ing that section, did not intend to do a useless thing, but intended the statute to be enforced in accordance with an interpretation based upon the ordinary understanding of the words used, both by laymen and physicians. In that view of the case we are clearly of the opinion that the words "incurable disease" in the section of the statute in question apply to the state of the disease which a patient may have at the time the treatment of it is undertaken by the physician, and that, if a physician undertakes to treat a patient who is suffering from a disease which has in its progress reached an incurable state according to the then general state of knowledge of the medical profession, and accepts a fee from the patient upon the assurance that he can effect a permanent cure of such disease, he would be guilty of unprofessional conduct as defined in that section of our statute. sufficient, since it advises him of the particular diseases the treatment of which he is charged with having undertaken, especially as plaintiff in error did not seek to have these charges made more definite and certain. [5] The plaintiff in error complains of the admission in evidence by the trial court of an advertisement which is admitted to have been Plaintiff in published by plaintiff in error. error says that he was not charged with making grossly improbable statements, calculated to mislead the public, in advertising his busiWhile this is true, we do not think the ness. court erred in the admission of this advertisement, since it tended in some degree to throw light upon a question properly before the court; i. e., whether or not plaintiff in error gave assurances of effecting permanent cures of incurable diseases. [6] Plaintiff further complains that the trial court in its findings in this cause found plaintiff in error guilty of a charge upon which the trial court, upon the objection of plaintiff in error, had excluded all evidence. The record seems to bear out the contention of plaintiff in error in this particular. While this is error, yet, as we have concluded that the judgment of the trial court was right, the fact that he may have included in his findings a conclusion which was not supported by the evidence, since he did make findings that are supported by the evidence and which sustain the judgment, we will not disturb the judgment of the court therefor. [7] Plaintiff in error further contends that the findings of the court are not supported by sufficient evidence. We have examined the record upon the propositions complained of by plaintiff in error, and we find sufficient evidence to sustain the findings of the court as to the incurable nature of the diseases undertaken to be treated by plaintiff in error, as to his assurances of effecting a permanent cure, and as to his accepting a fee therefor. It is urged by plaintiff in error that the written guaranty which was introduced in evidence, and which is as follows: [4] Plaintiff in error complains of irregularity and error in the proceedings before the state board of medical examiners and in the trial before the district court. He particularly complains of the sufficiency of the complaint filed before the state board. It is practically held unanimously by all the courts that such boards, in proceedings similar to the one at bar, do not act judicially, and are not judicial bodies, but that their action is merely administrative. It is also held that it is within the police power of the state to grant powers such as are sought to be exercised in this case to such boards as a part of the administrative arm of the government, and to provide for summary proceedings to be taken by such boards in cases similar to the one at bar. It is also held that it is not necessary in a trial under such a complaint that the proceedings shall be conducted with that degree of exactness which is required in trials before ordinary tribunals of justice, and that a complaint filed before a state board of health for the purpose of revoking the license of a physician is sufficient if it informs the accused not only of the nature of the wrong charged, but of the particular instances of its alleged perpetration. Munk v. Frink, 81 Neb. 631, 116 N. W. 525, 17 L. R. A. (N. S.) 439; Meffert v. Packer, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811, affirmed, 195 U. S. 625, 25 Sup. Ct. 790, 49 L. Ed. 350; State Medical Board v. McCrary, 95 Ark. 511, 130 S. W. 544, 30 L. R. A. (N. S.) 783, Ann. Cas. 1912A, 631; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802; State v. Chapman, 34 Minn. 387, 26 N. W. 123; State v. Feller, 34 Minn. 391, 26 N. W. 125. In view of the fact that the controversy is narrowed down to the one charge that plain--is not a guaranty of a cure, but only a tiff in error accepted a fee for the treatment guaranty to refund the fee in the event the We consider of an incurable disease with the assurance treatment prove unsuccessful. that he could effect a permanent cure, we are this contract to be a mere subterfuge, and of the opinion that the paragraph of the com- have no doubt that it was drawn for the very plaint which charges plaintiff in error with purpose of protecting plaintiff in error in a "Absolute Guarantee. 191-. "I, R. W. Freeman, M. D., party of the first part, do hereby agree to refund all moneys paid to me by H. S. Hawkins, party of the second part, should he fail to receive a complete cure by R. W. Freeman. my treatment. "I, H. S. Hawkins, party of the second part, do hereby agree to follow the directions given by R. W. Freeman, M. D., party of the first part, through a period of time sufficient as deemed by him to effect a complete cure. Should I fail to follow the directions as given by him, then I agree that this agreement becomes null H. S. Hawkins." and void. 154 PACIFIC REPORTER (Okl. contract shows that it holds out to the pa-ed, was set apart by the government of the Unit- We conclude that there is no prejudicial should be affirmed. PER CURIAM. Adopted in whole. WADSWORTH et al. v. CRUMP et al. (Supreme Court of Oklahoma. Oct. 19, 1915.) (Syllabus by the Court.) INDIANS 18- ALLOTMENT - DESCENT AND DISTRIBUTION. Louis Cox, a Seminole citizen, died on July 4, 1901, before selecting his allotment. His surviving widow was a Creek, and she and their two children were duly enrolled as Creek citizens. Held, under the act of Congress, known as the Supplemental Seminole Treaty, passed and approved June 2, 1900, c. 610 (31 U. S. Stat. L. 250), the allotment in the Seminole Nation set apart by the government as the distributive share of the said Louis Cox did not descend to his said widow or children, for the reason that under the terms of the act above referred to his allotment could descend to his heirs only who were Seminole citizens. [Ed. Note.-For other cases, Cent. Dig. § 49; Dec. Dig. 18.] see Indians, Commissioners' Opinion, Division No. 4. Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Annie Wadsworth and others against George C. Crump and others. Judgment for defendants, and plaintiffs bring error. Affirmed. J. S. Severson, of Broken Arrow, for plaintiffs in error. Davis & Patterson, of Wewoka, for defendants in error. MATHEWS, C. This action was instituted by plaintiffs in the district court of Seminole county and submitted to the court upon the following agreed statement of facts: "Agreed Statement of Facts. "The plaintiffs appearing by their attorney, J. S. Severson, and the defendants appearing by their attorney, B. F. Davis, waive a jury in said cause, and agree that the court may determine the issues thereof on the following agreed statement of facts, to wit: controversy was set apart by the government (1) That the land in of the United States as the distributive share of Louis Cox, who appears on the final rolls of the Seminole Tribe of Indians as a member of said tribe, opposite roll No. 1721. (2) That the said Louis Cox died intestate on July 4th, 1901, and before selecting his allotment, and before the said allotment, being the land above describ ed States as his distributive share of the comwas lawfully married to one Annie Cox, now munal property of said Seminole Tribe of Indians. (3) That at the time of his death he Annie Wadsworth, one of the plaintiffs herein, his two daughters, Maggie Cox, who is now plaintiff Maggie Beamore, and Nancy Cox, who and as issue of said marriage he was survived by is now the plaintiff Nancy Alexander; that his said wife and two daughters, the plaintiffs hereNos. 7555, 7556, and 7557, respectively; that in, are members of the Creek Tribe of Indians, and duly enrolled opposite Creek Indian roll no conveyance has ever been made by said plaintiffs to any one. (4) It is further stipulated that the only Seminole relative surviving Louis Cox was one Lucy Wildcat, whose name appears upon the approved Seminole roll opposite roll No. 400, and under whom the defendants claim title by virtue of divers conveyances." The court found the issues against the plaintiff and for the defendant, and that under the Seminole Agreement (31 Stat. L. 250), relative to descent and distribution of said nation in force at the demise of the said Louis Cox, deceased, whose allotment is izens of the Seminole Nation could inherit a in controversy in this case, no one but citSeminole citizen's allotment from the allottee. er or not the plaintiffs in error, who are the The only question here presented is whethlegal widow and the only two surviving children of the decedent, Louis Cox, a duly enrolled citizen of the Seminole Nation, his said widow being a duly enrolled Creek citizen and their said two children being also enrolled as Creek citizens, the said Louis Cox having died before his allotment was made, can inherit the land allotted to the said Louis Cox out of the lands of the Seminole Nation. The decision in the case rests upon the construction of an act of Congress known as the Supplemental Seminole Treaty, 1900 (31 U. S. Stat. L. 250), in reference to passed and approved the 2d day of June, the enrollment of members of the Seminole Tribe of Indians and the descent and distribution of their property under certain conconcluding parts, consists of two sections as ditions, which, omitting the introductory and follows: "First. That the Commission to the Five Civ- Tribe of Indians shall die after the thirty-first For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion of the state of Arkansas, and be allotted and distributed to them accordingly; provided that in all cases where such property would descend to the parents under said laws the same shall first go to the mother instead of the father, and then to the brothers and sisters, and their heirs, instead of the father." Defendants contend that these two sections have already received a settled construction by this court in the cases of Bruner et al. V. Sanders et al., 26 Okl. 673, 110 Pac. 730, and Heliker-Jarvis Seminole Co. v. Lincoln et al., 33 Okl. 425, 126 Pac. 723, while the plaintiffs contend that the question as to whether or not the children of a Creek woman, they being also Creek allottees, are prohibited from inheriting the allotted lands of their father, he being a Seminole citizen, was not decided in the above two cases. In the case of Bruner v. Sanders, supra, the facts were on all fours with the case at bar, with the one exception that the allottee received his allotment before his death, while in the case at bar the allottee died before the allotment was made. The court in that case laid down the law of this case. It might perhaps be said that the law laid down in that case was dictum as far as it covers the point involved in the case at bar, which is perhaps true; but, even though it be dictum, an examination of the statute construed leads us to conclude that it is a correct statement of the law. In that case, the court had under consideration the construction of the statute now under consideration here, and used the following language: "The trial court took the view of this statute that it is not a general statute of descent and distribution, but a special statute, applicable only to the property of enrolled members of the Seminole Tribe of Indians who die subsequent to the 31st day of December, 1899, whose property, if lands, had not been allotted to the Indian, or, if other property, had not been distributed to him at the time of his death. In this construction of the statute by the trial court we concur." From the syllabus of that case we take this excerpt: "Section 2 of the Act of Congress approved June 2, 1900, entitled 'An act to ratify an agreement between the Commission to the Five Civ. ilized Tribes and the Seminole Tribe of Indians' (Act June 2, 1900, c. 610, 31 Stat. 250), controls the descent of land to which a duly enrolled member of the Seminole Tribe of Indians who died after the 31st day of December, 1899, before receiving his allotment, is entitled." This court, in the case of Bruner v. Sanders, supra, having correctly decided, we think, that the act of Congress, approved June 2, 1900 (chapter 610, 31 Stat. 250), applies to the facts presented in the case at bar, the question next for determination is whether or not this statute excluded the children of a Seminole citizen by a Creek woman, who were also enrolled as Creeks, from inheriting his allotted lands. The act under consideration says that such property "shall descend to his heirs who are Seminole citizens." Who are Seminole citizens as here designated? Section 1 of the act set out above provides for the enrollment of the Seminole citizens and says that in making out this roll the names of all of the citizens living on the 31st day of December, 1899, and all the children born to Seminole citizens up to that date, shall constitute the final rolls of Seminole citizens. In section 21 of the Original Curtis Act (Act Cong. June 28, 1898, c. 517, 30 Stat. 502), which provided for the enrollment of the citizens of the Five Civilized Tribes, which included the Seminole Nation, there is a provision which reads as follows: "The rolls so made, when approved by the Secretary of the Interior, shall be final, and the persons whose names are found thereon, with their descendants thereafter born to them, with such persons as may intermarry according to tribal laws, shall alone constitute the several tribes which they represent." From the reading of these two sections last above set out it plainly appears that neither the widow of decedent, Louis Cox, nor their two children, can be denominated "Seminole citizens." The widow undoubtedly is not so included because she is of the Creek blood and a citizen of that tribe, and the two children are excluded because they were born before December 31, 1899, and were not enrolled as Seminole citizens, and thus do not come within the provisions defining Seminole citizens. born after December 31, 1899, that even then It does not follow, if the children had been they could have inherited the allotment in controversy. The defendants have presented the additional proposition here that, according to the custom of the Seminole Nation, the blood of the mother determined the tribe to which her offspring belonged, and the fact that the children, plaintiffs here, were not enrolled as Seminole citizens was not due to any neglect of the parents of the said children or of the Commission to have said children enrolled on the Seminole roll, but the law and the custom of the Seminole Tribe were that the children were of the blood of the mother and members of that tribe to which the mother belonged. While we do not find it necessary to pass upon this proposition, and will leave it, as far as this opinion is concerned, an open question, yet we will say that as far as our investigation has lead us, we are of the opinion that this last proposition is a correct statement of the law so far as it applies to facts as presented in the case at bar. The judgment should be affirmed. PER CURIAM. Adopted in whole. UNION COAL CO. et al. v. WOOLEY. (No. 4122.) (Supreme Court of Oklahoma. Nov. 30, 1915. Rehearing Denied Jan. 11, 1916.) (Syllabus by the Court.) 1. PLEADING 367-MOTION TO MAKE DEFINITE AND CERTAIN-REQUISITES. A motion to make a pleading more definite and certain must point out wherein the pleading is indefinite and uncertain, and, if it fails to do so, it is not error to overrule it. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. 367.] 2. APPEAL AND ERROR 960- DISCRETIONARY RULING-PLEADING-MOTION TO MAKE CERTAIN. A motion of this kind is addressed largely to the discretion of the trial court, and a ruling thereon will not be reversed except for an abuse of such discretion. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832-3834; Dec. Dig. 960.] 3. CORPORATIONS 545 — INSOLVENCY · -DIRECTORS RIGHT TO PREFER CREDITOR. A director of an insolvent corporation is a trustee for the creditors of such corporation, and will not be allowed to prefer an antecedent unsecured debt of other creditors of such corporation who would lose the entire amount due them, if such preference is allowed to stand. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2170-2175; Dec. Dig. 545.] 4. CORPORATIONS 547-INSOLVENCY-PREFERENCE OF DEBTS OF DIRECTORS-JURISDICTION IN EQUITY. erty of another, for full value, and without [Ed. Note.-For other cases, see Corporations, 8. CORPORATIONS 545, 590-SALE OF PROP- In such case the money paid for the prop- [Ed. Note. For other cases, see Corporations, 9. CORPORATIONS 590-SALE OF PROPERTY Notice to the purchasing corporation in [Ed. Note.-For other cases, see Corporations, Commissioners' Opinion, Division No. 2. Action by Tom Wooley against the Union This was an action by the defendant in Where the directors of an insolvent corporation, upon the sale of its entire property, received a large sum of money, some of which they used to pay debts of the corporation, but paid themselves about $8,000 for sums they claimed to be due them from the corporation, but paid nothing to the plaintiff, a court of equity has jurisdiction of an action to charge such direc-ings of fact by the trial court clearly state tors as trustees, and this remedy is not abolished by the statute defining the obligations and liabilities of directors. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547.] 5. CORPORATIONS 547-INSOLVENCY-PREFERENCE OF DEBT DUE DIRECTORS-PERSONAL JUDGMENT. Where in such case the directors receive the purchase price of the property of the insolvent corporation in cash, and mingle it with their own funds, it is not error to render a personal judgment against them in favor of a creditor of the corporation who has received nothing on his debt. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547.] 6. CORPORATIONS "CREDITOR." 547-ACTION FOR TORT Where a party has an action for a tort pending against a corporation, which is afterwards reduced to judgment, he is a creditor of such corporation before the actual rendition of the judgment. Rev. Laws 1910, § 2893. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547. For other definitions, see Words and Phrases, First and Second Series, Creditor.] 7. CORPORATIONS 590-SALE OF PROPERTY -RIGHT OF CREDITORS. Where there is neither a consolidation nor a merger, and one corporation buys all the prop the questions raised, and are as follows: "That on May 7, 1909, plaintiff filed suit in the district court in and for Pittsburg county, at McAlester, for the sum of $20,000, against the Adamson Coal & Mining Company; thereafter on or about the 14th day of April, 1910, said plaintiff recovered judgment in said court against the Adamson Coal & Mining Company in the sum of $5,687.12, and that on or about the 4th day of August, 1909, the Adamson Coal & Mining Company sold all its property and assets to the Union Coal Company, and that said Adamson Coal & Mining Company ceased to do business, having disposed of all its property. "That the consideration paid by the Union sale was made by the Adamson Coal & Mining For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes . the time it bought the assets and property of the Adamson Coal & Mining Company. "The court further finds that the Union Coal Company knew of the claim of plaintiff against the Adamson Coal & Mining Company at the time it bought the property of said Adamson Coal & Mining Company, and that it knew said suit was pending and knew of the claims and demands of the plaintiff against the Adamson Coal & Mining Company." There was judgment for the plaintiff below against both defendants, and from this judgment the defendants below bring the case to this court by petition in error and case-made. Hurley, Mason & Senior, Fred A. Fulghum, W. J. Gregg, and Carl C. Magee, all of Tulsa, for plaintiffs in error Adamson and Rudd. Wright & Boyd, of McAlester, for plaintiff in error Union Coal Co. Geo. W. Sutton, of Muskogee, and W. N. Redwine, of McAlester, for defendant in error. chasers, leaving corporate debts unpaid, such persons take the property charged with a trust in favor of creditors, which a court of equity will enforce. In Drury v. Cross, 7 Wall. 299, 19 L. Ed. 40, it appeared that a corporation had conveyed its property so as to protect its directors against liability as indorsers for it, and in condemning the transaction the court says: "The transaction which this case discloses can not be sustained by a court of equity. The conduct of the directors of this railroad corporation was very discreditable and without authority of law. It was their duty to administer the important matters committed to their charge, for the mutual benefit of all parties interested, and in securing an advantage to themselves, not common to the other creditors, they were guilty of a plain breach of trust." In Sutton Mfg. Co. v. Hutchinson, 63 Fed. 496, 11 C. C. A. 320, in which the decision DEVEREUX, C. (after stating the facts as was rendered by Circuit Justice Harlan, it is above). Separate petitions in error and as- held that, when a private corporation is dissignments of error are filed on behalf of the solved or becomes insolvent, and determines Adamsons and Rudd and the Union Coal to discontinue the prosecution of its busiCompany, and, as they present different ques-ness, its property is thereafter affected by tions, we will first consider those filed on be- an equitable lien or trust for the benefit of half of the Adamsons and Rudd. [1, 2] Their first assignment of error is that the court erred in overruling a motion to make the petition more definite and certain. This motion is as follows: "To require the plaintiff to make his allegations of fact which constitute his cause of action against these defendants more definite and certain." It was not error to overrule this motion, because it did not point out wherein the petition was indefinite and uncertain (Grimes v. Cullison, 3 Okl. 268, 41 Pac. 355, Cockrell v. Schmitt, 20 Okl. 207, 94 Pac. 521, 129 Am. St. Rep. 737, and Kuchler v. Weaver, 23 Okl. 420, 100 Pac. 915, 18 Ann. Cas. 462), and also a motion of this character is largely addressed to the discretion of the court, and a ruling thereon will not be reversed, except for an abuse of such discretion (Ft. Smith & Western R. Co. v. Ketis, 26 Okl. 696, 110 Pac. 661). [3-5] These plaintiffs in error. also filed a demurrer on the grounds: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) that the joinder of parties defendant is defective; and (3) because several causes of action are improperly joined. The questions raised by the demurrer are disposed of in our decision on the main question presented, which is whether a director of an insolvent corporation can prefer his debts to the prejudice of other creditors, and this depends on whether a director is a trustee for creditors. This question has never been expressly decided in this state, and, looking to other jurisdictions, the authorities are hopelessly in conflict. In Curran v. Arkansas, 15 How. 304, 14 L. Ed. 705, it is held that the assets of an insolvent corporation are a fund for the pay ment of its debts, and, if they have gone in creditors, and that the duty in such case of preserving it for creditors rests upon the directors or officers to whom has been committed the authority to control or manage its affairs, who, if not technically trustees, hold the corporate assets in a fiduciary relation to creditors. In 10 Cyc. 803, it is said: "The assets of an insolvent corporation being a trust fund for creditors, which necessarily means for all creditors, the directors in charge for the creditors, and cannot so deal with them of such assets stand in the position of trustees as to prefer themselves as creditors, for any past indebtedness of the corporation in favor of such directors, unless at the time when such past indebtedness was created it was agreed that they should be so preferred." On page 805 it is said: "In two or three American jurisdictions the contrary and regrettable doctrine obtains that the directors may use the knowledge which they possess of its impending insolvency, so as to prefer or secure themselves as its creditors, to the disadvantage and postponement of its general creditors." In Olney v. Conanicut Land Co., 16 R. I. 597, 18 Atl. 181, 5 L. R. A. 361, 27 Am. St. Rep. 767, it is held that the directors of an insolvent corporation are by virtue of their position debarred from preferring debts of the corporation due to themselves, and in the opinion it is said: ciary relation of directors to stockholders, how "Indeed, no cases that we know of deny a fidu ever they may differ in the use of terms to describe it. This relation has led logically to the conclusion that, in case of insolvency, the assets of the corporation being no longer held for the benefit of stockholders, but for the benefit of creditors, the directors owe to the creditors the duty of a trustee. This duty is clearly stated by Clifford, J., in Bradley v. Converse, 4 Cliff. 375: in equity as held in trust for the payment of the 'Assets of an incorporated company are regarded debts of the corporation, and courts of equity |