Capital City Council No. 29 and entitled to death benefits in accordance with the constitution and laws of that council and the State and National Council now in force or hereafter adopted prior to said death." Section 1 of the by-laws provides for the creation of a funeral benefit department. Section 2 provides for its government. Section 3 provides: "The entire beneficial membership of any council of the Jr. O. U. A. M. in good standing with its State Council and with the National Council shall be entitled to membership in the funeral benefit department, but of the members of any council that may be admitted to membership in the funeral benefit department only such as possess the qualifications hereinafter provided shall be entitled to benefits thereof." Section 4 provides for two classes of membership in the funeral benefit department. Section 5, regulating application for membership, provides: "Any council desiring to obtain membership in the funeral, benefit department shall make application to the Secretary-Manager upon the blanks furnished for that purpose." The blank furnished for that purpose, which is set out in the by-law, contains the following: "We hereby agree to make no claim on you for benefits upon the death of any brother who is not in good standing in the council at the time of his death or who is not entitled to death benefits according to the constitution and by-laws of this council, nor who may be sick or disabled at the time of admission of this council in the funeral benefit department, nor who is engaged in the liquor business, contrary to the laws of the order. We hereby agree that no benefits shall be paid where the deceased has been received to membership in violation of the laws and decisions of the order." with its fixtures and stock, were a part of his personal estate, and was turned over to William Thompson, administrator; that thereafter William Thompson conducted said saloon as a part of the estate of R. P. Thompson, deceased, and as administrator; that he employed all the help about said saloon, bought all supplies therefor, paid for the same, but that he never at any time worked in said saloon, or was a barkeeper therein. "It is agreed that at the time he made application for insurance in the defendant's order he was engaged in said saloon business as above indicated, as administrator of R. P. Thompson, deceased; that he never owned said saloon himself, nor owned any stock therein, nor did he ever work there; but that at said time and thereafter he bought all the supplies for said saloon, employed and discharged all the help about said place, in the capacity of administrator of R. P. Thompson, deceased; that after the expiration of the license which had been issued to R. R Thompson prior to his death, the license was annually renewed in the name of William Thompson. "It is agreed that the officers and members of Capital City Council No. 29 and the person representing the Capital City Council No. 29, who collected the assessments on said certificate of insurance, knew the connection that William Thompson had with the saloon of R. P. Thompson, deceased, and knew the same at all times when any and all assessments and dues were paid by reason of his being a member of said order; that when said assessments were remitted to the Grand Lodge of the subordinate lodge the officers and agents of the subordinate lodge, who remitted, knew that William Thompson was connected with the saloon of R. P. Thompson, as above indicated, but that none of Section 9 is in these words: "No person the officers of the National Council Junior shall be admitted to the funeral benefit de- United American Mechanics had any acpartment who is engaged in the manufacture tual knowledge of said William Thompson's or sale of malt, spirituous or vinous liquors said connection with the operation of said as a beverage, either as proprietor or agent saloon until after his death. It is agreed (except bona fide hotel keepers or druggists); that at the hearing the by-laws of the fuand should any member of the funeral bene-neral benefit department attached to the anfit department hereafter enter upon the man- swer of the National Council may be read ufacture or sale thereof, in either capacity in evidence." aforementioned, he shall thereby, ipso facto, forfeit all rights of membership therein, and his certificate shall thereby become null and void and payment of assessments or dues thereafter shall in no manner affect such forfeiture." The case was submitted to the circuit court upon the following agreed statements of facts: On these facts the circuit court gave judgment in favor of the plaintiff. The defendant appeals. [1] The first question to be determined is: Was William Thompson engaged in the sale of malt, spirituous, or vinous liquors as a beverage, either as a proprietor or agent, within the meaning of section 9? It will be observed that by the by-laws no person shall "It is agreed between the parties that R. P. be admitted to the funeral benefit departThompson died on the day of and that afterwards William Thompson, plaintiffs' intestate, qualified as his administrator; that at the time of the death of R. P. Thompson he was the owner of a saloon lo ment who is engaged in the manufacture or sale of malt, spirituous, or vinous liquors as a beverage, either as proprietor or agent. R. P. Thompson died in March, 1908. William Thompson qualified as his administra In may, by stipulation in its constitution or which the saloon was then conducted ex- have no power, however, to waive the repired on April 30, 1908, and this license quirements of its constitution. The society was renewed then and annually thereafter on April 30, 1909, 1910, and 1911. A person to whom another's estate is intrusted by law may, in his official capacity, wind up the estate, and is allowed a reasonable time for so doing, as, for instance, the assignee of an insolvent estate, the curator of a decedent's estate, and the like; and a distinction may be drawn between acts done by such a person in his official capacity and acts done by him personally. If William "Inferior lodges and their officers and Thompson had only taken charge of this agents are generally held to be the agents of saloon as administrator, and had done noth- the society, and hence they may, by acts or ing more than he was authorized to do as omissions founding an estoppel or waiver, administrator, a different question would be preclude the society from relying on grounds presented. But that is not the case. The of avoidance or forfeiture. To create an eslaw conferred upon him no authority, as toppel or waiver as against the society, howadministrator, to renew the license annu- ever, they must have acted as its agent, ally and to continue running the saloon. and within the scope of their authority as The license was not issued to him as ad-such." conflicting decisions on the subject, thus states his conclusion: "Upon principle it would seem that members of a benefit society, being presumed to know its laws, cannot excuse their failure to comply with those laws on the ground of the omissions or aets of other members, selected for officers, because, as all know the limitations of authority imposed by such by-laws on the officers, the members cannot be misled or claim want of knowledge. It is an elemental rule that where the means of knowledge are equal there can be no estoppel; nor can estoppel exist without some act of the party estopped misleading the other to his disadvantage." ministrator. The license was in the name In 2 Bacon on Benefit Societies (3d Ed.) of William Thompson, and William Thomp-§ 434, the author, after a comparison of the son was, from a legal standpoint, the person who was running the saloon. He was the only person who was authorized by law to conduct it, and was the person who could be held responsible for its proper conduct. It is true he was not the proprietor of the saloon, and he was running it, not for his own benefit, but for the benefit of R. P. Thompson's estate; still in so doing he was the agent of the estate, and was engaged in the saloon business as the agent of the estate. To hold that a person who conducts a saloon, employs all the help about it, buys all the supplies and pays for them, is not engaged in the sale of spirituous, vinous, and malt liquors as a beverage, simply because he does not stay in the saloon and sell the liquors himself, would be to ignore the principle of law that he who does a thing by the hand of another does it himself. If it had only been intended by the by-law to exclude from membership the proprietors of saloons, the words "or agent" are meaningless, and as William Thompson, under the agreed facts, was engaged in the sale of intoxicants as a beverage, acting as agent for R. P. Thompson's estate, he was not eligible under the by-law to be admitted to the funeral benefit department. [2] The remaining question is: Is the order estopped to make this defense by reason of the fact that the local lodge, with full knowledge of all the facts, accepted from Thompson his dues and assessments? The authorities on the subject are by no means harmonious. In 29 Cyc. 188, 189, the rule is thus stated: It will be observed that by the certificate which is the basis of the action the Junior Order United American Mechanics agrees to pay the local lodge the sum of $250 for the legal dependent of William Thompson, upon the condition that William Thompson was not received to membership, nor retained as a member, in violation of the laws and decrees of the order. It will also be observed that Thompson was admitted to the funeral benefit department upon application of the local lodge, and that in this application the lodge agreed to make no claim on the order for benefits upon the death of any brother who is engaged in the liquor business contrary to the laws of the order, and that no benefits shall be paid where the deceased has been received to membership in violation of the laws of the order. It will also be observed that by section 9 of the by-laws no person who is engaged in the business of sell "The society may be estopped from rely-ing liquor is eligible to membership, and if ing on provisions of the contract or by-laws forming a part of the contract by the acts or omissions of officers or agents having authority to act in regard to the subject-matter thereof; and those provisions may likewise be waived. Officers or agents of the society he engages in it this shall ipso facto forfeit all rights of membership, and that the payment of assessments or dues shall in no manner affect such forfeiture. These provisions clearly limit the authority of the local lodge. As we understand the quotation above made from 29 Cyc. and the rule as quoted from of its own, which was contrary to the rules Bacon on Benefit Societies, whether or not of the order. It was held that, although the order is affected by the conduct of the the local lodge had long been doing this, the local lodge depends upon whether or not the order was not bound. The court said: "The local lodge acted within the apparent scope officers of this defendant corporation, in of its authority. Where the agent exceeds dealing with Coughlin and other life insurthe scope of his apparent authority, and this ance members, were all acting as special want of authority is known to the person agents under a special authority, the predealing with him, the principal is not bound. cise limits of which were known to all memWe see no reason why this rule should not bers, and their acts alleged in the reply were apply as between an order and the local in excess of this authority and cannot operlodge, where by the by-laws of the order ate to prevent the defendant, either by waivthe powers of the local lodge are circum-er or estoppel, from maintaining its defense scribed, and the act which is done is be- to this action as stated in its answer." yond the scope of the authority conferred upon the local lodge by the by-laws. It seems to us sound to require the members of a fraternal society to take notice of the laws of the order, and when they know the local lodge is exceeding its authority there seems to be no sufficient reason for holding the order bound by the acts of the local lodge; for if this is permitted the members of the local lodge may, by ignoring the rules of the order, pursuant to an agreement among themselves, defeat the purposes for which the order was intended. In Voelkel v. Supreme Tent, 116 Wis. 202, 92 N. W 1104, the dues of a member were paid four days after his death, and after it was claimed he had committed suicide. The plaintiff in that case relied upon an estoppel by reason of the conduct of the subordinate tent. The court said: "As to the question of receiving the money after death of insured, sections 233 and 234 of defendant's rules provide that the subordinate tent is the agent of its members in collecting and transmitting dues and assessments, and that the Supreme Tent should not be liable for any negligence, or bound by any illegal action or irregularity, of such subordinate tent. Under the facts stated and the rules noted, the reception of the money by the collector, if irregular, was an error of the plaintiff's own agent, which she cannot now take advantage of." In Driscoll v. Modern Brotherhood, 77 Neb. 282, 109 N. W. 158, the dues had been assessed contrary to the laws of the order, and there, as here, it was insisted that the waiver by the local lodge' estopped the order. Holding that the order was not bound, the court said: "The association is a corporation, and consequently can act only through its officers or agents. Such officers or agents may bind it while acting within the scope of their authority, but not beyond. The authority of each is defined and limited by the constitution of the association, which is a part of the contract upon which the plaintiff seeks to recover. He is therefore chargeable with notice of such limitations, and no question of ostensible authority arises." In Coughlin v. Knights of Columbus, 79 Conn. 218, 64 Atl. 223, the member did not pay his dues in time, and the local lodge aft A number of other authorities to the same effect are cited in those above cited. It is true there are some cases holding to the contrary; but it will be found that in most of them the decision of the court turned upon the authority of the local lodge under the bylaws of the order. Thus in Modern Woodmen v. Breckenridge, 75 Kan. 373, 89 Pac. 661, 10 L. R. A. (N. S.) 136, 12 Ann. Cas. 636, the local lodge, which had the power to discipline and expel a member, allowed him to remain a member of the lodge with knowledge of his bad habits. The order was held estopped by the conduct of the local lodge. But there the local lodge had power to pass on the question, and its action in a matter within its jurisdiction was, under the authorities above cited, binding on the order. The cases of Fraternal Aid Association v. Powers, 67 Kan. 420, 73 Pac. 65, Modern Woodmen v. Colman, 68 Neb. 660, 94 N. W. 814, 96 N. W. 154, High Court I. O. v. Schweitzer, 171 Ill. 325, 49 N. E. 506, and Order of Columbus v. Fuqua (Tex. Civ. App.) 60 S. W. 1020, which are relied on by appellee, all turn on the same ground. The conflict of authority on the question is more apparent than real, due to general expressions in some of the opinions which have been applied in a few others. In the case at bar the promise of the order is to pay the money to the local lodge upon a condition that is broken, and in the application for membership it is stipulated that no claim will be made on the order if this condition is broken; and it is further stipulated in the by-law that the payment of assessments and dues to the local lodge shall not waive the forfeiture if the member is engaged in the saloon business. The language used is so plain as to leave no room for construction. The power of the local lodge was expressly limited. The members of one of these fraternal societies are all equally bound by the by-laws of the order; and it is an elementary rule that no one shall profit by his own wrong. If all the members of a local lodge should agree together to disregard a by-law of the order, this would be a wrong, and no one of them can be allowed, as against the order, to profit by this wrong and assert against the order a claim which he could not otherwise have asserted. We there should be no recovery on the certifi- | trator for Bell county. Thereafter Hurst, as cate. administrator, brought this suit against the Judgment reversed, and cause remanded appellee company to recover damages for the for further proceedings consistent herewith. death of his intestate. In answer to the The assessments paid by William Thompson on his certificate may be recovered. summons the defendant, now appellee, obtained a rule against the administrator to file copies of the orders of the Bell county court showing his appointment, and in response to this rule the administrator filed JACKSON'S ADM'R v. ASHER COAL CO. the following orders of the Bell county court: (Court of Appeals of Kentucky. May 6, 1913.) "Comes Melinda Jackson, widow of Henry 1. EXECUTORS AND ADMINISTRATORS (§ 24*)- Jackson, deceased, and waives and relinADMINISTRATION BY PUBLIC ADMINISTRA-quishes her right and preference to qualify TOR-JURISDICTION OF Court. The county court has no jurisdiction under Ky. St. § 3905, authorizing the confiding in the public administrator of the estate of a decedent where, after three months, no one qualified to serve will serve, to refer a decedent's estate to the public administrator for administration before the expiration of three months from decedent's death, though decedent's widow within that time requests the court to appoint the public administrator. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 132-140; Dec. Dig. § 24.*] 2. COURTS (8 90*)-DECISIONS-CONTROLLING DECISIONS. Where a statute, fairly open to two constructions, either of which will carry out its purpose, has been construed by a decision of the Court of Appeals, the decision should be adhered to, especially when it has become a settled part of the law. [Ed. Note.-For other cases, see Courts, Cent. Dig. 313-321, 351; Dec. Dig. § 90.*] 3. PARTIES (§ 76*)—INCAPACITY OF PLAINTIFF -SPECIAL DEMURRER. The proper manner in which to raise the objection that plaintiff has not legal capacity to sue is under Civ. Code Prac. § 92, by special demurrer stating the grounds on which the demurrer is based. [Ed. Note.-For other cases, see Parties, Cent. Dig. 88 117-121; Dec. Dig. § 76;* Pleading, Cent. Dig. § 436.] 4. PARTIES (§ 76*)-INCAPACITY OF PLAINTIFF -SPECIAL DEMURRER. Where an order appointing the public administrator as administrator of a decedent's estate was filed with and as a part of the petition in an action by him, and the order showed that the county court did not have jurisdiction to make the appointment, the objection that the administrator had not legal capacity to sue could be raised by special demurrer. [Ed. Note. For other cases, see Parties, Cent. Dig. 88 117-121; Dec. Dig. § 76;* Pleading, Cent. Dig. 8 436.] Appeal from Circuit Court, Bell County. Action by Henry Jackson's administrator against the Asher Coal Company. From a judgment of dismissal, plaintiff appeals. Af firmed. as administratrix of her said deceased husband's estate, and moves the court that the administration of said estate of Henry Jackson, deceased, be referred to John H. Hurst, public administrator and guardian for Bell county, for administration, and the court, being advised, refers the said administration of said estate of Henry Jackson, deceased, to the said John H. Hurst, public administrator and guardian for Bell county, Kentucky.” When this order was filed, the defendant entered a demurrer to the petition, which was sustained; and, the plaintiff declining to plead further, his petition was dismissed, and he is here on appeal. [1] Two questions are presented by the record: (1) Was the order of the county court referring the estate to Hurst as public administrator void; and (2) if so, could the question be raised by a demurrer? Of course, if Hurst was not administrator of Jackson, he had no authority to institute or maintain the action, as his right to sue depended entirely on the fact that he was the administrator, and whether or not he was administrator depended entirely upon the jurisdiction of the Bell county court to appoint him. We had the identical question here presented before us in Underwood v. UnderWood, 111 Ky. 966, 65 S. W. 130, 23 Ky. Law Rep. 1287. In that case the jurisdiction of the county court to place the estate of a deceased person in the hands of a public administrator, under section 3905 of the Kentucky Statutes, before the expiration of three months from the death of the decedent administered on, was directly drawn in question, and the court said: "We are of the opinion that the county courts are without jurisdiction to place estates in the hands of public administrators, except under the circumstances provided in section 3905. It is a jurisdictional fact to be shown that the decedent has been dead more than three O'Rear & Williams, of Frankfort, and Lew-months, and that no one else has applied for is F. De Busk, W. G. Colson, and P. Herbert letters of administration. Spencer, all of Middlesboro, for appellant. Sampson & Sampson, of Middlesboro, for appellee. If the county court can place the estate of a deceased person in the hands of the public administrator under the circumstances in this case, then in every case the county court can, without conCARROLL, J. Henry Jackson died on sulting the distributees, kinsmen, or crediDecember 15, 1910, and on February 7, 1911, tors of the estate, place the estate in the letters of administration on his estate were hands of the public administrator immediategranted to John H. Hurst, public adminis-ly upon the death of the deceased, thus enFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tailing in some instances great expense and loss to the estate." Again, in Young's Adm'r v. Louisville & Nashville R. R. Co., 121 Ky. 483, 89 S. W. 475, 28 Ky. Law Rep. 451, the court said: "The public administrator is an official of the county, and he executes one bond for the faithful discharge of his duties, which is to secure all estates referred to him under the statutes. He has no power to receive and the court has no power to refer | estates to him for settlement except in accordance with the provisions of section 3905 of the statutes." The correctness of the conclusion reached by the court in Underwood v. Underwood is vigorously assailed by counsel for appellant, but, whatever the opinion of the court as now constituted might be if the question were an open one, we are not disposed to overrule this case. trust to nominate a person to act, and, having done this, a substantial distinction exists between the facts of this case and the facts in the Underwood Case, and therefore the Underwood Case should not be treated as controlling. But we cannot see our way clear to agree with the reasoning or conclusion reached by counsel. The question is simply one of power or jurisdiction in the county court to make the appointment, and so it necessarily follows that, if the county court had no jurisdiction to put the estate in the hands of a public administrator when it undertook to do so, the mere fact that a person entitled to qualify requested that it be done could not extend the jurisdiction of the court, or give it a power withheld by the statute. As the Bell county court had no jurisdiction to place the estate of Jackson in the hands of the public administrator, the order appointing him was void, and, being void, he had no right to either institute or prosecute this suit. Could the validity of his appointment be drawn in question by a demurrer to the petition? The record shows that two demurrers were filed to the petition. One appears on its face to be a general demurrer; the other is simply a "demurrer to the petition herein," and the judgment of the court on the demurrer does not disclose whether it was rested on the ground that the objection to the petition was based on a general or a special demurrer. It merely recites that "this cause being submitted and heard on the demurrer to the petition herein, and the court, being fully advised thereon, sustains said demurrer." [3] Accurately speaking, the proper manner in which to raise the objection that the plaintiff has not legal capacity to sue is by a special demurrer stating the grounds on which the demurrer is based. Civil Code, § 92; Louisville & Nashville R. R. Co. v. Herndon, 126 Ky. 589, 104 S. W. 732, 31 Ky. Law Rep. 1059. But, passing the point that the demurrer did not conform to the Code form as not material, we will treat the demurrer as special, and, thus looking at it, we think the objection to the petition could be raised by such a demurrer. [2] When a statute is fairly open to two constructions, either one of which will carry out its purpose, and this court, upon full consideration, adopts one of these constructions, it should be adhered to, especially when, as in this instance, it has become a settled part of the law. The Underwood Case has been referred to in the opinions of this court a number of times, but has never been either criticised or questioned, although a different construction has been placed on section 3897 of the Kentucky Statutes, which is quite similar to section 3905. In Phillips v. Hundley, 135 Ky. 269, 122 S. W. 147, in pointing out the distinction in the rulings of this court in the construction of sections 3905 and 3897, we said: "In Underwood v. Underwood, 111 Ky. 966 [65 S. W. 130, 23 Ky. Law Rep. 1287], the court held that the appointment of a public administrator before the expiration of three months after the death of a decedent was void, holding that under section 3905 of the Kentucky Statutes the court had no jurisdiction to make the appointment until the three months had expired; but this rule has never been applied to the appointment of administrators under sections 3896 and 3897 (Russell's St. §§ 3919, 3920) of the Kentucky Statutes; and the appointment of an administrator with the will annexed is, as provided in section 3891 of the Kentucky Statutes (Russell's St. § 3937), regulated by these sections. On the contrary, we held in Buckner v. L. & N. R. R. Co., 120 Ky. 600 [87 S. W. 777, 27 Ky. Law Rep. 1009], Young's Adm'r v. L. & N. R. R. Co., 121 Ky. 483 [89 S. W. 475, 28 Ky. Law Rep. 451], Spayd v. Brown, 102 S. W. 823 [31 Ky. Law Rep. 438], Cunningham v. Clay, 112 S. W. 852, and McFarland v. L. & N. R. R. Co. [130 Ky. 172], 113 S. W. 82, that the appointment of an administra-order referring the estate to Hunt as public tor, not of kin to the deceased, before the second county court day after the death of the intestate, was erroneous, but not void." It is suggested in argument for appellant that, as the widow of Jackson was entitled under the statute to qualify as administra [4] It was pointed out in Paslick v. Shay, 148 Ky. 642, 147 S. W. 369, that the county court in the appointment of administrators is a court of general and exclusive jurisdiction, and it will be presumed to have had jurisdiction to make the order of appointment until the contrary appears, and, if an attack is made upon the order of appointment, it must be affirmatively shown that the jurisdiction did not exist. In this case the administrator filed with the petition as an essential part of it shows that the court did not have jurisdiction to make the appointment. This being so, it would be idle to hold that it was necessary that the want of jurisdiction should be shown by a pleading which |