as follows, to wit, Joe Meyer, as shown by books Winner & Meyer, $47,462.66, and Sam Meyer, as shown by books Winner & Meyer, $34,737.76, should be disallowed for the following reasons, to wit: (1) Because there is no voucher filed with said account, nor is there any evidence of the justice of said claims of the executors, nor is any reason giv sale of this property to a third person for the reason that the sale to George was not such. It is clear that this land had been set apart at the dissolution of the firm of Winner & Meyer to the estate of Jacob Meyer, and these executors, being desirous of acquiring it for themselves, admittedly used George as a mere channel for conveying the title from them as executors to them as individuals, toen why said executors should pay themselves do indirectly that which they could not do directly, to wit, purchase from themselves land belonging to the estate then being administered by them, and therefore they must be held to hold the title to the property in trust for the persons interested in the estate. McGowan v. McGowan, 48 Miss. 553; Chapman v. Sims, 53 Miss. 154; Buckingham v. Wesson, 54 Miss. 526; Woolbridge v. Campbell, 61 Miss. 634. said sums. (2) Said account as to said items is vague and uncertain as to what the books of Winner & Meyer show in reference to said sums, whether said sums had been paid out or were due to executors, or what. (3) Because said claims of the executors were never probated and registered nor passed by the court, and therefore said executors are forbidden by section 2109 of the Code to retain any part of the assets of said estate in Whether or not $39,000 was a fair valua-payment of such claim against the deceased. tion for the land, as well as the presence or (4) Because the failure of the executors to proabsence of a fraudulent intent on the part of bate and register said claim has deprived the executors in purchasing the land, is whol- these executors of the right to contest the ly immaterial. same. (5) Because in truth and in fact these [2] It is contended, however, by the execu-exceptors were due the executors no such tors that M. Winner, as surviving partner of amounts of money as they have paid themthe firm of Winner & Meyer, had full power selves." to convey the land, or at least an equitable title thereto, to George, and that therefore the sale to him should be held to be valid. A sufficient answer to this contention is that Winner did not administer the partnership property under the provisions of section 2085, etc., of the Code, but the partnership was continued in force and its affairs managed solely under the provisions of the will. [3] Another of their contentions is that the sale to George was confirmed by the decree entered in the partnership dissolution proceedings, and therefore that all inquiry into the matter here under investigation has been thereby closed. It may be conceded for the sake of argument that the validity of the deed to George is res adjudicata, and still the result must be the same. At most, all that could be claimed for the executors in this connection is that they sold the land to George and repurchased it with money be longing to the estate; they therefore, even under that construction of their acts, hold the land in trust for the estate, if the persons interested therein so elect. Buckingham v. Wesson, 54 Miss. 526; Cooper v. Cooper, 61 Miss. 676. [4] It follows from the foregoing views that this exception should not have been overruled, nor the bill dismissed. It will not be necessary, however, for the deeds to be canceled. It will simply be necessary for the court to decree the land to be held in trust and order its sale or partition. Chapman v. Sims, 53 Miss. 154. Third exception: This exception is as follows: "These executors charge and state that the credits taken by the said executors in the recapitulation of the first annual account on [5] These items of account here excepted to being charges of money paid by the executors to themselves, it is not necessary for them to be supported by vouchers; that is, by receipts from the parties to whom paid. The admissions of the receipt of this money by the credit taken for it in the account serves every purpose of formal receipts and removes any necessity therefor. [6, 7] These items represent certain profits alleged to have been made by the firm of Winner & Meyer, both before and after Meyer's death, and the executors' claim to an allowance therefor arises from two sources. Their claim to an allowance of that portion made by the firm prior to their father's death is based upon an alleged gift thereof made by him to them during his lifetime; and their claim to that portion made by the firm after their father's death is based upon the legacy to them thereof contained in their father's will. Each of these claims, being governed by different rules, will be considered separately. The claim to that portion of these profits made by the firm during the lifetime of Jacob Meyer is predicated upon the following state of facts: It was the custom of the members of this firm, during the lifetime of Jacob Meyer, to, at the close of each year, estimate the profit made by them during the year, onehalf of which belonged to each. It was also the custom of Jacob Meyer, each year after this estimate was made, to have one-half of his one-half of these profits credited on the books of Winner & Meyer to his three sons, Joseph, Samuel, and Mattimore, one-third to each. This custom was also pursued by Winner with reference to his sons and daughters. These sons of Jacob Meyer were each em and this credit to them of a portion of their father's interest in the profits of the business was not as compensation for any services rendered. These sons seem to have drawn each year out of the business something more than the salaries paid them, though the amounts drawn in excess of their salaries constituted only a small portion of the profits credited to them. It does not appear that they were authorized to withdraw the profits credited to them without the consent of the members of the firm, nor does it appear that either member of the firm had authority to withdraw profits therefrom without the consent of the other. It is hardly conceivable that the members of this firm intended that their sons and therefor, and the fact that A. may have credited B. therewith on the books kept by him in his business constitutes, at most, nothing more than a written evidence of the promise; and a written promise or declaration of an intention to give is no more valid or binding than a verbal one. It is simply easier to prove. If B. is in possession of property belonging to A., A. may direct him to give it to C., and. when delivered to C. by B., C.'s title thereto becomes perfect; but, until so delivered, C. has no title at all; the ownership remains in A., and he may revoke B.'s authority to deliver it to C. If Meyer, instead of crediting his sons with a portion of his profits earned by this business, had given to each one of them a check on the firm therefor, he would have had the right to stop the payment of these checks. 20 Cyc. 1205. The direction given by Jacob Meyer to the bookkeeper of Winner & Meyer to credit his sons each with one-third of his portion of the profits earned by the business may have authorized the managing head of that firm, if such there was, to pay the amount so credited to them when called for; but this authority he had the right to revoke at any time before payment was made. daughters should withdraw therefrom the profits credited to them, for it is perfectly obvious that had they so done the business would have been seriously crippled; and, moreover, the amounts credited to them were merely estimated and not ascertained profits. These facts evidenced nothing more than a promise on the part of Meyer to give to his sons a portion of his interest in the profits of the business, which promise he never complied with by withdrawing these profits from the business and delivering them to his sons; consequently they never became the owners thereof and their claim thereto should not have been allowed. "To constitute a valid [8] The recital "as heretofore" contained gift inter vivos, the purpose of the donor to in the following clause of the will, "I further make the gift must be clearly and satisfac- direct that one-half of the profits arising torily established, and the gift must be com- out of my interest of the firm of Winner & plete by actual, constructive, or symbolical Meyer, including both real and personal delivery without power of revocation." 20 property, be paid or credited equally to my Cyc. 1193. “A mere promise or declaration of three sons, Joseph Meyer, Mattimore Meyer, intention to give, however clear and positive, and Samuel Meyer, as heretofore, the other is not enough to constitute a valid gift inter half of the profits to be credited to my esvivos. The intention must be consummated, tate," cannot be construed as a bequest of and carried into effect, by those acts which the profits credited by Jacob Meyer to his the law requires to divest the donor and in- sons during his lifetime. It simply explains vest the donee with the right of property. and makes clear the devise to them of profits Complete and unconditional delivery is es-to accrue after his death. It discloses, not an sential to the perfection of such a gift for intention on his part to give by the will, but, when the donor retains dominion over the at most, that he thought he had already property, or where a locus pœnitentiæ remains given, and the inquiry is not what he thought in him, there can be no legal title and perfect he had done but what he in fact did. The donation, and this rule has been held particu-rule seems to be universal that a recital in larly applicable to parol gifts, and is founded a will of a previous conveyance of property upon grounds of public policy and conven- to a designated person is not effective as a ience, to prevent mistake, imposition, and per-devise and the title of such person to the jury. Delivery to be effectual must be ac- property depends upon the validity of the cording to the nature and character of the conveyance. Noble v. Tipton, 219 Ill. 182, 76 thing given, and hence may be actual or con- N. E. 151, 3 L. R. A. (N. S.) 645. structive according to the circumstances. There must, however, be a parting by the donor with all present and future legal power and dominion over the property." 20 Cyc. 1195; Thompson v. Thompson, 2 How. 737; Wheatley v. Abbott, 32 Miss. 343; Conner v. Hull, 36 Miss. 424; Young v. Power, 41 Miss. 197; Carradine v. Collins, 7 Smedes & M. 428. If A. promises B. to give him a portion of the profits of his business, without more, B. never becomes the owner of these profits, and [9] It is contended, however, by these executors, that appellants are estopped from disputing their right to these profits by reason of the fact that when the firm of Winner & Meyer was dissolved sufficient assets thereof were turned over to M. Winner to cover not only his interest in the firm, but the amount of profits which had been placed by Jacob Meyer to the credit of Mattimore Meyer, his son, and husband and father of these exceptors, and that when M. Winner or court in which it was alleged that she was entitled to, and they themselves claimed only, such an interest. They were simply mistaken as to their rights in those proceedings, and their right to a one-tenth interest in the estate is so clear in the will that the widow of Mattimore Meyer, and mother of estate by means of bills filed in the chancery these minor exceptors, an interest therein proportionate to the amount so due Mattimore Meyer. This fact, we think, does estop Sarah Meyer from claiming that these executors are not entitled to this allowance, för she obtained the benefit herself of the gift intended by Jacob Meyer to be made to Matti-executors ought not to have been misled more Meyer, and she ought not to be permitted to retain that, and at the same time object to Jacob Meyer's other sons obtaining the benefit of the gifts intended for them; but the minor appellants are in no such situation. They obtained no benefit whatever from the gift intended for their father, received no part of it, and in no event, there fore, can be said to be estopped thereby. Fifth exception: Mrs. Sophia Meyer, widow of Jacob Meyer, lived for some time after the dissolution of the firm of Winner & Meyer, and during her lifetime two distributions of the property in their hands were made by these executors; the distributions being made to Mrs. Sophia Meyer and to the ten legatees and devisees mentioned in the will of Jacob Meyer, a one-eleventh interest being distributed to each, appellants receiving the interest bequeathed to Mattimore Meyer, husband of Mrs. Sarah Meyer, and father of the other appellants. [10, 11] This exception challenges the allowance of the credit claimed by the executors for these distributions on two grounds: First, that no vouchers were filed in support thereof; and, second, that exceptors are entitled to a one-tenth interest instead of a oneeleventh interest in the amounts distributed. No voucher was necessary to support the claim for an allowance for the money paid to the distributees other than these exceptors, in so far as an exception made thereto by them alone is concerned, for it is immaterial to them whether these distributees received their share or not. All they are concerned with is the receipt of their own particular shares. They admit payment to them in so far as credit therefor is claimed by the executors; consequently the necessity for a voucher in support thereof is removed. They are entitled, however, to a one-tenth interest in the estate left by Jacob Meyer and should receive in the final distribution a sum sufficient to compensate them for their failure to receive such interest in prior distributions. Mrs. Sophia Meyer was, under the will, entitled only to an allowance of $200 per month, or more if she needed it and desired it, and the executors will be entitled to an allowance for whatever sum they may have properly paid to her under this provision of the will supported by proper vouchers. thereby in making the distributions here involved. [13] Sixth exception: This exception, as well as the bill in equity, demands of the executors an accounting for the profits made by them in their mercantile business by the use therein of assets in their hands belonging to the estate. The relief here demanded should have been granted. "The general rule is that neither an executor nor administrator is justified in placing or leaving assets in trade, for this is a hazardous use to permit of trust moneys; and trading lies outside the scope of administrative functions. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred without, on the other hand, allowing him to receive the benefit of any profits that he may make; the rule being that the persons beneficially interested in the estate may either hold the representative liable for the amount with" compound "interest, or at their election take all the profits that the representative has made by such unauthorized use of funds of the estate." 18 Cyc. 241. Gully v. Dunlap, 24 Miss. 410; Crowder v. Shackelford, 35 Miss. 321; French v. Davis, 38 Miss. 167. [14] It seems that a part of the money coming into the hands of these executors as a part of this estate was deposited by them in a bank at Meridian, which bank thereupon loaned them without interest a smaller sum. If this loan was made expressly or impliedly conditioned upon their depositing the estate's moncy with the bank, they should be held to account for the profits made by the use of this money also. [15] It is claimed by the executors that they offered these exceptors a settlement, which was declined by them, and therefore they ought not to be held to account to them for profits made by them by the use of assets belonging to the estate. There is no merit in this contention, for the refusal of exceptors to accept a settlement would not justify the executors in appropriating the assets of the estate to their own use. Thirteenth and fourteenth exceptions: It is claimed by the exceptors that these two exceptions were dismissed and should not have been passed on by the court in its final de[12] There is no merit in the executors' cree. No order of dismissal was entered, contention that appellants are estopped to however, and the only record thereof appears deny that Mrs. Sophia Meyer is entitled to a in a colloquy between the court and counsel, one-eleventh interest in this estate by reason recorded by the stenographer during the takof the fact that they obtained the partitioning of the evidence of one of the witnesses, Petition to the county judge by Clara E. Herzog against the Trust Company of Easton and others, praying that the record of the will of Charles Herzog, deceased, be set aside and revoked. From a decree of the circuit court affirming the sustaining of a demurrer to the petition, plaintiff appeals. Affirmed it will be reversed as to these exceptions also, and the dismissal may be entered if it is so desired on the return of the cause to the court below. The decree of the court below will be reversed in so far as it adjudicates the exceptions herein referred to, to wit, the first, third, fifth, sixth, thirteenth, and fourteenth; and the cause will be remanded for a new trial with reference thereto; but in all other respects this decree will remain in fullville, for appellees. force and effect. SIMS v. RATLIFF & GUNTER. (No. 16,233.) (Supreme Court of Mississippi. March 2, 1914.) Appeal from Circuit Court, Lincoln County; D. M. Miller, Judge. Action between H. M. Sims and Ratliff & Gunter. Affirmed. From the judgment, Sims appeals. Luther E. Grice, of Monticello, for appellant. M. McCullough, of Brookhaven, and Alexander & Alexander, of Jackson, for appellees. PER CURIAM. Affirmed. (67 Fla. 54) HERZOG v. TRUST CO. OF EASTON et al. (Supreme Court of Florida. Jan. 27, 1914.) (Syllabus by the Court.) 1. WILLS (8 168*)-REVOCATION-REALTY. As the statutes afford no rule for determining by what "act and operation of law", a will of real estate may be revoked, the rules of the common law must be applied. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 439; Dec. Dig. § 168.*] 2. WILLS (§§ 191, 782*)-REVOCATION-MAR RIAGE. At common law marriage alone did not cause a revocation by operation of law of a prenuptial will of a man; the wife having her dower rights notwithstanding the will. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 469-478, 2018-2033; Dec. Dig. 88 191, 782.*] 3. DOWER (§ 22*) WILLS (8 782*) HusBAND'S WILL-RIGHTS OF WIFE. Under the laws of this state the wife's statutory dower rights in her husband's property are not only superior to the husband's will, but those statutory dower rights are more liberal to the widow than were the commonlaw dower rights. [Ed. Note.-For other cases, see Dower, Cent. Dig. § 1; Dec. Dig. § 22;* Wills, Cent. Dig. §§ 2018-2033; Dec. Dig. § 782.*] 4. WILLS (191*)-REVOCATION-MARRIAGE. As a widow is liberally provided for by her statutory rights in her husband's estate, which she may have notwithstanding the execution of a will by a husband, whether executed before or after the marriage, there is no good reason for a judicial change of the common-law rule that marriage alone does not cause a revocation of a man's will, when the rule has not been changed by statute. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 469-478; Dec. Dig. § 191.*] Appeal from Circuit Court, Duval County; George Couper Gibbs, Judge. Kay & Doggett, of Jacksonville, for appellant. Marks, Marks & Holt, of Jackson WHITFIELD, J. Clara E. Herzog presented to the county judge of Duval county, Fla., a petition alleging, in effect, that in September, 1907, Charles Herzog, a nonresident of this state, made his last will and testament, disposing of all his property; that on August 18, 1908, said Clara and Charles were married, and they continued as husband and wife till the death of Charles, March 15, 1911; that the will executed in 1907 was, after the death of the testator, admitted to record in Duval county, it having previously been probated in Pennsylvania; and there were no other heirs of said Charles Herzog at the time of his death except his said wife, Clara; that said will should not have been probated, as it is void because made before his marriage, and no provision whatever having been made in the will for the said wife, Clara. It was prayed that the record of the will be set aside and revoked. A demurrer to the petition was sustained, and the petition denied by the county judge. This action was affirmed by the circuit court, and an appeal was taken to this court as allowed by law. [1] The question to be determined is whether the marriage of a man by operation of law revokes a will previously made by him not in contemplation of marriage, where no child is born of the marriage, and he dies leaving no children, but a widow. Wills of real estate may be revoked "by the act and operation of law." Section 2273, Gen. Stats. of 1906. As the statutes afford no rule for determining by what "act and operation of law" a will of real estate may be revoked, the rules of the common law must be applied. Colcord v. Conroy, 40 Fla. 97, 23 South. 561; Easterlin v. Easterlin, 62 Fla. 468, 56 South. 688, Ann. Cas. 1913D, 1316. [2] At common law marriage alone did not cause a revocation by operation of law of a prenuptial will of a man; the wife having her dower rights notwithstanding the will. 40 Cyc. 1200; Hoy v. Hoy, 93 Miss. 732, 48 South. 903, 25 L. R. A. (N. S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137; Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 34 L. R. A. 384, 61 Am. St. Rep. 419. See, also, notes in 80 Am. Dec. 517, and 28 Am. St. Rep. 359. [3] Under the laws of this state the wife's statutory dower rights in her husband's property are not only superior to the husband's will, but those statutory dower rights are more liberal to the widow than were the com- the rule has not been changed by statute. As mon-law dower rights. The statutes provide that, "when any person shall die intestate, or shall make his last will and testate and not therein make any express provision for his wife by giving and devising unto her such part or parcel of real and personal estate as shall be fully satisfactory to her, such widow may signify here dissent thereto," and "she will be entitled to dower" in one-third of his lands, tenements, and hereditaments during her life, "in which said third part shall be comprehended the dwelling house" in which her husband lived, together with the offices, outhouses, buildings and other improvements thereunto belonging or appertaining," if no injustice is thereby done to the children or other heirs; provided "such widow shall be entitled to such no child was born of the marriage, the case is not within the common-law rule of revocation by operation of law applied in Belton v. Summer, 31 Fla. 139 12 South. 371, 21 L. R. A. 146. No question as to rights in a homestead is involved here. Nothing here said conflicts with the rule in this state as to marriage of a woman causing a revocation of her prenuptial will as adjudicated in Colcord v. Conroy, 40 Fla. 97, 23 South. 561. The decree appealed from is affirmed. SHACKLEFORD, C. J., and TAYLOR, COCKRELL, and HOCKER, JJ., concur. PENSACOLA. (67 Fla. 22) (Supreme Court of Florida, Jan. 27, 1914. Re hearing Denied March 3, 1914.) (Syllabus by the Court.) 1. MORTGAGES (§ 235*)-TRANSFER-INDORSE- note which is secured by a mortgage carries part not less than one-third part" of such McCLURE ▾. AMERICAN NAT. BANK OF dwelling and appurtenances. And in such cases, if there be no children, or if there be but one child, the widow shall be entitled to one-half of the husband's personalty; but, if there be more than one child, she shall be entitled to one-third part of the personalty in fee simple, and such claims shall have preference over all others, and shall be free from all liability for the debts of the decedent. "In all cases in which a widow of a deceased person shall be entitled to dower, she may elect to take in lieu thereof a child's part." The widow may claim her very liberal statutory dower rights as against her husband's will whether he left a child or not, and whether the will was executed before or after the marriage. An estate may be involved in debt so that the statutory dower rights which the widow may elect to take would be more valuable than the entire estate. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 620, 621; Dec. Dig. § 235.*] 2. MORTGAGES (§ 257*)—RIGHTS OF ASSIGNEE -DEFECTS-FRAUDULENT PROCUREMENT OF ACKNOWLEDGMENT. The certificate of a notary public, or other officer empowered to take acknowledgments, of the acknowledgment of a deed or mortgage, in the absence of fraud or duress, is conclusive as to the facts therein stated. The assignee of a note and mortgage, which are fair and regular upon their face in all respects, who has acquir ed the same for value before maturity in good latent defects therein or any fraud which may faith, without any notice or knowledge of any have been practiced in connection with the execution or acknowledgment, cannot be required to bear the consequences of such fraud. Cent. Dig. 88 682-687; Dec. Dig. § 257.*] [Ed. Not-For other cases, see Mortgages, Appeal from Court of Record, Escambia County; Kirke Monroe, Judge. Bill by the American National Bank of Pensacola against Lydia J. McClure to enforce a mortgage lien. From decree for plaintiff, defendant appeals. Affirmed. [4] As a widow is liberally provided for by her statutory rights in her husband's estate, which she may have notwithstanding the execution of a will by the husband, whether executed before or after the marriage, there is no good reason for a judicial change of the common-law rule that marriage alone does not cause a revocation of a man's will, when SHACKLEFORD, C. J. The appellee filed its bill in chancery against C. N. McClure and Lydia J. McClure, his wife, for the enforcement of a mortgage lien upon certain described lands, in which it was alleged that the mortgage was executed by the defend |