any work and labor on a railroad. The claimant's labor was held to go into the structure as much as did that of the men who cut and dressed the ties. Eccleston v. Hetting, 17 Mont. 88, 42 Pac. 105. Under a statute which gave a lien on a house for all debts contracted for or work done and materials furnished for or about its erection, a drayman has been held to have a lien for transporting materials. The decision was narrowed by limiting the lien to draymen who were not mere hirelings under the contractor or subcontractors, that qualification, however, not being involved in the case. Hill v. Newman, 38 Pa. St. 151, 80 Am. Dec. 473, wherein the court said: "The law is, that every building may be subjected to a lien for the payment of all debts contracted for work done and materials furnished for or about its erection; and this may very fairly be taken to include the work of hauling the materials to the place of building. We think we should have to unduly strain the language in order to exclude it. It is work about the erection of the house, and is of course charged for by the materialman, when he has the lumber, stone, brick, sand, or lime delivered by his own carters. The hauling away of the clay dug out of the cellar and foundation is always considered proper work for him; and we know not why the carter may not be a proper man to claim it, if he did the work at the request of the owner or the contractor, and not as a mere hireling under the contractor or under a subcontractor."

A statute giving a lien for labor has been held to include the transportation by means of a hoist of materials already on the premises. Tizzard v. Hughes, 3 Phila. 261, 15 Leg. Int. 357. When materials are improperly placed on the premises, a stone layer may move them to a more convenient place, and his lien will cover the cost of the transportation under a statute giving a lien to every person performing work or labor on a building. Tabor v. Armstrong, 9 Colo. 285, 12 Pac. 157. In that case the court said: "The labor of removing cut stone furnished for the second story in order to reach that required for the first, and the work of trans ferring such stone from the Larimer street front to the front on Sixteenth street, where it belonged, became necessary in the erection of the structure. It cannot properly be termed extra work, wholly outside of the principal contract. It had to be done before Armstrong could go on with his work of setting the stone into the respective walls. Had Cook himself employed some day-laborers to do this work, they would, in our judgment, have been as much entitled to a lien as is the man who does any other work preliminary or incidental but essential to and directly connected with the actual laying of the foundation walls, or erection of the superstruc

ture. And we can discover no good reason for applying a different rule to Armstrong merely because he happens to be a subcontractor instead of laborer."

A teamster who hauls pipe and materials for the construction of a gas well is a laborer within a statute giving a lien to mechanics, laborers and materialmen. McElwaine v. Hosey, 135 Ind. 481, 35 N. E. 272, wherein the court said: "The spirit and intention of this statute is to prefer laborers as a class, and not to prefer one class of laborers over another, nor one kind of manual or mechanical toil over another, if all come within the general scope of its provisions and comply with its terms. The law was enacted in the interest of such wage earners generally, and should be liberally construed so as to effectuate the object intended."

A statute which gives a lien to every mechanic or other person who shall do any work on a building applies to a cartman who hauls lumber. Kehoe v. Hansen, 8 S. D. 198, 65 N. W. 1075, 59 Am. St. Rep. 759, wherein the court said: "Ordinarily, the contractor for the material delivers the same, and includes the expense of hauling in the price of the material. No objection, so far as we are aware, has ever been made to thus including the expense of hauling in the price of the material. If it may be so included, and the lien made to cover the same, why may not the cartman make a separate contract for hauling, and acquire a valid lien therefor? We can discover no valid reason why, if the contract to haul the lumber is made directly by the owner with the cartman, he may not enforce a lien therefor. The hauling of the material, in many instances, constitutes a large item in the expense of the building, es pecially where the same is built of stone or brick. Labor, therefore, in getting the material together upon the ground, ready for the structure, is fairly within the meaning of our mechanic's lien law of work upon the building -work that enters into, and constitutes labor upon, the building."

In

Where the cost of transportation can be connected with the purchase price of the materials, the lien will extend to the former item. Page v. Grant, 127 Ia. 249, 103 N. W. 124; Brace, etc. Mill Co. v. Burbank, 87 Wash. 356, 151 Pac. 803; Barker, etc. Lumber Co. v. Marathon Paper Mills Co. 146 Wis. 12. 130 N. W. 866, 36 L.R.A. (N.S.) 875. Brace, etc. Mill Co. v. Burbank, supra, the court said: "Among items of claimed cost of the material furnished by several of the lien claimants was a small charge for cartage. This, counsel for appellants insists, is not properly a lien item. In the light of the fact that the material to be furnished was to be furnished upon the ground at the place of the construction of the house, we are unable to

see why this item of cartage does not properly enter into and become a part of the cost of the material as much as any labor performed upon the material in the production of it. Manifestly the lien claimants furnishing material were to be paid the cost of the material at the place of construction. Under such circumstances, we think that cartage may be regarded as a part of the cost of the material." In Barker, etc. Lumber Co. v. Marathon Paper Mills Co. supra, it appeared that the vendor of materials advanced the freight charges on them. This sum was considered to be connected with the purchase price. The court said: "It is objected that it was not agreed in advance that the freight charges were to be part of the price of the goods. Looking at the substance of things rather than their names, we think that the item was properly allowed as a part of the purchase price of the material, although it may be called an advance of money. Had the contract been to deliver the goods in Wausau, freight prepaid, the plaintiffs would unquestionably have added the freight to the purchase price, and it would as unquestionably have been allowed."

LAMAR ET AL.

V.

CROSBY ET AL.

Kentucky Court of Appeals-January 26, 1915.

162 Ky. 320; 172 S. W. 693.

At

Wills Construction "Children" as Including Posthumous Child. Deceased devised land to his wife, with directions that if she should leave the land or remarry, it should be rented out for the benefit of his "children," and, on their coming of age, equally divided between them. deceased's death, he had two children; a posthumous child being born thereafter. Held, that the posthumous child took by virtue of the will, being in esse and included in the expression "children," and hence was not entitled to claim as a pretermitted child, under Ky. St. § 4848.

[See note at end of this case.] Lapsed Legacy Ancestor of Deceased Legatee. Where a father devised land to his children, and one died without issue while still an infant, the surviving children take as heirs, under Ky. St. § 1401, prescribing the rules of descent, to the exclusion of the mother.

Appeal from Circuit Court, Hancock county.

Action by William Crosby et al., plaintiffs, against Vitula Lamar et al., defendants. Judgment for plaintiffs. Defendants appeal. The facts are stated in the opinion. AF

FIRMED.

W. Scott Morrison and J. R. Higdon for appellants.

G. D. Chambers for appellees.

[321] HANNAH, J.-Z. T. Crosby, a resident of Hancock county, died there domiciled on November 9th, 1893. His last will and testament, dated May 17, 1893, contained the following language, in so far as pertinent upon this appeal:

"It is my will that, after my funeral expenses and all my just debts shall have been paid, that my beloved wife, Vitula A. Crosby, shall live on my farm and have full control of same; but, if she shall leave said farm, I desire that it shall be rented out for the benefit of my children; or, if she should marry again and thereby cease to be my widow, then she is to have no further control or benefit of the farm; but, in that case, I desire that it shall be rented out for the benefit of my children until they become of age, when it may be equally divided between them."

At the date of this will Crosby had two children, William and Artie. Six months after his death another child, Ruth, was born to Mrs. Crosby.

The widow accepted the provisions of the will and continued to reside upon the farm mentioned in the will until May, 1897, at which time she married B. H. Lamar and left the farm. After several years, however, she returned and took possession of it.

Ruth Crosby, the posthumous child, married Larus Rice, but died before reaching the age of twenty-one years, and without issue.

On June 27, 1913, William Crosby, Artie Crosby, Ruth Crosby Rice and her husband, Larus Rice, instituted an action against Vitula Lamar and B. H. Lamar, in the Hancock Circuit Court, to recover possession of the farm mentioned.

On March 2, 1914, an amended petition was filed therein by plaintiffs, William Crosby, Artie Crosby and Larus Rice, reciting the fact of the death of Ruth and claiming the ownership of the farm to be in William Crosby and Artie Crosby, subject to the interest of Larus Rice as surviving husband of Ruth Crosby Rice.

The defendants answered, claiming that the defendant, Vitula Lamar, was the owner of an undivided one-third interest in the farm by descent from her daughter, Ruth Crosby Rice.

A demurrer to this answer was interposed and the cause being submitted thereupon the same was sustained and defendants, refusing to plead further, the court adjudged [322] that William Crosby and Artie Crosby were the owners of the farm subject to the statutory life estate of Larus Rice in one-ninth thereof. From that judgment the Lamars appeal.

1. It is claimed by appellant, Mrs. Lamar, that her daughter, Ruth Crosby Rice, was a pretermitted child, and that, under Section 4848, Kentucky Statutes, she took an undivided one-third interest in the farm, not by descent from her father, however, but by contribution from her two brothers; it being the contention of appellant that the two brothers took each a one-half interest in the farm as devisees under their father's will, but, by virtue of the statute mentioned, were required to make up their sister's share, as a pretermitted child, by contribution; that, therefore, the interest of the daughter Ruth descended, under Sub-section 2 of Section 1393, Kentucky Statutes, to her mother.

Appellees seem to concede that their sister Ruth is a pretermitted child; but they contend that, although under the statute, her share is made up by contribution, yet, in point of fact, it was derived by descent from her father by virtue of the statute; and that, therefore, it descended to them under Section 1401, Kentucky Statutes.

Ruth Crosby Rice was a posthumous child, but she was not a pretermitted child.

By

his will her father devised the farm "to his children" as a class, without specifically naming them. Had he named William and Artie Crosby in the will as his "children," and had Ruth Crosby (of whose existence en ventre sa mere the law presumes her father had knowledge at the time of his death) not been provided for or expressly excluded by the will, then she would have been, in law, a pretermitted child within the purview of Section 4848, Kentucky Statutes.

The statute on pertermittance was enacted to relieve against unintentional disherison of a testator's children; but in the case at bar the testator did not unintentionally omit to make provision for Ruth Crosby; he devised the farm to "his children," and at the time of his death, in law, she was one of them.

Subject to the qualification that it must be born alive, a child en ventre sa mere is, in law, considered in esse from the date of its conception, for all purposes beneficial to

take under the devise. Such a child is included within the motive of the gift. Adams v. Logan, 6 T. B. Mon. (Ky.) 175; 119 Am. St. Rep. 946, note; 7 Ann. Cas. 134, note; 43 Am. Dec. 474, note; 4 Kent's Comm. 13th Ed. Section 412; 40 Cyc. 1452, 1479.

In this State the court has gone so far as to hold that where there is a general devise to "the children" of another than the testator, such devise includes all the children of such person living at the death of the testator as well as any that may thereafter be born. Lynn v. Hall, 101 Ky. 738, 19 Ky. L. Rep. 996, 43 S. W. 402, 72 Am. St. Rep. 439; Gray v. Pash, 66 S. W. 1026, 24 Ky. L. Rep. 963; Goodridge v. Schaefer, 68 S. W. 411, 24 Ky. L. Rep. 219; Caywood v. Jones, 108 S. W. 888; U. S. Fidelity, etc. Co. v. Douglas, 134 Ky. 374, 120 S. W. 328, 20 Ann. Cas. 993. In Barker v. Barker, 143 Ky. 66, 135 S. W. 396, it seems, however, that the rule laid down in the foregoing cases may be limited to devises to the children of a near relative, and not necessarily applicable where the devise was to the children of a stranger in blood to the testator.

These authorities are here mentioned only for the purpose of illustrating the rule that where a devise is to "the children" of a desig nated person, without specifically naming them, they take as a class.

So, although the child Ruth was en ventre sa mere at the time of her father's death, she was, nevertheless, his child at that time in esse, and she took as a devisee under the will in equal measure and in the same manner as the testator's other children, her brothers.

And, by Section 1401, Kentucky Statutes, her undivided one-third interest, which she acquired by devise under her father's will, descended to her brothers, subject only to the statutory life estate of her surviving husband in one-third of her interest.

The judgment of the lower court to this effect is, therefore, affirmed.

NOTE.

When Gift to "Children" and Like Includes Child En Ventre Sa Mere.

The rule recognized In re Salaman [1908] 1 Ch. (Eng.) 4. 12 Ann. Cas. 199, that a gift to "children" ordinarily includes a child who is at the time when the gift takes effect en ventre sa mere, is supported by the few recent cases which have discussed the question. Norton v. Mortensen, 88 Conn. 28, 89 Atl. 882; Hewitt v. Green, 77 N. J. Eq. 345, 77 Atl. 25; James v. James (Tex.) 164 S. W. 47. And see the reported case. "A child en ventre su mere will be considered

ventre sa en

in being from the time of its conception where it will be for its benefit to be so considered." Norton v. Mortensen, supra. "The phrase 'surviving grandchild' when used in a gift to grandchildren includes any grandchild who may at the time of the death of the testator be mere." Hewitt v. Green, supra. So in James v. James, supra, there was involved the following provision: "I desire that all my property of every kind be divided in equal shares to my children excepting Scott H. James, his share to go to his children-he receiving nothing." court said: "As no period was mentioned by the testatrix for the vesting of the devise to Scott H. James' children, the same vested at the death of the testatrix, and only the children in being at the time of her death were included in the devise to Scott H. James' children as a class, but a child en ventre sa mere is included among those in being, and therefore Mary Josephine James took under the will."

The

In Stachelberg v. Stachelberg, 192 N. Y. 576, 85 N. E. 1116, affirming 124 App. Div. 232, 108 N. Y. S. 645, it was held, under a statute, that a child of the testator born after the testator's death was entitled to succeed to the same portion of his father's estate as would have been distributed to him had the father died intestate, where he was not mentioned in the will and no provision was made for him therein. Similarly In re Griffiths [1911] 1 Ch. (Eng.) 246, it was said: "Now s. 33 of the Wills Act provides that 'where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.' The defendant Edith Mary Griffiths is issue of the testator's son Arthur, and she was living although not born at the testator's death, and I do not hesitate to decide that s. 33 applies to such a case."

PEOPLE EX REL. CARUS

V.

MATTHIESSEN.

Necessity of Notice.

On quo warranto to require a defendant to show by what right he acted as director in a corporation, it appeared that the by-laws of the corporations provided for an annual meeting of the stockholders to elect directors on December 18th; that ever since its organization the stockholders of the company by mutual consent met about 10 A.M. on that day without notice as required by Laws 1857, p. 162, § 6, under which act the corporation was organized; that at the meeting so held which elected defendant two stockholders appeared, one of whom protested against the meeting, the other saying nothing, and upon the failure of the protest both withdrew. Held, that defendant's election was void. since the meeting was illegal for want of notice as required by the act.

[See 7 R. C. L. tit. Corporations, p. 336.] Same.

The facts that the stockholders for 20 years had held meetings by common consent without notice, and that the two stockholders being present at the meeting in question might have participated, and hence were not injured by want of notice, does not render the meeting valid, since the notice required by the act is indispensable, unless waived either expressly or by participation in the meeting. Waiver of Notice.

The action of the stockholder in continuing to remonstrate after business had been taken up by the meeting is not a participation therein waiving the right to legal notice. [See note at end of this case.]

Same.

The action of the other stockholder in being present until after the assumption of business, but remaining mute and withdrawing upon the failure of the first stockholder's remonstrance, is not a participation in the meeting waiving the right to legal notice. [See note at end of this case.] Effect of Failure to Give Notice.

The correct rule is that, where required by statute, the absence of notice explicitly naming the day, time, and place of meeting invalidates the meeting, unless the stockholders are all present and consent, and, if a single stockholder refuses to consent, the proceedings will be void.

Appeal from Appellate Court, Second District.

Information in nature of quo warranto. Mary Hegeler Carus, relator, and F. W.

Matthiessen, defendant. Judgment for defendant in Circuit Court, La Salle county: DAVIS, Judge. Judgment reversed by Appellate Court. Defendant appeals. The facts are stated in opinion. AFFIRMED.

William J. Calhoun and M. F. Gallagher for appellant.

George Wiley, Montgomery, Hart, Smith & Steere, Charles S. Cutting, N. H. Pritchard and J. D. Dickerson for appellee.

[500] COOKE, J.-The People, on the relation of Mary Hegeler Carus, individually and as trustee under the will of Edward C. Hegeler, deceased, appellee, filed an information in the nature of a quo warranto in the circuit court of LaSalle county against the appellant, F. W. Matthiessen, calling upon him to show by what authority he was exercising the office of director of the Matthiessen & Hegeler Zinc Company, an Illinois corporation. The plea of appellant set forth his election as a director on December 18, 1913, and averred title to the office by virtue of such election. The circuit court found that the appellant had been duly and regularly elected a director of the company at a stockholders' meeting held December 18, 1913, and a judgment of not guilty was entered. This judgment, on appeal, was reversed by the Appellate Court for the Second District and a judgment of ouster was entered. The cause is brought here by appeal on a certificate of importance.

The sole question involved is whether the meeting of December 18, 1913, was a legal meeting of the stockholders of the corporation. It is the claim of appellee that as the notice of the meeting required by law was not given, any action taken was invalid, while appellant contends that sufficient notice was given, and if not, that all the stockholders were present, and it was therefore immaterial whether notice was given.

The corporation was organized in 1871 under a general incorporation act passed in 1857. (Laws of 1857, p. 161.) The capital stock was divided into 426 shares, and these [501] shares were distributed among F. W. Matthiessen and Edward C. Hegeler and the members of their immediate families, the members of each family owning 213 shares. Section 6 of the act of 1857, under which the company was organized and which became a part of the charter of the corporation, provides that an annual election of directors shall be held at such time and place as the board may designate, and a written or printed notice of such election shall be given to each stockholder personally or sent to him through the mail at least fifteen days before the day of the election, and the elec tion shall be made by such of the stockhold

ers as shall attend for that purpose, either in person or by proxy. It is conceded that the notice required by this section of the statute was not given of the meeting of December 18, 1913. The by-laws of the company provide that the annual meeting of the stockholders for the election of a board of four directors shall be held at the office of the company, in the city of LaSalle, on December 18 of each year, excepting when that day shall fall on Sunday, in which case the meeting shall be held on the following day. The hour for holding the meeting is not fixed in the by-laws.

There was no material controversy as to the facts. It appears that the notice of the annual meeting required by the statute had never been given, but ever since the organization of the company the stockholders met by common consent some time during December 18 of each year, usually about the hour of ten o'clock A. M., for the annual election of the board of directors. If for any reason it did not suit the convenience of either appellant or Hegeler to meet at the office of the company, the meeting, by consent of all the stockholders, was held elsewhere. The stock was held by a very limited number of persons and the business was transacted harmoniously, two members of the Matthiessen family and two members of the Hegeler family being elected to the board of directors each year. After the death of Edward C. Hegeler 211 shares of the Hegeler stock was held by [502] Mrs. Carus as trustee under the will of her father, one share was held by Mrs. Carus in her own right, and one share by C. B. Lihme, a son-in-law of Edward C. Hegeler. Mrs. Carus was a director and president of the company, and Lihme was the other director representing the Hegeler interests. This was the situation on December 18, 1913. On December 17, 1913, appellant and others instituted quo warranto proceedings against Lihme to contest his right to hold the office of director in the company, and summons in that case was served on him either that evening or the next morning. Mrs. Carus and Lihme went to the office of the company in LaSalle about ten o'clock the morning of December 18, 1913. They found there present all the Matthiessen stockholders, either in person or by proxy. Lihme was much excited over the action which had been instituted against him, and he at once demanded of appellant that no election be held and no business be transacted at that time. Some of the witnesses testify that he demanded that the meeting adjourn until some time in the fu ture, but all the testimony is to the effect that he demanded that no action be taken

that day. While Lihme was engaged in making his demands a member of the Matthiessen family moved that appellant be