But it is clear that the premiums must be fixed and paid in good faith, to secure the loan, and not as a mere device to evade the law against usury: 4 Am. & Eng. Ency. of Law, 2d ed., 1071. The premiums paid in these cases differ from the interest only in name and amount. The mortgages were given to secure the payments of the premiums as well as other sums, and provided that, in the event of foreclosure, the amount due should include all monthly installments, interest, premiums, fines, and penalties due at the date of the decree of foreclosure, less the withdrawal value of the shares of stock held as collateral security. It thus appears that the premium was not a fixed sum, to be paid in any event, but that only so much of it was to be paid as should have accrued at the time of foreclosure. We are satisfied that the sums nominally paid as premiums were for the use of the money loaned, and as truly interest as were the payments made as interest, and that the designation of some of the payments as premiums was a mere device to evade the law against usury. As the monthly payments of premiums and interest together exceeded the highest rate of interest allowed by law, the loan was usurious. The cases of Hawkeye etc. Assn. v. Blackburn, 48 Iowa, 385, and Burlington etc. Asso. v. Heider, 55 Iowa, 424, are not precisely in point, but may be read with profit.

2. The district court rightly refused to allow the plaintiff anything for the interest and premiums paid, and deducted their aggregate amounts from the sums loaned as credits in favor of the defendants. The district court also allowed as a credit in each case the book value of the stock pledged as collateral security, and of that the appellant also complains. As already mentioned, the 561 mortgage provided that the withdrawal value of that stock should, in the event of foreclosure, be credited on the amount due on the loan. The by-laws of the association provide that any shareholder in good standing, who has paid three months' dues, may, after due notice, and upon the surrender of his certificate, withdraw the full amount of his payments to the loan fund, together with the earnings up to the last dividend period. We understand that the book value of the certificates of stock allowed by the district court in each case was the amount of installments paid on the stock and the earnings thereof to the last dividend period preceding the appointment of a receiver. But the book value was not the actual value, for the reason that the association was insolvent

and unable to pay to each shareholder the book value of his shares. We are therefore required to determine whether the stipulation in the mortgage to which we have referred controls. If it does, then it is manifest that the shareholders who are borrowers, and whose mortgages are foreclosed, will receive more for their stock than will the shareholders who are not borrowers. But the association is composed of members whose rights are mutual, and among whom there should be equality, based upon their payments to the capital stock of the association; therefore, if the borrowing member is allowed for all the payments he has made and the earnings thereof, the losses of the association will fall upon the members who have not borrowed, there will not be an equality between the two classes of members, and great injustice will be done. A court of equity should seek to avoid that result. It was said in Rabbitt v. Wilcoxen, 103 Iowa, 35, 64 Am. St. Rep. 162, a case which involved an interpretation of by-laws of the association now under consideration, that it was quite evident that the by-laws "were adopted with reference to doing business, rather than with reference to closing up" the affairs of the association, and that the provision for paying back contributions to the loan fund contemplated monthly receipts for the fund, and that there was nothing to show a purpose to make such payments after 562 the receipts had ceased, and the only business of the corporation is a final settlement and an equitable division of the assets. What was thus said is applicable in this case. withdrawal value of the shares of stock, as fixed by the by-laws while the association was a going concern, was the full amount of the shareholder's payments to the loan fund, together with the earnings; but the by-laws did not require the payment of that amount when the association had become insolvent, had ceased to do business, and when its affairs were in the process of final liquidation. In such a case, an equitable distribution of the assets, if any, in excess of the liabilities, should be affected; and that requires that the fair value of the shares be ascertained, and that the value thus ascertained, of the shares of the borrowing members, be deducted from the loan to him. for which a foreclosure is sought. It is proper to observe, in this connection, that the articles of incorporation and by-laws of the association provide for loans to shareholders upon the security of their shares of stock, and that by pledging their shares for loans the shareholders did not cease to be members AM. ST. REP., VOL. LXX.-15

of the association: See Endlich on Building Associations, 2d ed., secs. 121-123, 475, 514; Thompson on Building Associations, sec. 15, p. 129.

Our conclusion that the appellees are only entitled to credits for the actual value of their shares of stock has support in the authorities: See Knutson v. Northwestern etc. Assn., 67 Minn. 201, 64 Am. St. Rep. 410; Eversmann v. Schmitt, 53 Ohio, 174, 53 Am. St. Rep. 632; Price v. Kendall, 14 Tex. Civ. App. 26; Strohen v. Franklin etc. Assn., 115 Pa. St. 273; Christian's Appeal, 102 Pa. St. 184; People v. Lowe, 117 N. Y. 175; Rogers v. Hargo, 92 Tenn. 35; Rogers v. Raines, 100 Ky. 295; Thompson on Building Associations, sec. 2, p. 60; Thompson on Building Associations, secs. 11, 12, 15, pp. 127, 129; Endlich on Building Associations, 2d ed., secs. 45, 77, 514, 531.

503 It follows from what we have said that the district court erred in crediting the defendants with the book value of their shares. The appellant contends that no credit for the shares should be allowed in these actions, because the affairs of the association are not yet settled, and, until that is done, the credits to be allowed for the shares cannot be ascertained. It is true that no credit for the shares should be allowed until their value is ascertained, and it appears that when these actions were heard in the district court the settlement of the affairs of the association had not progressed so far that the value of the shares could have been known. If such value can be determined in these actions, we know of no objection to the allowance of proper credits therefor; but in view of the conditions under which this case is submitted, and the conclusion reached, we do not determine whether there can be a recovery of the amount of the loans and a foreclosure of the mortgages before the credits which should be allowed for the stock can be ascertained. In the absence of proof, it would be presumed that the credits should be the book values of the shares, and the burden would be upon the plaintiff to rebut the presumption and show the actual value of the shares.

3. In the case against C. B. Howard, his codefendant, Margaret Howard, claimed a credit on the plaintiff's cause of action for the value of twelve shares of stock of the association which she held. The appellant insists that she was not entitled to the allowance claimed. Since no allowance was made for the credit claimed, and the appellees do not appeal, it is not necessary to consider the matter further.

4. It is claimed in the case against the congregation that the proof fails to show that its trustees had authority to subscribe for stock and enter into the contract and mortgage in suit. The evidence on their part is not wholly satisfactory, but is sufficient to sustain the action of the trustees. In reaching the conclusion expressed, we have not treated chapter 48 of the acts of the twenty-seventh general assembly 564 nor section 1898 of the code as applicable to these cases, and are not to be understood as determining whether they do or do not so apply. Nothing is claimed for them, and, in determining the questions presented to us, we have assumed, without deciding, that section 1185 of the code of 1873 is applicable.

The views we have expressed dispose of all questions involved in the several cases presented in argument. For the reasons shown, the decree in each case reversed; and, since proof of the actual value of the shares when the receiver was appointed was not and could not have been made at the time of the hearing, equitable ocsiderations demand that the causes be remanded to the district court for further proceedings in harmony with this opinion, to ascertain and make due allowance for the credits, if any, for shares of stock to which the appellees are entitled, or, if that cannot be done in these actions, to protect the right of the appellees to recover such credits by appropriate proceedings.

Reversed.

PREMI

BUILDING AND LOAN ASSOCIATIONS - USURY UMS.-A building and loan association authorized by statute to receive “premiums bid by members for the right of precedence in taking loans," has no authority to exact from the borrower, where there is no competition, an arbitrary sum in addition to the interest on his loan, where the whole amounts to more than legal interest: Iowa etc. Assu v. Heidt, 107 Iowa, 297, ante, p. 197, and note.

BUILDING AND LOAN ASSOCIATIONS-USURIOUS INTEREST-APPLICATION TO MEMBER'S CREDIT.-Where a member of a building and loan association contracts to pay usurious interest and premiums, the court will merely require him to do equity by repaying the money borrowed with legal interest, after being first credited with such payments as he has made, with legal interest: McCauley v. Building etc. Assn., 97 Tenn. 421, 56 Am. St. Rep. 813.

BUILDING AND LOAN ASSOCIATIONS-INSOLVENCY-. RIGHTS OF BORROWING AND NONBORROWING MEMBERS. For the effect of insolvency of a building and loan association on the rights and liabilities of its members, see the monographic note to Curtis v. Granite State Provident Assn., 61 Am. St. Rep. 24-30. See, also, the note to Robertson v. Homestead Assn., 69 Am. Dec. 165.

SCOTT V. HAWK.

[107 IOWA, 723.]

WILLS-SIGNATURE-TESTATOR'S MARK.-Where a testator, being unable to write his signature to his will, makes his mark instead, the will so executed is "signed" within the meaning of the law.

WILLS-EXECUTION-PUBLICATION.-In the execution of a will, nothing more than compliance with the statute is necessary, and publication is not necessary unless made so by statute. WILLS-EXECUTION-PROOF OF-ATTESTING WITNESSES.-Where a will is signed by the testator's making his mark, and the subscribing witnesses are dead or beyond the jurisdiction of the court, proof of their handwriting is a compliance with the law as to due execution; and it need not be proved that the testator had the will read over to him, or was informed of its contents, before he signed it.

WILLS-SIGNING WITH MARK.-Where a testator signed his will by making his mark, it is not essential to the valid execution of the will that his name be written by one of the attesting witnesses.

C. M. Brown and D. D. Hill, for the appellants.

Hamilton & Donohue, Woodin & Son, and C. H. Mackey, for the appellees.

724 LADD, J. The closing part of the paper purporting to be the will of John Scott, deceased, is as follows:

"Witness my hand this 15th day of June, 1886.

his

"JOHN X SCOTT." mark.

On the same paper, below the signature, is this attestation:

"The foregoing instrument was at the date thereof subscribed by John Scott, in our presence, and in the presence of each other, and he at the same time declared the same to be his last will and testament, and by his request we sign our names thereto as witnesses thereof, both in his presence and in the presence of each other.

"D. L. FIDLER.
"S. HARND."

The subscribing witnesses died before the trial, but the genuineness of their signatures and the testamentary capacity of the decedent were established beyond controversy. As the testator was unable to write, he made his mark-the cross. Is a will thus executed "signed," within the meaning of the law?