Page images
PDF
EPUB

justly due the intervenor the sum claimed, and ordered the sale set
aside unless the claim should be paid within ninety days. Held, that
the intervenor was entitled to the protection of the court, but that the
proper remedy was, not the annulling of the sale, and confirmation,
and master's deed, if the court had the power to do it, but an order
for a resale of the entire property in satisfaction of the claim of the
intervenor. Farmers' Loan and Trust Company v. Newman, 649.

See CONSTITUTIONAL LAW, A, 1, 3, 5; B;

[blocks in formation]

Under § 51 of the Revised Statutes, a person elected a representative in
Congress to fill a vacancy, caused by a resolution of the House that
the sitting member was not elected and that the seat was vacant, the
sitting member having received the proper credentials, and been placed
on the roll, and been sworn in, and taken his seat, and voted, and
served on committees and drawn his salary and mileage, is entitled to
compensation only from the time the compensation of such sitting
member ceased. Page v. United States, 67.

SECRETARY OF STATE.

1. In answer to a petition for a writ of mandamus to be issued to the Sec-
retary of State to compel him to pay to the petitioner part of an award
made by the Mexican claims commission, the Secretary set up that he
could not recognize the claim of the petitioner without ignoring the
conflicting claim of another person, between whom and the petitioner
litigation in respect to the award was then, and had for a long time,
been pending. On demurrer to the answer: Held, that it was suffi-
cient. Bayard v. White, 246.

2. The Secretary, in view of the litigation, was not bound to decide be-
tween the conflicting claims. 1b.

3. Whether it was a good answer to the petition, that the Secretary was
not invested with authority over the money independently of the

President, and that it was the opinion of the President that the pub-
lic interest forbade the making of payments to the petitioner, in the
condition of things set forth in the answer, quære. Ib.

SET-OFF.

A claim by the State of Louisiana to 5 per cent of the net proceeds of the
sales of the lands of the United States, under § 5 of the act of Feb-
ruary 20, 1811, c. 21, 2 Stat. 641, and a claim by the same State to
the proceeds of the sale by the United States of swamp lands, grow-
ing out of the provisions of the acts of September 28, 1850, c. 84, 9
Stat. 519, and March 2, 1855, c. 147, 10 Stat. 634, are claims against
which the United States can set off the amount due to them by the
State on matured coupons on bonds known as the Indian Trust bonds,
issued by the State. United States v. Louisiana, 182.

SPANISH-AMERICAN CLAIMS COMMISSION.

See CLAIMS AGAINST THE UNITED STATES, 7.

SPANISH GRANT.

See PUBLIC LAND, 1, 2, 3.

STATE.

See JURISDICTION A, 3, 4.

STATUTE.

A. CONSTRUCTION OF STATUTES.

1. Section 5 of the act of March 3, 1879, 20 Stat. c. 180, 355, 358, did not
operate to repeal § 3962 Rev. Stat.; and when it was itself repealed
by the act of June 11, 1880, 21 Stat. c. 206, 177, 178, § 3962 of the
Revised Statutes remained in force against railroad companies con-
tracting to carry the mails. Chicago, Milwaukee &c. Railway Co. v.
United States, 406.

2. When there are two provisions of law in the Statutes relating to the
same subject, effect is to be given to both, if practicable. Ib.

3. A statute will not operate to repeal a prior statute merely because it
repeats some of the provisions of the prior act, and omits others, or
adds new provisions; but in such cases the latter act operates as a
repeal of the former one only when it plainly appears that it was in-
tended as a substitute for the first act. lb.

4. When there has been a long acquiescence in a Department Regulation,
and by it rights of parties for many years have been determined and
adjusted, it is not to be disregarded, in construing the statute to
which it relates, without the most cogent and persuasive reasons.
Robertson v. Downing, 607.

[blocks in formation]

TAX AND TAXATION.

See CONSTITUTIONAL LAW, A, 1, 2, 7, 8, 13-17; B;
LOCAL LAW, 2, 3, 5;

NATIONAL BANK, 1, 2, 3.

TELEGRAPH COMPANIES.

See CONSTITUTIONAL LAW, A, 7, 8, 13-17.

TREATY WITH MEXICO.
See EXTRADITION, 2, 3.

TRIAL BY JURY.

See CONSTITUTIONAL LAW, A, 9, 10, 11.

TRUST.

1. A creditor whose debt is secured by a deed of trust of real estate to a
third party as trustee, may purchase the property at a sale by the
trustee under the terms of the trust; and if he credits the debtor on
the mortgage debt with the amount of the purchase money, it is in
fact and in law a money payment to the use and benefit of the debtor.
Easton v. German-American Bank, 532.

VOL. CXXVII-53

2. The plaintiff in error acquired by the purchase from the assignee in
bankruptcy no interest either in the debt of the bankrupt to the de-
fendant in error, or in the real estate conveyed in trust to secure it.
Ib.

3. The principle that a trustee may purchase the trust property at a judi-
cial sale, brought about by a third party, which he had no part in pro-
curing, and over which he could not have had control, is upheld by
numerous decisions of this court, and of other courts of this country,
and prevails in Texas. Allen v. Gillette, 589.

See LOCAL LAW, 4;

WILL, 2, 3, 4, 5.

UNITED STATES.

See CLAIMS AGAINST THE UNITED STATES;
INTEREST;

LIMITATION, Statutes of.

WILL

1. The intention of a testator, as expressed in his will, is to prevail when
not inconsistent with rules of law. Colton v. Colton, 300.

2. No technical language is necessary for the creation of a trust in a will,
and no general rule can be formulated for determining whether a
devise or bequest carries with it the whole beneficial interest, or
whether it is to be construed as creating a trust. Ib.

3. If a trust be sufficiently expressed and capable of enforcement, it is not
invalidated by being called "precatory." Ib.

4. When property is given by will absolutely and without restriction, a
trust is not to be lightly imposed, upon mere words of recommenda-
tion and confidence; but if the objects of the supposed trust are defi-
nite and the property clearly pointed out, if the relations between the
testator and the supposed beneficiary are such as to indicate a motive
on the part of the one to provide for the other, ana if the precatory
clause, expressing a wish, entreaty, or recommendation that the donee
shall apply the property to the benefit of the supposed cestui que trust
warrants the inference that it is peremptory, then it may be held that
an obligatory trust is created, which may be enforced in a court of
equity. Ib.

5. C, a citizen of California, died there, leaving a will which contained the
following provisions: "I give and bequeath to my said wife E. M. C.
all of the estate, real and personal, of which I shall die seized, pos-
sessed, or entitled to. I recommend to her the care and protection of
my mother and sister, and request her to make such gift and provision
for them as in her judgment will be best. . . . I hereby appoint
my said wife to be the executrix of this my last will and testament,
and desire that no bonds be required of her for the performance of

any of her duties as such executrix." This will was duly proved in
the Probate Court of San Francisco. The widow having failed to
make suitable provision for the mother and sister, each filed a bill
in equity against her, setting up that the provision in their favor
in the will was a trust. The bills alleged that the property received
by the widow under the will amounted to $1,000,000; that the sister
was dependent upon the mother for support; that the mother was in
feeble health and required constant care, and was without means of
support except the sum of $15,000 loaned at interest, which loan was
well known to the testator when he made his will and at the time of
his death; that no suitable provision had been made for either mother
or sister by the widow, but that they had been left in "very straitened
circumstances." The remedy sought in each bill was that the widow
should be required to make a suitable provision for the complainant.
To each bill a demurrer was filed on the ground that the will created
no trust; that the court had no jurisdiction; that the claim was stale,
having accrued more than four years before the commencement of the
suit; and that the matter had been adjudicated by the probate court
of San Francisco in the probate of the will. Held, (1) That the claim
being against the defendant as devisee and legatee, and not as execu-
trix, and there being no allegation in the pleadings that any jurisdic-
tion was exercised by the probate court in the construction of the will
in this respect, the adjudications in that court were no bar to the
prosecution of this suit; (2) That the complainants took under the
will a beneficial interest in the estate given to the wife to the extent
of a permanent provision for them during their respective lives, suita-
ble and sufficient for their care and protection, having regard to their
condition and necessities, and the amount and value of the fund from
which it must come; (3) That it was the duty of the court to ascer-
tain, determine, and declare what provision would be suitable and
best under the circumstances, and all particulars and details for secur-
ing and paying it. Ib.

6. The will of a citizen of New York, dying in the city of New York, was
admitted to probate there. A duly authenticated copy being presented
for probate in Michigan, notice to all parties interested by publication
was ordered, and on proof of such publication, and after hearing and
proof, the instrument was admitted to probate in Michigan, and an-
cillary letters were issued. Held, that the parties were properly brought
before the court by publication, and that the will was properly ad-
mitted to probate. Culbertson v. The H. Whitbeck Co., 326.

WRIT OF ERROR.

1. It is not sufficient cause for dismissing a writ of error that the citation
was served and made returnable less than thirty days after the writ
was granted. Seagrist v. Crabtree, 773.

2. A feme covert was sued in Louisiana to recover upon notes said to have

« ՆախորդըՇարունակել »