Action by the plaintiff, Phyllis M. Henningsen, to quiet title to three mining claims, namely, the Frenchman No. 2, Missouri Girl and Rear Stake, located in Silver Bow county, Montana. There are numerous defendants named in the complaint. The action is brought under the authority of Chapter 198, Laws of 1937, and the provisions ■ of Chapter 63 of the Code of Civil Procedure of 1935.
The answering defendants were: Katherine Avare, Elinor G. McCarthy, Anaconda Copper Mining Company, a corporation, Eugene Albert Doráis, Mrs. Eugene Albert Doráis, Charles Edouard Doráis, Mrs. Charles Edouard Doráis and Joseph Doráis Wilson. The defaults of all other defendants have been entered.
The judgment entered on the 15th day of October 1948, decreed the Anaconda Copper Mining Company, a corporation, as the sole and exclusive owner in fee simple of an undivided one-fourth interest in and to the Frenchman No. 2 Quartz Lode mining claim, designated by the surveyor-general as lot or survey No. 6518; that subject to the foregoing one-fourth interest, the following persons are the owners in fee simple of and entitled to the possession of the property in the interests set opposite their respective names:
Katherine Avare 130,497%/247,236%
Phyllis M. Henningsen 114,239/247,236%
Elinor G. McCarthy 2,500/247,236%,
and that all other defendants and all other persons, known or unknown, not thereinbefore named are without any right whatever and have no right, title, interest, claim or estate whatsoever in or upon said real property, or any part thereof.
The only parties before this court are Phyllis M. Henningsen, Katherine Avare, Elinor G. McCarthy and the Anaconda Copper Mining Company, a corporation.
This appeal is divided into two parts: First, the validity of the judgment and decree granting to the Anaconda Copper *189Mining Company, a corporation, the fee in and to an undivided one-fourth interest in the Frenchman No. 2 Quartz Lode mining claim. From this part of the judgment the plaintiff appeals, so likewise do the defendants Katherine Avare and Elinor G. McCarthy. This phase of the case we will proceed to dispose of first.
The execution of the articles of incorporation of the Butte Copper King Mining Company was acknowledged on April 19, 1906, and filed for record in the office of the clerk of Silver Bow county, Montana, on April 20, 1906, and in the office of the secretary of state on April 25, 1906. A. P. Henningsen, Henry Avare and D. Doráis were three of the incorporators and directors of the corporation. The corporation was organized for the purpose of carrying on a general mining business, of buying, selling, leasing and developing mines and mine property.
It appears from the evidence that the major purpose of the corporation at the time it was incorporated was to become the owner of those three lode claims known as the Missouri Girl, Rear Stake and Frenchman No. 2, situated in Silver Bow county, Montana.
Under date of April 9, 1904, and filed for record May 19, 1906, the United States of America issued patent, mineral certificate No. 4245, conveying the Frenchman No. 2 lode mining claim to John N. Kirk, Donat Doráis, Samuel D. Sumwalt and Martin Johnson. This is the only claim we are concerned with under this phase of the case.
Under date of March 16, 1906, Samuel D. Sumwalt conveyed a one-fourth interest in the Frenchman No. 2, Survey No. 6518, and other property, to D. Doráis.
Under date of April 26, 1906, D. Doráis, John N. Kirk and Henry Avare, and their respective wives, executed a deed to the Butte Copper King Mining Company. The granting clause of this deed is as follows: “Remise, release and forever quitclaim unto the said party of the second part, and to its successors *190and assigns forever, all the following described property, situated in Silver Bow county, Montana, and bounded particularly described as follows, to-wit:
“The Rearstake Lode, Survey No. 6620, the Missouri Girl Lode, Survey No. 6619, and Frenchman No. 2, Survey No. 6518, excepting and reserving, however, from this conveyance, three several portions of the surface of the said property described as follows, to-wit: (The descriptions of the reservations are then set forth.)
“Together with all and singular the tenements, ‘hereditaments and appurtenances thereunto belonging or in anywise appertaining.
“To Have and to Hold all and singular the said premises together with the appurtenances unto the said party of the second part, and to his heirs and assigns forever.”
Under date of May 18, 1906, Martin Johnson et ux. conveyed all their right, title and interest in and to the Frenchman No. 2 to D. Doráis.
On July 18,1913, D. Doráis died, his estate was probated and no mention of any interest in the Frenchman No. 2 Lode was made in said proceeding, nor is there any evidence that D. Doráis, during his lifetime, ever asserted any claim to this one-fourth interest, nor is there any evidence that any of his heirs asserted any such claim until 1945.
On October 28, 1929, Josephine Doráis, wife of D. Doráis, died. In 1945, some sixteen years later, her estate was probated, and as an asset of said estate the one-fourth interest in the Frenchman No. 2 was administered resulting in its sale to F. B. Winger, by administrator’s deed, dated May 14, 1945, filed May 16, 1945.
May 16, 1945, F. B. Winger et ux. conveyed the one-fourth interest in the Frenchman No. 2 to Anaconda Copper Mining Company for a consideration of $1. Upon this deed the Anaconda Company founded their ownership to a one-fourth interest.
*191Plaintiff’s contention is that the deed from D. Doráis et al. dated April 26, 1906, to the Bntte Copper King Mining Company, conveyed the land itself and not just the grantor’s interest in the property, and therefore passes after-acquired title.
Defendant Anaconda Copper Mining Company contends that the said deed from D. Doráis et al. to Copper King Mining Company was a quitclaim deed only and therefore does not pass after-acquired title.
The sole question in this particular phase of the case is whether the deed from Doráis, Kirk, Avare and their respective wives to the Butte Copper King Mining Company passed the fee together with the undivided one-fourth interest in the Frenchman No. 2 which Doráis acquired from Johnson some twenty-two days after he had conveyed to the Butte Copper King Mining Company.
“It is elementary that in construing the terms of a deed the court must, if possible, ascertain the intention of the parties to the sale as expressed by the deed.” Hollensteiner v. Missoula Lumber Co., 37 Mont. 278, 283, 96 Pac. 420, 421.
The general rule as stated in C. J. S. is: “The main object in construing a deed is to ascertain the intention of the parties from the language used and to effectuate such intention where not inconsistent with any rule of law.” 26 C. J. S., Deeds, sec. 83, page 324; Cobban Realty Co. v. Chicago, M. & St. P. R. Co., 58 Mont. 188, 191, 190 Pac. 988.
“The tendency of modern decisions is to-disregard techni calities and to treat all uncertainties in a conveyance as ambiguities subject to be cleared up by resort to the intention of the parties as gathered from the instrument itself * * *” 16 Am. Jur., Deeds, sec. 168, p. 532; Krutzfeld v. Stevenson, 86 Mont. 463, 475, 284 Pac. 553.
“The general rule is well settled that if there is any am- biguity in a deed so that it is capable of two possible constructions, one of which will be more favorable to the *192grantee, the other of which will be more favorable to the grantor, that method of construction which will be more favorable to the grantee will be selected and the deed will be construed against the grantor. All doubts, therefore, are to be resolved against the grantor. The rule is statutory in some jurisdictions. The rule is predicated upon the reasoning that since a grant is expressed in words of the grantor’s own selection, it is, prima facie, an expression of his intention, and he is therefore chargeable with the language used.” 16 Am. Jur., Deeds, sec. 165, p. 530.
The foregoing rule is expressed in section 6852, E. C. M. 1935, as follows: “A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.” See Story v. Woolverton, 31 Mont. 346, 354, 78 Pac. 589; Mineral County v. Hyde, 111 Mont. 535, 111 Pac. (2d) 284; U. S. v. Eldredge, D. C., 33 F. Supp. 337.
It is to be noted that this deed purported to convey to the party of the second part and to its successors and assigns forever, all the described property, to have and to hold all the said premises unto the said party of the second part, and to his heirs and assigns forever.
Section 6867, E. C. M. 1935, provides: “Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors. ’ ’
Keeping in mind the foregoing principles of law and the statutory provisions, we find the deed under consideration from Doráis, Avare and Kirk, and their respective wives, to Butte Copper King Mining Company, in its granting clause, provides: “Eemise, release and forever quitclaim unto the party of the second part, and to its successors and assigns forever, all the following described property, situated in Silver Bow County, *193Montana, and bounded particularly as follows, to-wit: (Here follows the description of the Frenchman No. 2, Survey No. 6518, and other properties.) Excepting and reserving, however, from this conveyance, three several portions of the surface of the said property described as follows, to-wit: * * *”
Does this granting clause purport to grant the property itself or only the right, title and interest of the grantors in the property at the time of the execution of the instrument.
“A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” See. 6866, R. C. M. 1935.
A deed conveying “All that real property * # * described as follows: * * *,” expresses an intention to grant the fee, or the entire estate, in whatever is described. See Van Slyke v. Arrowhead Reservoir & Power Co., 155 Cal. 675, 102 Pac. 816, 817, 818.
The habendum clause of the deed provides: “Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.
“To have and hold dll and singular the said premises together with the appurtenances unto the said party of the second part, and to his heirs and assigns forever(Emphasis supplied.)
It has been stated that the habendum clause is the clause in a deed, usually following the granting of the premises, which defines the extent of the ownership in the thing granted, to be held and enjoyed by the grantee. Black's Law Dictionary; New York Indians v. U. S., 170 U. S. 1, 18 S. Ct. 531, 42 L. Ed. 927; Krutzfeld v. Stevenson, supra.
If the deed purports and is intended to convey only the right, title and interest in the land, as distinguished from the land itself, it comes within the terms of a quitclaim deed, but if it appears that the intention was to convey the land itself, then it is not a quitclaim deed, although it may possess characteristics peculiar to such deeds. The use of the word “quitclaim” does not restrict the conveyance if other language is employed in the instrument indicating the intention to convey the land itself.
*194As was stated by the Supreme Court of California in Van Slyke v. Arrowhead Reservoir & Power Co., supra, in interpreting a deed, “It purports to ‘grant’ to said company ‘all that real property situated in the county of San Bernardino, state aforesaid, described as follows: * * *.’
“* * * It is obvious from the granting clause of the deed to the Arrowhead Reservoir Company that the intention was to convey the entire estate in the land described, and not a mere easement or privilege to use it for a reservoir and dam. A declaration of intention to ‘grant all that real property * * * described as follows: Being all of the land,’ etc., cannot be understood otherwise than as an expression of intent to grant the fee, or the entire estate, in whatever is described.”
Considering the deed as a whole, under the modern rules of construction as above set forth, together with the statutes, and from the language used, we think it is quite clear that it was the intention to convey the land itself and the deed was sufficient to pass after-acquired interest and title. Krutzfeld v. Stevenson, supra; Johannes v. Dwire, 94 Mont. 590, 23 Pac. (2d) 971; Wise v. Watts, 9 Cir., 239 F. 207, and cases therein cited.
This court has stated, “The modern trend of the courts has been to accept the broad doctrine of the intention of the parties appearing from all the terms and provisions of the conveyance, as controlling regardless of the presence or absence of any special covenant. The great weight of modern authority supports the principle that, whatever the form, or nature of the conveyance, if the grantor recites on the face of the instrument, either by express terms or necessary implication, that he is seised or possessed of a particular estate which the deed purports to convey or the mortgage to encumber, the grantor and all persons in privity with him are estopped from afterwards denying the same or asserting the title subsequently acquired by the grantor would not inure to the benefit of the grantee. Note 58 A. L. R. 381. ’ ’ Midland Realty Co. v. Halverson, 101 Mont. 49, 54, 52 Pac. (2d) 159, 161. (Emphasis supplied.)
*195In ascertaining whether a particular instrument passes after-acquired title, this court has applied the principle announced in Van Renssalaer v. Kearney, 11 How. 297, 13 L. Ed. 703, as follows: “The principle dedueible from these authorities seems to be, that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies.” Midland Realty Co. v. Halverson, supra.
In Wise v. Watts, supra, the granting and habendum clauses of the deed under consideration were as follows [239 P. 215] : “® * * remise, release and quitclaim unto the said party of the second part, and to his heirs and assigns, forever, all that certain tract * * * together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining * * * to have and to hold all and singular the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever.”
The court, after quoting from Van Renssalaer v. Kearney, supra, stated: “Does not the deed from Watts to Hawley bear upon its face evidence that the grantor intended to convey, and the grantee expected to become invested with, the one tract of land therein undertaken to be conveyed? In our opinion, undoubtedly so. It is true that the words ‘remise, release, and quitclaim’ are used in the granting clause, but it is also true that so far from the deed purporting to remise, release, and quitclaim only all the right, title, and interest of the grantor, it plainly *196manifests, we think, the intent of the grantor to convey, and of the grantee to receive and forever, by himself and his heirs and assigns, hold the property itself. Not purporting to convey only all the right, title, and interest of the-grantor, the deed in terms remised, released, and quitclaimed to the party of the second part thereto, and to his heirs and assigns forever, all of that certain tract of land described. * * *
“As has been seen, the deed from Watts to Hawley did not undertake to quitclaim only the interest of the grantor in the land described therein, but, on the contrary, and for the reasons stated, undertook, as we think, to convey the land itself. That being so, that such title as Watts afterwards acquired to the tract in controversy * * * inured to the benefit of Hawley and his assigns is clear upon well-settled principles. ’ ’ Wise v. Watts, 9 Cir., 239 F. 207, 221, 222, certiorari denied 244 U. S. 661, 37 S. Ct. 745, 61 L. Ed. 1376; West Seattle Land & Improvement Co. v. Novelty Mill Co., 31 Wash. 435, 72 Pac. 69; In re Wilson’s Estate, 40 Cal. App. (2d) 229, 104 Pac. (2d) 716, 718; 58 A. L. R. 361, note; Lindsay v. Freeman, 83 Tex. 259, 18 S. W. 727.
“With reference to the effect of language used in the habendum clause of a deed, the more liberal rule applied in the recent cases indicates that, in certain situations, the language in the habendum may serve to transform what would otherwise be merely a quitclaim because of the premises into a conveyance of the fee simple absolute.” 16 Am. Jur., Deeds, sec. 226, p. 563; see Van Renssalaer v. Kearney, supra; Bradley v. Fackler, 13 Wash. (2d) 614, 126 Pac. (2d) 190; West Seattle Land & Improvement Co. v. Novelty Mill Co., supra.
In the instant deed there was a reservation and exception of certain surface tracts which had been previously conveyed. This is a further indication of the grantor’s intention to convey the property itself. Van Renssalaer v. Kearney, supra.
The Supreme Court of Washington, in considering a similar deed, stated, “Appellant next contends that The Gold Bond *197Mining Company took no title under its quitclaim deed from Edwards, because that deed was executed and delivered to the corporation before Edwards himself acquired title to the property from Mrs. McKay. It is true that Edwards’ deed to the corporation antedated that whereby Mrs. McKay conveyed her interest in the mine to him, but the deed to The Gold Bond Mining Company was more than a mere stautory quitclaim deed and was therefore not subject to the limitations imposed upon that type of conveyance. Edwards’ deed contained the ‘to have and to hold’ clause set out'above and purported to ‘grant, bargain, sell, remise, release and forever quitclaim’ the property here involved. * * * We therefore hold that the deed from Edwards to The Gold Bond Mining Company conveyed the title which Edwards subsequently acquired from Mrs. McKay.” Bradley v. Fackler, [13 Wash. (2d) 614, 126 Pac. (2d) 194] supra.
The Supreme Court of Arizona, in Hamblin v. Woolley, 64 Ariz. 152, 167 Pac. (2d) 100, 104, interpreting a deed, stated, “We think the case of Wise v. Watts, 9 Cir., 239 F. 207, 218, 152 C. C. A. 195, certiorari denied 244 U. S. 661, 37 S. Ct. 745, 61 L. Ed. 1376, (an appeal from the district court of Arizona to the 9th circuit), settles the problem before us. There the question of whether an instrument in the form of a quitclaim deed would carry after-acquired title was fully discussed and the authorities cited.” The court quoted with approval from Midland Realty Co. v. Halverson, supra.
Respondent Anaconda Copper Mining Company has cited many cases in support of its contention that the deed in question is merely a quitclaim deed and therefore does not pass after-acquired title, among them Lodge v. Thorpe, 120 Mont. 226, 181 Pac. (2d) 598, 599. However, the deed there considered contained, “all of my right, title and interest” clause and as the court pointed out, said deed “is a quitclaim deed without any habendum clause and purports to convey only the grantor’s interest in the property.” (Emphasis supplied.)
*198In Sharples Corporation v. Sinclair Wyoming Oil Co., 62 Wyo. 341, 167 Pac. (2d) 29, 168 Pac. (2d) 565, the deeds there considered were drawn in pursuance to,and in conformity with a written agreement between the parties. The intention of the parties to release only their interests in the property by quitclaim deeds was clearly expressed in the written agreement.
We have examined the other cases cited, many of which are from Missouri and Arkansas where special statutes control. We hold that they are not applicable here as authority for the holding that the deed under discussion is a mere quitclaim deed and does not pass an after-acquired title. Here it is apparent that the form and substance of the instrument in question, take it beyond the limitations of merely a quitclaim deed.
In conformity with our statutes, the principles of law laid down in Van Ressalaer v. Kearney, Wise v. Watts, Midland Realty Co. v. Halverson, and Krutzfeld v. Stevenson, supra, which we consider set forth the weight of authority, the intention expressed in the deed, we hold that the deed in question was more than a quitclaim deed. It conveyed the property itself and is sufficient to pass after-acquired title. That being so, such title as D. Doráis afterward acquired from Martin Johnson et ux. inured to the benefit of the Butte Copper King Mining Company and'its assigns, and D. Doráis, his heirs and assigns, were and are estopped from asserting any claim thereto. Wise v. Watts, supra, and cases therein cited.
Accordingly that portion of the judgment and decree which provides ‘ ‘ That the Anaconda Copper Mining Company, a corporation, is the sole and exclusive owner in fee simple of an undivided one-fourth (14) interest in the Frenchman No. 2 Quartz Lode Mining Claim, designated by the Surveyor General as Lot or Survey No. 6518, embracing a portion of section 11, in Township 3 North, Range 8 West, Montana Principal Meridian, in the Summit Valley Mining District in the County of Silver Bow, State of Montana, hereinafter more particularly described, ’ ’ and that part of said judgment and decree providing, ‘ ‘ That subject *199to the undivided one-fourth (%) interest of the Anaconda Copper Mining Company, a corporation, in and to the Frenchman No. 2 Lode Mining Claim as aforesaid,” is reversed and the cause remanded to the district court with directions to strike the above quoted parts of said judgment and decree and enter judgment therein in conformity herewith.
We now proceed to determine the question of ownership of the capital stock of the Butte Copper King Mining Company, a dissolved corporation, which presents the second phase of this case.
Phyllis M. Henningsen, widow of A. P. Henningsen, deceased, who died November 7, 1927, a successor in interest of all of the property of which the said A. P. Henningsen died seized, including his capital stock in the Butte Copper King Mining Company, brought this action under the provisions of Chapter 63 of the Civil Code of Procedure as authorized by section 1, Chapter 198, Laws of 1937, for the purpose of determining the ownership of three mining claims located in Silver Bow county, described as the Missouri Girl, Rear Stake and Frenchman No. 2, all standing in the name of the corporation. From an adverse judgment the plaintiff appeals.
The default of all nonappearing defendants was duly entered and those other defendants who did appear were found to have no interest:
The defendant Katherine Avare, widow of Henry Avare, deceased, who died November 30, 1918, a successor in interest of all the property of which the said Henry Avare died seized, including his capital stock in the Butte Copper King Mining Company, by her amended answer filed in open court, the affirmative allegations thereof being by the plaintiff denied, asserting ownership of 152,164% shares of the capital stock of said corporation and claimed to be the owner of the property described in plaintiff’s complaint, in the proportion that 152,164% shares bears to the total established ownership of shares.
The defendant Elinor G. McCarthy in her answer asserted ownership of an undivided 2,500/277,702 interest in and to the *200property described in plaintiff’s complaint. Plaintiff in lier reply thereto; admitted that the said Elinor G. McCarthy has an interest in the Butte Copper King Mining Company equal to the proportion which 2,500 shares bears to the total stock ownership. No party has disputed her interest in that many shares of stock.
There being no dispute as to Elinor G. McCarthy’s 2,500 shares, the controversy narrows down to the question of the amount of stock which the plaintiff, Phyllis M. Henningsen, established ownership and the amount of stock to which the defendant, Katherine Avare, established ownership, in accordance with the provisions of section 1, Chapter 198, Laws of 1937.
The evidence is primarily documentary.
Plaintiff introduced in evidence an abstract of title covering Frenchman No. 2, Missouri Girl and Bear Stake mining claims certified down to the 19th day of June 1945, by the Western Abstract and Title Company and a continuation abstract for the same property certified from June 19, 1945, to the 7th day of November 1946.
The deposition of Phyllis M. Henningsen, hereinafter referred to as the plaintiff, was introduced in evidence. She introduced in evidence Stock Certificates Nos. 37, 40, 41, 42 and 78 of the Butte Copper King Mining Company, amounting in all to 286,739 shares. Plaintiff identified the signatures on each certificate as being the signatures of the president and secretary of the corporation. She further identified the endorsements of A. P. Henningsen and the executors of his estate on certificate No. 78.
The will of A. P. Henningsen, the order appointing executrix and executors of his estate, the oath of executrix and executors, letters testamentary and the resignation of plaintiff as executrix are in evidence showing certificate No. 78 was duly endorsed to the plaintiff by the executors of the estate of A. P. Henningsen, deceased.
One Sherman L. Snyder, at all times working for and on behalf of plaintiff, paid the taxes on the property for the years *2011925 to 1947, except that the taxes for the years 1946 and 1947 on Frenchman No. 2 were paid by the defendant, Anaconda Copper Mining Company.
Katherine Avare introduced in evidence certificates Nos. 74 and 75 for 500 and 102 shares, respectively, issued to H. R. Bartlett on May 21, 1915, and by him endorsed in blank June 21, 1915. These certificates were found in Henry Avare’s bank box after his death. Plaintiff admits that Katherine Avare is the owner of a one-half interest therein, amounting to 301 shares, claiming the remaining one-half interest therein amounting to 301 shares by virtue of the assignment dated February 17, 1941, of Mary Alice Avare and Robert Avare to Sherman L. Snyder of all of their interest in the capital stock of the Butte Copper King Mining Company.
Katherine Avare also introduced in evidence, over objection of plaintiff, certain papers found among the possessions of her deceased husband, Henry Avare, after his death, bearing dates from the year 1906 to 1909 under which she asserts ownership, including a letter (Exhibit B) dated October 1, 1906, addressed to A. P. Henningsen, secretary of the Butte Copper King Mining Company, Butte, Montana, signed by D. Doráis, authorizing the secretary of the corporation, “subject to pooling arrangements” to issue stock to various persons in various amounts totalling 600.000 shares. ■ Henry Avare is listed for 118,727 shares, D. Doráis for 192,572 shares, John Kirk for 106,099 shares, A. P. Henningsen for 30,000 shares and various other persons are named for various smaller amounts. Katherine Avare also introduced, over the objections of plaintiff, an assignment (Exhibit C) made in the year 1909 from D. Doráis to Henry Avare of 175.000 shares of the capital stock of the Butte Copper King Mining Company, also found-among the possessions of her deceased husband after his death.
To the admission of each and all of said papers, plaintiff interposed numerous objections, which in the main go to the immateriality thereof; failure to lay the proper foundation therefor; *202their remoteness as to time and that none of said papers tend to prove ownership of said capital stock.
The stock book of the corporation, admitted without objection, shows by its stubs for certificates the issuance of various shares of stock including 2,500 shares to D. Doráis, 10,500 shares issued to Henry Avare, 602 shares issued to H. E. Bartlett (-those represented by certificates Nos. 74 and 75), 286,739 shares issued to A. P. Henningsen (including certificate No. 78 for 156,739 shares transferred to A. P. Henningsen from Josephine Doráis) and other shares issued to various persons for various amounts— the latter not material or in issue.
The inventory and appraisement filed in the matter of the estate of Henry Avare, deceased, lists certificates No. 74 for 500 shares and No. 75 for 102 shares of the Butte Copper King Mining Company and 118,000 shares of said Butte Copper King Mining Company, all appraised at $5,000.
The decree of distribution in the matter of the estate distributes certificates No. 74 for 500 shares and No. 75 for 102 shares and 118,727 shares of the capital stock of the Butte Copper King Mining Company to Katherine Avare and Frank Avare share share alike. '
The evidence further shows that on April 13, 1939, plaintiff entered into an agreement with Sherman L. Snyder, under the terms of which the said Sherman L. Snyder, among other things, was to perfect the title of plaintiff in the mining claims hereinbefore referred to. As a part of said agreement, the said Snyder was to acquire or cause to be acquired for plaintiff the outstanding stock of the corporation for cancellation.
Thereafter, February 17, 1941, Mary Alice Avare and Eobert Avare (wife and son, respectively, of Frank Avare, deceased, a brother of Henry Avare, deceased, successor in interest of a one-half interest in all of the property of which the said Henry Avare died seized, including his capital stock in the Butte Copper King Mining Company), for a valuable consideration, as*203signed to Sherman L. Snyder all of their interest in the capital stock of the Butte Copper King Mining Company.
The lower court entered its findings of fact and conclusions of law and entered its decree that the title to the Missouri Girl, Rear Stake and three-quarters interest in Frenchman No. 2 was divided as follows:
Phyllis M. Henningsen 114,239/247,236%
Katherine Avare 130,497%/247,236%
Elinor G. McCarthy 2,500/247,236%
From the judgment the plaintiff has appealed.
The interest of the respective parties in all of the real estate in question must be determined under the provisions of Chapter 198, Laws of 1937, and depends upon their ownership of capital stock of the dissolved corporation.
It is of course well settled that a person may be the owner of stock in a corporation even though the certificates of stock have not been issued. Cotter v. Butte & Ruby Valley Smelting Co., 31 Mont. 129, 77 Pac. 509; Gallatin County Farmers’ Alliance v. Flannery, 59 Mont. 534, 197 Pac. 996.
As above noted the corporation was organized in April 1906 to take over the mining claims owned by D. Doráis and others. The court properly received in evidence exhibit B above referred to, the same being the letter signed by D. Doráis and addressed to A. P. Henningsen relating to the proper distribution of the stock of the corporation.
The letter was written shortly after the corporation was formed.' It was made to the secretary of the corporation by one of the owners of the property transferred to the corporation.
This declaration was so close in point of time to the time when the corporation was formed and the property was transferred to the corporation that it constituted some evidence of the ownership of the stock at the time it was made. Compare Williams v. Gray, 62 Mont. 1, 203 Pac. 524.
But plaintiff contends that it is no proof of present ownership, the statement having been made in 1906. It is contended *204by plaintiff that even if it reflected the proper division of the stock in 1909, it is too remote in time to be of any evidentiary value as of the time of the trial.
Lapse of time standing alone is no bar to a stockholder’s right to shares of stock. The rule is that the Statute of Limitations does not bar a claim for certificates of stock which were unissued until the stockholder is notified that his right to the stock is disputed. Commonwealth ex rel. Mercer County Court v. Springfield, M. & H. Turnpike Co., 10 Bush. 254, 73 Ky. 254; Wells v. Green Bay & Miss. Canal Co., 90 Wis. 442, 64 N. W. 69; Bedford County v. Nashville, C. & St. L. R. Co., 82 Tenn. (Lea.) 525; Kobogum v. Jackson Iron Co., 76 Mich. 498, 43 N. W. 602; Snyder v. Charleston & S. Bridge Co., 65 W. Va. 1, 63 S. E. 616, 131 Am. St. Rep. 947.
And proof by a party that he at one time owned stock in a corporation shifts the burden to the "adversary to show that he parted with his title thereto before he can be deprived of the right to have certificates issued to him. Snyder v. Charleston & S. Bridge Co., supra.
According to exhibit B Henry Avare was entitled to 118,727 shares of stock.
The inventory and appraisement of the Henry Avare estate mentions the 118,727 shares of stock and the decree of distribution distributes to Katherine Avare and Frank Avare, a brother of deceased, these shares equally. Recitals in the inventory and appraisement and in the decree of distribution are not competent evidence that the deceased owned that amount of stock at the time of his death. In re Regnart’s Estate, 102 Cal. App. 643, 283 Pac. 860; In re McCarthy’s Estate, 127 Cal. App. 80, 15 Pac. (2d) 223; Malville v. Kappeler, 4 Cal. Unrep. 843, 37 Pac. 934.
A decree of distribution does not create title it does not transfer title. Upon the death of the testator the title to his property, both real and personal, vests immediately in the devisees and legatees. The court gives no title in its decree of *205distribution but merely determines the succession of such title as the decedent may have had. Gaines v. Van Demark, 106 Mont. 1, 74 Pac. (2d) 454; In re Clark’s Estate, 105 Mont. 401, 74 Pac. (2d) 401, 114 A. L. R. 496; In re Estate of Deschamps, 65 Mont. 207, 212 Pac. 512.
It is a circumstance, however, that may be considered with exhibit B to show that the parties acted upon exhibit B and treated it as the proper basis for the distribution of the stock. Another circumstance of great weight is the fact that stock was actually issued to many of the persons named in exhibit B in the exact amount specified by it. Likewise, for the same reasons that exhibit B was admissible, so was the assignment, exhibit C above, from D. Doráis to Henry Avare, properly considered by the court.
The court properly determined Katherine Avare’s interest to be represented by 130,497% shares of stock. Likewise Elinor G. McCarthy’s interest was represented by 2,500 shares. No one disputes that fact. The court however erred in limiting plaintiff to 114,239 shares.
We now come to the assignment of Mary Alice Avare and Robert Avare (successors in interest of Frank Avare, deceased, who was a brother of Henry Avare, deceased) to Sherman L. Snyder of all of their stock in the Butte Copper King Mining Company, admitted in evidence without objection. Katherine Avare contends that the stock acquired by Mr. Snyder did not inure to the benefit of the plaintiff but was automatically can-celled. Plaintiff contends that by reason of the assignment she is entitled, in addition to other shares claimed by her, to such additional shares of stock as the court finds Katherine Avare to be entitled to. It is to be remembered that plaintiff and Snyder entered into an agreement on April 13, 1939, under the terms of which Snyder, among other things, was to perfect the title of plaintiff in the mining claims hereinbefore referred to and to acquire or cause to be acquired stock for cancellation, which said contract appears in the abstract. (Exhibit 2.)
*206It is also to be remembered that Snyder was at all times working for and on behalf of plaintiff. He paid the taxes on the corporation property for plaintiff’s benefit. Part of the consideration for the assignment from the heirs of Frank Avare was not to be paid until the ownership of stock by Avare would be recognized in court.
¥e believe that the proper construction to be placed on plaintiff’s contract with Snyder is that Snyder was to acquire outstanding stock of the corporation for the benefit of the plaintiff, cause this suit to be brought wherein the stock was to be cancelled and the corporate property would be distributed in lieu thereof “to the persons who shall in such proceeding establish their ownership of capital stock of such corporation, pro rata, according to their respective stock ownerships, as so established in such proceeding.” Ch. 198, Laws of 1937. Therefore we hold that plaintiff is the owner of additional shares in the amount equal to that found to be owned by Katherine Avare, namely 130,497% shares.
The court rightly ignored certificate No. 78 for 156,739 shares issued to A. P. Henningsen on September 18, 1922. The stock book shows that this represented stock assigned by Josephine Doráis to A. P. Henningsen. D. Doráis died in 1913. Josephine Doráis was his sole heir. The record indicates clearly that Josephine Doráis never had any stock in the corporation other than that which she inherited from her husband’s estate. But the court, on ample evidence, found that Doráis in his lifetime had assigned all the stock which he owned and hence Josephine Doráis had none to'assign to A. P. Henningsen.
In other respects the court’s conclusions were proper. We therefore hold that the interest of the parties in the property of the Butte Copper King Mining Company dependent upon their ownership of stock is as follows:
Phyllis M. Henningsen 244,736%/377,734 .
Katherine Avare 130,497%/377,734
Elinor G. McCarthy 2,500/377,734.
*207For the same reasons given the judgment of the lower court, as the same pertains to this, the second phase of this cause, is reversed and remanded with directions to enter judgment in accordance with this opinion.
It is ordered that, as above amended, the opinion be substituted for the majority opinion of the court heretofore pronounced.
MR. JUSTICES ANGSTMAN and METCALF concur.