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;
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.
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.
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.
See PUBLIC LAND, 1, 2, 3.
See JURISDICTION A, 3, 4.
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.
TAX AND TAXATION.
See CONSTITUTIONAL LAW, A, 1, 2, 7, 8, 13-17; B; LOCAL LAW, 2, 3, 5;
TELEGRAPH COMPANIES.
See CONSTITUTIONAL LAW, A, 7, 8, 13-17.
TREATY WITH MEXICO. See EXTRADITION, 2, 3.
See CONSTITUTIONAL LAW, A, 9, 10, 11.
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.
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.
See CLAIMS AGAINST THE UNITED STATES; INTEREST;
LIMITATION, Statutes of.
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.
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
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