It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed for the following reasons, tp-wit:

1. There is testimony tending to prove each and all of the controverted facts found by the circuit court.

2. That, therefore, this court will not weigh the evidence in this case and will accept the findings of fact as declared by the circuit court.

3. That, as found by the circuit court, the defendant in error made no separation of its receipts and expenditures, profits and losses, as they pertained to participating and to non-participating policies, from the time it began the life insurance business up to the first day of January, 1908, and *460that, in such conduct of its business, it accumulated a surplus, which, on December 31, 1907, amounted to $2,422,184-.25, of which a sum largely in excess of $400,000 was derived from, non-participating policies; and that the surplus derived from the nonparticipating policies of the defendant for the years 1908 and 1909 was in excess of $400,000.

4. That the defendant in error had a lawful right, and was not estopped, to make the said issue of $400,000 of capital stock and was entitled to apply toward the payment of said stock $400,000 out- of the surplus on hand December 31, 1907, •theretofore derived from non-participating business, as was done.

. 5. 'That, upon the facts found, relator is not entitled to the relief prayed 'for.