section 1148 of the same chapter of the Code, which declares that: "The minimum capital of every such company (except a cemetery company, or a company whose object is purely benevolent, which may have only a nominal capital) shall not be less than $500." But the Richmond Home for Ladies is not only a benevolent institution, but a business enterprise also, as will clearly appear from an inspection of the charter.

We shall notice briefly the remaining contention in this regard, namely, the denial of the power of the Legislature to confer upon courts authority to grant such charters.

In the recent case of Button v. State Corporation Commission of Virginia, 105 Va. 54 S. E. 769, this court, in discussing the power of the legislative department, observes: "In a government, such as ours, of reserved powers, it is said, the legislative department acknowledges no superiors except the federal and state Constitutions, and its authority to enact laws, unless forbidden by one or the other of those instruments in express terms or by necessary implication, is paramount."

"Franchises granted indirectly by the state through instrumentalities provided by general laws are the same in effect as if the power conferring the same had been exercised directly by the State itself." Mason v. Harpers Ferry Bridge, 17 W. Va. 396. See, also, Henrico County v. City of Richmond, 106 Va.. 55 S. E. 683; 1 Thompson on Corp. §§ 36, 110.

Our conclusions that the Richmond Home for Ladies has been identified as the residuary legatee under Mrs. McClung's will, and that its charter of incorporation is valid, constitute a decisive answer to the next assignment of error-that the bequest is too Indefinite to be enforced by a court of equity. The cases of Protestant Episcopal Education Soc. v. Churchman's Representatives, and Trustees v. Guthrie, supra, fully sustain that proposition. The criticism of those cases in Fifield v. Van Wyck, is not that they were not rightly decided, but that the opinions contain dicta contrary to the decisions in Gallego's Ex'rs v. Attorney General and other Virginia cases. The court, in referring to those decisions, observes: "The records in each case show, in the opinion of the court, that the bequest was to a corporation and for purposes within the scope of its corporate powers and duties and distinctly defined." In Fifield v. Van Wyck the court held that the evidence was insufficient to connect the corporation known as the "General Convention of the New Jerusalem in the United States of America" with the object named in the testator's will, and that the devise was, therefore, void for vagueness and uncertainty.

In Roy's Exr's v. Rowzie, supra, Judge Moncure, at page 611 of 25 Grat., says: "A bequest to a corporation, for general purpose of its incorporation, is not indefinite or uncertain in any respect."

Numerous authorities sustaining similar bequests are assembled and reviewed by Judge Burks in his able brief in Churchman's Case, 80 Va. 720.

We shall next consider the question of alleged partial intestacy with respect to the income from the trust estate resulting from the death of J. C. Petty previous to that of Georgia Kenney and Margaret Davis.

While that was a contingency which the testatrix did not anticipate, or, at least, did not provide against, it constitutes only a minor incident in the general testamentary plan, and cannot be allowed to thwart the more important design of the testatrix in the disposition of her estate. The prior death of Petty does not affect in any manner the provision made for Georgia Kenney and Margaret Davis. Each will receive the annuity given her until death, and that was what the testatrix wished to effect. As the commissioner justly observes: "To interpret the will so as to make the remainder to the Home not to vest in possession till the death of Georgia Kenney and Margaret Davis, or the survivor of them, * would be to

put a construction upon it that would cer tainly not carry into effect any meaning that she had in making it. • Petty was

the life tenant of the total residuum, which, and in addition the two annuities to Georgia Kenney and Margaret Davis, is given to the Home."

In 2 Lomax on Ex'rs, p. 12, § 10, it is said: "Where there are words in a will which have no meaning, or which are contrary to the general meaning of the testator, they will be rejected; and, on the other hand, words omitted by mistake, and which are absolutely necessary to effectuate the general intention, will be supplied."

"In order to fulfill the manifest general intention of the testator, the court will supply such words as, from the general complexion of the will, compared with the situation of the testator and of the legatees and objects of his bounty, are absolutely necessary to effectuate the purposes and dispositions intended by him." 2 Lomax on Ex'rs, 13. See, also, Schouler on Wills, § 477.

In Mead v. Coolidge, 179 N. Y. 386, 72 N. E. 314, a case very similar in its facts to this, the court held: "When death of cestul que trust (son) before that of beneficiaries of other trusts (brother and sister), the principal of which was directed to be added upon their (brother and sister) death to his (son) fund, does not result in failure to dispose of it, although the testator did not expressly provide for such a contingency." The court said: "It is true, of course, that the particular event which has happened is not described in the will, and that we may infer that the testator did not suppose that the son would fail to survive the older lives; but that will not suffice to defeat the evident testamentary scheme." And again: "The condition that they (brother's and sister's trust fund)

MILLER, J. In the circuit court there was a verdict and judgment thereon in favor of the plaintiff, W. J. Peters, against B. Moore and T. L. Henritze for $1,061.17. The usual motions to set aside the verdict, to arrest judgment thereon, and for a new trial were overruled. The declaration was debt, in five counts, to which and to each count a demurrer was interposed and overruled. While the petition for the writ of error makes this ruling of the court one of its points of objection to the judgment, the point seems to be abandoned in the briefs and arguments of counsel; for it is not mentioned therein, and no grounds therefor are assigned. As we do not perceive any material objection to the declaration, so that a judgment thereon according to the very rights of the case may not stand, we will take no further notice of the point.

The immediate cause of action was a negotiable note dated January 19, 1905, purporting to have been made and signed by the Nolan Coal Company by B. Moore, treasurer, whereby 120 days after date "we promise to pay to the order of W. J. Peters one thousand dollars, negotiable and payable at the Bank of Bramwell, Bramwell, W. Va. Homestead and all other exemptions waived by the maker and each indorser. Value received." At the time the note was made, and before it was delivered to the payee, It was indorsed by B. Moore and T. L Henritze, and the pleadings and proof show that it was thus made and indorsed and delivered in renewal of a previous note of like amount, made and indorsed and delivered to the plaintiff by the same maker and indorsers, in consideration of $1,000 advanced by him by his check to the defendant Henritze, as attorney for the coal company, to pay on the debts of that company in accordance with an agreement with creditors previously negotiated by Moore and Henritze on behalf of the company. The plaintiff, who advanced the money on the original note, some 14 days afterwards indorsed his own name before the names of Moore and Henritze, and negotiated it at the Bank of Bramwell. Afterwards he accepted the said renewal note so made on the same terms of security, and used it in the bank to take up the old note. He has elected to treat these irregular indorsers as makers, and as primarily liable to him, and has sued them as such. Our previous decisions, and the authorities therein cited as binding us, so clearly state the law respecting the rights of the holder and the liabilities of such ir

we need only refer to them. As there stated, the law is that when one makes a negotiable note to a payee, and others put their names on the back of it, the payee not indorsing it, and it is then delivered to the payee, he may treat them all as joint makers, or he may treat those putting their names on the back of the paper as indorsers or guarantors, at his election, unless he agrees before or on the delivery of the paper to treat them in a particular one of those characters. Burton v. Hansford, 10 W. Va. 481, 27 Am. Rep. 571; Long v. Campbell, 37 W. Va. 665, 17 S. E. 197, and cases cited; Roanoke G. & M. Co. v. Watkins, 41 W. Va. 787, 24 S. E. 612; Miller v. Clendenin, 42 W. Va. 416, 26 S. E. 512; Golding Sons Co. v. Cameron Pottery Co. (opinion by Judge Sanders, decided at the October term of this court) 55 S. E. 396. The rule stated above is substantially in the language of Judge Brannon in Miller v. Clendenin, and of Judge Sanders in the last case decided by this court. While the words "indorser" and "security," used by the witnesses in this case, have ordinary, legal and technical meanings, yet, as Judge Brannon says in Miller v. Clendenin, supra, with reference to the evidence in that case "even if 'indorser' were used, it would not alone tie Miller down to regard the parties as such, as it would be construed only in the general sense of surety."

The point is made in this case that the note sued on, the renewal note, and also the original note, after they were made and the money was advanced by the payee, Peters, he indorsed his name ahead of Moore and Henritze, and discounted the same in the bank, thereby evidencing an agreement to be either held first liable, or bound jointly with the other indorsers. This would be true as to the bank that discounted the note for Peters; but, as between Peters, and the maker and indorsers, they are bound according to the original contract at or before the time the paper was made and delivered to Peters, and the right of election of the payee would not be destroyed by any subsequent disposition of the paper by him. In the case of Orrick v. Colston, 7 Grat. 189, the payee, after the note was made and delivered to him, and before he sued the maker and indorser, wrote above the name of the indorser: "In consideration of the loan of $1,000 by the payee, I guarantee the payment of the within sum of money." The declaration in the case charged Colston both as original surety for the debt and also as guarantor, and the court held it was competent for the payee to make his election at any time. In Miller v. Clendenin the evidence was that the payee, Miller, some four years after the note matured, and after Clendenin, the maker, had become insolvent, asked him to give him a new note, saying that he had no security on that note at all, that he could not

hold Barbee and Mossman any longer, and that he had also said to Mossman that he wanted him and Barbee to give a new note, that he could no longer hold them; the time having expired. Judge Brannon, commenting on this evidence, says: "What does this talk mean? Not a release, for he still claimed the debt, and there was no consideration for a release. But it is not relied upon as a release, but as showing that from the beginning Miller regarded Barbee and Mossman as indorsers. Unless such was the agreement, he could change his mind at any time, even if he so intended, or, through ignorance of law, knew no better, for, as said in Hansford v. Burton, supra, the payee may exercise the option to treat those who put their names on the note in one character or another at any time, and so long as he holds the note it may be changed at his pleasure, even after suit."

These authorities clearly indicate that the rights and liabilities of the parties to such paper are to be determined by the facts existing at the time of the original transac tion. The indorser Moore in his testimony says it was his understanding that the note was to have been discounted in the Bank of Bramwell to meet Peters' check, but he is not supported in this by the evidence of elther Peters or Henritze. The cases of Miller v. Clendenin, 42 W. Va. 418, 419, 26 S. E. 512, and Long v. Campbell, there cited, decide that all such agreements or understandings affecting the prima facie rights of the payee of such irregularly indorsed paper must be shown to have been had or made with the payee in order to deprive him of such rights.

The questions of fact, whether by the agreement between the maker and the indorsers, and the payee of the original and the renewal note sued on, the indorsers were to be treated as joint makers, or as guarantors or indorsers, were all in issue before the jury; and we cannot disturb their verdict, except upon the well-settled rules of law.

But preliminary to that subject, and as affecting the verdict, some questions arising at the trial are presented. First, as to the admission in evidence on behalf of the plaintiff of a deed of trust dated October 1, 1904, from the Nolan Coal Company to Geo. E. Miller, trustee, for the purpose of showing that the partial consideration or purpose thereof, as recited therein, was "to indemnify and save harmless B. Moore and T. L. Henritze as indorsers for the party of the first part upon a note executed by the Nolan Coal Company to W. J. Peters, and indorsed as aforesaid, which note will be due and payable four months from its date with interest, dated Sept. 19th, 1904." The record shows that this deed was first offered in evidence by the plaintiff in connection with the cross-examination of the defendant T. L. Henritze, when the objection thereto was sustained. The witness had stated that he

56 S.E.-47

The

had been acting in the whole matter, except in so far as the indorsement of the note was concerned, as attorney for the company, and knew of the existence of this deed of trust, but was not sure whether he as attorney had prepared the deed of trust, as the certified copy had no earmarks by which he could determine whether he had prepared the paper or not. Afterwards, when the defendants closed their evidence, the plaintiff again offered the deed on re buttal, and it was admitted over the defendants' objection, by which we understand the first ruling was based solely on the irregularity of the offer; it being proper evidence in rebuttal. If this deed was not proper evidence in rebuttal, why not? On its face it shows it was attested by Moore as secretary, and it appears to have been acknowledged by President Elliott on behalf of the company before T. F. Henritze, a son and law partner of the defendant Henritze. recital certainly tends to support the claims of the plaintiff; and though, so far as the record shows, not a contemporaneous transaction, yet it does recite the agreement made with the creditors by Moore and Henritze prior to the making of the original note in controversy substantially as these witnesses testify. They had the opportunity, but did not undertake, to rebut the presumption that the deed recites the facts in regard to their position on the note. The deed, therefore, amounts to a declaration by the defendants of a pecuniary or proprietary nature against their interest, and is admissible on that ground, if no other. Bartlett v. Patton, 33 W. Va. 71, 10 S. E. 21, 5 L. R. A. 523, Syl. point 8; Tate v. Tate's Ex'r, 75 Va. 532. This is true, although the facts were not communicated to the plaintiff at the time. Schwartz v. Hersker, 140 Pa. 550, 21 Atl. 401. And such admissions of one of the parties to the record, whether as plaintiff or defendant, are competent evidence against all the other parties to the sult who have a joint interest in the matter of it with the party making the admission. Dickinson's Ex'r v. Clarke, 5 W. Va. 280; 1 Am. & Eng. Enc. L. (2d Ed.) 703. Such admissions may be made, in a deed (16 Cyc. 945), or in a memo randum (Tate v. Tate's Ex'r, supra). When offered by the parties or their privies, they are generally conclusive; but, when offered in evidence by strangers, they are not conclusive, but the adverse party may repel the effect in the same manner as though they were parol admissions. 1 Greenleaf on Ev. § 211. On these authorities and many others, we conclude the court committed no error in admitting this deed in evidence.

Another preliminary question is as to the giving of instructions A and B of the defendants. Instruction A was as follows: "The court instructs the jury that if they believe from the evidence in this case that the note was executed in renewal of a note which was made for the purpose of enabling the