Mr. Samuel Hoar, for the defendant: The declaration of the conductor was incompetent, and was properly rejected. "It did not accompany the principal act on which the whole case turned, or tend in any way to elucidate it. It was only the expression of an opin-rich v. Weston, 102 Mass. 362. ion about a past occurrence, and not part of the The witness produced a paper which purportres gesta. It is no more competent because ed to be a copy of the application made by the

court, by W. Allen, J., without a jury, who, upon the facts which are stated in the opinion, ruled that there was competent and sufficient evidence that Mrs. Klemm had knowledge of the contents of the instrument; and found that it was duly executed by her as and for her last will and testament, and should be allowed as such; and after such finding reported the case for the determination of the full court.

Messrs. C. A. Mackintosh and J. E. Cotter, for appellant:

defendant, and which contained printed ques- | ment. The case was heard in the supreme tions and written answers thereto. He testified that he took the defendant's application, using a printed blank such as that produced; that he wrote down her answers on the blank which she afterwards read and signed; and that the paper produced was an exact copy of that signed by the defendant. We think that the evidence was sufficient to authorize the admission of the paper in evidence. The printed questions were clearly admissible. It is equally clear that oral testimony of the contents of the written answers was competent. The witness could state The question presented by this case for adorally from memory what the answers were. judication is: Can an instrument, signed by a It was in the discretion of the court to allow testatrix, and executed by her with due formalhim to write down the answers which he remem-ity, be proved as her will, in spite of the fact bered had been written by him, and read and that she was and ever remained utterly ignorant signed by the defendant, in the places upon the of the contents of the paper which she executed? printed form in which they were in the original paper. If he could write them himself, he could testify to their correctness when written by another. The paper did not go to the jury as an examined copy authenticated by comparison with the original, and of itself evidence, but as showing what the orignal was as testified to by the witness from his recollection of it. We think that it was within the discretion of the court to allow it to go to the jury. Exceptions overruled.

Erastus WORTHINGTON, Exr.,

v.

Frederick D. KLEMM, Appt.

A testatrix had previously executed a will, and, desiring to make some changes in it, gave instructions to that effect, and when brought to her she signed it as her will, in the presence of witnesses, who all attested it in her presence. The will remained in the custody of the party who had drawn it until the death of testatrix; and the testatrix never had read it, nor was it ever read to her. Held, there is no law which requires that a will be read by or to the person executing it. If the contents of the will were known to and approved by the party executing it, at the time of its execution, it is sufficient.

(Norfolk-Filed February 26, 1887.)

ON report. Decree affirmed.

The most extreme cases, as collected in Jarman on Wills, 5th Am. ed. pp. 36, 37, all proceed on the presumption that the testators knew the contents of the instrument. Here, by the finding of the justice, this presumption is directly rebutted.

It is essential that the testatrix should in some way have knowledge of the contents of the will, and it is not enough that she gave directions for the making of the will if she never was informed in any way whether those directions had been carried out.

Hastilow v. Stobie, L. R. 1 Prob. & Div. 64: Cleare v. Cleare, Id. 655; Swinb. Wills, 166; Day v. Day, 2 Green, Ch. 549; Clifton v. Murray, 7 Ga. 564.

Mr. T. E. Grover, for petitioner:

The only ground upon which the appellant can object to the proving of this will is that it was neither read by the testatrix nor was it read to her; and it follows that he claims the rule of law to be this: that no evidence is competent to prove that she knew the contents of the will except by showing that her knowledge of its contents was acquired in one of these two ways. There is no distinction in the rule of law between deeds and wills.

See Thoroughgood's Case, 2 Coke, Rep. 9; Shulter's Case, 12 Coke, Rep. 90; Rice v. Dwight Mfg. Co. 2 Cush. 80; Longchamp v. Fish, 2 Bos. & P. N. R. 415; Hess's App. 43 Pa. 73; Lewis V. Lewis, 6 Serg. &. R. 489.

If it can be shown that the will was substantially in accordance with her instructions, it may be considered as sufficient evidence that she was acquainted with its contents. The legal presumption is in favor of the will.

Day v. Day, 2 Green, Ch. 549; Harding v. Harding, 18 Pa. 342; Barker v. Comins, 110 Mass. 487; Hoshaner v. Hoshaner, 26 Pa. 406; Pettes v. Bingham, 10 N. H. 514; Harvey v. Anderson, 12 Ga. 69; Harden v. Hays, 9 Pa. 163; Clifton v. Murray, 7 Ga. 564.

It is not claimed that there was any fraud or undue influence exercised in procuring the instrument to be made.

Appeal from a decree of the Probate Court for the County of Norfolk, admitting to probate an instrument purporting to be the last will of Ann Klemm, deceased. Among other reasons for appeal were the following: that at the time she executed said instrument said Ann Klemm had no knowledge or means of knowledge of the contents thereof; that the said Ann Klemm never gave instructions for the preparation or drafting of said will, which were reduced to writing in the lifetime of said Ann Klemm; that from the time of the drafting of said instrument to the time of Ann Klemm's death, she never saw the contents of said instrument, because the same never was In the absence of statutes, and according to read to her, and because in no other way was the common law of England, a will did not reshe made aware of the contents of said instru-quire to be signed, reduced to writing in the

Fulton v. Andrew, L. R. C. 7 H. L. Eng. & Ir. App. 463; Brogden v. Brown, 2 Addams, Eccl. 449; Guardhouse v. Blackburn, L. R. 1 Prob. & Div. 116; Paske v. Ollat, 2 Phill. 323; Billinghurst v. Vickers, 1 Phill. 193; Moore v. Paine, 2 Lee, 595.

presence of the testator, or read over by him to operate fully as a will.

Wood v. Wood, 1 Phill. 369.

Unfinished instructions have been established as a will. Devereux v. Bullock, 1 Phill. 73; Musto v. Sutcliffe, 3 Phill. 105; Nathan v. Morse, 3 Phill. 529; Lewis v. Lewis, 3 Phill. 109; Maclae v. Eving, 1 Hagg. 317.

The civil law never prevailed in England.
Moore v. Paine, 2 Lee, 595.

against the person who practiced the fraud upon him, or by a bill in equity to rescind the contract and to compel the one who practiced the fraud to repay the money, and to make further compensation and indemnity, if neces

sary.

(Essex- -Filed February 23, 1887.)

A testamentary gift may be made in England ON report. Judgment on the verdict.

(1 Vict. chap. 26), or in this State (Pub. Stat. chap. 127, § 1), of real as well as personal estate. See Swinb. Wills, 252.

Action of contract against William Hale, Hazen M. Chase, Aaron H. Saltmarsh, Cyrus D. Furber, Joab Peasley, George A. Hall, Richard Webster, Romanzo Trefethen, G. Walker Wentworth, Leonard V. Spaulding, and Field, J., delivered the opinion of the court: Jacob M. Willey, in which the plaintiff sought This will was duly executed and the testatrix to recover $50 paid by him under a contract, was of sound mind. It appears that she had which was, he alleged in his declaration, for previously executed a will, and, desiring to the purchase of certain shares in an alleged cormake some changes in it, gave instructions to poration called the American Iron Glass Pipe Mr. Cobb to make the changes and "bring the & Plate Company, which contract he has since new will to be executed." Mr. Cobb "drafted rescinded for legal cause and for false representhe will according to his instructions," carried tations made to him." The second count of the it to her, and she signed it, "as her will, in the plaintiff's declaration alleged that the sum of presence of the witnesses," who all attested it $50 was paid by the plaintiff to the defendants in her presence. "Mr. Cobb then offered to in pursuance of a contract for the sale by read it to her but she declined, saying that he them and the purchase by him of what they alcould do so at some other time, and requested leged and represented to be shares of the capihim to keep it in his custody; and it remained tal stock of" the said corporation, "whereas in his custody until" her "death, and she never there was no such corporation; wherefore said read it, nor was it ever read to her." The contract became ineffectual and null," etc. cause was heard by the court without a jury, The third count of the declaration was for and the court found that "the contents of the money received by defendants for plaintiff's use. At the trial in the superior court, before Aldrich, J., there was testimony tending to prove the following facts:

paper when Mrs. Klemm signed it were what she intended they should be, and what she believed them to be, and she believed the instrumert to be duly executed as her will." Mr. Cobb received nothing by the will. It is plain that on such a finding the will must be allowed, unless the law requires that a will be read by or to the person executing it. Such is not the law; it is sufficient if the court is satisfied by competent evidence that the contents of the will were known to and approved of by the person executing it at the time it was executed as a will. Day v. Day, 2 Green, Ch. 549; Pettes v. Bingham, 10 N. H. 514; Parker v. Felgate, L. R. 8 Prob. & Div. 17; Morrell v. Morrell, L. R. 7 Prob. & Div. 68; Hastilow v. Sto' ie, L. R. 1 Prob. & Div. 64; Cleare v. Cleare, L. R. 1 Prob. & Div. 655; Moore v. P ine, 2 Lee, 595. The decree of the Probate Court allowing the will must be affirmed.

George W. PERRY

v.

William HALE et al.

1. Where one is induced to take shares
in and to become a member of a con-
templated company, by the fraud of
another member, and he rescinds his
contract of purchase of shares and with-
draws from the company, he cannot
hold the other members of the com-
pany, upon whom no fraud is charged,
liable to him, in an action at law for
money had and received, as partners or
otherwise, for the repayment of the
money which he paid for his shares.
2. His remedy, if any, is by an action at law
2 MASS.
N. E. R., V. III.

48

In March, 1884, A. H. Saltmarsh, one of the defendants, was engaged in getting up a company for the manufacture of glass at Haverhill, under certain patents. The plaintiff was invited by a third person to Saltmarsh's house, and there the latter showed him specimens of glass of four different colors, and certain materials in boxes, which he stated were silica and porphyry, and were found in quantity in a certain place in New Hampshire. e further stated that by combining these materials the colors were produced. He said the glass made from these materials would be adapted to use in making sinks, mantel-pieces, tiling for floors, etc. It was so strong that it was called iron glass. When asked by plaintiff why the company did not locate in New Hampshire, Saltmarsh said that the building of the works would add a new industry to Haverhill, and also said that the silica could be delivered at Haverhill for $5 per ton; he also made other statements tending to show the value of the production as attested by experiments, and stated that the company had valuable patents. He said the company was to be incorporated in New Hampshire, as it would be cheaper, but that it was to have its manufactory in Haverhill, Mass. He was offering shares at ten dollars for a share of a par value of $100. The plaintiff went, on Saturday, to Saltmarsh's house again, and told him that if the matter was as he represented, he would take five shares. He had known Saltmarsh for several years, and had perfect confidence in him, and relied on his representations, and was induced by them to subscribe. He, plaintiff, about April 7, signed a contract agreeing to pay the treasurer of the

213

American Iron Glass Pipe & Plate Company | a corporation under the laws of another State the sum of $50, payable in installments of 25 per cent each on dates named in the contract. In return he received a certificate signed by the president and treasurer of the company, certifying that he was the owner of 5 shares of the capital stock of the company. It also appeared that he had paid the $50 as agreed, and, when he had made the last payment, was given a certificate in exchange for the one first mentioned; the certificate last given him he tendered in May, 1885, to one Furness, whom he understood to be treasurer of the company, and demanded payment of the money he had paid. The plaintiff offered evidence of an expert, tending to show that the materials proposed to be used by the company were of little or no value, and there was evidence that experiments made at the works (erected at Haverhill at a cost of $25,000) resulted in producing a species of glass that was valueless. The plaintiff put in evidence the general laws of New Hampshire with regard to the formation of corporations, the alleged certificate of incorporation of the American Iron Glass Pipe & Plate Company, its record, and the return made by them in 1885.

The certificate of incorporation was as follows:

"We, whose names are hereto subscribed, do by this agreement associate ourselves with the intention to constitute a corporation according to the provisions of the laws of the State of New Hampshire. The name by which the corporation shall be known is the 'American Iron Glass Pipe & Plate Company.' The purpose for which the corporation is constituted is to manufacture and sell glass of all kinds. The place within which the corporation is established or located is Dover, within the State of New Hampshire. The amount of capital stock to be paid in is $850,000. In witness whereof,"

etc.

This was dated March, 1884, and signed by five of the incorporators, and underneath was the following:

"Received March 25, at 9.30 A. M., and re-
corded in the records of the City of Dover, N.
H., by me.
J. B. Stevens, Jr.,
City Clerk."
"State of New Hampshire, Secretary's Of-
fice, Concord, March 25, 1884.

Received and recorded by me this day.
A. B. Thompson,

Secretary of State."

All but two of the parties to the alleged agreement of incorporation were residents of Massachusetts. At the close of the testimony offered by plaintiff, the defendants asked the court to rule that this action could not be maintained against either of the defendants. The plaintiff contended that the certificate filed was not sufficient in form to create a corporation as required by the New Hampshire law. He also contended that on the evidence the jury might find that it was not filed or recorded in the "office of the clerk of the town in which the principal business is to be carried on," as required by law; and that, if not so recorded, no corporation was created. He also contended that on this evidence the jury would be authorized to find that the alleged incorporation was an attempt by citizens of Massachusetts to form

for the purpose of doing business in Massachusetts, and with the express purpose of evading our laws, and if so, such would not be valid bere. He further contended that in either case the members of the attempted corporation would be liable as partners; that there was evidence from which the jury would be authorized to find the following facts: That the plaintiff was induced to subscribe for and take stock in the alleged corporation by the false and fraudulent representations of said Saltmarsh, as to material matters of fact, made by him as of his own knowledge, as to which the plaintiff had not equal means of knowledge; that in making such representations said Saltmarsh was acting as a promoter of an intended company, which afterwards adopted the subscriptions so obtained by him as their own, and received the money paid under them, and had thereby adopted and ratified his acts; that the plaintiff had for such fraud rescinded his contract with them, and was entitled to have his money returned to him, and had duly demanded it; and that the defendants were members of the company, and as such liable to him as partners.

But the court ruled that this action could not be maintained against either of the defendants, and directed a verdict for the defendants, and at the request of the plaintiff reported the case for the determination of the supreme judicial court. If the foregoing ruling was correct, judgment to be entered upon the verdict; otherwise, the verdict to be set aside as to all or such of the defendants as the court should determine.

Messrs. Sherman & Bell, and W. H. Moody, for plaintiff:

The action is for money alleged to be held by the defendants under a contract either rescinded or originally void.

1. The contract was proved by its production in writing.

2. The evidence of fraud was ample. All the representations fall within the principle as stated in Hazard v. Irwin, 18 Pick. 95.

In this case the plaintiff had not equal means of knowledge.

David v. Park, 103 Mass. 501; Savage v. Sterens, 126 Mass. 207; Brown v. Castles, 11 Cush. 348; Bradley v. Poole, 98 Mass. 169; Upton v. Englehart, 3 Dill. 496.

3. If the contract was only voidable, a seasonable rescission was made. The plaintiff had received nothing of intrinsic value. If he had had such value, he made a sufficient tender of it.

4. There is no question raised of joinder of parties. We contend that there was no actual incorporation, because the law of New Hamp shire was not complied with; because the attempted incorporation was void as an infringement upon the sovereignty of this Commonwealth.

Harris v. McGregor, 29 Cal. 125; N. H. Stat. chap. 152; Bigelow v. Gregory, 73 Ill. 197; Doyle v. Mizner, 42 Mich. 332.

5. The State of New Hampshire has no power to incorporate citizens of Massachusetts for the purpose of doing business, not in New Hampshire, but in Massachusetts. This is clear, both on principle and authority. Lord Dacre's Case, i Dyer, 81 a; Hill v. Beach,

1 Beas. 31; Thompson v. Waters, 25 Mich. 214, ( selves with the purpose to form a corporation, 221. their purpose must be to assume personal responsibility until the actual incorporation takes place.

6. The courts of other States than that where the charter is granted cannot control or regulate the corporate action of the corporation, nor can they enforce the individual liability of the officers or stockholders.

Erickson v. Nesmith, 15 Gray, 221; 14 Allen, 233; Halsey v. McLean, 12 Allen, 438.

7. Where the supposed corporation has contracted as such, and, when sued on the contract, attempts to deny its own incorporation, it is always estopped to do so.

Dooley v. Cheshire Glass Co. 13 Gray, 494; Merrick v. Reynolds Engine & G. Co. 101 Mass. 381.

An individual who has contracted with a body as a corporation is estopped from denying its existence, when his purpose is to escape from his contract.

Worcester Med. Inst. v. Harding, 11 Cush. 285; Commissioners v. Bolles, 94 U. S. 104 (Bk. 24, L. ed. 46); Wallace v. Loomis, 97 U. S. 146 (Bk. 24, L. ed. 895); Farmers & M. Bank v. Jenks, 7 Met. 592; Barrett v. Mead, 10 Allen, 337; Williams v. Cheney, 3 Gray, 215; Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391; Washington Nat. Bank v. Lee, 112 Mass. 521.

8. In some cases it is said that the existence of a de facto corporation can only be questioned in proceedings by the State, and that it cannot be done in any collateral proceeding. This is undoubtedly good law, but its whole application to this case depends on the definition of the term de facto corporation.

Martin y. Fewell, 79 Mo. 401, 411; Stowe v. Flagg, 72 Ill. 397; Frost's Lessee v. Frostburg Coal Co. 24 How. 278 (65 U. S. bk. 16, L. ed. 637); Ang. & A. Corp. § 594; Chester Glass Co. v. Dewey, 16 Mass. 94; Utley v. Union Tool Co. 11 Gray, 139; Bigelow v. Gregory, 73 Ill. 197; Newcomb v. Reed, 12 Allen, 362.

9. When the incorporation is an express attempt to evade our laws, as in this case, it must be held absolutely void here, or else it is absolutely good, for the objection is one for the courts of this State alone, and unless they can give it effect by absolutely disregarding the fraudulent incorporation, they cannot do anything.

10. The last question is, What is the liability of the members, if the attempted incorporation is void? That may depend upon the objects for which they associate themselves. But it will in all cases be a joint liability and, in the most cases, that of partners.

Fuller v. Rowe, 57 N. Y. 23, 26; Stafford Nat. Bank v. Palmer, 47 Conn. 443, 447, 448; Flagg v. Stowe, 85 Ill. 164; Ferris v. Thaw, 72 Mo. 446; Martin v. Fewell, 79 Mo. 401, 411; State v. How, 1 Mich. 512; Bigelow v. Gregory, 73 Ill. 197; Coleman v. Coleman, 78 Ind. 344; Kaiser v. Lawrence Saving Bank, 56 Iowa, 104; Vredenburg v. Behan, 33 La. Ann. 627; Field v. Cooks, 16 La. Ann. 153; Abbott v. Omaha Smelting Co. 4 Neb. 416; Garnett v. Richardson, 35 Ark. 144; Holbrook v. St. Pauls F. & M. Ins. Co. 25 Minn. 229; Richardson v. Pitts, 71 Mo. 128.

In this case a joint liability is enough, though not strictly that of partners.

When a number of persons associate them

Fay v. Noble, 7 Cush. 188; Trowbridge v. Scudder, 11 Cush. 86; Salem First Nat. Bank v. Almy, 117 Mass. 478.

There is nothing in Fay v. Noble which would prevent a recovery by the plaintiff in this case. Mr. E. T. Burley, for all defendants excepting Saltmarsh:

If

If defendants, other than Saltmarsh, are liable to the plaintiff in any form of action, it must be upon the ground that they were members of an association engaged in a common enterprise, and not upon the ground that some of the defendants were officers of such association. that association was in law a copartnership, then we have a case in which one copartner, after remaining for a year in the copartnership, seeks to maintain an action at law against his copartners to recover his contribution to the capital of the association.

Fay v. Noble, 7 Cush. 188.

It is well settled that a corporation created in one State may, upon the principle of comity, exercise within another State the general powers conferred under the laws of the State where the corporation was organized, provided the doing so be not inconsistent with the laws of such other State.

N. H. Gen. Laws, chap. 152; Christian Union v. Yount, 101 U. S. 354 (Bk. 25, L. ed. 888).

The plaintiff cannot, in this action, impeach the legality of the corporation. This is not the case of a mere outside party dealing with a corporation, but the case of one who, after his first payment, acted as a member of such corporation for a year, with some, if not all, of the defendants, and with many other stockholders.

Worcester Med. Inst. v. Harding, 11 Cush. 288: Butchers and Drovers Bank v. McDonald, 130 Mass. 264; Appleton Mut. Fire Ins. Co. v. Jesser, 5 Allen, 448.

If not a corporation de jure, it was, at the times of the several payments by plaintiff, a corporation de facto.

2 Morawetz, Corp. § 748, and cases cited. If the plaintiff has any remedy, it is in tort and not in contract.

Fay v. Noble, 7 Cush. 188; Trowbridge v. Scudder, 11 Cush. 85; Ward v. Brigham, 127 Mass. 24.

C. Allen, J., delivered the opinion of the court:

The plaintiff contends that he was induced to take shares in the company, by the fraud of Saltmarsh; that the company was not incorporated; that it is open to him to deny the validity of the attempted incorporation; that he was entitled to rescind his contract of purchase of shares, and to withdraw from the company, and to treat his membership as void from the beginning; that he has done all that he could do to make such rescission and withdrawal effectual, and that the result is that the other members of the company are liable to him in an action at law for money had and received, as partners or otherwise, for the repayment of the money which he paid for his shares. Assuming, without deciding, that all the earlier propositions are well maintained, the result contended