estate, and all personal property of whatever kind and nature they may be to have and to hold or sell and convey the same at her own will and accord and to pass titals for the same and have the us of the proceeds thereof during her natural life. And further I do appoint my son Jacob T. Caslow as agent for my wife to act in her place and under her 3. instructions, as he may be requested by her, and no further if he shall live that long, if he should be called away she my wife is at liberty to celect a suteable person in his place." This part of the will was preceded by a direction in relation to the payment of his debts and followed by the attestation clause. There was no gift to any other person and no disposition of a remainder. It is evident that the testator's intention was to provide for his wife alone. She was the sole beneficiary under his will, and the estate he gave her had all the attributes of absolute ownership. Unless he gave her a appeal. Unless he gave her a fee, he died intestate as to the remainder after the expiration of a life estate. Every presumption is against such an intention. "It detracts nothing from a fee for a testator to say that his devisee shall have the sole control of the property during her lifetime." Snyder v. Baer, 144 Pa. 278, 22 Atl. 897, 13 L. R. A. 359. And "a devise, generally or indefinitely, with power of disposition carries a fec." Witmer v. Delone, 225 Pa. 450, 74 Atl. 347. The judgment is aflirmed. (233 Pa. 92) COMMONWEALTH v. INDEPENDENCE (Supreme Court of Pennsylvania. July 6, 1. CONSTITUTIONAL LAW (§ 137*)-OBLIGATION OF CONTRACT-CONTRACTS OF STATEBONUS OF CORPORATIONS. Act April 29, 1874 (P. L. 107) § 44, fixing the rate of bonus payable by a corporation on its organization or on an increase in its stock, does not constitute a continuing contract with corporations organized thereunder, which is beyond the power of the Legislature to disturb. but the Legislature may increase the rate of [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 65; Dec. Dig. § 19.*] Appeal from Court of Common Pleas, Dauphin County. Action by the Commonwealth against the Independence Trust Company. From a judgment for the Commonwealth, both parties appeal. Reversed and remanded, with instructions. Appeal from tax settlement. From the record it appeared that the defendant was incorporated on July 29, 1889, under the gen eral incorporation act of 1874 (P. L. 73), with an authorized capital of $1,000,000. On this amount it paid the bonus of one-fourth of 1 per centum, the rate then established by law. In 1903 it decreased its capital stock to $75,000, but in 1909 increased it again to $2,000,000. It paid into the state treasury the sum of $2,500, being a bonus of onefourth of 1 per centum upon the second $1,000,000 of its capital stock, and claimed to be exempt from any further payment of bonus. A tax was, however, settled against it for bonus at the rate of one-third of 1 per centum upon $1,925,000. On appeal from the settlement the court in an opinion by Kunkel, J., entered judgment for the commonwealth for $2,312.50, which was a bonus on $1,925,000 at the rate of one-quarter of 1 per centum. Both the commonwealth and the trust company appealed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Pa.) COMMONWEALTH v. INDEPENDENCE TRUST CO. 929 Wm. M. Hargest, Asst. Deputy Atty. Gen., | viding for the payment of a bonus upon capand John C. Bell, Atty. Gen., for the Commonwealth. W. S. Snyder, M. E. Olmsted, and A. C. Stamm, for Independence Trust Co. ital stock to require us to hold that the rate is in the nature of a continuing contract, protected by the Constitution, and beyond the power of the Legislature to disturb. The rate of bonus to be charged for the privilege of incorporating or for increasing capital stock is a legislative question, and the Legislature has been attempting to cover every phase of it. In 1899 an act was passed more comprehensive in terms than the former acts and intended to include all corporations, and all increases of capital stock, except such as are specifically exempted. This is an original act, and is not in the nature of an amendment to or supplement of any former statute. It applies to corporations hereafter created and to "companies heretofore incorporated upon any increase of their capital stock hereafter authorized." It seems perfectly plain that the Legislature intended to make the provisions of this act broad enough to cover the whole situation. The bonus of one-third of 1 per centum is to be paid by all corporations created after its passage and by all companies incorporated prior to that time upon such increases of capital stock as shall be subsequently authorized. In the present case the corporation was created prior to the passage of the acts of 1897 and May 3, 1899 (P. L. 189), and therefore the bonus on the original capitalization was one-fourth of one per centum and this was paid. It increased its capital stock in 1909 and the question to be determined on this appeal is whether the bonus on the increase shall be paid at the rate of one-fourth or one-third of 1 per centum. ELKIN, J. [1] These are cross-appeals from the same judgment, and will be disposed of in one opinion. In one case the commonwealth contends that the bonus should have been computed at the rate of one-third of 1 per centum upon the actual increase of the capital stock, while the learned court below sustained the contention of appellee by holding that the bonus rate applicable under the facts presented is one-fourth of 1 per centum. A brief reference to the legislation requiring the payment of a bonus to the commonwealth for the privilege of incorporation under our laws, or of increasing capital stock, will be necessary to a proper understanding of the question here involved. The general incorporation act of April 29, 1874 (P. L. 73), provides for the payment of a bonus of one-quarter of 1 per centum upon the amount of capital stock authorized to be issued, in two equal installments, and a like bonus upon any subsequent increase thereof, the first installment to be paid when the company is incorporated, and the second one year thereafter. It was further provided that no company shall have or exercise any corporate powers until the first installment of bonus is paid, and that letters patent shall not issue until the Governor is satisfied that the first installment has been paid to the State Treasurer. This remained the law until 1897, when the Legislature thought proper to increase the rate of bonus, from onefourth to one-third of 1 per centum. The act of June 15, 1897 (P. L. 155), was an amendment to the forty-fourth section of the act of 1874. It not only increased the rate, but required the entire bonus to be paid in advance. While in terms it applied to every company incorporated under the act of 1874, with certain exceptions named in the act, some confusion arose in its application because all companies incorporated prior to its approval paid at a different rate, and it was contended that the new rate could not be made applicable to old companies, or even to increases in the capital stock of old companies made after the new law became operative. It is true, of course, that all companies incorporated prior to the act of 1897 paid a bonus at the rate of one-fourth of 1 per centum as fixed by the act of 1874, and, when the bonus was paid at the rate then It is now contended that the bonus acts of 'fixed by law, the commonwealth had no fur- 1897 and 1899 had reference to this general ther claim on this account. But this does authorization to increase the capital stock of not mean that a contract was entered into all corporations. The acts do not say so, and between the commonwealth and the corpora- such a construction would do violence to tion that the bonus rate should always re-their spirit and purpose. These are revenue main the same, and that the Legislature acts, and should be construed so as to efcould not, if deemed wise or expedient, in- fectuate the purpose of their enactment. crease the rate without violating a contrac- Their provisions should not be frittered tual relation. We see nothing in the law pro-away by technical refinements not intended 81 A.-59 [2] It is argued for appellee that the act of 1899 does not apply because the increase was not authorized after the passage of the act. In other words, that the Legislature authorized the increase by the act of June 8, 1891 (P. L. 223), and that the legislative authorization to increase capital stock determines the rate of bonus to be paid and not the act of the corporators in voting for such increase. This raises an interesting question. The act of 1874 limited the amount of capital stock to be issued by a corporation to $1,000,000. The act of 1891 permitted $10,000,000 to be issued, while the act of June 10, 1893 (P. L. 417), authorized an issuance of $30,000,000. This was followed by the act of 1901, which permitted corporations to have an unlimited amount of capital stock to carry out the corporate purpose. to be controlling in the administration of revenue laws. The acts of 1874, 1891, 1893, and 1901, fixing limitations upon the amount of capital stock to be issued, are of general application and relate to all corporations. These acts prescribe the limits within which corporations may issue capital stock. The amount of capital stock to be issued by a corporation within these limits depends upon the act of the corporators. The corporators determine whether the capital stock shall be $1,000,000, or $2,000,000, or $30,000,000, and, when they do so determine, the bonus is computed on this basis. If there be any doubt about this being the proper interpretation of the Acts of 1897 and 1899, the Legislature made clear its intention in the third section of the act of February 9, 1901 (P. L. 3). It is there expressly provided as follows: "Upon the actual increase of the capital stock or indebtedness of such corporation, made pursuant thereto, it shall be the duty of the president or treasurer of such corporation, within thirty days thereafter, to make return to the Secretary of the commonwealth, under oath, of the amount of such actual increase made, and concurrently therewith such corporation shall pay to the State treasurer for the use of the commonwealth, such bonus on the actual increase shown by said return as shall then be prescribed by law." Here, then, is the clear expression of the legislative intention that the bonus shall be charged upon the amount of increase fixed by the corporators, and at the rate in force when the increase is actually made. This is the law as the Legislature has written it, and we are bound by it. But it is argued that Com. v. R. R. Co., 207 Pa. 154, 56 Atl. 409, is authority for a different rule. The facts of that case differentiate it from the case at bar. It was there held that the railroad company had the authority under its charter to increase its capital stock to $150,000 per mile without the payment of any bonus, and that the act of 1901 had no application to the facts of that particular case. In the present case it is not even contended that appellee had authority under its charter to increase its capital stock without paying a bonus. It is conceded that a bonus must be paid on the increase, and the only question is as to the rate. Clearly under the act of 1901 the rate is one-third of one per centum," and the amount is the actual increase shown by the return of the president or treasurer of the corporation after the corporate election authorizing the same. [3] In the other case, the appellant company contends that the actual increase of capital stock upon which the bonus is to be paid is $1,000,000, while the commonwealth asserts it is $1,925,000. The company was originally incorporated for $1,000,000, and upon this amount the bonus was fully paid. Subsequently the capital stock was either de creased or withdrawn so that only $75,000 remained outstanding. At a still later date there was a reorganization and the capital stock was increased to $2,000,000. As the situation stands the commonwealth has received a bonus on $1,000,000, and, if now permitted to collect a bonus on an additionai $1,925,000, it will then have been paid a bonus on $2,925,000, although in fact the corporation never issued more than $2,000,000 of capital stock. The position of the commonwealth in this respect is technical, and entirely ignores the equities of the case. The evident intention of the Legislature was to impose a bonus charge upon the amount of capital stock, and not to exact more than the total capitalization warrants. When an incorporated company pays a bonus upon the amount of its original capital, and upon any subsequent increases thereof, the requirements of the law have been satisfied. The burden is always on the commonwealth to establish the necessary facts to sustain a claim for taxes or revenue. Upon the record here presented there is a total capitalization of $2,000,000, with a bonus paid on $1,000.000, and we see no occasion either in law or equity to require the payment of a bonus on $2,925,000, which is $925,000 more capital stock than the company ever issued. The record does not give any information as to the steps taken to reduce or increase the amount of capital stock, nor is it necessary for the purposes of this case that it should, but it does show the amount of stock now authorized to be issued and the amount of the original capital upon which a bonus was paid. The difference is the amount on which no bonus has been paid, or at least the full bonus of one-third of 1 per centum has not been paid. The company therefore owes the commonwealth what remains unpaid on the additional capital stock of $1,000,000 at the rate of one-third of 1 per centum. Judgment reversed and record remitted. with instructions to modify and enter judgment in favor of the commonwealth in accordance with the views herein expressed. (233 Pa. 102) MOSEBY v. FLECK et al. (Supreme Court of Pennsylvania. July 6, 1911.) FRAUDULENT CONVEYANCES (§ 192*)-SUBSEQUENT BONA FIDE PURCHASERS FROM GRANTOR-JUDICIAL SALE. A purchaser of land at a sheriff's sale acquires, as against a prior purchaser under a voluntary conveyance in fraud of creditors, not only the right to contest the prior vendee's title, but all the rights of the fraudulent debtor, and, on being evicted from possession by the prior vendee, he may recover damages from him for the injuries sustained. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 589, 602-604; Dec. Dig. § 192.*] Pa.) MOSEBY v. FLECK 931 Appeal from Court of Common Pleas, Ful-1 ord in ejectment offered by the plaintiff passton County. ed to Frank C. McClain, one of the defendants. Action by William L. Moseby against Daniel C. Fleck and others. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed, and a venire facias de novo awarded. From the record it appeared that prior to August 7, 1894, Abram G. Anderson was the owner of the farm from which the plaintiff was ejected. On that day Anderson and Emma, his wife, conveyed the land to Frank C. McClain, who on August 9, 1894, conveyed it to Emma Anderson, wife of Abram G. Anderson. On May 25, 1899, the administrator of Richard Ashman obtained judgment against Abram Anderson, and under this judgment the land was sold by the sheriff on March 16, 1901, to the plaintiff in the execution, who by deed dated December 18, 1901, conveyed the same to William L. Moseby, the plaintiff, who notified Abram Anderson to quit, which he did on January 25, 1902, and thereupon the plaintiff took pos session. In the meantime Frank C. McClain had obtained a judgment against Emma Anderson on which he issued an execution and caused the farm to be sold by the sheriff, became the purchaser at such sale, and received a sheriff's deed therefor on October 12, 1901. On January 29, 1902, Frank C. McClain ousted Moseby from the farm, and Moseby thereupon brought an action of ejectment, by which he was restored to possession on July 9, 1906. Subsequently Moseby brought this action claiming damages for personal property injured, rental value of farm during the period of ouster, and depreciation of its value. There was evidence that the conveyance through McClain to Anderson's wife was in fraud of creditors, including Richard Ashman. It further appears from the record that the plaintiff claims under Richard Ashman, a creditor of Abram G. Anderson, prior to August 7, 1894, the date of the deed from Frank C. McClain, having by certain conveyances offered in evidence acquired, and by sheriff's sale acquired, the title of Abram Anderson. The only right which Ashman acquired being the right to contest and avoid the deed from Abram Anderson to McClain, it follows, therefore, that the plaintiff could not acquire any possession of the premises entitling him to sustain this action, except by pursuing the action of ejectment as he did, and therefore all evidence with respect to this eviction is irrelevant and immaterial, and incompetent and must be exclud ed. Objection sustained. The court entered a compulsory nonsuit, which it subsequently refused to take off. MESTREZAT, ELKIN, STEWART, and Argued before FELL, C. J., and BROWN, MOSCHZISKER, JJ. William S. Hoerner, O. C. Bowers, and John P. Sipes, for appellant. Charles Walter, J. N. Sipes, Frank P. Lynch, S. W. Kirk, and J. H. Longenecker, for appellees. STEWART, J. This case was tried on the theory that a purchaser of land at a sheriff's sale acquires, as against a prior vendee under a voluntary conveyance in fraud of creditors, simply a right to contest the latter's title, and nothing more. The authorities cited give no support to this view. Hoffman's Appeal, 44 Pa. 95, decided merely that where the owner of land incumbered with liens conveys in fraud of creditors, and the land is sold by the sheriff under a judgment subsequently obtained, the liens existing before the conveyance remain undivested, and are therefore not payable out of the proceeds of the sale. It is there distinctly said that At the trial plaintiff made the following offer: It is proposed to be proved by this witness (Blaine Anderson being upon the stand) that Fleck, Frank C. McClain, Harry M. Edwards, William C. Cunningham, and the earlier cases-Byrod's Appeal, 31 Pa. George Wilds came to the house on the Anderson farm, then occupied by the plaintiff in this case, on January 27, 1902, and again on January 29, 1902, and on the latter occasion ejected the plaintiff and his wife from the premises, removed their household goods, damaged the latter, and the amount of such damage, and other items of damage arising from such ejection. The counsel for the defendants object to the admission of the testimony offered to be proved by this witness, because it appears as part of the plaintiff's case that the farm from which the plaintiff was ousted was on August 7, 1894, conveyed in fee simple by A. G. Anderson, from whom the plaintiff received the possession of these premises, to one Frank C. McClain, and by McClain the same day conveyed to Emma Anderson, whose title to the property it appears from the rec 241, and Fisher's Appeal, 33 Pa. 294-where this doctrine was first announced, were so ruled in order to prevent the mischief of a divestiture of the liens by a sale under which the debtor's deed had rendered it uncertain whether the purchaser would obtain any title; that, because of this uncertainty, it was thought necessary to declare that such purchaser holds subject to liens prior to the conveyance. The case in no sense derogates anything from the estate that passes to the sheriff's vendee; but, on the other hand, contains a clear recognition that what does pass in such case is the debtor's entire estate in the land. "Still," says Strong, J., after accounting for the origin of the rule as to prior liens, "it is the estate of the debtor, whatever that may be, which is sold at the sheriff's sale." This case is followed by Zuver v. Clark, 104 Pa. 222, where the same |