*1 924 testify,

nally competent made with a person living who is made except as such have done or acts and contracts been probate since administra- appointment of the will or the $ >> tor Burgdorf al. support contentions, cited: et appellant of her has Bros. v. al., (2) Keeven et 351 Mo. Robertson 174 S. W. 816. 1003. al., v. v. Buck et Estate, (Mo. (2) Garrison 21 W. 202. Jobe App.) S. 224 Mo. W. App. (2) 98. 31 S. first these on the first squarely cases was decided although

Sec. administratrix 1887. The other in one an two the other an executrix the cases were decided on parties, referring first clause in Section noted 1887. will be clause to the plainly party executor administrator states that other ,own shall except not be testify admitted to in his favor acts and probate as have contracts been done made since will or fol appointment The courts have of the administrator. plain legislature. lowed this Kerr Prudential Insur. mandate v. . Co. of v. America, App. 972, (2) 38 Mo. 194 706 Schwalbert S. W. Konert, Robb, 230 App. 811, (2) (Mo. 76 W. 445. Davis v. Mo. S. App.) (2) Scullin, 10 S. W. Mo. 101 680. Weiermueller v. (2) S. W. Hindman, App.) (Mo. l. c. Pearce 217 S. W. 1090. any arbitrary 592. This rule has been criticized termed but change legislature must come the courts. from the not from

But, otherwise, proof, even if the rule were there was no offer we have way knowing what court excluded or whether such circumstances, cannot prejudicial. exclusion was Under these we convict trial court of error. assignment.

We must against appellant therefore rule Finding record, no error in the trial court should J., L. sitting ordered. Wm. affirmed. so Vandeventer, Dew, J., Cave, J., Supreme order concur. Court. P. Society, Appellant, Jackson v. Industrial Com Respondent. 222 W. 2d 1948. Missouri, mission of City Appeals. Opinion Kansas delivered June *2 Berger Nugent, Homer H. Morrison, Berger, Hecker & Buck appellants. George John L. Porter and for respondents. Schwartz *3 Missouri, of SPERRY, Industrial Commission hereafter C. The Commission, 28, 1946, on June rendered its decision referred to as it the Jackson and wherein held that order employer, meaning as was an within the hereafter referred (h) 1939, Unemployment Mo. Com- (1) 9423 R. S. of Section 1939, R. Mo. Law, 2, Chapter-52 during Article S. pensation employer has continued to be such an year of and dur- calendar subsequent ing every year thereto. The instituted this action judicial seeking a review of proceedings in the Cole Circuit That court rendered of Commission. af- and order firming order. said law, with public policy

The of the state reference the above as thereof, public good general 9422 is that the declared in Section require compulsory state setting welfare the citizens of this of for the unemployment persons of reserves to used benefit of aside through own, fault of their Section unemployed no the law by become payable contributions shall accrue'and provides that each wages payable employment. Subpara- for respect to employer, with 9423; of Section defines an graph 1, paragraph (h) employer as employment has or had in being 8 or employing an unit more day a of 20 portion some in each different individuals weeks. “Any provides employing 4 thereof Subparagraph which, unit employing units, or other is together one more owned or con- with otherwise, directly means "or by legally enforceable or trolled in- interests, or' which owns or controls one or directly, by more legally otherwise, units enforceable means employing other single unit- with other employing as which, units if treated employer an .under both, paragraph interests, ’’ subsection. thereof, 6-7 (i) 9423, subparagraphs paragraph of Section Under ‘‘* * * not include: employment shall provided it that: term * * * 'organized corporation, employ in the of a performed service * * * * scientific, exclusively or educa- operated earnings of which inure to the purposes, tional net any private or individual.” benefit of shareholder incorporated provisions under the in- 10, Chapter R. Mo. which authorizes the of Article benevolent, religious, scientific, etc., associations. The corporation organization incorporation purpose stated is scientific exclusively doctors, Its members consist of medical educational. practice in the profession Missouri,, licensed to their State and who practice County. reside and in Jackson exempt from operation contends that it quoted law

unemployment compensation provisions because of the last found, effect, law. The Commission that the said is not making provided contributions as exempt from under law that, incorporated it is authorizing reason while under the statutes incorporation of scientific and associations, it does such; that operate not some of its are not of activities controls, wholly character; and that owns and (hereafter Bureau, Bureau) referred to corpo- in-collecting engaged medical fees and ration accounts for members of the association. agreed

It is the Commission and that neither the Society alone, alone, nor the Bureau had a sufficient number of em- bring operation either under the ployees the law. *4 agreed employees the total number of organi-

it is also of the two combined, bring Society such as to zations, provisions the within the Society law, if be held that the owns or of the controls the-Bureau. questions presented: Thus, Society Has the two forfeited by right exemption from contributions reason of the manner and, 2, is operates? the Bureau owned in which it or controlled, di- by by indirectly, Society, or rectly the the same interests which own Society? the or control dispute. They not in are found in

The facts are the statement and Society, for the in testimony of counsel the admissions of the secretary, undisputed and in the documentary executive evidence. have a Society was shown to net worth of $130,906.86, consist- estate, books, bonds, cash, and

ing of real other items. Included of stock of the Medical is listed shares Business Bureau, therein issue of being the entire stock of said Inc., corporation. same For 1943, Society had an $44,684.47. the income of year $8765 the came advertising from dues; came revenue; $9052.01 $6600 from came from Inc.; Bureau, $3901 Business came from collections made Service, Inc. Total Group Hospital disbursements for ' $35,978.72. among amounted to Included disbursements were the following: Group Hospital Service, to- Inc.; $3778.50 $6441.94 rent; printing, cuts, etchings, etc.; property $2002.23 $334.64 for taxes. 1937, August 15',1938, Society operated and until the the Medical Bureau a However,

Business collection service for its members. activity it was learned that such an properly could not be carried on by corporate powers. the tinder Consequently, Bureau, Inc., corporation, organized á was at the Society." 100 shares of stock All were issued. of said instance in shares, except are held trust chairman a standing the com- empowered of -the who is mittee vote said stock at all meet- ings corporation. of stockholders the The other three shares are of, in to, and stand the name the Bureau, officers of issued three the they, too, property but 'are indorsed them so that remain the Society." merely a agency

The Bureau is' collection for members of the So- ciety. Society patient If a member the has a ready who lacks cash expenses, ways with which to his medical the Bureau seeks páy patient securing funds; to aid such said means and aids -the doctor collecting his fees. The officers of the Bureau are all'members of they Society direct the course and activities of Bureau; Society standing but the maintains committee duty whose stated policy with officers of the Bureau in making is to advise and func- tioning. furniture with which began business was the.Bureau Society. The and the given occupy Bureau officesin building and "a waiting use common room. At' one time the secretary great devoted' a executive deal of time and Bureau, the affairs but the attention to evidence was to the hearing that, held, paid at time employees of effect corporations do not aid each other respective in their work. The $6600, sum of paid to as overhead Bureau expenses, for year .1943. respective parties do not differ materially Counsel as to rule, Society’s right to governing exemption. law is that operated must be both for edu purposes. Chamber of and scientific cational Commerce v. Unem Commission, Compensation 356 Mo. ployment 201 S. 2d, 771, W. 772; Unemployment Emeth l. Shel Compensation c. Chesed 2d, W. l. c. 458. Commission, 203 S. in order to *5 necessary is exemption operation it that an of its deprived on which educational, is hot and scientific and engages charitable, it must Society Chesed Shel Emeth in nature. Unemploy be substantial v. Commission, supra; Compensation Northeast Osteopathic ment Hos 2d, 970, l. c. 197 W. 976. Heitel, pital v.

'929 indirectly not, directly or that it does either Society The contends and Bureau are not or Bureau, and that it the owned the control tending We think the evidence to interests. the same controlled overwhelming. up a set prove contrary is the regular organizations. op- Bureau one its sub Business inferentially performing the the same erated an arm of performed the are now Bureau. It was identical that services legally operate agency a-collection the could not learned that to members, proceeded so it have its of its the benefit incorporated corporation. a$ Bureau new performed by that were the performed the same services corporation wit: people, to the individual members of old, the and for every share of Society owns and votes stock. It created Society. The will, away life can, at take the that and it it created. the Bureau One the Bureau’s standing committees advises board of its directors'as members, of its and functions. Three who policies constitute the to directors, policies execute those and Bureau’s board functions. may Society says legally board the Bureau’s that refuse to do unlikely recommends. the committee what the event that: remains; bidding creator, to refuse do should the creature through .trustees, change creator, only for the board of di- doubt, creature, which, we have no done. In- rectors of contrary appeal does not to reason or common ex- sistence by-laws printed Indeed, charter and perience. the Society ‘‘Through the following appears: Medical Business Bureau, Irae specialized credit and collection service a unit mai n- ours). (Emphasis tained.” or that) owns that controls the Bureau, We hold controlled, directly or indirectly, by both are owned in- sam<e Society. is, members of the terests, being operated exclusively Is the educational ’l We have held that it controls purposes and, in scientific effect, owns operation That purely Bureau. operates a business opera manner, is, scientific. tion. Nor is such an nature. The of a charitable services performed operation by the commercial, namely, strictly were Bureau collection of fees due professional members services rendered “* * * and it should not individuals. them as held the purpose encouraging providing fostering facilities for practice within charitable the meaning profession aof of Clause (F), (6) supra, (i) purposes, if they Section are seen * * * * should purposes prevent be substantial exclusion ’ ’ Unemployment Compensation purview from the Law. North Keitel, supra, c. Hospital l. Osteopathic east any it is not shown that Society contends its operations were so, operations that such and, if non-charitable of a substantial *6 cannot are considered. operations nature the whole of when for the use bureau operating collection managing be said that of Jackson virtually all of the medical doctors and benefit of $6600 contributed The Bureau operation. a minor just not shown the latter. It is expenses of 1943, for overhead in sum; it is of this but paid to be out expenses were what overhead for more than the entire contributed was amount so noted that the year. that property taxes for for rental paid amount purposes. for all expenditures of its more than amounted to 1/6 ex- from the total be eliminated following expenditures should The penditures arriving real of its year 1943, in at the cost listed Inc., col- Hospital Service, disbursement funds Croup operations: pur- hospital insurance; for securities members their from lected pub- in cuts, etchings, etc., presumably for use chased; printing, So- appearing therein returned the (paid advertisements lication When profit operation.) on that these items ciety $3000 almost Society’s Bu- that the revenue from found this it will be eliminated Society’s expenses actual for equal to more than was reau 1/4 Probably higher even if could percentage we year. that $5743, “Trans- an amount of shown as representing analyze an item operation alone, is, that We think this one funds.” fers to other operations deviation from claimed a substantial Bureau, constitutes exclusively charitable, pur- educational and scientific to be devoted poses. Group Hospital Service, for Inc. $3901 collected This Society’s members, and $3778.50 from thereof

money was' collected them, by Society. Certainly this was not an disbursed was employment duties and insignificant charitable, educational, of a this service or scien- nor was employees; character. tific Society’s legislative found that The Commission activities may exemptions. claim However, character which not legis- has point is inconclusive. It been held that this evidence membership organized of a corporation under activities lative authority to that under similar or- statutory activity an outside the fields of might charity, constitute ganized, v. Commissioner of Slee Internal Revenue, and science. education determine, we cannot from evidence, 2d, 184. 42 F. engaged as were legislative activities 'were or were not that such point. Hence we do not rule that a character. very seriously constitution, by-laws, contended It is purposes indicate, objectives as matter stated charitable, it is not law, Many authorities are purposes. cited support and scientific they weight are of such as to contention, strongly support However, since the' Commission did not rest its de- contention. point, on this we do deem it advisable neces- and order- not cisión sary question. rule herein stated. should be affirmed for the reasons

Boyer, 0., concurs. foregoing' Sperry, C., adopted opinion

PER CURIAM: The opinion Dew, J., P. affirmed. as the court. Cave, Court) order of J., concur; Yancleventer, J., (sitting Supreme concurs. Employ Howell, Jr., M. al., Appellants, et Division of

Charles Respondents. Security, al., ment et 222 S. W. 2d 953. Opinion City Appeals. Kansas delivered June