or, failing to do that, to make compensation for property or money which 124 it has no right to retain. To maintain such an action is not to affirm, but to disaffirm, the unlawful contract": Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 60.

This seems to us to fully and clearly state the rule. The passage cited by counsel from Railway Co. v. McCarthy, 96 U. S. 267, "that the doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail when it would defeat the ends of justice, or work a legal wrong," is misleading; and, if literally construed, would result in an enormous practical extension of the powers of corporations.

We do not understand that a result required by adherence to the law would be either unjust or a legal wrong. The learned judge doubtless intended it to be understood that the defense would be a legal wrong only when the law did not require its consideration by the court.

This passage, and one of similar character in San Antonio v. Mehaffy, 96 U. S. 312, was uncalled for in the case in which it was used, and in Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 60, was characterized as "a mere passing remark."

To sustain this suit, as now presented, would be in affirmance and furtherance of an unlawful and void contract. It is in no sense a suit in disaffirmance.

Whether complainant could tender back the shares received, and maintain a suit to recover the money paid for the shares upon an applied agreement to return money which the defendant had 125 no right to retain, is a question not presented upon this record.

The decree dismissing the bill must, upon the grounds herein stated, be, and accordingly is, affirmed.

CORPORATIONS-ULTRA VIRES CONTRACTS ARE VOID.-See the extended note to Brunswick Gas etc. Co. v. United Gas etc. Co., 35 Am. St. Rep. 395, Acts of a corporation done in excess of the power conferred by its charter are void, in that they cannot divest the corporation of any right in or to any property belonging to, it: Franco Texan Land Co. v. McCormick, 85 Tex. 416; 34 Am. St. Rep. 815, and note, The ultra vires acts of corporations are void: Chicago Gas etc. Co. v. Peoples Gas etc. Co., 121 Ill. 530; 2 Am. St. Rep. 124. See further Long v. Georgia Pac. Ry. Co., 91 Ala. 519; 24 Am. St. Rep. 931, and note, and Miners' Ditch Co. v. Zellerbach, 37 Cal. 543; 99 Am. Dec. 300, where the general rules as to the validity of ultra vires contracts are discussed. The power of one corporation to acquire stock in another is discussed in Denny Hotel Co. v. Schram, 6 Wash. 134; post, p 130, and monographic note.

HOLDER V. RAILROAD.

[92 TENNESSEE, 141.]

DEATE, COMPROMISE OF CAUSE OF ACTION ARISING OUT OF.-A statate creating a cause of action in favor of a widow, and in case there is no widow, of the children or personal representative of a decedent, for the benefit of his widow and children, against one through whose negligence his death resulted, gives the widow the power to compromise her suit against the objection of the children and without let or hinderance from any one, and such compromise as she may make, either before or after the bringing of the suit, binds all parties having any interest in the canse of action.

WIDOW'S RIGHT TO COMPROMISE CLAIM FOR DAMAGES resulting from the death of her husband includes authority to receive the sum agreed upon, and its payment is a full and complete satisfaction of the claim, and is binding on the children and next of kin of the decedent.

Estill and Alexander, for Holder.

Granbery and Marks, East and Fogg, and J. D. B. De Bow, for the Railroad.

143 Caldwell, J. This cause comes up on bill and de

murrer.

Complainants allege that W. E. Holder, while in the em ployment of the Nashville, Chattanooga and St. Louis Railroad Company as an operative on one of its trains, was killed by and through the negligence of said company; that he left surviving him a widow and five children; that before the filing of the bill, the widow, for the sum of twelve hundred and fifty dollars, compromised and settled the statutory cause of action accruing to her and the children against said railroad company for the wrongful killing of the husband and father; that the railroad company 143 had paid the whole of said twelve hundred and fifty dollars to the widow, and no part thereof to the children.

Upon the facts thus alleged complainants further allege, as matter of law, that the widow and children of W. E. Holder were entitled to equal shares of the twelve hundred and fifty dollars, one-sixth each; that the widow was not authorized to receive any part of that sum except her onesixth; that the railroad company is liable to the children for their respective shares of the twelve hundred and fifty dollars, notwithstanding its payment of the whole sum to the widow. The bill is filed in the name of the children, by next friend, against the railroad company and the widow; and a recovery is sought against the railroad company in the first instance for five-sixths of twelve hundred and fifty dollars.

The railroad company demurs to the bill, and for cause of demurrer says, in substance, that the widow had full legal power to control the right of action, and that having such power, she also had the power to receive the full sum of twelve hundred and fifty dollars for the parties entitled, and that the payment to her was therefore a full satisfaction of its liability.

The demurrer was sustained and the bill dismissed as to the railroad company. Complainants appealed.

At the common law the widow and children of W. B. Holder would have had no right of action against the railroad company for wrongfully taking his life. The right of action which he had for the injuries negligently inflicted upon his person 144 would have been extinguished by his death but for our statute, which keeps it alive, and provides that it "shall pass to his widow, and in case there is no widow, to his children, or to his personal representative for the benefit of his widow or next of kin": Code (M. & V.), sec. 3130; East Tennessee etc. Ry. Co. v. Lilly, 90 Tenn. 563; Louisville etc. R. R. Co. v. Pitt, 91 Tenn. 86.

The action may be instituted by the widow or by the children, if there be no widow, or by the personal representative. The widow has the first right of suit, and the words of the statute which confer upon her the primary right to sue have been held to give her the power to compromise her suit over the objection of the children, and without let or hinderance from anyone: Code, secs. 3130-3132; Greenlee v. East Tennessee etc. Ry. Co., 5 Lea, 418; Stephens v. Railway Co., 10 Lea, 448; Webb v. Railway Co., 88 Tenn. 119; Knoxville etc. R. R. Co. v. Acuff, 92 Tenn. 26.

The last-named case, though holding that the widow has no power to compromise the suit of the personal representative, distinctly recognizes her right to compromise her own suit.

Having full power to compromise her pending suit, as adjudged in the Greenlee and Stephens cases just cited, the widow, for the same reason, has power to compromise the whole right of action before suit is brought, as is alleged to have been done in the case at bar. If she may compromise 145 her suit after it is brought, she may compromise the right of action before suit is brought. This is too manifest to admit of elaboration.

Complainants concede, on the face of their bill and by the

argument of their counsel, that Mrs. Holder had ample power to make the compromise mentioned in the bill, and that it is binding on all parties concerned. They distinctly recognize the validity of that compromise, and seek to enforce their rights under it; but they contend that her power to represent the children in the matter ceased when an agreement had been reached as to the amount to be paid by the railroad company; that she had no power to receive their part of the money, and that the payment to her was therefore inoperative as to them.

We find no such limitation of her power in the statute.

To our minds it is clear, under the facts alleged in the bill and the authorities herein cited, that Mrs. Holder had the legal right to receive for those entitled the whole of the twelve hundred and fifty dollars, and that its payment to her was a complete satisfaction of all demands against the railroad company. The power to compromise the statutory right of action for all persons concerned carried with it, as a necessary consequence, a right on her part to receive for them the whole sum stipulated in the compromise. If the fact that the statute confers upon the widow the first right to sue authorizes her to fix, by agreement, the aggregate amount to be paid by 146 the wrongdoer to her and the children, it also authorizes her to receive that amount for herself and them. Her bona fide compromise binds the children, and her bona fide receipt of the money paid under the compromise likewise, and for the same reason, binds them. In the one instance, as in the otner, the widow's priority of right to sue justifies her representation of all the beneficiaries, herself and her children.

It is said that to allow the widow to receive the whole of the compromise money is to endanger the interests of the children therein. That may be true; yet we think the statute capable of no other reasonable construction.

The right of the widow to receive the money after compromise is no more perilous to the children than her right to make the compromise agreement in the first instance. If in either respect the legislature has not sufficiently guarded the interests of the children, or has conferred too much power on the widow, the defect is curable by legislative amendment, not by judicial construction.

What the relative and respective interests of the widow and children in the twelve hundred and fifty dollars are cannot properly be determined in the present aspect of this case.

The claim of the children in their bill that each of them is entitled to an equal share with the widow is not put in issue by the demurrer; and, besides, the question is one in which the railroad company has no interest.

Affirm, with costs.

The case of Knoxville etc. R. R. Co. v. Acuff, 92 Tenn. 26, referred to in the principal case, was an action brought by the administrator of a deaf and dumb man who, while walking on the track of a railroad company, was run over and killed by one of its construction trains. The railroad company filed a plea of accord and satisfaction averring that on December 3, 1890, about five weeks after the commencement of the action, the defendant had paid to the widow of the decedent one hundred dollars, which she had accepted in full satisfaction of all the claim and demand both of herself and her children existing against the defendant by reason of the killing of her husband. The court, while admitting that the widow, had she first brought an action, had the right to compromise it as she pleased, denied that this right continued to exist after the action had been brought by the adminis trator. The provisions of the code of Tennessee construed in this case and also in the principal case are sections 3130, 3131, and 3132, which in substance declare that the right of action which a person who dies from injuries received from another, or from the wrongful action or omission of another, would have had against the wrongdoer in case death had not ensued shall pass to his widow, and in case there is no widow, to his children, or to his personal representative for the benefit of his widow or next of kin, free from the claims of creditors; that the action may be instituted by the personal representative of the decedent, but if he decline it, the widow and children may, without his consent, use his name in bringing and prosecuting the suit, or that the action may also be instituted by the widow in her own name, or, if there be no widow, by the children.

DEATH-RELEASE OF RIGHT TO SUE FOR INJURIES RESULTING IN.-A releas of damages resulting from injuries, given by the party injured, who might have maintained an action therefor, precludes any recovery upon his subsequent death by his personal representatives: Price v. Richmond etc. R. R. Co., 33 S. C. 556; 26 Am. St. Rep. 700, and note. If a surviving widow of an intestate fails to bring an action for injuries negligently inflicted upon her husband by another, causing his death, his administrator may bring such suit for the benefit of the widow and children: Webb v. Railway Co., 88 Tenn. 119.