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by the husband be bona fide, and no right is tions. When general words follow particureserved to him, though made to defeat the lar and specific words, the former must be right of the wife, it will be good against confined to things of the same kind. Sutherher." And the court refers to Dunnock v.land, Stat. Constr. § 268, 273, 277; Guptil Dunnock, 3 Md. Ch. 140; Cameron v. Cam-v. Mc Fee, 9 Kan. 30, 37; White v. Ivey, 34eron, 10 Smedes & M. 394, 48 Am. Dec. 759; Ga. 186, 199; State v. McGarry, 21 Wis. 496, Lightfoot v. Colgin, 5 Munf. 42; Stewart v. 498. The word "creditors" serves to limit Stewart, 5 Conn. 317; and Holmes v. Holmes, and control the generality of the following 3 Paige, 363, — -as fully supporting the doc- words "other persons" so as to include only trine. The court further says: Again, the those of like or similar kind and nature to act of 1861, known as the 'Married Woman's creditors. Law,' confers upon femes covert the power of disposing of their separate property, absolutely and as they may choose, free from the control of their husbands. It was manifestly the intention of the general assembly to confer on married women the same, and no greater, rights, in regard to their property, as were possessed by their husbands. It would be singular, and we cannot suppose that the leg. islature could have intended to confer other or greater power on the wife than upon the husband. To hold that a feme covert has a vested interest in her husband's personal estate, that he is unable to devest in his life time, would be disastrous in the extreme to trade and commerce. Owing to commercial necessities, personalty must be left free for exchange, and, to be so, some one must be vested with full power to sell and transfer it free from latent and contingent claims." It is contended by counsel for Rebecca Small that section 4 of the Illinois statute of frauds was amended in 1874, after the rights in the Padfield Cases had vested, so that gifts made with intent to defraud "creditors or other persons" (the last three words having been added) were declared void, and that a widow comes within the designation of "other persons, " and therefore the doctrine in the last, Padfield Case is changed by statute; and that this is recognized in Tyler v. Tyler, 126 Ill. 525. In that case it appears that William A. Tyler, in anticipation of proceedings by his wife against him for separate maintenance, in Broome county, N. Y., went to Conneaut, Ohio, and assigned and delivered to his son, John B. Tyler, a large amount of notes, bonds, and mortgages, and also indirectly transferred to him certain lands. The suit was brought by the wife soon after the transfer. Afterwards William A. Tyler commenced an action in Illinois against his son to compel a reassignment of said notes, bonds, and mortgages and a reconveyance of the lands; but it was held by the supreme court of Illinois that the action could not be maintained, said William A. Tyler having transferred the property with intent to defraud the wife, and to render any judgment for separate maintenance ineffectual, the wife coming within the designation of "other persons" in said section 4 of the statute of frauds as amended. The Padfield Cases are not over ruled, distinguished, nor otherwise referred to, but the case follows Draper v, Draper, 68 Ill. 17, where it was held that a convey ance, after bill filed for divorce and alimony, with intent to deprive the wife of alimony, was fraudulent, and should be set aside. The phrase "other persons" probably would not include a widow seeking to enforce her rights under the statute of descents and distribu

There seems to be a distinction between the rights of a widow and those of a wife driven by the aggressions of her husband to a suit for alimony or separate maintenance. In the latter case the wife is seeking to establish an unliquidated claim against her husband for money or property, and her relation to him is that of a quasi creditor. This dissimilarity is pointed out by Agnew, J., in Bouslough v. Bouslough, 68 Pa. 495, 499, as follows: "So the rule that forbids the wife to avoid the voluntary assignment or gift of her husband must change when her relation to him changes. There is no reason why a wife whose husband has deserted her, and refused to perform the duty of maintenance, or who, by cruel treatment, has compelled her to leave his house and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in relation to the alimony which the law awards to her. So long as she is receiving maintenance, and is under his, wing as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor in fact, and she is not to be balked of her dues by his fraud." Recognizing this distinction, it would seem that Rebecca Small, while residing with her hus band in the most amicable relations, could not have maintained an action to set aside or annul the advancements and gifts to the children, nor to compel either her husband or the children to account to her for the same; and, as these advancements and gifts were valid as to her and valid as to Daniel Small when made, they formed no part of the estate at his death. But we need not go so far in this case. The reasoning in Padfield v. Padfield, supra, as to the married woman's law in Illinois is of much force here. In some states property acquired during coverture is known as community property," and partakes to some extent of the nature of partnership property between husband and wife; but our legislation is in the opposite direc tion, manifesting a purpose to maintain, as far as practicable, the separate rights of husband and wife as well to accumulations during as before the existence of the married relation, and each is entitled to dispose of his or her own goods and chattels, with a slight modification as to mortgaging the same. Some of our former decisions have accorded in spirit with the doctrine established in Illinois. Butler v. Butler, 21 Kan. 521, 525, 526, 30 Am. Rep. 441, Munger v. Baldridge, 41 Kan. 241-244. The cases of Busenbark v. Busenbark, 33 Kan. 572, and Green v. Green, 34 Kan. 740, 55 Am. Rep. 256, both relate to protection of the husband and wife re

spectively during coverture from fraudulent | serting a contrary doctrine are generally unalienation of real estate by the other, and are der statutes or customs different from those only remotely analogous to the case now un- of Illinois and Kansas, and we think the der consideration. In Williams v. Williams, weight of authority in states having statutes in the circuit court of the United States for upon this subject of the same general nature the district of Kansas (40 Fed. Rep. 521), as our own establishes the doctrine herein anFoster, J., delivering the opinion of the nounced. We cite some authorities in addicourt, said: "The main question, in its tion to those herein before given, viz.: Prinbroadest sense, is simply this: Can a mar-gle v. Pringle, 59 Pa. 281; Lines v. Lines, 142 ried man give away his property, during Pa. 149; Richards v. Richards, 11 Humph. coverture, for the purpose of preventing his 429; Sanborn v. Goodhue, 28 N. H. 48, 59 wife from acquiring an interest therein after Am. Dec. 398; Ford v. Ford, 4 Ala. 142, his death? The law seems to be that if such 146; Smith v. Hines, 10 Fla. 258, 285; Stewgift is bona fide, and accompanied by de-art, Husb. & W. § 301; Thornton, Gifts, livery, the widow cannot reach the property 488. We are of opinion that the rights of after the donor's death. Neither the Rebecca Small are controlled by the will and wife nor children have any tangible interest the contract of May 9, 1888. If there was any in the property of the husband or father dur-real estate or personal property in Illinois or ing his lifetime, except so far as he is liable elsewhere not disposed of by the will nor for their support, and hence he can sell it or included in the contract, of course she is engive it away without let or hindrance from titled to her proper share of the same. them. Of course the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor it would bind his heirs."

We

are aware that the authorities are not all in harmony upon this subject, but the cases as

The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.

All the Justices concur.

Rehearing denied December 21, 1895.

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT.

2. Two states cannot by joint action create a corporation which will be regarded as a single corporate entity, and for jurisdictional purposes a citizen of each state which joined in creating it.

3. The result of creation by one state of a corporation of a given name, and the declaration of the legislature of an adjoining state that the same legal entity shall be or become a corporation of that state, and be entitled to ex

ercise within its borders all of its corporate functions by the same board of directors, is not to create a single corporation, but two corporations of the same name having a different paternity. 4. An interstate corporation having but one board of directors, formed by process of consolidation or otherwise, acts in each of such states as a domestic, and not as foreign, corporation.

a

NOTE. As to residence or citizenship of corporations for purposes of jurisdiction, see note to Stephens v. St. Louis & S. F. R. Co. (C. C. W. D. Ark.) 14 L. R. A. 184.

(September 2, 1895.)

RROR to the Circuit Court of the United

a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. Reversed.

The facts are stated in the opinion.

Before Caldwell, Sanborn, and Thayer, Circuit Judges.

Mr. B. P. Waggener, for plaintiff in

error:

When a consolidated company is formed by union of several corporations chartered by different states, it is a citizen of each of the states which granted the charter to any one of its constituent companies, and when sued in one of those states it cannot claim the right of removal on the ground that it is also a citizen of another state.

Fitzgerald v. Missouri P. R. Co. 45 Fed. Rep. 812: Chicago & N. W. R. Co. v. Whitton, 80 U. S. 13 Wall, 270, 20 L. ed. 571; Muller v. Dows, 94 U. S. 444, 24 L. ed. 207; St. Louis, A, & T. H. R. Co. v. Indianapolis & St. L. R.

Later decisions of the Supreme Court of the United States on the subject are found in the L. C. P. Co.'s Digest of the United States Supreme Court Reports, vol. 3, pp. 174, 175.

Co. 9 Biss. 144; Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 290, 30 L. ed. 83; Pacific Railroad v. Missouri P. R. Co. 23 Fed. Rep. 565; Central Trust Co. v. St. Louis, A. & T. R. Co. 41 Fed. Rep. 551.

It is the duty of a Federal appellate court to take notice, of its own motion, that the record does not show jurisdiction in the court below, and thereupon to remand the cause.

Grand Trunk R. Co. v. Twitchell, 59 Fed. Rep. 727; Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462; Grace v. American C. Ins. Co. 109 U. S. 278, 27 L. ed. 932; Robertson v. Cease, 97 U. S. 646, 24 L. ed. 1057; Jackson v. Ashton, 33 U. S. 8 Pet." duly chartered, incorporated, and organized 148, 8 L. ed. 898; Scott v. Sandford, 60 U. S. 19 How. 393, 15 L. ed. 691; Piquignot v. Pennsylvania R. Co. 57 U. S. 16 How. 104, 14 L. ed. 863; Cutler v. Rae, 48 U. S. 7 How. 729, 12 L. ed. 890: United States v. Huckabee, 83 U. S. 16 Wall. 414, 21 L. ed. 457; Barney v. Baltimore, 73 U. S. 6 Wall. 280, 18 L. ed. 825; Thompson v. Central Ohio R. Co. 73 U. S. 6 Wall. 134, 18 L. ed. 765; Williams v. Nottawa, 104 U. S. 209, 26 L. ed. 719.

Messrs. Fenlon & Fenlon, for defendant in error:

66

| United States for the district of Kansas, alleging that he was a citizen and resident of the state of Kansas, that the defendant company was a citizen and resident of the state of Missouri, and that he (the plaintiff) had sustained certain personal injuries, to his damage in the sum of $10,000, in consequence of the negligent operation by the defendant company of one of its trains near the town of Admire, in Lyon county, Kan. At the return term, on April 7, 1894, the defendant company appeared, and filed an answer to the complaint, which alleged, among other things, that it was a railway corporation under and by virtue of the laws of the states of Kansas, Nebraska, and Missouri, and, as such corporation, operates a line of railway into and through the counties of Lyon and Leavenworth, in the state of Kansas. Later, on June 8, 1894, it filed a plea to the jurisdiction, alleging that the plaintiff was a resident, citizen, and inhabitant of the state of Kansas, and the said defendant, the Missouri Pacific Railway Company, was a corporation made up by the consolidation of three or more separate and distinct corporations, one incorporated under the laws of the state of Missouri, another under the laws of the state of Kansas, and another under the laws of the state of Nebraska, and that its articles of incorporation have been duly filed with the secretary of state of the state of Kansas, and it was at the date of the institution of this suit, and still is, a corporation incorporated under the laws of each of the states of Missouri, Kansas, and Nebraska, and the requisite diverse citizenship does not exist to give this court jurisdiction, and there is no Federal question involved." No action appears to have been taken on this plea. Later, on June 11, 1894, the defendant comBank of Augusta v. Earle, 38 U. S. 13 Pet.pany filed an amended answer to the com519, 10 L. ed. 274; Louisville, C. & C. R. Co. v. Letson, 43 U. S. 2 How. 497, 11 L. ed. 353; Chicago & N. W. R. Co. v. Whitton, 80 U. S. 13 Wall. 270, 20 L. ed. 571; Lafayette Ins. Co. v. French, 59 U. S. 18 How. 405, 15 L. ed. 451; Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 65, 20 L. ed. 354; Nashua & L. R. Corp. v. Boston & L. R. Corp. 136 U. S. 363, 34 L. ed. 363; Ang. & A. Priv. Corp. 404, 405.

A plea in abatement after the defendant has pleaded to the merits is too late.

Cook v. Burnley, 78 U. S. 11 Wall. 659, 20 L. ed. 29; Sheppard v. Graves, 55 U. S. 14 How. 509, 14 L. ed. 519; D' Wolf v. Raband, 26 U. S. 1 Pet. 476, 7 L. ed. 227; Eddy v. Lafayette, 49 Fed. Rep. 810, 4 U. S. App. 247.

A corporation is the creature of the state bringing it into existence; it cannot migrate nor have a citizenship in two or more states at the same time, for the purpose of avoiding the process of the Federal courts therein, any more than an individual can be a citizen of two or more states at the same time, and for the same

reason.

Thayer, Circuit Judge, delivered the -opinion of the court:

plaint, the second and third paragraphs whereof were as follows:

"Second. For further answer defendant says that this court has no jurisdiction to hear, try, and determine the matters herein; that at the commencement of this action, and prior to the alleged injuries complained of by the plaintiff, the plaintiff was, and ever since has been, a citizen, resident, and inhabitant of the state of Kansas; that at the commencement of this suit the defendant was, and ever since has been, a corporation chartered The question for consideration in this case and incorporated under the laws of each the is whether a citizen and resident of the state states of Missouri, Kansas, and Nebraska; of Kansas can maintain in the circuit court that the said Missouri Pacific Railway Com of the United States for the district of Kansas pany was originally incorporated under the a suit against a railroad company for per-laws of the state of Missouri, but subsesonal injuries sustained within the state of quently, and before the institution of this Kansas in consequence of the negligent con-action, the said company, as so incorporated duct of the said railroad company, it ap-under the laws of Missouri, was duly and pearing that, when the injuries were so sustained, said railroad company was duly incorporated under the laws of Kansas, and was operating a line of railroad in that state, and that it was also duly incorporated under the laws of the states of Missouri and Nebraska. The question arises in this wise: George Meeh, the defendant in error, sued the Missouri Pacific Railway Company, the plaintiff in error, in the circuit court of the

legally consolidated under the laws of Kansas with certain railway companies duly and legally incorporated under the laws of the state of Kansas, and subsequently such consolidated company was also consolidated under the laws of Nebraska with certain corporations incorporated under the laws of Nebraska, and such consolidated company then and there took the name of the Missouri Pacific Railway Company, the de

fendant herein; that the said defendant as jurisdiction apparent on the face of the consolidated had and has but one board of directors, and operates its system of railroad into and through the states of Missouri, Kansas, and Nebraska; and said defendant at the commencement of this suit was, and ever since has been, a resident citizen and inhabitant of the state of Kansas.

state could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised. It may, indeed, be composed of and represent, under the corporate name, the same natural persons. But the legal entity or person, which exists by force of law, can have no existence beyond the limits of the state or sovereignty which brings it into life and endues it with its faculties and powers. The president and directors of the Ohio & Mississippi Railroad Company is, therefore, a distinct and separate corporate body in Indiana from the corporate body of the same name in Ohio, and they cannot be joined in a suit as one and the same plaintiff, nor maintain a suit in that character against a citizen of Ohio or Indiana in a circuit court of the United States."

And in the case of Quincy Railroad Bridge Co. v. Adams County, 88 Ill. 615, 619, Mr. Justice Breese said, speaking of a corporation that had been incorporated both by the states of Illinois and Missouri : "The states of Illinois and Missouri have no power to unite in passing any legislative act. It is impossible, in the very nature of their organizaticns, that they can do so. They cannot so fuse themselves into a single sovereignty, and as such create a body politic which shall be a corporation of the two states, without being a corporation of each state or of either state. As argued by appellee, the only possible status of a company acting under charters from two states is, that it is an association incorporated in and by each of the states, and when acting as a corporation in either of the The doctrine of this case was afterwards states it acts under the authority of the charreaffirmed in Chicago & N. W. R. Co. v. Whit-ter of the state in which it is then acting, ton, 80 U. S. 13 Wall. 270, 283, 20 L. ed. and that only, the legislation of the other 571, 575, where Mr. Justice Field used the state having no operation beyond its terfollowing language, speaking of a corpora- ritorial limits. We do not, and cannot, untion that had been duly incorporated under derstand that appellant derives any of its corthe laws of Illinois and Wisconsin: "But porate powers from the legislature of the state it is said-and bere the objection to the jur- of Missouri, but wholly and entirely from isdiction arises-that the defendant is also the general assembly of this state. a corporation under the laws of Illinois, and therefore is also a citizen of the same state with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such a citizen, of Wisconsin, by the laws of that state. It is not there a corporation or a citizen of any other state. Being there sued, it can only be brought into court as a citizen of that state, whatever its status or citizenship may be elsewhere. Nor is there anything against this view, but, on the contrary, much to support it, in the case of Ohio & M. R. Co. v. Wheeler [supra].'

These cases have since been referred to, and the doctrine enunciated therein has been approved, in Muller v. Dows, 94 U. S. 444, 447, 24 L. ed. 207, 208; in Pennsylvania R. Co. v. St. Louis, A & T. H. R. Co. 118 U. S. 290, 298, 30 L. ed. 83, 88; and in Nashua & L. R. Corp. v. Boston & L. R. Corp. 136 U. S. 356, 376, 377, 34 L. ed. 363, 368, 369. They have also been cited and followed by the supreme courts of Michigan and Illinois in Chicago & N. W. R. Co. v. Auditor General, 53 Mich. 91; in Racine & M. R. Co. v. Farmers' Loan & T. Co. 49 Ill. 331, 348, 95 Am. Dec. 595; and by Judge Caldwell on the circuit in Fitzgerald v. Missouri P. R. Co. 45 Fed. Rep. 812.

Chief Justice Cooley remarked in Chicago & N. W. R. Co. v. Auditor General, supra, that “it is impossible to conceive of one joint act, performed simultaneously by two sovereign states, which shall bring a single corporation into being, except it be by compact or treaty. There may be separate consent given for the consolidation of corpora tions separately created; but, when the two unite, they severally bring to the new entity the powers and privileges already possessed, and the consolidated company simply exercises in each jurisdiction the powers the corporation there chartered had possessed, and succeeds there to its privileges."

Assuming, then, that there are three distinct legal entities known as the Missouri Pacific Railway Company, -one a corporation of Missouri, another a corporation of Kansas, and another a corporation of Nebraska. — we turn to consider whether, on the state of facts disclosed by this record, the circuit court of the United States for the district of Kansas had jurisdiction of the case at bar. We think that this question was practically decided in the cases heretofore cited. Thus, in Chicago & N. W. R. Co. v. Whitton, 80 U. S. 13 Wall. 270, 283, 20 L. ed. 571, 575, the plaintiff, who was a citizen of Illinois, sued the railway company, which had been incorporated by the states of Wisconsin and Illinois, in the courts of Wisconsin, for a negligent act committed in Wisconsin. Subsequently the plaintiff removed the case to the circuit court of the United States for the district of Wisconsin, and the question arose whether the latter court had jurisdiction. It will be noticed that in the paragraph of the opinion above quoted Mr. Justice Field said: "The defendant is a corporation, and as such a citi. zen, of Wisconsin, by the laws of that state. It is not there a corporation or a citizen of any other state. Being there sued, it can only be brought into court as a citizen of that state whatever its status or citizenship may be elsewhere."

So, in the case of Ohio & M. R. Co. v. Wheeler, 66 U. S. 1 Black, 286, 17 L. ed. 130, the plaintiff company described itself as a corporation created and existing under the laws of the states of Indiana and Ohio, having its principal office in Cincinnati, Ohio. It sued Wheeler, describing him as a citizen of Indiana, in the circuit court of the United States for the district of Indiana; but the supreme court held that the action could not be maintained, saying in substance that in the character in which the company had sued, as a corporation of Indiana and Ohio, it could not maintain a suit against