L. Kidd and Mrs. F. H. Kidd. At a subse- shown; that he cannot be positively proved quent day R. Lee Camden filed his petition to have been influenced by interested mofor an appeal from the same decree, which tives." was awarded July 20, 1912.

The errors assigned by Camden in his petition are, first, that the court should have dismissed the rule on the ground that it was without jurisdiction.

Such being the relations that the directors occupy towards the corporation, the duties which they owe the creditors and depositors, and the obligations which they incur if those duties be not faithfully performed, it would [1] The bill was filed by certain individu- seem to follow that in the faithful discharge of als styling themselves directors and stock- their duties it would be proper for them to apholders of the defendant corporation. The ply to a court of equity so to administer the object of the bill plainly is to have all the affairs of the embarrassed corporation as to assets of the corporation administered by a diminish as far as possible the injury to all court of equity, so as to protect the rights concerned, including creditors, depositors, and interests of all concerned. The bill and stockholders. Owing to the relation exstates the case of the plaintiffs very briefly isting between the directors and the corporaand succinctly, but from its averments no tion, they must be presumed to have an intidoubt is left that the affairs of the defend- mate and intelligent acquaintance with its ant were much complicated. It conducted affairs, and to be able to direct and assist not only a bank of deposit in Alexandria in realizing its assets and in ascertaining with branches in other parts of the state, but its obligations, and to that end to apply to it acted as a bonding company, as executor, a court of equity for its assistance. and as trustee. It had large liabilities and resources, including an assignment by its president, for the benefit of depositors and other creditors, of real and personal property of an estimated value, as stated in the bill, of $200,000.

[4] For another reason directors should be allowed to file such a bill as that before us. If the assets of the corporation prove inadequate to satisfy its liabilities, the directors are liable to stockholders and creditors for any damages which may accrue by reason of any negligence on their part, and it would seem to be nothing more than just that they should be allowed to come into court and defend themselves by anticipation against any possible charge of neglect of duty as

use all the means at their disposal to repair the consequences of their default to themselves and to others.

[2] In Marshall v. F. & M. Savings Bank of Alexandria, 85 Va. 676, 8 S. E. 586, 2 L. R. A. 534, 17 Am. St. Rep. 84, this court quotes with approval from Morawetz on Private Corporations, who, speaking with reference to the duties of directors, says (sec-directors, or if such neglect in fact existed tion 552) that "the plain and obvious rule is that directors impliedly undertake to use as much diligence and care as the proper performance of the duties of their office re- This bill is in no sense one to wind up the quires. What constitutes a proper perform-corporation. Its sole object is to collect the ance of the duties of a director is a question corporation's assets and distribute them equiof fact, which must be determined in each tably among those entitled. case in view of all the circumstances, the character of the company, the condition of its business, the usual methods of managing such companies, and all other relevant facts must be taken into consideration."

In Thompson on Corporations (2d Ed.) § 6485, it is said: "The mere insolvency of a corporation, however extreme, will not operate as a dissolution of the corporation. While this may be a ground for the appoint[3] In the course of its opinion in that ment of a receiver or an assignment for the case the court said: "The high decree of benefit of all creditors, still a corporation confidence and responsibility resting upon di- may exist as a legal entity without any proprectors of corporations has often led the erty or assets, and that by unfortunate busicourts to regard them as trustees, and to ness transactions it has become totally bankdeclare the relationship existing between rupt, or by some extraordinary disaster has them and the stockholders to be that of trus- been stripped of all its property, so that it tees and cestui que trustent, respectively. If is unable to continue its business or pay its this can be asserted with regard to the gen- existing indebtedness, still it is not diserality of corporations, it is peculiarly and exceptionally true with regard to banking corporations. The directors of a bank are not trustees for the stockholders alone, but they owe an even earlier duty to the depositors. The law is, as it ought to be, very zealous in exacting the strict and thorough performance of these duties, and it is in the scrutiny of possible breaches of them that the rigid rules which govern trustees have been applied. It is not enough to exculpate

solved."

Nor does the appointment of a receiver operate a dissolution of the corporation; and this is true though the receiver, in the discharge of his duties, may sell and dispose of all the corporation property. Id. § 6486.

We are of opinion that the court had jurisdiction to appoint receivers, and to collect and distribute the assets of the corporation.

As we have seen, the case of Kidd v. Va.

want of proof to establish the contempt. ther deposits, but that with full knowledge Kidd and his wife had no relation to the of all these facts, and with consciousness corporation other than as depositors. They that he was doing that which he had not the denied that when they collected the money lawful right to do, he wrongfully paid over due upon the certificate of deposit they had the money, with an injunction that his act any knowledge of the appointment of re- was to be kept secret. ceivers to take charge of the assets of the corporation, and the court held the proof to be insufficient to overcome that denial. With reference to the appellant, however, the case is different. He was the manager at the town of Lovingston, Nelson county, Va., of a branch of the Virginia Safe Deposit & Trust Corporation. The trust company was itself in possession of the money deposited in that bank and stood towards its depositors in the relation of a debtor to creditors. Camden was the mere custodian and agent of the trust company, the manager of its affairs, and subject to its orders with respect to the business intrusted to him.

[5] In his answer to the rule he says that about 10 o'clock on the morning of the 29th of December, 1910, while he was waiting on a customer, he received a telegram as follows: "Receivers were appointed last evening for Virginia Safe Deposit & Trust Corporation. Close doors of your branch and transmit all funds on hand to the receivers by express. Receive no further deposits. [Signed] C. J. Rixey, Pres. John D. Barbour, J. K. M. Norton, Receivers." That he was greatly shocked by the news, and at the earnest solicitation of Kidd, who represented that the loss of the deposit made by his wife, which represented the savings of a lifetime and the fruits of hard work as a teacher, would re

sult in her death, he yielded to his request and paid to him the sum of $2,193.33, the amount of the said certificate of deposit held

by Mrs. Kidd.

Testifying as a witness in his own behalf, in answer to a question propounded to him by the court, as to whether or not Kidd knew that the bank had been put into the hands of receivers, he said:

In section 145 of High on Receivers it is said that courts are reluctant to interfere by receiver with property of third persons, and that the receiver should assert the claim by independent action; but in this case the court was not interfering with property of third persons through its receivers. It had required its receivers to take possession of all of the property of the corporation, and the receivers had duly notified the manager at Lovingston of this order. All the property within his possession as manager was the property, not of a third person, but of the corporation.

In section 144 of the authority just quoted it is said that: "The receiver of an insolvent corporation may, by petition in the cause in which he was appointed and without the necessity of an independent suit, procure the transfer and delivery of a note held by officers of the corporation as a part of its assets, even though such officers are not parties to the cause. And when a receiver is appointed over real property, of which the owner is in possession, the proper course is to apply to the court to have the owner deliver possession to the receiver, since the latter cannot distrain upon the owner in possession, as he is not a tenant of the receiver.

Such procedure does not conflict with the principle that no man shall

be deprived of his property without due process of law, since the surrender to the receiver does not affect the ultimate question

of the right to the property, any more than

does the levy of an attachment; the purpose being merely to secure the property by getting it into the receiver's possession, so that it may be safely delivered to the party who shall be finally determined to be entitled thereto. And the order for the surrender of property to the receiver may, if necessary, be enforced by process of attachment."

In Ames v. Trustees of Birkenhead Docks, 20 Beav. 332, it was said: "There is no question but that this court will not permit a receiver, appointed by its authority, and who is, therefore, its officer, to be interfered with or dispossessed of the property he is directed to receive by any one, although the order appointing him may be perfectly erroneous; this court requires and insists that application should be made to the court for permission to take possession of any proper

So that it appears, not only that he re-ty of which the receiver either has taken or ceived a telegram notifying him that the is directed to take possession, and it is an corporation had been put into the hands of idle distinction that this rule only applies receivers, and directing him to close the doors to property actually in the hands of the reof the branch of which he was the manager ceiver. If a receiver be appointed to reand transmit ali funds in his possession to ceive debts, rents, or tolls, the rule applies

Waller, 1 Grat. (42 Va.) 465, 42 Am. Dec. | case and relieves us from many of the in564, a transcript of 29 Car. 2 with the ex- conveniences growing out of the admission ception that it dispenses with subscribing of parol testimony to prove the testamentary witnesses in cases of wills wholly in the intent. The will, whether of realty or perhandwriting of the testator, while the Eng-sonalty, is a statutory disposition of the lish statute required the will to be attested property. The very paper must have been and subscribed by three or more credible intended as and for the last will. Where witnesses, in holographic as well as in the legal formalities are complied with, it other wills. In 1849 our statute was amended stands as the last will, unless canceled or by the introduction of the words "in such revoked in the mode prescribed. If those manner as to make it manifest that the name formalities are wanting, parol testimony as is intended as a signature." There have to testamentary intent cannot supply the been numerous cases before this court aris- defect. It is the policy of the law to guard ing under that statute, but they were all against setting up or destroying wills by cases of unattested holograph wills. such testimony. The inquiries now

and no proof other than a revocation in the mode prescribed will be received to show a change of testamentary intent."

any one. She personally superintended the whole work. There was, however, no signature at the end; and it is contended by the It would seem, therefore, from the opinion contestants that the single justice was not of Judge Allen that the main fact of the con- warranted in finding that she wrote her nection of the testator with the instrument name at the beginning animo signandi. may be established, not only by the signature "The finding must be interpreted to mean of the testator in the presence of subscribing not simply that after writing her whole witnesses, but by the mere acknowledgment will she adopted as her signature her name in their presence of his signature; that such as written previously in the exordium, but proof has been deemed sufficient in all the that at the time she wrote her name there later cases; and that the finality of an at- she intended that it should stand as her tested will is established by attestation and signature to the will when completed, and publication, for, to repeat a pregnant sen- that this intent continued to the end. Such tence in the opinion of Judge Allen, “no a finding is perfectly consistent with what man publishes an instrument as his last will she did, and is not inconsistent with any act and testament and calls on witnesses to at- of hers. It explains any apparent incongrutest the fact until he has completed the act. ity in the evidence. It welds all the circumThe attestation must be annexed or sub- stances into one harmonious whole and is scribed to a complete instrument, and to supported by the evidence." which, when so subscribed, no additions can be made."

Meads v. Earle, 205 Mass. 553, 91 N. E. 916, 29 L. R. A. (N. S.) 63, was an appeal from a decree of the probate court disallowing an instrument as the last will of Sarah J. Arm

It is to be borne in mind that, when the attesting witnesses were called upon in this case, five sheets of the will had been identified by the signature of the testatrix upon the margin of each page, and that in the pres

ence of the witnesses she affixed her name

The jury by their verdict have declared that the will was duly executed, the judge of the and we have no choice but to affirm the deprobate court has approved their verdict, cision, unless we are prepared to hold that a literal signing at the foot or end of the instrument is necessary in all cases, and this we are not prepared to do.

We gather from our statute, from the de

strong. The appellee requested the judge to for the sixth and last time to the margin rule as matter of law that the instrument of the will as and for her signature, and dewas not signed by the testatrix and attest-clared it to be her last will and testament. ed and subscribed in her presence by three competent witnesses in accordance with the requirements of the statute. The judge declined so to rule, and found as facts that, so far as the will is in manuscript, the handwriting including her name or signature is that of Sarah J. Armstrong; that, although she did not sign at the end of the instrument, yet when she wrote her name at the beginning of the will it was with the intention that this act was a signing of the will; cisions of this and other courts, and especially that independently of the attestation clause from the opinion of Judge Allen in Waller she by words and conduct acknowledged and V. Waller, that in holographic wills proof of declared the will before the subscribing wit- the handwriting establishes the identity of nesses; and that the subscribing witnesses the paper and the connection of the maker signed the attestation clause in her pres- of the will with it; that the finality of such ence at her request and upon her acknowl- will depends upon the signature, which must edgment and declaration that it was her be made "in such manner as to make it maniwill, although neither of them saw her sig-fest that the name is intended as a signanature. Having so found he ruled that "the ture"; that, in the case of attested wills document was signed, attested, and subscribed within the meaning of the statute, and that it was a valid will." The Supreme Court said: "The case is before us upon his report. If the ruling requested by the appellee should have been given, a decree is to be entered affirming the decree of the probate court; otherwise a decree is to be entered reversing that decree, admitting the will to probate, and remanding the case to that court for further proceedings." In the course of the opinion it is said: "There can be no doubt that she intended to make, and supposed she had made, a valid will. The care she took in writing the paper, in seeing to its attestation, and in putting and keeping it in a safe place shows that. She does not

not in the handwriting of the testator, the instrument is incomplete until attested by two witnesses in the mode prescribed by section 2514 of the Code; that when so attested it becomes a complete and final testamentary act, for, again to quote the language of Judge Allen: "The attestation must be annexed or subscribed to a complete instrument, and to which, when so subscribed, no additions can be made. To the act itself the law attaches testamentary intent that it is a concluded instrument, and if the party is under no restraint, acts freely, and is of sane mind, no further proof is requisite to sustain the instrument as a will."

We are of opinion that the judgment complained of should be affirmed.