purpose for the year 1896; and judgment is prayed for this amount, with interest and costs. The petition alleges that the lands were returned delinquent by the collector, and that the county clerk made out and delivered to the collector a back-tax book, as provided by law, and that the lands described in the back-tax book remain unredeemed, and the taxes unpaid. The answer is a general denial, with an admission that the defendants own the land. The transcript in the case before this court consists of the petition; a paper consisting of eight pages, and purporting to be a certificate that the back taxes on the property remain delinquent; the answer; a stipulation signed by the attorneys and filed in the cause, as follows: "It is hereby stipulated and agreed that the taxes on which this suit is based were levied for the purpose of creating a sinking fund for the payment of certain bonded indebtedness of Ozark county, Mo., issued in August, 1889, and an interest fund for the payment of the interest thereon, and said taxes constitute no part of the taxes levied for ordinary county expenses; that the county court of Ozark county did not prior to the levy of said taxes for either year, through the county attorney or otherwise, ask for or receive from the circuit judge of the Twentieth judicial circuit an order authorizing the levy of said taxes or any part thereof;" and the judgment, as follows: "Now, on this day this cause coming on to be heard, the parties appear and announce ready for trial, and all and singular the matters in issue being submitted to and by the court seen; and the court, after hearing the evidence, finds that the taxes for which this suit is brought are illegal and void, and that plaintiff is not entitled to recover herein. It is therefore considered and adjudged that the lien for said taxes be set aside, and for naught held and esteemed [description of land omitted]. It is further considered and adjudged that the plaintiff take nothing by its suit, and that defendants recover their costs." There was no bill of exceptions or motion for new trial filed, and no appeal taken, but the matter remained in this shape from the date of the judgment on August 12, 1897, until May 3, 1898, when this writ of error was sued out. It is contended by plaintiff that the stipulation herein set out constitutes an agreed case, or agreed statement of the case, and occupies the same footing as, and stands in lieu of, a special verdict; that it stands precisely as if a jury had found a verdict in that form, and that when filed it became a part of the record proper, and hence no bill of exceptions was necessary to make it a part of the record; and that, as it is a part of the record proper, no motion for new trial was necessary, but that it is the duty of this court to examine the case so made, and if error is apparent on the face of the record proper, so constituted, to reverse the judgment below, and enter such judgment as the trial court ought to have entered. It is manifest that this is not an agreed case, within the meaning of section 793, Rev. St. 1899, which authorizes parties to a question of difference, without action, to agree upon a case containing the facts upon which the controversy depends, and submit the same to a court of competent jurisdiction for decision; for such an agreed case is "without action," which means without filing a suit, having summons issued, and the defendant brought into court against his will, followed by the usual steps in a suit. It is clearly a suit regularly begun, issues made up, and, to save the trouble of introducing testimony to support all or any of the questions at issue, the parties stipulate as to the existence or nonexistence of the facts in issue. Such a stipulation is commonly called an "agreed statement of facts," and does not constitute an agreed case under the statute or at common law. The primary question in this case is whether such an agreed statement of facts becomes a part of the record proper by being filed with the clerk of the trial court. or whether it constitutes matters of exception, which can only be made a part of the record by a bill of exceptions. The exact question was decided by this court in Kennerly v. Merry, 11 Mo. 214; and Napton, J., disposed of the matter very briefly, as follows: "This is a petition for dower in a lot in St. Louis. There is no bill of exceptions in the case, and no motion for a new trial. A statement of facts agreed on by the counsel is copied by the clerk in the record, but it is not made a part of the record by bill of exceptions. The judgment will therefore be affirmed." Thus as early as 1847 it was distinctly held that "a statement of facts agreed on by counsel," and "copied by the clerk in the record," is not a part of the record, unless made so by a bill of exceptions. Such is the exact condition in this case. The decision cited has never been overruled. Many times since it has been said that such an agreed statement dispenses with proof of the facts therein stated. City of St. Charles v. Hackman, 133 Mo. 634, 34 S. W. 878. No declarations of law are necessary to secure a review of the case, but upon the agreed facts this court will apply the true law, and enter such a judgment as the trial court ought to have entered. City of St. Charles v. Hackman, 133 Mo. 634, 34 S. W. 878; Carr v. Coal Co., 96 Mo. 149, 8 S. W. 907; Gage v. Gates, 62 Mo. 412. It has also been held that such an agreed statement of facts “occupies the same footing and stands in lieu of a special verdict." Carr v. Coal Co., 96 Mo., loc. cit. 155, 8 S. W. 907; Gage v. Gates, 62 Mo. 412; Munford v. Wilson, 15 Mo. 540. But it has never been held, since Kennerly v. Merry, supra, that the rule therein stated is not still the law, nor that such an agreed statement of facts becomes a part of the record proper by simply filing it with the clerk, or by having the clerk copy it into the tran script, nor that it can be made a part of the record in any other way than by a bill of exceptions. It is like any other agreement or stipulation of counsel, and can only be made a part of the record by a bill of exceptions (Eystra v. Capelle, 61 Mo. 578; State v. Bachelor, 15 Mo. 208); or like instructions, which the clerk copies into a transcript, but which are not made a part of the record by a bill of exceptions (State v. Shehane, 25 Mo. 565; Thompson v. Russell, 30 Mo. 498; Sturdivant v. Watkins, 47 Mo. 177); or like exhibits attached to a petition, which are copled into a transcript without being made a part of the record by a bill of exceptions (State v. Eldridge, 65 Mo. 584; Kearney v. Woodson, 4 Mo. 114); or like a motion for execution against a stockholder (Kohn v. Lucas, 17 Mo. App. 29). The statement of facts agreed upon by the counsel is not a part of the record proper, and has not been made a part of the record by bill of exceptions, and it cannot, therefore, be considered by this court. This leaves only errors apparent on the face of the record proper to be reviewed. The record proper consists of the petition, summons, and all subsequent pleadings (in this case the answer), including the verdict and judgment. Bateson v. Clark, 37 Mo., loc. cit. 31; Railway Co. v. Carlisle, 94 Mo., loc. cit. 169, 7 S. W. 102. The petition is in proper form, the answer is a general denial, and the judgment is that parties appeared, the court heard the evidence, and declared the taxes illegal and vold, set aside the lien for the taxes on the land, and entered a decree that plaintiff take nothing by his suit, and that defendants recover their costs. No error is apparent on the face of this record, and nothing in the way of exception having been incorporated in the record, showing any error in the trial, the judgment of the trial court is affirmed. All concur. STERNBERG v. LEVY. (Supreme Court of Missouri, Division No. 1. Feb. 12, 1901.) APPEAL AND ERROR-BILL OF EXCEPTIONS MOTION-DEMURRER-RECORD-TRANSCRIPT - RECITALS-EXEMPTIONS--HEAD OF FAMILY --LIFE INSURANCE-CREDITORS-FRAUD-INSURABLE INTEREST. 1. Where the bill of exceptions sets out the portion of a pleading challenged, the motion to strike it out, the ruling of the court sustaining the motion, the motion to vacate such order, and ruling thereon, and exceptions properly saved to all such rulings, the action of the trial court on such matters may be reviewed on appeal without a motion for new trial having been made, since it is not necessary to file such motion for the mere purpose of having the court twice hear the same motion. 2. Where, on a bill of interpleader for proceeds of life insurance, both parties moved for judgment on the interpleas, but the motions are not made a part of the record by the bill of exception, the motions or rulings thereon could not be considered on appeal, since a motion for judgment on the pleadings, though it par takes of some of the qualities of a demurrer. is not a demurrer, and bence is not a part of the record. 3. Where, in an action of interpleader for proceeds of life insurance, the transcript of the clerk recites that both parties filed motions for judgment on the interpleas. but no such motions appear in the transcript or are made part of the record by a bill of exceptions, the recital of the clerk is of no avail, and the mo tions are not before the court for consideration. 4. Where an unmarried man lived with his widowed sister and her minor children, and supported them with his earnings, he was the head of the family; and his creditor acquired no claims to the proceeds of insurance on his life for such sister's benefit because he paid more in supporting the family then similar board. and accommodations for himself alone were worth or would cost elsewhere. 5. Under Rev. St. 1889, § 5853, providing that an unmarried woman may insure the life of her brother for her benefit, a widow has an insurable interest in the life of her brother. and on his death may recover on a policy on his life which he has taken for her benefit. 6. An unmarried man lived with his widowed sister and her minor children, and with his earnings supported them, and insured his life for her benefit. Held, that under Rev. St. 1889, § 4903, which exempts certain property to a head of a family, and section 5220. exempting from garnishment the wages of the head of a family for the last 30 days' service, a creditor of the brother could not claim such life insurance, since the brother was the head of the family, and as such his wages were exempt; hence it was not a fraud on his creditors to invest such wages in insurance for his sister's benefit. 7. Where a man insured his life for the benefit of his widowed sister, and in six years paid premiums thereon to the amount of $290, his creditors acquired no claim to such insurance because of such payments, since under the statute he could pay his wages and $300 each year for that purpose, and his creditors would have no claim unless he exceeded that amount, and then only for the excess. Appeal from St. Louis circuit court; H. D. Wood, Judge. Action by Simon Sternberg against Pauline Levy. From a judgment for defendant, plaintiff appealed to the St. Louis court of appeals, where the judgment was reversed. On certificate of dissent, judgment of court of appeals reversed, and judgment of circuit court affirmed. J. H. Trembly, for appellant. W. C. & J. C. Jones and G. F. Jones, for respondent. MARSHALL, J. This is an interpleader between the plaintiff, as a judgment creditor of Joseph Levy, and the defendant, as the sister of Joseph Levy, for $2,500 benefits payable by the Western Commercial Travelers' Association upon the death of Joseph Levy to Pauline Levy, his sister. There was a judgment in favor of Pauline Levy in the St. Louis circuit court. Plaintiff appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed, and the cause remanded to the circuit court, with directions to enter a judgment for the plaintiff for the amount of his claim. Biggs, J., dissented, and certified that the judgment was in conflict with controlling decisions, stated, of this court; and thereupon the cause was transferred to this court, under section 6 of the amendment of 1884. It is therefore our duty to hear and determine the cause as if this court had original jurisdiction of this appeal. The Western Commercial Travelers' Association is a corporation organized under article 10, c. 42, Rev. St. 1889, relating to benevolent, fraternal, beneficial companies. Under its by-laws $4,000 is paid upon the death of a member to the beneficiary named in his certificate, or, failing such beneficiary, to the heirs of the member. On the 31st of December, 1880. Joseph Levy became a member, and designated his sister, Pauline Levy, as his beneficiary. He was then solvent, and continued so until 1891. During these 11 years he paid $279 in contributions to the death fund. In 1891 he failed, and the plaintiff and others obtained judgments against him. After 1891 and until his death, on the 16th of December, 1897, Levy paid $290 in contributions to the death fund. Upon his death the plaintiff brought suit against his beneficiary, Pauline Levy, and the association, seeking to have the $4,000 applied to the payment of plaintiff's judgment against Levy. Upon a stipulation between plaintiff and defendant the association paid the $4,000 into court and was discharged. The sum of $100 was allowed to the attorneys of the association for services. The court ordered $1,400 paid to Pauline Levy, and that the plaintiff and defendant interplead for the $2,500, which they did. Pauline Levy's interplea sets out the character of the association; its by-laws, etc., above referred to; the fact that she is the beneficiary named in the certificate; the death of her brother,-and prays judgment. The plaintiff's interplea sets out the same general facts, with the additional allegation as to the recovery of judgments aforesaid, the payment of the $279 by Levy while he was solvent, and of the $290 after he became insolvent, and then pleads separately the following: "Further interpleading, this interpleader says that after the rendition of said judgments against said Joseph Levy, and while he was insolvent, as stated in the first count hereof, the said Joseph Levy, while residing with his said sister, Pauline Levy, and her children, gave her from his earnings, for the shelter, support, maintenance, clothing, and other expenses of the said Pauline Levy, and for the shelter, support, maintenance, clothing, education, and other incidental expenses of her minor children, large sums of money, to wit, the sum of at least $1,750 per year, aggregating for said six and one-half years intervening between the date of the rendition of said judgments and the date of the death of said Joseph Levy the sum of at least $11,375; that the said sum of money so given to said Pauline Levy was not given her as a contract price for board and accommodation, but was given to her from time to time for the shelter, support, maintenance, and other expenses of herself and children, and for the education of her said children as aforesaid, which sum so given to said Pauline Levy during said six and one-half years was at least $5,500 in excess of the sum which similar board and accommodations were worth, and for which they could have been procured by the said Joseph Levy for himself, individually, elsewhere. This interpleader further states that the said Pauline Levy has spent the said sums of money so given to her by the said Joseph Levy; that the said Pauline Levy is now insolvent, and this interpleader cannot by garnishment or other proceeding at law against said Pauline Levy compel her to satisfy this interpleader's said judgments out of the moneys so given her by the said Joseph Levy in fraud of his said creditors as aforesaid." Pauline Levy moved to strike out of plaintiff's interplea the matter specifically quoted, as surplusage, irrelevant, immaterial, and, if true, having no bearing on the claim of either party to the fund in controversy. The court sustained this motion on the 4th of April, 1898. Plaintiff filed a motion to vacate the order sustaining said motion on the 8th of April, 1898. In the transcript certified by the clerk there is a statement by the clerk that both parties then filed motions for judgment on the interpleas as they stood; but no such motions appear in the transcript, or appear to have been made a part of the record by any bill of exceptions, and therefore the recital of the clerk is of no avail (State v. Merriam [not yet officially reported] 60 S. W. 1112), and no such motions are before us for consideration. The court on April 26, 1898, rendered judgment for the defendant. The judgment, after reciting the appearance of the parties, sets out, "And the several motions of the said parties for judgment upon the pleading having been submitted to the court, and the allegations in the said several interpleas being undenied and admitted, and the court being fully advised of and concerning the premises," etc., it awarded the fund in court to the defendant. No motion for new trial was filed. Thereafter, on the 21st of May, 1898, the plaintiff filed his bill of exceptions, and appealed to the court of appeals. The bill of exceptions simply sets out the portion of the plaintiff's interplea challenged, the motion to strike it out, the ruling of the court sustaining the motion to strike out, the motion to vacate the order sustaining the motion, and exceptions properly saved to all said matters. Then, as stated, the case was appealed to the St. Louis court of appeals, and by that court certified to this court, for the reasons stated. 1. The plaintiff has properly saved the right to have the action of the trial court on the motion to strike out reviewed by this court. No motion for a new trial was necessary to preserve this right. "It is not usual or necessary to file a motion for a new trial for the mere purpose of having the court to twice hear the same motion or demurrer." O'Connor v. Koch, 56 Mo., loc. cit. 262; Butler v. Lawson, 72 Mo., loc. cit. 244. The substance of the matter struck out is that, while residing with his sister, Joseph Levy gave her from his earnings, for the shelter, support, maintenance, clothing, and other expenses of herself and children, the sum of $1,750 a year for the 61⁄2 years after he became insolvent, and before his death, aggregating $11,375; that it was not given to her as a contract price for board, but "was at least $5,500 in excess of the sum for which similar board and accommodations were worth, and for which they could have been procured by the said Joseph Levy for himself, individually, elsewhere"; that Pauline has spent the money and is insolvent; that such payments were a fraud on the plaintiff, and therefore he asks to compel Pauline to pay his judgment out of these benefits accruing to her from her brother's membership in the fraternal, beneficial association. Under the facts stated, Joseph Levy was the head of a family, composed of himself, his sister, and her children. He had a right to support them, although he could not be compelled to do so. As such head of a family he was entitled to the exemptions allowed by statute to the head of a family. The identical question was decided by this court in Wade v. Jones, 20 Mo. 75, and has been the law in this state ever since. Broyles v. Cox, 153 Mo., loc. cit. 248, 54 S. W. 488. Section 5851, Rev. St. 1889, permits a married woman to insure the life of her husband and hold the insurance free from the claims of his creditors, but provides that, "when the premiums paid in any year out of funds or property of the husband shall exceed five hundred dollars, such exemption from such claim shall not apply to so much of said premiums so paid as shall be in excess of five hundred dollars, but such excess, with interest thereon, shall inure to the benefit of his creditors." In Pullis v. Robison, 73 Mo. 201, it was held that, if the husband's money was paid both before and after he became insolvent, "so much of the insurance as was the product of the premiums paid by the husband while he was solvent" went to the wife, and that the creditors were entitled to "so much as was the product of the premiums paid by him after he became insolvent." But in Judson v. Walker (Mo. Sup.) 55 S. W., loc. cit. 1088, it was pointed out by Valliant, J., that after the decision in Pullis v. Robison, supra, the legislature amended the statute as it was when the Pullis Case was decided, and provided that the creditor is entitled only to the excess over $500 paid as premiums in any year, with interest thereon, and not to the product of the premiums paid, as was held in the Pullis Case. And this is not only the plain mandate of the statute, but is consonant with reason; for, as aptly said in the Judson Case: "Proceeds of life insurance, therefore, are not the product of premiums alone, but of premiums united with the beneficiary's insurable interest. After the transfer of the policies we are now considering, they rested no longer on the insurable interest of Walker in his own life, in which his creditors were concerned, but depended for their validity upon the insurable interest of the wife and children in the life of their husband and father. Without that interest, the insurance, standing as it did in their name, would have been invalid; it would have been no insurance, and there would have been no proceeds. Therefore, while the creditors have some right to the money that was used for premiums, and to the value of the old policies converted, they have no further right in the proceeds of the insurance." It is argued, however, that this applies only to a wife, and not to a sister, and that the rule in the Pullis Case applies to a sister. This contention is based upon the theory that it is not the duty of a brother to support his widowed sister and her children. But, while it is not his duty, he has a right to do so; and, if he resides with them and he provides for them, he is the head of a family, and entitled to the same exemptions as if he had a wife living with him. Section 5853, Rev. St. 1889, gives a sister an insurable interest in her brother's life. Without this provision this policy of insurance would be void, and, no matter how many premiums were paid, neither the sister nor the brother's creditors would be able to collect a cent of the insurance after his death. So here, as in the Judson Case, the proceeds of this insurance "are not the product of premiums alone, but of premiums united with the beneficiary's insurable interest." For this reason alone it is clear that the rule laid down in the case of Pullis v. Robison, 73 Mo. 201, is not the true rule now, and was not the true rule even under the statute as it stood then. But if a man is entitled to his salary and certain exemp tions as the head of a family, which his creditors cannot touch, and if he chooses to spend a part of his salary in premiums for life insurance for the benefit of his family after he is gone, his creditors are not thereby defrauded, for he has withdrawn no part of his property which his creditors could touch. Hence the provision added to the statute in 1879 did not change the right of a head of a family under the exemption laws. Under the law as it stood when the Pullis Case was decided, the head of a family could use his salary and his exempt property, up to the value of $300, to pay the yearly premiums on insurance for his family without defrauding his creditors. Such a use of his exempt property no more defrauded his creditors than if he had spent it in riotous and high living, or than if he had paid necessary expenses or had given it away. The statute at that time was simply Thus declarative of a right he had before. The amendment of 1879 raised the limit of exemptions, pro hac vice, from $300 to $500, but it did not change the principle involved. Afterwards, as before, it was a fraud for an insolvent to withdraw the excess of his property over his exemptions from the reach of his creditors and invest it in insurance for his family; and such excess, representing the extent of the fraud, with interest, the creditors can reach. But as the premiums did not alone produce the proceeds of the insurance, and it required also an insurable interest to produce such proceeds, and as there is no legal formula for apportioning the proportion of such excess that should be credited to the payment of premiums and the portion that should be credited to insurable interest, the courts take the only prac tical course, and do not attempt to work out such a formula or distribution, but award the creditor the known sum so fraudulently withdrawn from the reach of the creditors, -the excess over the exemption,-and restore it to the creditor, with interest. the creditor is placed in the same position that he would have been in if the fraud had not been perpetrated. He gets all the property of the debtor that he has a right to touch, and the interest allowed is the legal measure of his damages for not getting the money when he should have gotten it. Section 5853, Rev. St. 1889, giving a sister an insurable interest in a brother's life, does not contain a similar proviso to that contained in section 5851 as to the wife paying the premiums out of her husband's money, or his doing so for her; but, in view of what has herein been said, this difference is immaterial, except as to the amount of the exemption. The statutes of exemption (section 4903) make the exemptions to a head of a family, who, as shown, need not necessarily be a married man. And section 5220, Rev. St. 1889, exempts from garnishment the wages of the head of a family for the last 30 days' service. Hence it is no fraud for a brother who is the head of a family composed of his sister and her children to apply his wages or his exempt property to the procuring of insurance for her benefit; for his creditors cannot touch the wages or property, and have no right to complain if he uses it thus providently and properly, instead of wasting it. Therefore section 5853 is as effective for a sister so situated as section 5851 is to a wife, except as to the former only the wages and $300 can be used, and as to the latter the wages and $500 can be used, to buy insurance. What is said in the plaintiff's interplea as to the amount contributed by Joseph Levy to his sister being $5,500 in excess of what he could have procured similar board for elsewhere is of no consequence. The laws of our country give no court power to determine how much a man may spend for board, nor to inquire whether he paid too much or too little there for, and to make the landlord refund the excess to his creditors if it was too much, or to allow the landlord for the difference if it was too little. However, this case does not depend upon any such considerations; for, as shown, Levy was not a boarder, but the head of the family. The motion to strike out the designated part of the plaintiff's interplea was properly sustained. 2. It is claimed that the motion for judgment on the pleadings is a demurrer, and hence is part of the record proper, and therefore no motion for new trial or bill of exceptions was necessary, but that the court will review the judgment upon the record so constituted. A motion for judgment on the pleadings is not a demurrer. It partakes of some of the qualities of a demurrer, but it is not a demurrer, and hence it is not a part of the record. It is a matter of exception, and can only be made a part of the record by a bill of exceptions. It partakes of the nature of a demurrer, in that it admits all facts that are well pleaded; and if it is overruled the order overruling it is not a final judgment from which an appeal will lie, but the party may plead over, or proceed to trial on the issues joined. On the contrary, if it is sustained judgment goes at once, whereas if a demurrer is sustained the order is not a final judgment, the party has a right to plead over, and it is only in case of refusal to plead over that final judgment can be rendered on demurrer. There is no motion for judgment on the pleadings contained in this record. The bill of exceptions filed does not call for any such motion, and therefore there is no such question open to review in this case. 3. But if a motion for judgment on the pleadings could be treated as a demurrer, and hence a part of the record, without being made so by a bill of exceptions, it would avail the plaintiff nothing in this case, for the reason that the transcript does not contain any such motion, and therefore quoad hoc there is no such record in this case. 4. Aside from all this, however, if the motion for judgment was a demurrer, or had been made a part of the record, and if the whole case appeared to this court just as plaintiff contends the facts show the status of the controversy to be, the judgment of the circuit court would have to be affirmed. It is claimed that between the time Joseph Levy became insolvent, in 1891, and his death, in 1897 (a period covering 6%1⁄2 years), he paid $290 in premiums (properly speaking, assessments) to the association, to preserve his right to benefits therein. If this be conceded, it was $10 less than the $300 exemptions which he had a right to spend in that manner. There was no excess over the amount exempted to him (not taking his salary into account at all) that was invested in this way, and, as shown, the creditors are only entitled to recover the excess, with interest, over the amount he is entitled to spend every |