1915, at the county of Jefferson, in the state of Missouri, being then and there the agent and manager of a certain private banking institution known as the Jefferson County Bank, doing business at De Soto, in said county and state, a certain deposit of money, to wit, eight hundred dollars, in lawful money of the United States, the money and property of one Gertrude Hohenthal, of the value of eight hundred ($800) dollars, unlawfully and feloniously did take, County Bank after he, the said Robert B. Munhave, and receive on deposit in said Jefferson roe, had knowledge of the fact, and well knew that the said Jefferson County Bank was then and there insolvent and in failing circumstances, and so the said Robert B. Munroe the money aforesaid, to wit, eight hundred ($800) dollars, the money and property of the said Gertrude Hohenthal, in manner and form aforesaid, unlawfully and feloniously did steal, take, and carry away, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state."

Such other facts as shall become pertinent to the points which we find it necessary to discuss will be set out by us in connection with that discussion.

Shreveport, La., upon a bank situate in the, Robert B. Munroe, on the 1st day of April, latter state. The above draft was on the date last mentioned deposited by Sol Hohenthal to the credit of his sister, Gertrude Hohenthal. At the time of the making of this deposit but two persons were employed in this bank, namely defendant, who seems to have been acting as receiving teller and cashier, and one Harry Brown, who seems to have been the bookkeeper. The father of the defendant, who, as stated, was the owner of this bank, was at the time lying ill in a hospital in the city of St. Louis. This owner had been seriously ill for something more than a year, and had been unable during that entire period to be in the bank or to give much personal attention to the affairs thereof; though the proof shows that, in most instances wherein loans of any magnitude were sought to be made with the Jefferson County Bank, Otis M. Munroe was constantly consulted and had the deciding voice; but the proof is abundant that defendant was in full charge of this bank in all other respects, and that he received deposits, paid out money to depositors, and made and passed on numerous small loans. This bank continued in business without any overt financial difficulties until the said 9th day of April, 1915, on which date Otis M. Munroe died. Upon the death of the latter, and solely on account thereof, this bank was closed. Much evidence came in upon the question of the solvency or insolvency of the bank itself, and the proof tends to show that on the day at which the bank closed for the reason stated it was (its segregated assets alone regarded) actually insolvent. There is no proof touching whether Otis M. Munroe, the owner of this bank, was or was not solvent on the 1st day of April, 1915, though there is proof in the record that he claimed, shortly prior to his death, to be worth some $44,000 more than his debts. Upon the trial of the case no attention seems

to have been paid, by either side, to the financial condition of Otis M. Munroe; both sides confining the proof adduced by them respectively to the condition of the bank itself, with reference to the latter's solvency or insolvency, as compared to the actual segregated assets thereof which were used solely in the banking business. Upon the trial much proof was offered that defendant, in addition to receiving the deposit for which he was herein convicted, had received about the same time from other persons divers similar deposits.

The indictment upon which this prosecution was bottomed is strenuously assaulted, and it therefore becomes very pertinent in our discussion of the case. Omitting signature and merely formal parts, all of which are conventional, and none of which is attacked, this indictment read thus:

"The grand jurors of the state of Missouri, impaneled, sworn, and charged to inquire within and for the county of Jefferson, and state afore

Clyde Williams, of Hillsboro, Adrian Steel, of De Soto, and J. L. Hornsby, Paul Bakewell, and Major & Revelle, all of St. Louis, for appellant. Frank W. McAllister, Atty. Gen., and S. E. Skelley, Asst. Atty. Gen., for

the State.

FARIS, J. (after stating the facts as above). [1] I. It is contended by defendant that this prosecution proceeded from the beginning upon an erroneous theory; that is to say that, incorporated bank, but a private bank wholly since the Jefferson County Bank was not an owned by Otis M. Munroe, the indictment should have charged the insolvency of said Munroe, the owner, and the evidence adduced and the instructions offered should have followed the indictment in this behalf. We think it too plain for argument that this point is

well taken.

S. 1909), upon which this prosecution is bot-
The section of the statutes (section 4585, R.

tomed was first enacted in 1877. Laws 1877,

P. 239. It then made it larceny for “any president, director, manager, cashier, or other officer of any banking institution" to receive or consent to the receiving into such bank any deposit of money or other valuable thing, after such officer or agent of the bank had

knowledge of the insolvency of "such bank or banking institution." In 1887 this statute "or the owner, agent or manager of any priwas amended by inserting therein the words, vate bank or banking institution." Laws 1887,

P. 162. This amendment was a legislative con

struction that the section prior to the amendment was not applicable to a private bank. In 1895 the entire section was repealed and a new section enacted in lieu thereof. Laws 1895, p. 158. This latter enactment is still the law upon the subject. Section 4585, R. S. 1909. As enacted in 1895, this statute contained (and yet and now contains) the signif

phasis, thus making the law under which de-, well as an incorporated bank, was insolvent fendant was convicted read thus:

when the deposit was received. Absent the fact of failure, as here, we apprehend no such ruling would have been made. Certainly no such ruling would have been warranted.

"If any president, director, manager, cashier or other officer of any banking institution, or the owner, agent or manager of any private bank or banking institution, or the president, vice-president, secretary, treasurer, director or No one can read our present statute upon agent of any trust company or institution doing this subject without concluding that the inbusiness in this state, shall receive or assent dictment for receiving deposits into an insolto the reception of any deposit of money or other valuable thing in such bank or banking in- vent private bank must charge that the owner stitution or trust company or institution, or or owners thereof were insolvent at the time if any such officer, owner or agent of such bank of receiving such deposit. Likewise the proof or banking institution, or if any president, vice- must show this fact, and the jury must be inpresident, secretary, treasurer, director or agent of such trust company or institution, shall cre- structed to so find, before they are authorized ate or assent to the creation of any debts or in- to convict the accused. That the statute may debtedness, in consideration or by reason of authorize the triers of fact to presume such which indebtedness any money or valuable prop-insolvency from the fact that the bank has erty shall be received into such bank or banking institution or trust company or institution, after he shall have had knowledge of the fact that such banking institution or trust company or institution, or the owner or owners of any such private bank, is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the manner and to the same extent as is provided by law for stealing the same amount of money deposited, or valuable thing: Provided, that the failure of any such bank or banking institution or trust company or institution shall be prima facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit." Section 4585, R. S. 1909; Laws 1895, p. 158. In the face of this language it is idle to contend that defendant can be convicted without charging in the indictment, and without showing the fact by the evidence offered upon the trial, that "the owner" of this private bank "was insolvent or in failing circumstances," when defendant received the deposit here in question.

failed is an element which is not in this case, and therefore one which we shall permit to rest with the cases already adjudged (State v. Salmon, supra; State v. Buck, supra) till we shall meet it again face to face. It follows that the indictment herein is bad, for that it failed to charge that defendant had knowledge of the fact that Otis M. Munroe, the owner of the private bank, was insolvent and in failing circumstances when defendant received into said bank the deposit in question, and that the instructions which followed the error of the indictment in this behalf are likewise erroneous. Of course, it also follows, as an inevitable deduction, that there was a failure of proof upon this necessary and essential question.

[2] II. Since, if the state is so advised, this case may be retried, it may be well to say that if the proof shall show that defendant was in charge of this bank, with the knowledge and apparent consent of the owner thereof, or that he was intrusted by the own

The case of State v. Salmon, 216 Mo. loc. cit. 525, 115 S. W. 1106, is urged upon our at-er thereof with the duty of receiving deposits, tention as laying down a contrary rule. We or that he was, with the apparent knowledge think the two cases are easily to be distin- and consent of the owner, permitted to act guished. There the learned jurist who wrote for the latter in receiving deposits, he was the case was dealing with the proviso to the the agent of the owner within the purview of above-quoted section which, relating to a mat- the statute under discussion, and, other things ter wholly evidentiary, makes the failure of which are made requisite by that statute beany such bank or banking institution prima ing proven, he may be convicted. It is not facie evidence of the insolvency thereof. In necessary that defendant should have had the the Salmon Case the bank had failed. In the ultimate authority in the management of case at bar the Jefferson County Bank had this bank; that is, that he should, as to all been closed solely on account of the death of other matters, have had full authority to conthe owner thereof. Whether that owner was trol the business or financial policy of the insolvent, therefore, became a matter of proof. bank, nor that his acts or delinquencies There was no statutory presumption about it. should have been the cause, or one of the causes, of the bank's insolvency, if it was insolvent. The statute is fairly plain, and it requires no such showing; neither does the reason of the thing nor the evil sought to be prevented by this statute require such a showing. We think there was ample evidence that defendant was the agent of the owner of the bank, within the purview of section 4585, supra, when he received the deposit in question. The instruction giver. by the court of its own motion was more than fair to defendant, and he has no ground of complaint for that the court nisi refused the instructions defining agency which he asked.

It is perhaps unfortunate that, in a somewhat loose discussion of the point, Judge Fox followed in the Salmon Case the older case of State v. Buck, 120 Mo. 479, 25 S. W. 573, which latter case was decided in 1894, before the present statute was amended so as to require that the insolvency of the "owner or owners" of a private bank at the time of receiving a deposit must be shown as a condition precedent to conviction. Judge Fox ruled that, even in the case of a private bank, the fact of the failure thereof should (just as the letter of the statute provides) be held to be prima facie proof that a private bank as

[3] III. It is contended that the court erred | For the errors noted, let the case be reversed in admitting evidence of divers deposits made and remanded for a new trial not inconsistby other persons, in the bank in question, ent with what we have herein written. It is about the same time as that one was made for so ordered. All concur. which defendant was upon his trial. This has been held by this court to be error. State v. Burlingame, 146 Mo. loc. cit. 226, 48 S. W. 72. We see no reason to change the ruling upon this question, since it can throw no light upon defendant's intent, nor is it of any value in demonstrating the agency of defendant, as what we say above makes manifest.

LEMON et al. v. LEMON. (No. 18922.) (Supreme Court of Missouri, Division No. 2. Feb. 16, 1918.)

1. DEEDS 143-CONSTRUCTION-EXCEPTION OR RESERVATION-PARTIES.

2. DoWER 49(1) - HOMESTEAD 118(1)TRANSFER OF INCHOATE INTEREST-EFFECT.

or

A deed of one entitled to inchoate dower a contingent homestead operates only by way of estoppel as a release of a contingent future estate, and not by way of grant. 3. DEEDS 138-EXCEPTIONS AND RESERVA

TION-DISTINCTION.

An owner of land, joined by his wife, con[4] IV. Defendant also complains that a veyed it to defendant by an instrument otherfatal variance arose upon the trial, in that wise in the form of an ordinary warranty deed, while the indictment charged that defendant but providing that the wife did not relinquish received a "deposit of money, to wit, eight survive the husband, and "reserving" a life her rights of homestead or dower if she should hundred dollars in lawful money of the estate in the property, and providing that, in United States," the evidence conclusively other words, the estate in remainder was the esshowed that the thing of value actually re-grantors (naming them) were to have the use tate intended to be conveyed, and that the ceived by defendant was a draft for the sum and profit of the place as long as they or eiof $800 drawn by a building and loan asso- ther of them should live. Held that, as Rev. ciation of Louisiana upon a bank in Shreve St. 1909, § 2787, requires conveyances of land port, in the latter state. It will be noted that to be in writing, the wife had no interest except her inchoate dower and contingent estate of the statute under which this prosecution was homestead, which she would have had without had (section 4585, R. S. 1909) makes it just any conveyance, as she was not a grantee, but as great an offense to receive "other valuable a grantor, and, moreover, the words of the deed things" as it does to receive real money. In words of grant; and the estate reserved for her were words of reservation or exception, and not fact, the Legislature seems to have had in life remained in the husband, he not having conmind that a vast majority of the banking veyed it to her. business of this world is done with valuable paper other than money, and to have prophetically provided for just the identical contingency that arose in this case. There is nothing in a case of doubt to prevent the procuring of an indictment or the filing of an information in two counts, one of which may charge that money was received, while the other shall aptly charge the real character of the "valuable thing" which was received by the defendant. It is well-nigh incomprehensible why the prosecuting attorneys in preparing informations do not, when in doubt as to the nature of the valuable papers forming the subject of a criminal offense, and The rule that a reservation in a grant in order to be valid must be for the benefit of the which, while not money, yet represent money, grantor or one of them, and that a reservation charge the offense in two or more counts, and cannot be made for the benefit of a stranger to thus once for all obviate the danger of a fatal the deed means that the reservation must be variance. With this observation, we will for the benefit of that grantor who, having an interest in the thing granted, may logically releave this question open, since the case must, serve from the operation of the grant a part of in any event, be reversed for other errors the estate or thing granted, or some right growwhich we have already pointed out; observing out of or appurtenant thereto. ing further, however, that it is not nearly as 6. DESCENT AND DISTRIBUTION difficult and troublesome to file an information in two counts as it is for an appellate court to justify a wholly unnecessary variance. The late ruled cases apposite here on this question fully show this. Cf. State v. Mispagel, 207 Mo. 557, 106 S. W. 513; State v. Salmon, 216 Mo. loc. cit. 521, 115 S. W. 1106; State v. Plant, 209 Mo. 307, 107 S. W. 1076; State v. Bouslog, 266 Mo. 73, 180 S. W. 859; State v. Booth, 186 S. W. 1019.

A deed "reserving" a life estate creates an exception, while an exception of the rents and profits creates a reservation. 4. DEEDS 143-CONSTRUCTION AND OPERATION OF RESERVATION.

A reservation of a life estate by a grantor for the life of another dies with the grantor. 5. DEEDS 142-VALIDITY OF RESERVATION -PARTIES.

8-PROP

ERTY SUBJECT TO DESCENT OR DISTRIBU

TION.

Where an exception is carved out of the estate granted, the estate excepted is a part of the grantor's estate, and passes to his heirs. 7. DEEDS 138-EXCEPTIONS AND RESERVA

TION-DISTINCTION.

Where a deed "reserved" a life estate, and provided that only the estate in remainder was intended to be conveyed, and that the grantor long as he or his wife lived, the exception or was to have the use and profit of the place as reservation might properly be treated as an exception, whether it was technically an exception or a reservation.

Many other matters are urged upon our attention, but since all such are things in which either there is no merit, or things 8. DEEDS 143-CONSTRUCTION OF RESERVATION-ESTATES PUR AUTRE VIE. which will not happen upon a new trial, we An owner of land joined by his wife executneed not take up space in discussing them. ed an instrument otherwise in the form of a

warranty deed providing that the wife did not relinquish her homestead or dower rights, that a life estate was reserved and the estate in remainder only was conveyed, and that the grantors were to have the use and profit of the place as long as they or either of them should live. Held, that while the wife did not take the estate or interest reserved for her life, neither did it pass to the grantee, but it remained in the grantor and his estate after his death.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Alphonso V. Lemon and others against Nannie A. Lemon, in which the heirs of the plaintiff named were made parties in his stead. From a judgment for defendant, plaintiffs appeal. Reversed and remanded. This is an action to determine title under the provisions of section 2535, R. S. 1909, to certain real estate situate in Pike county, and for partition thereof, in the event that it should be found that plaintiffs have any interest therein. Upon a trial below the judgment was for defendant, and plaintiffs appeal.

said parties of the first part, in consideration of the sum of two hundred and fifty ($250.00) dollars and love and affection to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Pike and state of Missouri, to wit: All the northeast one-fourth of the northwest quarter; also the south threefourths of the northwest one-fourth of the northeast quarter all in section thirty-five (35), township fifty-four (54), range five (5) west, containing in all seventy acres, more or less. It is the mutual understanding that Nannie A. Lemon as wife of said Joseph R. Lemon does not intend in any way to relinquish her right in place as homestead or as dower if said Nannie A. Lemon should survive her husband Joseph R. Lemon. To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining, unto his heirs and assigns forever; the said Joseph the said party of the second part, and unto R. Lemon hereby covenanting that he is lawfully seised of an indefeasible estate in fee in the premises herein conveyed; that he has good Plaintiff O. O. Turner has no interest what-ises are free and clear of any incumbrances done right to convey the same; that the said premever in the lands in controversy, save and or suffered by him or those under whom he except that he is the lessee thereof for a claims, and that he will warrant and defend the term beginning on the 1st day of March, 1912, of the second part, and unto his heirs and astitle to the said premises unto the said party and ending on the 1st day of March, 1916, signs forever, against the lawful claims and at an annual rental charge of $300 per year. demands of all persons whomsoever, reserving He became a party plaintiff for the purpose however a life estate in the above-described of protecting his interest in the matter of the der is the estate intended to be conveyed to sec property. In other words, the estate in remainpayment of the above rental charge. Since, ond party, and first parties Joseph R. Lemon however, his interest is to be tested by the and Nannie A. Lemon are to have the use and interest of plaintiff Alphonso V. Lemon, and profit of said place as long as both or either of them shall live. of defendant Nannie A. Lemon, we need not consider him further in what we shall say touching the questions involved upon this appeal. Since this case has been pending here upon appeal plaintiff Alphonso V. Lemon has departed this life. His heirs by proper motions have, by our order herein, been made parties plaintiff and appellant in his stead, and the case has been revived in their names. But no occasion arises for a change in the title of the cause, and we shall, therefore, for the purpose of this discussion, and for the purpose of brevity, and for the reasons above stated, speak of Alphonso V. Lemon as plaintiff, and of Nannie A. Lemon as de

fendant.

On the 20th day of September, 1905, one Joseph R. Lemon, who was the father of plaintiff and is the common source of title to the land in controversy herein, together with his wife, Nannie A. Lemon, who, as stated, is the defendant herein, made, executed, and delivered to the plaintiff the below deed of conveyance to the lands in dispute herein, to

wit:

"Warranty Deed.

"In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written.

"Joseph R. Lemon.
"Nannie A. Lemon."

At the time of the execution and delivery of the above deed of conveyance Joseph R. Lemon, and the defendant, his wife, were residing upon the land described in said conveyance as a homestead. They continued to reside thereon, occupying this land as a homestead until on or about the 25th day of February, 1912, when they abandoned the same, purchased a house in the town of Vandalia, moved thereto, and resided therein until the death of Joseph R. Lemon, in March, 1914. But one witness testifies as to the intention of Joseph R. Lemon and defendant, his wife, in acquiring the house in Vandalia, and in moving from the land in dispute to the Vandalia house. This witness says unequivocally that this removal was made with the intention on the part of said grantors in the above deed to make the Vandalia house

their home for the balance of their lives. Upon removing from the land in question here to the new home in Vandalia, Joseph R. Lemon leased the disputed premises to plaintiff O. O. Turner, as heretofore stated.

"This indenture, made on the 20th day of September, A. D. one thousand nine hundred and five by and between Joseph R. Lemon, of Pike county, and state of Missouri, and Nannie A. Lemon, his wife, of Pike Co., Mo., parties of the first part, and Alphonso V. Lemon, of the county of Audrain in the state of Missouri, ring that she acquired such estate by virtue party of the second part, witnesseth: That the of the reservations made in the conveyance,

The answer of defendant sets up a claim of a life estate in the lands in dispute, aver

which we set out above. The contentions | er." Explaining this, of course with the exmade by plaintiff are that the above convey-isting situation of the parties largely in ance vested in him, as the grantee therein, mind, the second clause says: