Wickliffe v. Wickliffe. [2 619.] The terms "satisfaction" or "substitution" require consent on the part of the donee or legatee. Pom. Eq. Jur. (4 Ed.), sec. 524, pp. 996-7; 1 Am. & Eng. Ency. of Law (2 Ed.), 611; Fisher v. Keithley, 142 Mo. 244, 254-5.] There was no consent found in this case. And leaving the element of consent out of view, we think that appellant's theory may be more accurately stated to be that the subsequent gift of the land to each of said three children was a satisfaction of the legacy by way of an advancement made to such child in the lifetime of the testator. Indeed, this is what the claim amounts to whether we call it by the name of ademption, satisfaction, substitution or what not. In the very nature of things, in order to uphold appellant's theory, the gift of the land must be regarded as a satisfaction of the legacy by a portion or an advancement. [2 Pom. Eq. Jur. (4 Ed.), sec. 553, p. 1021.] And it is on this theory that appellants rely upon the equitable presumption that a parent, or person in loco parentis, does not intend giving a double portion to a child. But our statute in reference to Advancements, section 337, Revised Statutes 1909, does not apply where there is a will, but applies only in cases of intestacy. [Turpin v. Turpin, 88 Mo. 339, 340; Estate of Wm. G. Williams, 62 Mo. App. 339, 348-9.] And even as to such equitable presumption, it has been the general rule, enforced by the American courts, that the legacy and the subsequent portion, or advancement must be ejusdem generis. [2d Pom. Eq. Jur. (4 Ed.), sec. 560, p. 1040.] With reference to the admissibility of extrinsic evidence to show testator's intention, there seems to be some conflict among the courts of various jurisdictions. [2 Pom. on Eq. Jur. (4 Ed.), sec. 569, p. 1057.] And it would seem to be a question affected largely by the effect which the courts of different jurisdictions have given to their own statutes in relation to wills and the due regard to be paid to them, and the Statute of Frauds. Before dealing with the position our Missouri courts have taken, it may be well to observe that, as hereinbefore shown, the subsequent benefit herein relied upon by appellants Wickliffe v. Wickliffe. to adeem or satisfy the legacy, was a deed which not only had to be in writing but it was a writing which is entirely silent as to the grantor's intention in giving it. And, where no equitable presumption of satisfaction arises, the rule is that extrinsic evidence cannot be admitted to reveal the intention. [2 Pom. Eq. Jur. (4 Ed.), sec. 573, p. 1066.] We do not understand that, under our statutes and the decisions giving them scope and effect, any presumption can arise that the grantor, at the time he made the deeds, intended that his children should receive an equal portion of his estate. If he had had such intention only a word or a line inserted in the deeds would have been sufficient to express it. And it would seem that to construe his subsequent gift as an ademption, satisfaction, or substitution, of the legacy provided in the will is not only to change the written. deeds by adding thereto, by parol, a clause which the grantor did not see fit to put in them, but also to make a new will or revoke a portion of the old will, neither of which the testator did. Our statutes, section 583, Revised Statutes, 1909, requires courts to have due regard to the directions in a will and the true intent of the testator and, section 538, Revised Statutes 1909, provides that, with certain exceptions not pertinent here, "no will nor any part thereof, shall be revoked, except by a subsequent will, in writing, or by burning, cancelling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction.' Now, of course, there is such a thing as a revocation of the will, outside of the above method, but that is where the legacy is specific and the testator disposes of it so that the will can no longer operate on it; or where the testator disposes of all his property leaving the will nothing upon which to operate. In a sense, this is a revocation outside of the statute. [Cozzens v. Jamison, 12 Mo. App. 452, 458.] But there is nothing of this kind in this case. Here the legacy was general and the subsequent gift was of a different kind and character. Furthermore, the will was left with a large sum, between State of Missouri v. Kramer. five and six thousand dollars, on which to operate. So that, if the subsequent gift of the land should be held to adeem or take the legacy out of the will, then it would seem that such would be a revocation of that part of the will in defiance of the statute. It was held in Fisher v. Keithley, 142 Mo. 244, 252, that the Statute of Frauds and the statutes in reference to wills and their revocation have a direct and controlling effect upon the question of ademption, satisfaction or substitution, and while the facts in that case were somewhat different and related to a devise instead of a bequest, we think the principles annunciated are applicable here. Holding this view of the case, we think the judgment of the trial court should be affirmed. It is so ordered. All concur. STATE OF MISSOURI, Respondent, v. JESSIE G. KRAMER, Appellant. Kansas City Court of Appeals, December 13, 1920. 1. INTOXICATING LIQUORS: General Rule: Sale and Delivery: Outside Jurisdiction not Unlawful. The general rule is that where liquor is ordered from a point outside the jurisdiction and segregation and delivery thereof to the carrier takes place outside, there is neither an unlawful sale or delivery within the jurisdiction. 2. 3. -: Sale and Delivery Held to be at Place Fixed by Contract. Where a contract, by orders and acceptances, for sale and delivery of intoxicating liquors made outside of jurisdiction, fixes place of sale and delivery within dry territory, the place of such sale and delivery by defendant is held to be within said dry territory. -: Carrier Defendant's Agent in Making Delivery. Defendant having undertaken to deliver liquor in dry territory made the carrier his agent to do this for him. 4. CRIMINAL LAW: Offense May be Committed by Agent: Presence of Defendant in Venue of Commission Unnecessary. One can commit an offense and complete it through an agent; and the actual 206 M. A.-4 State of Missouri v. Kramer. bodily presence of the defendant in the venue of the commission thereof is unnecessary. 5. INTOXICATING LIQUORS: Evidence, Sufficient to Show Sale and Delivery by Defendant. In a prosecution for violation of Local Option Law, evidence held sufficient to show sale and delivery made within dry territory. 6. CRIMINAL LAW: Failure to Produce Original Orders for Liquor, Copies Admissible: Introduction Did Not Compel Defendant to Testify Against Himself. Upon failure of defendant to produce original orders for liquor, there was no error in permitting the introduction of copies, or duplicates thereof, made and retained by the persons at the time the orders were made, and the introduction of such documents did not compel defendant to testify against himself. 7. EVIDENCE: Prima-facie Proof: Adoption of Local Option Law Shown by Record of Election Result. The adoption of Local Option Law, by city and county, was prima facie established by the introduction in evidence of the respective records showing the results of the elections in regard thereto and the orders directing the results to be published. 8. CRIMINAL LAW: Delivery for Buyer's Personal Use: Where Defendant's Agent Not Guilty of Offense Within Exception of Statute, the Defendant, as Principal, Cannot Be. Where liquor was for buyer's personal use and delivery was made by defendant, through his agent, an express company, which could not be convicted of violating Local Option Law, within the exception in section 7228, Revised Statutes 1909, then defendant, the principal, could not be convicted of any offense thereunder. Appeal from Adair County Circuit Court.-Hon. J. A. Cooley, Judge. AFFIRMED IN PART, REVERSED IN PART. Paul Higbee, for respondent. Lew R. Thomason for appellant. Greenfelder & Levy of counsel. TRIMBLE, J.-This is a prosecution for violation of the Local Option Law. It is founded upon an information which, at the trial, contained seven counts. Up State of Missouri v. Kramer. on a trial before a jury, he was convicted on each count and his puishment assessed, on each, at a fine of $750 and six months in the county jail. Thereupon the defendant appealed to this court and then filed a motion to transfer the cause to the Supreme Court, because Constitutional questions were involved and raised. The cause was on said motion transferred to the Supreme Court because, if such questions were in the case, that court had jurisdiction, and if there were any doubt of said questions being properly raised, the Supreme Court was the tribunal which could at once and finally determine the matter. That court held the questions were not properly raised so as to give it jurisdiction, and transferred the case back to this court. [State v. Kramer, 222 S. W., 822.] Originally, the information contained sixteen counts, but before the jury was empaneled all but seven were dismissed. The remaining counts, upon each of which defendant was convicted, were the second, fourth, fifth, eighth, ninth, thirteenth and fifteenth. The second count alleged that the Local Option Law was in force in the city of Kirksville in Adair County, Missouri, containing 2500 inhabitants, and charged that defendant did, in said city in December, 1918, unlawfully keep, store for, and deliver intoxicating liquor to Charles B. Matthews. The fourth count was the same except that it charged defendant with an unlawful delivery of intoxicating liquor to John Harwood. The fifth charged defendant with an unlawful sale of intoxicating liquor to J. T. Curry. The eighth count charged an unlawful delivery of intoxicating liquor to J. F. Miller, Jr. The ninth count charged an unlawful sale of intoxicating liquor to W. L. Gillespie; the thirteenth charged an unlawful sale of liquor to Bird Calvin and the fifteenth charged an unlawful sale to D. D. Hilt. The defendant was, at the time of the prosecution and of the commission of the alleged offenses, president of the Maycliff Distributing Company, located at St. Louis, Missouri, and the defendant resided there. As president of said Company, he sent circulars to persons |