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coheirs will all soon be able to add their respective shares" to this fund to carry out the purpose in which the father was interested. The fourteenth paragraph directed the executors to arrange to secure the $12,000 for G's support and the $5,000 for the endowment of the preachers' school, and then, as the fund will allow, to pay the other bequests, and that it should be distinctly understood that the executor should carry out these provisions by amicably arranging with the other heirs of the undivided estate of her father to sell and divide it as rapidly as was consistent. Held, that the bequest of $5,000 for the theological school was a specific legacy within Civ. Code, § 1357, subd. 1, providing that a legacy of a particular thing specified and distinguished from all others of

the same kind is specific.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1939-1944; Dec. Dig. § 753.*

For other definitions, see Words and Phrases, vol. 7, pp. 6600-6604; vol. 8, p. 7803.]

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"(2) It is well known that my father Revd.

John Dempster intended to give $20,000.00 toward establishing a theological school on the Pacific Coast, under the direction of the Meth. E. Church, and as his heirs have not yet been able to disentangle the estate, so as

2. WILLS (8 753*)-CONSTRUCTION-SPECIFIC to make this gift possible, therefore, I wish LEGACY.

Courts are as a rule not inclined to construe legacies as specific.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1939-1944; Dec. Dig. § 753.*] 3. CHARITIES (§ 31*)-CONSTRUCTION-SPECIFIC LEGACY.

Courts look with favor upon testamentary charitable gifts.

[Ed. Note. For other cases, see Charities, Cent. Dig. § 63; Dec. Dig. § 31.*]

4. WILLS ($ 764*)-LEGACIES-"ADEMPTION."

The "ademption" of a specific legacy is the extinction or withdrawal of a legacy because of some act of testator equivalent to its revocation or clearly indicating an intention to revoke and is effected by the extinction of the thing or fund bequeathed or by a subsequent disposition of it from which an intention to revoke is presumed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1978; Dec. Dig. § 764.*

For other definitions, see Words and Phrases, vol. 1, pp. 179–181.*]

5. WILLS ($ 767*)-LEGACIES-ADEMPTION.

There was an ademption of a specific legacy of $5.000 for the purpose of establishing a theological school, which sum the will provided the executor should obtain from testatrix's share of her father's estate and place in the care of the church conference, where the father's estate was settled before testatrix's death and she had received her share thereof so that her executors could not proceed as directed.

my executors, after securing the $12,000.00 for W. Goodfellow, to proceed to obtain the sum of $5,000.00 from my share of Dr. Dempster's estate, and place it in the care of the Methodist Episcopal Conference which includes San Francisco of California within its bounds: Said conference being pledged never to use said $5,000.00 except as part of an endowment fund for a school for Methodist ministers. And I hereby express my hope that my coheirs, viz., Clancey John Dempster, Sara Dempster McKee and Killian Van Rensalaaer Lansingh, who was the husband of Mrs. Orea Dempster Lansingh and is now her heir and executor, will all soon be able to add their respective shares to this fund in order to carry out the purpose in which our father John Dempster was so much interested."

"(14) I direct that my executors shall first, and as soon as possible, arrange to secure the $12,000.00 for support of William Goodfellow, and the $5,000.00 for endowment fund of Preacher's School in California, then as funds will allow, pay the bequests to Mrs. N. G. Boyd and Sam Beer, first settling with my coheirs the debts I owe to the Dempster estate. I beg the consent of the other heirs

[Ed. Note.-For other cases, see Wills, Cent. of the estate to this plan of settling." Dig. §§ 1986-1989; Dec. Dig. § 767.*]

Department 2. Appeal from Superior Court, City and County of San Francisco; J. V. Coffey, Judge.

In the matter of the estate of Mary E. D. Goodfellow. From a part of the decree of distribution, Sara A. D. McKee and others appeal. Reversed, with directions.

J. S. Hutchinson, of San Francisco, for appellants J. E. White, of San Francisco, for respondent.

"(17) I wish to have it distinctly understood that my executors are to carry out these provisions by amicably arranging with the other heirs of the undivided Dempster estate, to sell and divide as rapidly as is consistent with the interest of all concerned, viz., my heirs and legatees."

The court found, among other things, that the legacy of the California Annual Conference of the Methodist Episcopal Church had not lapsed; that such theological school as is mentioned in provisions 2 and 14 of the will had been established under the direction of the conference which includes San Francisco; and that the board of trustees of the said conference had passed a resolution agreeing to accept the bequest upon the terms and conditions mentioned in the will. Mary E. D. Goodfellow died testate Au- As a conclusion of law the court determined For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

MELVIN, J. This appeal is taken from that part of the decree of distribution which gives to the California Annual Conference of the Methodist Episcopal Church a legacy of $5,000, together with interest.

that the said California Annual Conference | seventeenth provision of the will emphasizes was entitled to the legacy of $5,000, with the position of appellants that the scheme interest at the rate of 7 per cent. per annum of Mrs. Goodfellow's bounty was entirely from the date of the death of the testatrix. based upon the supposition that the estate There were also the following findings which of her father would be undistributed at the were amply supported by evidence or stip- time of her death. Reading the will by its ulated facts: "That, long prior to the death four corners, we are impressed with the conof the said decedent, the heirs of said Rev. viction that the testatrix desired to carry John Dempster, mentioned in the second out her father's plan of devoting $20,000 provision of said will, disentangled his es- of his estate to the endowment of a theotate, and the said decedent and the said oth- | logical school. She was willing to do her er heirs received their full share thereof; part out of the money inherited from him that thereafter the said Clancey John Demp- and for that reason dedicated $5,000 out of ster and Killian Van Rensalaaer Lansingh the very moneys due her from his estate to died; that neither of them, in his lifetime that purpose, hoping and believing, however, nor by will, nor otherwise, made any pro- that the other heirs would do their part to vision for such a theological school; that it furnish the sum which her father had wished, is not the intention or desire of any of their thus to apply. Her desire was to do with the heirs to do so; that said Sara Dempster money that he had accumulated exactly what McKee has never made any such provision he would have done, not to carry out any and does not desire or intend to do so." plan of her own with a part of her estate. She wanted to create a fund which, with the addition of moneys which she hoped would be contributed by her coheirs from the same source, would carry out her father's purposes. The legacy, it seems to us, was clearly specific.

Estate of

should be pledged never to use said $5,000 except as specified. If there had been general words of donation and the naming of the estate of Dr. Dempster as a source from which the legacy should be paid, there would be room for contention that the legacy was demonstrative; but we have no such will before us.

[1] Appellants are of the opinion that the legacy in question was adeemed by the action of the testatrix in receiving and disposing of her distributive share of her father's estate. It will be noticed that the very first direction to the executors is "to obtain the [2, 3] We are not unmindful of the rule sum of $5,000.00 from my share of Dr. Demp- that courts in general are averse to construster's estate and place it in the care of the ing legacies as specific, supported by such Methodist Episcopal Conference," etc. If authorities as Kenaday v. Sinnott, 179 U. S. this clause stood alone there would be no dif- 618, 21 Sup. Ct. 233, 45 L. Ed. 339. We also ficulty in classifying the legacy as being spe- have in mind the fact that courts look with cific. It falls within the definition of a spe- favor upon charitable donations. Estate of cific legacy as that "of a particular thing, Willey, 128 Cal. 12, 60 Pac. 471; specified and distinguished from all others of Dwyer, 159 Cal. 687, 115 Pac. 242. But we the same kind belonging to the testator." fail to find any words of donation in this will Section 1357, subd. 1, Civ. Code. The will referring to the legacy of $5,000 except those specifies the particular $5,000 and the use directing that the sum raised from Mrs. to which "said $5,000.00" is to be applied. | Goodfellow's share in Dr. Dempster's estate It does not come under the second subdi- be placed in the care of the conference, which vision of section 1357 of the Civil Code. Although a certain fund is indicated, there are no general words which support any gift except of the particular sum of money derived from the estate of the father of the testatrix. The legacy, so far as the second provision of the will is concerned, is therefore not a demonstrative legacy. The question then arises: Do the subsequent references to the legacy take it from this class? The seventeenth provision is a direction to the executors to arrange to secure the money for the support of the husband of the testatrix "and the $5,000.00 for endowment fund of Preachers' School in California." This language is general, it is true, but it must be read in connection with the second provision of the will, and so read it does not enlarge the scope of the gift itself. It is merely an instruction to the executors with respect to the order in which they might pay these legacies. The whole of provision 17 is directed to a method whereby funds might be promptly derived from the estate of Dempster. It does not operate to make the legacy general or demonstrative. The words "$5,000.00 for endowment fund" are merely

While the decisions are by no means uniform, the weight of authority supports the view that this was a specific legacy.

In Chase v. Lockerman, 11 Gill & J. (Md.) 185, 35 Am. Dec. 280, it was held that a bequest of moneys to be received from a decree in chancery was a specific legacy.

Smith v. McKitterick, 51 Iowa, 551, 2 N. W. 390, was a case where the court construed the bequest of "$2,000 received from the estate of my father." It was held that the character of the bequest was specific.

In re Zeile, 74 Cal. 130, 15 Pac. 455, is authority for the interpretation of legacies to be paid out of the sale of certain bank stock as specific.

Other cases cited by appellants supporting this view are Nusly v. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118 Am.

v. Executors of Winter, 10 Ohio, 68; Georgia Infirmary, etc., v. Jones (C. C.) 37 Fed. 750; Smith's Appeal, 103 Pa. 561; Rogers v. Rogers, 67 S. C. 168, 45 S. E. 176, 100 Am. St. Rep. 721; In re Tillinghast, 23 R. I. 121, 49 Atl. 634; Ludlam's Estate, 13 Pa. 188.

Nearly all of the cases cited by respondent deal with wills in which, although the legacies were to be paid out of designated funds, the testators expressed separate and independent intentions that the legatees should receive the amounts bequeathed to them, at all events. Such was the ruling of the Supreme Court of the United States in a case in which a bequest of funds on deposit was made but part of the money in bank was expended after the making of the will, in the purchase of bonds. The change in the form of property did not defeat the evident purpose of the testator that his wife should receive a certain value from his possessions. Kenaday v. Sinnott, supra.

belonging to her on one of the bonds in her possession at the date of her will, particularly describing the bond by number and date, showing that she intended to give to the plaintiff that amount of a specified debt, a different case would have been presented." It is evident that in Ives v. Canby the general words of bequest differentiated the legacy from those which, by narrowing the source of the bounty to a particular thing or things, are thereby made specific.

In Welch's Appeal, 28 Pa. 365, a legacy to a daughter was to be paid out of the profits upon certain real estate given to a son under the terms of the will. Before his death the testator deeded the property to the son. It was held that the legacy to the daughter was demonstrative and that it was not adeemed by the father's action. There was some doubt if the deed to the realty had ever been delivered to the testator's son. Nothing in that case is in conflict with our decision in the one at bar.

In Tifft v. Porter, 8 N. Y. 516, the Supreme Court of New York (three of the justices dis- In Kramer v. Kramer, 201 Fed. 250, 119 C. senting) held that, where a testator who C. A. 482, the court held that a bequest of a owned 360 shares of stock in a certain bank | certain sum to be realized from policies of bequeathed 240 shares to one legatee and 120 shares to another, the legacies were not specific but demonstrative. It is conceded in the opinion that, if the language of the will had specified a certain number of "my shares" instead of a certain number of "shares," the legacies would have been specific, and the learned author of the opinion differentiates the case from Ludlam's Estate, supra. It will be seen at a glance that the will there considered was entirely different from the one before us.

In Gelbach v. Shively, 67 Md. 499, 10 Atl. 247, while holding that legacies payable to the brother and sister of the testator out of his share of his father's estate were demonstrative, yet the court decided that they were not to be satisfied out of the general assets of his estate. The father's estate had been distributed, and the brother and sister of George Gelbach, Jr., deceased, had received his share of that estate, in equal portions, in partial satisfaction of the bequests by him to them. The sum so received did not equal the amount of the legacies to the brother and sister specified in the will of George Gelbach, Jr., and the Supreme Court of Maryland held that the difference was not payable from the general assets of the estate. Surely that authority does not support the position of the respondent in this appeal.

In Ives v. Canby (C. C.) 48 Fed. 718, the will specified "two thousand dollars of the South Ward Loan of Chester, Pennsylvania." This was held to be a demonstrative legacy (the bonds representing the interest of the testatrix in the loan having been paid prior to her death). But the court said: "Had the legacy to the plaintiff been restricted to $2,000 'of my South Ward Loan of Chester,' or had the testatrix given $2,000 of the debt

life insurance which should be in force at the time of the testator's death was demonstrative and was not cut down by his action, after the execution of his will, in making the beneficiary the payee of one of the certificates of insurance. The case is of no particular value in solving the principal problem now before us. Indeed, no one of the authorities brought to our attention by respondent is in substantial conflict with those which sustain the theory of appellants.

[4, 5] But respondent's counsel says that the question of ademption was not raised at the hearing below. While that term was not used in the pleadings, the issue of ademption was clearly raised and litigated. The petition stated fully the theory of appellants that the legacy had lapsed, and ademption is merely one of the ways in which a legacy lapses. One of the best definitions is that found in Kramer v. Kramer, supra: "Ademption of a specific legacy is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will, which prevents its passing by the will, from which an intention that the legacy should fail is presumed." This definition accurately fits the facts of the case at bar. Long before Mrs. Goodfellow's death, Dr. Dempster's estate had been finally settled; she had received her share of it; and therefore her executors could not "proceed to obtain the sum of $5,000.00" from said estate “and place it in the care of the Methodist Episcopal Conference" and pledge said conference "never to use said $5,000.00" except as an endowment fund for a school for Methodist ministers.

That part of the decree from which this appeal is taken is reversed, with instructions to the superior court to enter judgment in accordance with the views herein expressed.

We concur: HENSHAW, J.; LORIGAN, J.

(166 Cal. 420)

EVA V. ANDERSEN. (S. F. 6177.) (Supreme Court of California. Nov. 29, 1913.) 1. PLEADING (8 205*)-GENERAL DEMURRER OBJECTIONS REACHED-SALE OF CORPORATE STOCK-LIABILITY OF PURCHASER.

A complaint in an action by a seller of corporate stock against the buyer on his agreement to hold the seller free from any debts of the corporation for which he might be liable as stockholder, which alleges the payment by him of a specified sum in settlement of his liability as stockholder on account of an indebtedness of the corporation, evidenced by a note executed by it, alleges, as against a general demurrer, that the seller was liable as a stockholder within the buyer's agreement.

[Ed. Note. For other cases, see Pleading, Cent. Dig. 88 491-493, 495, 496, 498-510; Dec. Dig. 205.*]

2. CORPORATIONS (§ 252*) STOCKHOLDERS' LIABILITY-TIME OF ACCRUAL.

A stockholder's liability for debts of the corporation accrues on a debt being contracted by the corporation, and does not depend on the time when the debt is enforceable against the corporation, and the creditor need not resort to the assets of the corporation before proceeding against the stockholder.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1016-1023; Dec. Dig. § 252.*] 3. INDEMNITY (§ 11*)-ACCRUAL OF LIABILITY -SALE OF STOCK.

A right of recovery on a contract, whereby a buyer of corporate stock agreed to hold the seller harmless from any debts or liabilities of the corporation for which he might be liable as a stockholder, director, or other officer, arises as soon as a liability is incurred, since the contract is against liability and not against damages.

[Ed. Note.-For other cases, see Indemnity, Cent. Dig. §§ 21-25; Dec. Dig. § 11.*] 4. INDEMNITY (§ 15*)-CONTRACTS-ACTIONS CONDITIONS PRECEDENT.

Where a buyer of corporate stock agreed to hold the seller harmless from any liabilities of the corporation for which he might be obligated as stockholder, the seller might pay a debt due from the corporation without any suit against him, and then maintain an action against the buyer on his contract, or, under Civ. Code, 2778, subd. 1, he might sue on the agreement before payment, but in either case he must prove his liability as a stockholder.

[Ed. Note. For other cases, see Indemnity. Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.*] 5. INDEMNITY (§ 15*)-SALE OF STOCK-LIABILITY OF BUYER-COMPLAINT. A complaint in an action by a seller of corporate stock on the buyer's agreement to hold the seller harmless from any liabilities of the corporation as stockholder, director, or other officer, which alleges that he paid in settlement of his liability as stockholder a specified sum on account of an indebtedness of the corporation, evidenced by a note given by it, is not defective for failing to allege that the note was due, or for failing to aver its face value, or that it was unpaid, since the action is not based on the note. [Ed. Note. For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.*]

6. INDEMNITY_(§ 15*)-SALE OF STOCK-LIABILITY OF BUYER UNDER CONTRACT WITH SELLER.

The complaint need not plead that the defense of limitations was not available against the indebtedness due from the corporation, because the statute merely furnishes a personal defense which may be waived by the person entitled to rely on it.

[Ed. Note. For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.*] 7. INDEMNITY (§ 10*)-ACTIONS-CONDITIONS PRECEDENT.

Notwithstanding Civ. Code, § 2778, subd. 4, providing that notice may be given to the person indemnifying, a buyer of corporate stock who agreed to hold the seller harmless from any liability of the corporation for which he might be obligated as stockholder was not entitled to notice of any action against the seller on his liability, or an opportunity to defend any suit, and, in view of subdivisions 5 and 6, prescribing rules of evidence under which a judgment recovered against a person indemnified may become prima facie or conclusive evidence of liability, the omission to give notice merely changed the burden of proof, and imposed on the seller suing the buyer, the necessity of establishing his liability. [Ed. Note.-For_other_cases, see Indemnity, Cent. Dig. § 20; Dec. Dig. § 10.*]

8. INDEMNITY_ (§ 15*)-ACTIONS-EVIDENCEBURDEN OF PROOF.

Where a person indemnified paid any sum on the theory that he is liable, he must show in a suit against the indemnitor that the liability existed, and that he was under .obligation to pay the sum paid, but he need not await and defend an action to establish his liability before seeking relief against the indemnitor.

[Ed. Note. For other cases, see Indemnity, Cent. Dig. 88 36-40, 42-47; Dec. Dig. § 15.*1、

Department 2. Appeal from Superior Court, San Mateo County; George H. Buck, Judge.

Action by William J. Eva against Walter Andersen. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles N. Kirkbride, of San Mateo, for appellant. Randolph V. Whiting, of San Francisco, for respondent.

MELVIN, J. This appeal is taken from a judgment rendered upon defendant's failure to answer after his general demurrer to the complaint had been overruled.

In the complaint was alleged an agreement whereby William J. Eva, the plaintiff, sold to the defendant, Walter Andersen, forty-one shares of the capital stock of Andrew Smith Company upon the consideration expressed in a written agreement that defendant would hold plaintiff "free and harmless from any debts or liabilities of said company, for which he may be obligated or liable as a stockholder, director, or other officer of said corporation, up to the amount of $2,000." The essential averment of the complaint is as follows: "Plaintiff on the 31st day of May, 1911, paid to the Bank of California, a corporation, as assignee of San Francisco National Bank, a corporation, the sum of two thousand seven hundred and twenty dollars ($2,720.00) in full settlement of his liability as a stockholder of said Andrew Smith Company, a cor

poration, for and on account of an indebted-| sort to the assets of the corporation before ness of said Andrew Smith Company, a cor- proceeding against the stockholder. Hunt v. poration, evidenced by a certain promissory Ward, 99 Cal. 613, 34 Pac. 335, 37 Am. St. note of said Andrew Smith Company, a cor- Rep. 87. The indemnitor here held the inporation, executed to the said San Francisco demnitee free and harmless not from damNational Bank, on the 20th day of June, ages but from liability or debts of the corpo1908." This is followed by an allegation that ration for which he might be obligated as a defendant failed after demand to pay the stockholder. As the indemnity was against sum of $2,000 and a prayer for that sum to- liability, the right of recovery on the congether with costs. tract arose as soon as the liability was incurred. In Showers v. Wadsworth, 81 Cal. 272, 22 Pac. 663, an action on a bond given to indemnify a sheriff against loss and liability which might be incurred by him in delivering certain property to the indemnifier, this court said: "The indemnity was against liability, and hence there was a right of recovery upon the contract as soon as the liability was incurred."

Defendant contends that his demurrer was improperly overruled for a number of reasons. These are that the indemnitor promised to pay no debts of the Smith Company but to hold the indemnitee free and harmless from the debts and liabilities of that corporation; that the complaint fails to show that the note was due from the corporation, or that the note did not run for more than three years, or the amount of the note; that the complaint fails to show that the note had not been previously paid, or that plaintiff had been called upon to pay it, or that he had paid it after notice to the indemnitor; that the complaint fails to show that plaintiff was a stockholder of the corporation at the time when the corporation incurred the indebtedness evidenced by the note; and that the complaint fails to show that plaintiff had become liable on any given date, or that judgment had been rendered against him, or that he had otherwise complied with the provisions of subdivisions 5 and 6 of section 2778 of the Civil Code. Plaintiff asserts that the complaint is sufficient as against a general demurrer. He insists that such a demurrer should not be sustained except when the complaint entirely fails to state some fact necessary to uphold the judgment, and that his complaint in the action at bar does set forth all such facts either directly or by reasonable inference. Citing Lawrence National Bank v. Kowalsky, 105 Cal. 44, 38 Pac. 517. He also calls attention to the rule that, as against a general demurrer, a complaint which alleges necessary elements of an action not directly, but by way of recital, is good. Citing Fuller Desk Co. v. McDade, 113 Cal. 360, 45 Pac. 694. He also invokes the familiar rule that where all essential facts are stated, but are imperfectly set forth, the particular defects may be reached by special demurrer only. We will examine the complaint in the light of these liberal rules.

[4] This seems to be a complete answer to nearly all of the arguments of the defendant. It is true that, as appellant contends, the indemnitor did not agree to pay any debt or liability of the Smith Company, but he did agree to pay any such debt or liability for which plaintiff might be bound as a stockholder of that corporation. It is true also that if the corporation had paid any given debt plaintiff would have been relieved of any obligation to settle it, but the indemnity was not for damages growing out of a suit by a creditor of the Smith Company against the plaintiff on his stockholder's liability; it was upon the liability itself, and if he chose to pay the claim without suit he might do so or he even might sue before payment. Section 2778, subd. 1, Civ. Code. Of course in either case he would be under the necessity of proving that he was liable for the amount alleged, because of his position as a stockholder.

[5, 6] The answer to appellant's contention that the complaint is defective in not alleging that the note sued upon was due is that the pleading does not declare upon the note but upon an indebtedness evidenced by the note. The stockholder's liability depends not upon the time when the debt was enforceable against the corporation by the holder of the note, but upon the time when the indebtedness was incurred. Hunt v. Ward, supra; Bank of San Luis Obispo v. Pacific Coast S. S. Co., 103 Cal. 595, 37 Pac. 499. It was not necessary to allege that the note mentioned was not a three-year note. It was not necessary to plead even that the statute of limitations was not available against the indebtedness itself, because the statute furnishes a personal defense which may be waived by the person entitled to use it. Neither was it necessary to aver the face value of the note, because, as we have seen, the declaration was on the indebtedness and not the note. For the same reason it was not [2, 3] It is settled in California that a necessary for the pleader to state that the stockholder's liability accrues immediately note was unpaid, because the statement of upon a debt being contracted by the corpo- Eva's liability as a stockholder involved the ration. A creditor, therefore, need not re-existence of an unsatisfied indebtedness. The 137 P.-2

[1] It will be noted that according to the complaint the payment of $2,700 was made by plaintiff "in full settlement of his liability as a stockholder of said Andrew Smith Company." While this recital might have fallen before a special demurrer, as against a general demurrer it is a sufficient allegation that plaintiff was liable as a stockholder, with all that such a statement implies.

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