of the creditors even when the matter in controversy may not be cognizable in a court of law. Such assets are usually controlled and managed by directors or trustees; but courts of equity will not permit such managers, in dealing with the trust estate, in the exercise of the powers of their trust, to obtain any undue advantage for themselves, to the injury or prejudice of those for whom they are acting in a fiduciary relation.'" The same rule that directors of an vent corporation are held as trustees for creditors is announced in Jones on Insolvent and Failing Corporations, § 55. and for which in equity they should account. C., R. I. & P. R. Co. v. Howard, 7 Wall. 392, at 416, 19 L. Ed. 117, cited with approval by this court in Collins v. Kaw City Mill & Elev. Co., 26 Okl. 641, 110 Pac. 734, where it is said: "Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the right of credinsol-itors to pursue it into whosesoever possession it may be transferred, unless it has passed into the hands of a bona fide purchaser; and the rule is well settled that the stockholders are not entitled to any share of the capital stock nor to any dividend of the profits until all the debts of the corporation are paid. Assets derived from the of its property, become, as respects creditors, sale of the capital stock of the corporation, or the substitutes for the things sold, and, as such, they are subject to the same liabilities and restrictions as the things sold were before the sale, and while they remained in the possession of the corporation." In Lyons-Thomas Hardware Co. v. Perry Stove Co., 86 Tex. 143, 24 S. W. 16, 22 L. R. A. 802, the question under consideration is discussed in an elaborate note, in which it is said: "The most serious conflict between the courts on the question of preferences by insolvent corporations is in reference to the preference of debts of directors. In a few states the doctrine that corporations may prefer creditors is followed to its full extent, and preferences to the directors themselves, although obtained by virtue of their superior knowledge of the condition of the corporation, are upheld." And in the note it is said: "But the great weight of authority denies the right of directors of a corporation to take advantage of their position to obtain preferences for themselves or unsecured debts"-citing many cases. In Wait on Insolvent Corporations, § 1621, it is said in part, in speaking on the question of the general right of a corporation to prefer its creditors: The case of Topeka Paper Co. v. Oklahoma Pub. Co., 7 Okl. 220, 54 Pac. 455, is cited by plaintiff in error to sustain their contention, but the facts in that case were that two corporations consolidated, and it was attempted to hold the directors liable for the debts of one of the corporations, and the court held that they were not liable, on the ground that it was not shown that the value of the property of the corporation was by the act of the stockholders destroyed, impaired, or lessened in value. This case, therefore, is no authority for one like the present, where the directors sell "The practical working of the rule sustaining every particle of property the corporation corporate preferences is monstrous. The unpre-owned, go out of business, and use the monferred creditors have only a myth or a shadow ey to pay debts due themselves. left to which resort can be had for payment of their claims; a soulless, fictitious, unsubstantial entity that can be neither seen nor found. The capital and assets of the corporation, the creditors' trust fund, may under this rule of law be carved out and apportioned among a chosen few. usually the family connections or immediate friends of the officers making the preferences." [7] Complaint is also made that the court erred in rendering a personal judgment against these plaintiffs in error, but, under the evidence in this case, if a personal judgment cannot be rendered, the defendant in error would be without any remedy, for the plaintiffs in error received the payment in money, not in specific property of the cor This language is very applicable to cases where the directors preferred themselves. See Jones on Insolvent and Failing Corpora-poration. If the contention of the plaintiffs tions, § 132. The plaintiff in error relies upon the cases holding that directors are not trustees, and especially on Corey v. Wadsworth, 118 Ala. 488, 25 South. 503, 44 L. R. A. 766, in which the doctrine that a director of an insolvent corporation is not a trustee for creditors, and consequently that he can pay his own claim in preference to other creditors, as upheld in the opinion, but this is opposed to the great weight of authority, and, as we think, of reason, and the true rule is that the director of an insolvent corporation is a trustee of the corporate assets for creditors, and that he cannot prefer a prior unsecured debt of his own to the injury of other creditors. But the plaintiff in error contends that their liability is fixed by the provisions of Rev. Laws 1910, § 1254. But this action is not brought under this section, but in equity to reach the trust fund that has come into the hands of these plaintiffs in error, in error is sound, a trustee can always escape liability by squandering or concealing the trust fund. That a court of equity can render a personal judgment when otherwise the plaintiff would be without remedy is settled. Murray v. Speed, 153 Pac. 181, No. 5442, decided November 16, 1915, and not yet officially reported. [6] That the defendant in error was a cred itor before his demand was reduced to judgment is settled by the provisions of Rev. Laws 1910, § 2893, which provides: "A creditor, within the meaning of this chapter, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money." And see Shelby v. Ziegler, 22 Okl. 799, 98 Pac. 989. The judgment, therefore, against Peter Adamson, Jr., Maudie Adamson, and A. Z. Rudd should be affirmed. [8] Coming to the matters presented by the Union Coal Company, a different question is presented. There is no evidence that it did not pay the full value of the property purchased from the Adamson Coal Company, or that they had any fraudulent intent in making the purchase, or that they had any reason to suspect that the directors of the Adamson Coal Company did not intend to pay the just debts of that corporation, and the payment was made in cash. The fact that the Union Coal Company knew that the Adamson Company was in a failing condition and insolvent does not render the purchase by the Union Coal Company fraudulent; for to so hold would render any sale of property by an insolvent fraudulent, even where he got full value for the property sold. remanded, with instructions to affirm the judgment against Peter Adamson, Jr., Maudie Adamson, and A. Z. Rudd, and to reverse and set aside the judgment against the Union Coal Company, and to dismiss the action as to it, and, as this judgment is affirmed in part and reversed in part, that the costs of this court be equally divided between the parties. Rev. Laws 1910, § 5261. PER CURIAM. Adopted in whole. PARKER et al. v. HAMILTON. (Supreme Court of Oklahoma. July 13, 1915. TENT. [9] The fact that the Union Coal Company knew that the Adamson Company was insolvent does not carry with it notice that the directors of that company would misapply the 1. JURY purchase money; for no.one is bound to assume that the party with whom he deals is a wrongdoer, or that he intends to commit a fraud. United States v. Detroit, etc., Co., 200 U. S. 321, 332, 26 Sup. Ct. 282, 50 L. Ed. 499. That the vendee must participate in the fraudulent intent was decided by this court in Oklahoma Nat. Bank v. Cobb (No. 5781) 153 Pac. 134, decided November 16, 1915, not yet officially reported. In Vicksburg City Telegraph Co. v. Citizens' Telegraph Co., 79 Miss. 341, 30 South. 725, 89 Am. St. Rep. 656, it was held that, where there has been neither a consolidation nor a merger, but a sale by one corporation of its property to another, if made for a valuable consideration and in good faith, the property will pass to the purchasing corporation, free from the claims of creditors, and the same rule prevails as between individuals; and see Hawkins v. Central R. R. Co., 119 Ga. 159, 46 S. E. 82. And in 1 Thompson on Corporations, § 377, it is said: "The foregoing does not, it is assumed, apply to a bona fide sale, for a good consideration, by one company of all of its properties to another. In such case the consideration of the sale would pass to the directors of the selling company, and they would hold it as a trust fund for their creditors first, and their shareholders next. It would be a mere substitution of trust funds, and the purchasing company would not, on wellsettled principles, be bound to see to its proper application by the directors of the selling company." The question of the power of the Adamson Coal Company to sell its entire assets and property was not raised in the trial court, nor has it been presented to us, and it is therefore not considered; but see Anderson v. Shawnee Compress Co., 17 Okl. 231, 87 Pac. 315, 15 L. R. A. (N. S.) 846. (Syllabus by the Court.) 10-RIGHT TO JURY TRIAL-EX The trial by jury secured to the people of the state by section 19, art. 2, of the Constias it existed and was in use when the Constitutution is a trial according to the common law tion was adopted, except as specifically modified by the provisions of the Constitution itself. Dig. §§ 15, 16, 272; Dec. Dig. 10.] 2. JURY 19-RIGHT TO JURY TRIAL-WILL A proceeding contesting the probate of a will is not a suit wherein the parties are entitled to a trial by jury as a matter of right under section 19, art. 2, of the Constitution. [Ed. Note. For other cases, see Jury, Cent. Dig. 88 104-133; Dec. Dig. 19.] 3. COURTS 200-JURISDICTION COURT-PROBATE PROCEEDINGS. SUPERIOR By reason of section 1966 and section 1974, Comp. Laws 1909 (Rev. Laws 1910, §§ 1798, matters of probate in a cause appealed from 1806), the superior court has jurisdiction of the county court to the district court and transferred upon motion of plaintiffs to the superior court. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 441, 442, 454, 469-471; Dec. Dig. 200.] 4. JURY 11-WILLS 318-RIGHT TO JURY TRIAL-DISCRETION-ADVISORY VERDICT -PROBATE PROCEEDINGS. On an appeal to the district court from a judgment of the county court admitting a will to probate, where the cause is transferred by the district court to the superior court, the latter court may, in its discretion, make an order for a trial by jury of any or all the matebetween the parties. But in such case the verrial questions of fact arising upon the issues dict of the jury will be merely advisory to the court, and he may adopt or reject their conclusions, as he sees fit; for the whole matter must eventually be left to him to determine. [Ed. Note. For other cases, see Jury, Cent. Dig. 88 19-24; Dec. Dig. 11; Wills, Cent. Dig. $$ 751-754; Dec. Dig. 318.] 5. COURTS 42-ESTABLISHMENT OF SUPERIOR COURT-VALIDITY OF STATUTE, The only question decided on this part of the case is that, where one corporation purchases all the property of another, and pays its full value in cash, there being no fraudulent intent, it is not liable to creditors of the selling corporation. [Ed. Note.-For other cases, see Courts, Cent. We therefore recommend that the case be Dig. §§ 163-170, 181-183; Dec. Dig. 42.J Article 7, c. 14, p. 181, Sess. Laws 1909, under which the superior court of Pottawatomie county was organized, is constitutional, and said court is legal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. APPEAL AND ERROR OF RECORD-BRIEF. 714-MATTER NOT | is not error to exclude the facts relating to such of such witness as to the facts upon which said judgment, but offered to contradict the testimony conviction was had. This court will not consider a question raised for the first time in plaintiffs in error's brief, and evidence of which is the clerk's signature to a statement thereof in plaintiffs in error's brief. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2958-2963; Dec. Dig. & 714.] 7. TRIAL 370 - SUBMISSION OF ISSUES ADVISORY VERDICT. In cases where the parties are not entitled to a jury trial as a matter of right, and the finding of the jury being advisory only, it is not error for the court to refuse to submit all the questions of fact to the jury, but he may submit such as are controverted or such as he may desire to be advised upon. Trust Co. v. Stein, 39 Okl. 756, 136 Pac. 746. Oklahoma [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 881, 885; Dec. Dig. 370.] 8. JUDGMENT 199-MOTION FOR JUDGMENT CONFLICTING EVI ADVISORY VERDICT DENCE. In a case, where the findings of the jury are advisory only, and the same were not adopted by the court, it is immaterial whether such verdict is general or special, or upon what instructions it was reached, or whether on controverted or uncontroverted evidence. [Ed. Note. For other cases, see Judgment, Cent. Dig. 88 367-375; Dec. Dig. 9. APPEAL AND ERROR EVIDENCE. 199.] 1047-RULINGS ON In the trial of a case the question of admit- 85 Pac. 1121. TRANSFER OF CASE WAIVER OF IRREGULARITIES. case Irregularities in the transfer of a from the district to the superior court may be waived by the parties, and, when waived by them, any judgment rendered by the superior court will be regular. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dec. Dig. 488.] 11. JUDGMENT 211-RENDITION-VALIDITY -ADVISORY VERDICT. Cent. Dig. §§ 1161, 1162; Dec. Dig. 359.] CONTRARY TO ADVISORY VERDICT DENCE. EVI Where the evidence reasonably tends to support the judgment rendered by the court, igthe parties are not entitled to a trial by jury noring the findings of the jury, in a case where as a matter of right, such judgment will be affirmed by this court. Error, Cent. Dig. § 39952; Dec. Dig. County; George C. Abernathy, Judge. the will of Samuel Bailey, deceased, and for H. H. Smith, of Shawnee, C. W. Crim, of BROWN, J. Samuel Bailey died September 26, 1912, in Pottawatomie county, Okl., nephew, Sherman Spencer, his entire estate, leaving a will in which he devised to his consisting of several thousand dollars. The will named Dr. B. F. Hamilton as sole executor without bond. September 27, 1912, B. ty court his application and petition to proF. Hamilton, filed with the clerk of the counbate the will and for letters testamentary. October 21, 1912, Mrs. May Spencer filed her application in the county for probation of the will and to be appointed administratrix with the will annexed, alleging that Sherman September 29, 1912, and that she was his surSpencer, the legatee named in said will, died viving wife and heir, and, as such, entitled to the estate of Samuel Bailey, deceased, and that B. F. Hamilton was not a proper person to act as executor of Bailey's will. October 21, 1912, an answer was filed in the county court by B. F. Hamilton and Sherman Spentained in May Spencer's application, and escer, denying generally the allegations con12. WITNESSES 359-IMPEACHMENT-CON-dead and the incompetency of B. F. Hamilton pecially denying that Sherman Spencer was VICTION OF WITNESS. Where the trial court admits in evidence to act as executor of Bailey's will, and denythe judgment of a foreign state convicting a wit- ing that May Spencer had any right to be ness who testified upon the trial of a felony, it appointed administratrix of the will. In cases where the court may ignore the findings of the jury and render such judgment as he considers authorized and proper under the evidence in the case, it will be immaterial whether or not it renders judgment in response to a motion therefor by one of the parties, and such judgment will not be void because rendered subsequent to the filing of a motion for a new trial by the party in whose favor the judgment is rendered and before passing on such motion. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 386; Dec. Dig. 211.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes After due notice of the application to pro- attorney, filed written objections to a trial bate had been given, plaintiffs in error Aramelia Parker and Sabrina B. Strong and Parry Kilburn appeared in said county court, the two first mentioned claiming to be sisters of Samuel Bailey, the latter a nephew by a deceased sister, and all claiming to be heirs of said Bailey, and protested against the probation of said will on the ground that Samuel Bailey at the time he made the same was mentally incompetent to make the will, and that the will was not executed according to law, and prayed that the court refuse probation of the will and appoint an administrator of Bailey's estate. by jury for the reason that the jury had been summoned upon the application of plaintiffs, and the expenses thereof paid with money deposited by plaintiffs, and the summoning of the jury was irregular and not authorized by law. July 14, 1913, the case was called for trial, and May Spencer presented her application for a continuance of the case, and defendants Hamilton and Spencer, by their attorneys, moved to quash the panel of the jury summoned for the trial of the case, on the ground the same was irregularly drawn, that there was no money in the court fund to pay the expense of the same, and that the contestants had deposited $200 with which to pay their expenses, and that fact would have a tendency to bias the jury in favor of the plaintiffs. The court overruled the motion for continuance and the objection to the jury, and the cause proceeded to trial to the jury. to special interrogatories as follows: October 21, 1912, B. F. Hamilton and Sherman Spencer filed an answer to the objection and protest of Aramelia Parker and others denying the allegations therein contained. November 11, 1912, Aramelia Parker, Sabrina B. Strong, Henry F. Bailey, James Chrystler, Hannah Brewer Kipton, Franklin Chrystler, After the conclusion of the evidence, which Charles Chrystler, and John M. Chrystler fil- covers over 300 pages of the case-made, Hamed in the county court of Pottawatomie ilton and Spencer moved the court to discounty their joint protest and objections to charge the jury, and for the court to pass the probate of the will of Samuel Bailey, al- upon the questions of law and fact. Conleging they were next of kin to said Bailey, testants, Aramelia Parker and others, then and further alleged, in substance, that the moved the court to instruct the jury to return purported will of Samuel Bailey was not ex- a verdict in effect denying the probate of the ecuted by him according to law, that he was will. After refusing numerous instructions mentally incompetent to make a valid will, requested by the plaintiffs, the court instructand for various reasons therein alleged the ed the jury, which retired, and thereafter repurported will was void, and the objectors | turned into court their findings and answers prayed for the appointment of an administrator of said estate, and that probation of the will be denied. A hearing was had in the county court December 2, 1912, and judgment rendered admitting the will to probate, and granting letters testamentary to B. F. Hamilton, executor. From this judgment the objectors, Aramelia Parker, Sabrina B. Strong, and others, appealed to the district court of Pottawatomie county. January 30, 1913, on motion of the objectors, Aramelia Parker and others, filed in the district court of Pottawatomie county, the cause was transferred to the superior court of said county. February 1, 1913, Aramelia Parker and others filed motion in the superior court of Pottawatomie county asking that said cause be remanded to the district court of said county, alleging that, under the Constitution and statutes of Oklahoma, said superior court was without jurisdiction to hear and determine said cause. The motion was overruled, and plaintiffs excepted. The case was thereafter set down for trial July 14, 1913, and on July 9th plaintiffs, contestants, filed their motion and application for trial by jury. On the same day the application for trial by jury was sustained on the agreement of plaintiffs to withdraw the application for a rehearing of their application for a writ of prohibition in the Supreme Court of Oklahoma, and upon condition that the plaintiff's deposit with the clerk of the court $200 in cash to defray the expenses of same executed and witnessed in compliance with "Second. If he signed the alleged will, was the the law as same has heretofore been stated in these instructions? Answer: Yes. "Third. If Samuel Bailey signed the will and same was executed as required by law, was Samuel Bailey in the making of said will controlled by an insane delusion as same has been defined for you in these instructions? Answer: Yes. and same was executed as required by law, and "Fourth. If Samuel Bailey signed the will, if he was not in the making of said will controlled by an insane delusion as same has heretofore been defined in these instructions, did he have the capacity to retain in memory the extent and condition of his property to comprehend to whom he was giving it and to appreciate the deserts and relation to him of others to whom he gave nothing? Answer: No." Thereafter, July 19, 1913, the defendants moved the court to set aside the special verdict of the jury and enter judgment for defendants, and on July 22d defendants filed motion for new trial. July 26th plaintiffs, the contestants, filed a motion for judgment on the findings of the jury. The court thereupon pronounced its conclusions of fact and of law, and rendered judgment "that the will be admitted to probate notwithstanding the verdict, and that the costs be taxed to the contestants." Contestants excepted to the conclusions of law and fact made by the court and to the judgment rendered, and thereafter in due time filed motion for a new trial, which was overruled, and they prose The petition in error contains fifty assignments of error, but in their brief plaintiffs in error present the case to this court upon eight general propositions, viz.: (1) "The court erred in overruling motion for new trial upon the grounds assigned that defendants or contestants below had the right of trial by jury, and consequently on disputed evidence the court could not sustain a motion for judgment notwithstanding the verdict." (2) "The superior court was not in existence at the time of the rendition of judgment, October 13, 1913." (3) "If the court was a legally existing court, it had no jurisdiction to make findings or render judgment at a term subsequent to the term the case was tried, without the court being adjourned to said term." (4) "The court erred in not submitting to the jury the issue of undue influence, and in not requiring the jury to find generally." (5) "If the verdict of the jury is special, as contended in defendant in error's brief, a motion for judgment will not lie; and this because a motion for judgment applies only when the evidence is undisputed, and when judgment may be rendered on the pleadings, notwithstanding the verdict, and never applies when a special verdict is relied upon." (6) "The evidence of Hamilton and Spencer was incompetent, and motion to exclude same should have been sustained." (7) "The court's view of the law as expressed in its opinion and by its instructions to the jury was erroneous." (8) "The superior court had no jurisdiction of this case on the record." [1, 2] It is claimed by plaintiffs in error that, under section 19, art. 2, of the Constitution of Oklahoma, the parties litigant are entitled to a trial by jury as a matter of right in all cases in courts of record in this state when issues of fact are joined by the pleadings. We cannot agree with this contention. The section of the Constitution referred to has been construed to confer the right of trial by jury to be absolute in cases only where the right existed at common law as construed at the time of the erection of the state, except as modified by the Constitution. In the case of Baker v. Newton, 27 Okl. 436, 112 Pac. 1034, 40 L. R. A. (N. S.) 940, it was held, quoting from paragraph 4 of the syllabus: "Trial by jury secured to the people of the state by section 19, art. 2, of the Constitution, is a trial according to the course of the common law as it existed, and the same, in substance, as that which was in use when the Constitution was adopted, except as specifically modified by the provisions of the Constitution." In the case of Baker v. Newton, supra, Justice Hayes speaking for the court, after copying section 19, art. 2, of the Constitution, and construing the same, says: 500 [34 S. W. 245, 36 S. W. 43]; Byers v. Com. monwealth, 42 Pa. 89; Plimpton v. Somerset, subject by the Constitution is a trial accord33 Vt. 283. "The trial by jury secured to the ing to the course of common law, and the same, in substance, as that which was in use when the Constitution was formed.' East Kingston v. Towle, 48 N. H. 64 [97 Am. Dec. 575, 2 Am. Rep. 1741. See, also, Copp v. Henniker, 55 N. H. 179 [20 Am. Rep. 194]; Hagany v. Cohnen et al., 29 Ohio St. 82. "Judge Cooley, discussing these provisions, said: All the state Constitutions preserve the right of trial by jury, for civil as well as for criminal cases, with such exceptions as are specified, and which for the most part consist in such cases as are of small consequence, and are triable in inferior courts. The constitutional provisions do not extend the right *in the cases in which it was a matter of right before.'" And again, at page 447 of 27 Okl., on page 1039 of 112 Pac. [40 L. R. A. (N. S.) 940], it is further said: by jury in this state specifically eliminates some "The constitutional provisions preserving trial of the features thereof as it existed before the admission of the state. Section 19, art. 2, aft er providing that the right of trial by jury shall be and remain inviolate, specifically provides that in county courts and courts not of record a jury shall consist of six men, and in all civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors shall have power to render a verdict. By these provisions unanimity in the verdict is no longer required in any civil case, and the number constituting the jury, as to county courts, is reduced from 12 to 6; but, except as to these two trial as it existed at common law, the precedimportant changes in the features of the jury ing clause of the section provides that the trial by jury shall be and remain inviolate. It was evidently intended by such declaration of right that those essential features of the jury trial as existed before the admission of the state, not specifically modified by the Constitution, should be preserved." In the case of State ex rel. West, Attorney General, v. Cobb, 24 Okl. 662, 104 Pac. 361, 24 L. R. A. (N. S.) 639, in an opinion by Justice Dunn, it is said, quoting from paragraph 2 of the syllabus: "The right of trial by jury, declared inviolate by section 19, art. 2, p. 83, Snyder's Const. Oklahoma, except as modified by the Constitution itself, means the right as it existed in the territory at the time of the adoption of the Con stitution." Apache State Bank v. Daniel, 32 Okl. 121, 121 Pac. 237, 40 L. R. A. (N. S.) 901, Ann. Cas. 1914A, 520, was a case in which action was commenced in the county court to comof the estate for which administration was pel the administratrix to inventory as part therein pending certain bank stock which it was alleged belonged to the estate. The ac"The question therefore arises: What consti- tion was resisted by the administratrix, who tutes a trial by jury as guaranteed by the Con- claimed that she was the owner of said stock stitution? This question has been under inves- in person. The issue was thus formed by tigation by many courts of the nation, both state the pleadings, and a trial had in county and federal, and there is unanimity in the opinions that the right of trial by jury secured court, which resulted in an order of that by the Constitutions of the various states is court requiring the administratrix to invensimply the right to a trial by jury constituted tory said property. From this order the adsubstantially and with the same elements and in-ministratrix appealed to the district court. cidents as existed when the Constitution was adopted. Carroll v. Byers et al. (Ariz.) 26 A trial was had in the district court before Pac. 599; State ex rel. v. Withrow, 133 Mo. a jury, to which the issues of fact were sub |