controlling force of the logic of that decision | what remains of this bequest, on which a court as applicable to this case. The residuary of chancery can act? clause in the will there drawn in question was as follows:

11

"There must be some creative energy to give embodiment to an intention which was never "I authorize and empower my executors or power, it would seem, can reach this case. perfected. Nothing short of the prerogative the survivor of them, after the decease of my There is not only uncertainty in the beneficisaid wife, to dispose of the same [certain prop-aries of this charity, but behind that is a more erty] for the use of such charitable institutions formidable objection. in Pennsylvania and South Carolina, as they will of the testator. There is no expressed or he may deem most beneficial to mankind, through his executors or the survivor of them, He intended to speak and so that part of the colored population in but by the acts of Providence this has become each of the said states of Pennsylvania and impossible. It is then as though he had not South Carolina shall partake of the benefits spoken. Can any power now speak for him, thereof." except the parens patriæ? Had he declared to certain charitable purposes; under the statthat the residue of his estate should be applied ute of 43 Eliz., or on principles similar to those of the statute, effect might have been given to the bequest, as a charity, in the state of Pennsylvania. The words as to the residue of his property were used in reference to the discretion to be exercised by his executors. Without their action, he did not intend to dispose of the residue of his property. ***

In holding that this residuary bequest lapsed and became ineffectual because of the death of the trustees, resulting in their failure to express the will of the testator by the exercise of the discretion vested in them by the terms of the will of appointing the beneficiaries of the trust, Mr. Justice McLean, speaking for the court, said:

"The question in the case is whether the residuary bequest in the will, which authorized of appointment conferred by the testator, there "Where there is nothing more than a power his executors, or the survivor of them, after is nothing on which a trust, on general princithe death of his wife, to dispose of the surplus ples, can be fastened. for the use of such charitable institutions in The power given is a Pennsylvania and South Carolina, as they be exercised at the discretion of the individual. mere agency of the will, which may or may not might deem most beneficial to mankind,' has And if there be no act on his part, the proplapsed, no such appointment having been made, erty never having passed out of the testator, it or attempted to be made, during the lifetime necessarily remains as a part of his estate. of the executors. * The bequest under To meet such cases, and others, the prerogaconsideration was intended to be a charity. tive power of the king, in England, has been The donor, having entire confidence in his ex-invoked, and he, through the chancellor, gives ecutors, substituted their judgment for his own. effect to the charity." They, or the survivor of them, were to designate such objects of his charity in the two states, as would be most beneficial to mankind.' It was to be placed on the broadest foundations of human sympathy, not excluding the colored race. It is no charity to give to a friend. In the books it is said the thing given becomes a charity where the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field, for the needy and passing stranger.

"It may be admitted that this bequest would be executed in England. A charity rarely, if ever, fails in that country. The only question there is, whether it shall be administered by the chancellor. in the exercise of his ordinary jurisdiction, or under the sign-manual of the crown. Thus furnished with the judicial and prerogative powers, the intent of the testator, however vaguely and remotely expressed, if it be construed into a charity, effect is generally given to it. It is true, this is not always done in the spirit of the donor; for sectarian prejudices, or the arbitrary will of the king's instruments, sometimes pay little or no regard to the expressed will of the testator.

"The testator was unwilling to give this discretion to select the objects of his bounty, except to his executors. He relied on their discrimination; their judgment, their integrity, and fitness, to carry out so delicate and important a power. He made no provision for a failure, in this respect, by his executors or the survivor of them, nor for the contingency of their deaths before Mrs. Kohne's decease. They died before they had the power to appoint, and now,

justice expressed the view of the court that Other observations made by the learned the prerogative power of the king exercised through his chancellor in England does not exist in this country, looking to the sustaining of charities of the nature here drawn in question, at least in the absence of appropriate legislation providing for the exercise of such prerogative power by the state; and and might possibly be exercised by a soverthat such power, even as it exists in England eign state in this country, if provided for by appropriate legislation, is not and would not be the exercise of the judicial power of courts of chancery, but the exercise by those courts of the prerogative power of the king or a sovereign state. We have no statute in this state evidencing any intent on the part of the state to exercise any such prerogative power. In Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269, the court of appeals of that state had a similar problem presented to it, wherein the executor trustees had voluntarily renounced their power, resulting in letters of administration with the will annexed being issued to another. We shall not attempt to quote verbatim the somewhat involved language of the will there drawn in question. It is enough for present purposes to observe that the testator by language used in his will gave to trustees certain discretionary power looking to their establishing and maintaining a

(221 P.)

dispensary for indigent persons, with cer- any character whatsoever. They have never tain funds left as a portion of his estate; the court viewing this provision of the will as conferring upon the executors as trustees powers wholly, discretionary with them. In holding that this bequest lapsed and became ineffectual so as to render the testator as dying intestate, in so far as such funds were concerned, because of the failure of the trustees to exercise their discretionary power; in other words, because of their failure and refusal to express the will of the testator, Chief Judge Comstock, speaking for the court, said:

taken any step in the direction of giving effect to the charities confided to their judgment and discretion. In behalf of these charities it has been argued that, although the assets of the deceased passed into the hands of the administrator, yet the personal trust reposed in the executors still lives, and is capable of execution. But their renunciation of the executorial office, followed by this long period of inactivity, can mean no less than an absolute and final abdication of the trusts contained in the will. They had a right to take that course. Conceding that they might, if they had chosen so to do, devise a plan for a dispensary, appoint the place of its location, and designate the necessary amount of funds, so that a court "The will of a testator may be ascertained by of equity might compel the administrator to the acts of those to whom he has intrusted dis- appropriate the sum required, yet they were cretion and power. Such acts may be justly under no legal obligation to perform these acts. regarded as the definite expression of his own Having refused to qualify as executors, they purpose. But, in this view of the present never became accountable for any portion of question, the objections encountered are that the estate to be applied in charity or otherwise. the discretion was personal to the individuals Rejecting, then, the estate and the executorial appointed to be executors, and that they re- duties which the testator wished to cast upon nounced the trust. That the discretion was them, they certainly were not bound to accept personal, and not official, it hardly needs argu- any peculiar and still more confidential relament to prove. The duties to be performed tions which the will proposed. A testamentary were of a responsible and delicate character; direction, requiring some portion of an estate and they were certainly distinct from those to be applied by the executor to a charitable which are usually devolved on the office of ex- object-the plan of the charity and the sum ecutor. For the performance of these duties, necessary for its execution to be designated by the testator selected the persons in whose in- some person not the executor-might perhaps tegrity and fitness he was willing to confide; be enforced, if the person named elected to acand he made no provision for a devolution of cept the personal trust and make the designathe trust upon any one else in any event what- tion or appointment. But it is extremely plain The plaintiff is the administrator with that such acceptance must be voluntary. The the will annexed; but he cannot, in that char-right of renouncing a trust which has no necacter, execute powers and trusts which were personal to the executors who have renounced. The statute, it is true, provides that 'in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed; and the administrators with such wills shall have the same rights and powers, and be subject to the same duties, as if they had been named executors in such will.' 2 R. S. p. 72, § 22. This statute has not been understood as introDimmick v. ducing any new principle of law. Michaell, 4 Sandf. (S. C.) 409, 410; Edgerton's Adm'rs v. Conklin, 25 Wend. 233. terms, broad as they are, do not embrace a case like the present. "The will of the deceased shall be observed,' etc. But the precise difficulty here is that the will of the testator, in the respect under consideration, has not been declared. His intentions, as we are now assuming, were indefinite and unexpressed, That, it will be noticed, was a case whereand were to take a determinate form and ex- in the executors, having survived the testapression only in the discretionary acts of the tor, had it within their power to exercise the persons named as executors. Trusts and pow-discretionary trust vested in them by the ers, perfectly defined, relating to the personal estate of a testator, without doubt devolve on the administrator cum testamento annexo. But he does not, in virtue of his office, succeed to a power which is personal in its very nature, and which is intended by its author to be executed only by the individuals to whom he has intrusted it.

ever.

Its

essary connection with the office of executor is no less clear than the right of renouncing the office itself; and, in either instance, the right rests upon the very simple and elementary proposition that no man can be compelled, against his own will, to execute the testamentary wishes of another. Burritt v. Silliman, 3 Kern., 93.

"The argument, therefore, for sustaining this provision of the will, founded on a supposed discretion in the executors, the exercise of which might render the testator's wishes definite and certain, must fall to the ground. Upon all the facts before us, their renunciation of all right or intention to act must be deemed final, and the discretion extinct and gone. Intestacy as to any portion of the estate designed for the dispensary is the necessary result; because, in this view of the subject, the testator has failed to speak."

terms of the will, which is the condition attending the instant case, wherein the trust was left partially unexecuted by S. C. White. We perceive no reason why a bequest of this nature may not partially lapse to the extent that it remains partially unexecuted, as well as that it may wholly lapse because of its entire failure of execution, when the partial

"The written renunciation of the executors, filed in the office of the surrogate, was, in terms, of their office as such. That renuncia-failure leaves the unexecuted portion of the tion has been followed by 20 years of nonin- trust clearly severable from the executed terference with the estate of the decedent, in portion thereof, as is the case here, accord

ing to the allegations of appellant's petition,, for a reasonable time the final distribution The decisions in Hall v. Harvey, 77 N. H. of the estate, upon being properly advised 82, 88 Atl. 97, and Zeisweiss v. James, 63 Pa. that its condition is such as to be not ready 465, 3 Am. Rep. 558, express views in har- for distribution; but, as the record now mony with the decisions above noticed. We stands, there seems to be no reason for the are of the opinion that the petition of appel- postponing of an accounting by the adminlant, read in connection with the record in istratrix showing to the court the condition the probate proceedings, shows that he pos- of the estate, what portion thereof she has sesses such an interest in the undistributed reduced to her possession and what portion trust property remaining in the hands of S. thereof, if any, she is unable to reduce to C. White at the time of his death as to enti- her possession, all to the end that final settle him to the relief he prays for. tlement and distribution thereof may be expeditiously had. Manifestly, creditors are all out of the way by force of the former decree of distribution, and nothing remains now but to ascertain the amount and character of the remaining property of the estate, what portion thereof is in possession of Mrs. White as administratrix de bonis non, her ability to obtain possession as to any portion thereof as may not be in her possession, the payment of the expenses of administration, including her compensation, and the making of final distribution by the entry of a proper decree.

Contention is made that the right of appellant to have the trust property remaining in the hands of S. C. White, undistributed by him at the time of his death, has been finally adjudicated against appellant by the former decree of distribution entered in the probate proceedings, wherein that property was distributed to S. C. White as trustee for use as provided by the will of Samuel Chellew. That, as we view it, was only an adjudication of S. C. White's right to then receive that property, and at his discretion distribute it to certain persons of his choosing. He having failed to so distribute all of that property, and having died with some portion thereof remaining in his hands, as we must assume at this time, such remaining portion simply reverts to and becomes again an undistributed portion of the property of the estate of Samuel Chellew, deceased. In other words, it is in the same condition with reference to the estate of Samuel Chellew as property of the estate discovered after settlement and distribution, and thereby rendered subject to further administration of the estate of Samuel Chellew, deceased. Section 1550, Rem. Comp. Stat. that the former decree of distribution does not stand in the way of appellant asserting an inheritance right to this property and his right to the expeditious administration and distribution thereof.

We conclude

We are not holding that the court should, even after a satisfactory accounting by Mrs. White as administratrix de bonis non, render a final decree of distribution without giving the usual statutory notice to the world, to the end that all persons claiming to have rights in such property, either as devisees or heirs, may be heard upon the question of who shall take as distributee. It may be that other claimants will then appear who will be able to show rights equal, or even superior, to those of appellant, but we are of the opinion that appellant has, by his petition, read in the light of the record in the est on his part as a probable distributee of probate proceedings, disclosed such an interthe remaining property of the estate as to entitle him to have the court require of Mrs. White as administratrix de bonis non an accounting as such administratrix at this time, facts which may call for a further final aceven though such an accounting may disclose counting, and possibly a necessary postponing of final accounting and distribution.

[3] It is contended that the filing of the petition of appellant was premature, and that he should not be heard upon the questions he thereby presents to the court until the administration de bonis non files her final account and asks for final distribution of the property remaining undistributed by S. C. White as trustee at the time of his death. It may be that the trial court would be warranted, in the light of the condition of the administration of the estate by Mrs. White as administratrix de bonis non, in postponing and MACKINTOSH, JJ., concur.

the petition of appellant is reversed, and the The order of the superior court dismissing cause remanded to that court, with directions to proceed as expeditiously as may be in harmony with the views herein expressed.

MAIN, C. J., and HOLCOMB, TOLMAN,

(221 P.)

PAYNE, County Treasurer, v. SPEAKMAN,
District Judge. (No. 14771.)

(Supreme Court of Oklahoma. Nov. 6, 1923.
Rehearing Denied Dec. 11, 1923.)

(Syllabus by the Court.)

I. Prohibition 6(2)—Lies against county treasurer exceeding authority in assessing omitted property.

The county treasurer, when proceeding to assess omitted property, is an inferior tribunal exercising statutory authority, and prohibition will lie against the county treasurer in cases where he is acting without authority of law,

and his acts would be void.

2. Taxation 453-No resort to equity where appeal lies in proceedings for assessment of omitted property.

Where a special remedy, such as that of appeal, in proceedings for the assessment of omitted property, is provided for, the same is exclusive, and the complaining party cannot resort to a court of equity unless the officers are acting without authority of law.

3. Taxation 362-When notice for assessment of omitted property sufficient, stated. Under and by virtue of section 9798, C. L. 1921, which provides as follows: "Before listing and assessing the property discovered, the county treasurer shall give the person in whose name it is proposed to assess the same, ten days' notice thereof by registered letter," held that, under and by virtue of said section, it is not necessary that the notite itemize the personal property purported to be assessed in detail, and a notice which described the property in general terms as money and other personal property is sufficient to give the county treasarer jurisdiction.

of the District Court of Creek County. Writ issued.

Rainey & Flynn, of Oklahoma City, R. K. Robertson, of Sapulpa, and Calvin Jones, of Hugo, for petitioner.

Hughes, Foster & Ellinghausen, Walker & Lee, Thompson & Smith, George L. Mann, and Thrift & Davenport, all of Sapulpa, for respondent.

MCNEILL, J. This is an original action commenced in this court by the county treas urer of Creek county against Fred A. Speakman, district judge of Creek county, for a writ of prohibition enjoining and restraining said court from proceeding or assuming jurisdiction in an action pending in said court entitled O'Dell et al. v. Payne, County Treasurer of Creek County.

The facts, briefly stated, are as follows: A tax ferret has been employed in Creek county, as provided in section 9798, C. L. 1921, to discover property omitted and not listed for taxation. The county treasurer gave notice in writing to various parties. One of said notices was, in substance, that information had been filed with the county treasurer that said party was the owner of certain personal property consisting of the following: Money, bills receivable, at a fair cash value of $, which was subject to taxation in Creek county for the years as follows:

1917, $3,000: 1919, $2,000; 1920, $1.000; and 1921, $1.500, and not assessed and extended on the tax rolls. That before assessing and extending on the tax rolls the same, you shall have ten days' notice in writ ing in which you may file in this office on or before a certain day any objections to such

4. Prohibition 10(1)—When remedy proper, assessment or listing. The notices were all stated.

Prohibition is a proper remedy where an inferior court is attempting to make an excessive and unauthorized application of judicial force in a case otherwise cognizable by it. 5. Prohibition 5(3)-Lies against district court attempting to enjoin assessment of property.

The general policy of the laws of this state regarding the listing and assessing of property for taxes has been to provide the owner of the property with a remedy by appeal, and said remedy is exclusive, and courts of equity are without jurisdiction to enjoin and restrain the proper officers from listing or assessing of said property, unless the acts of the officers are without authority of law. Held, prohibition will lie against the district court, when they attempt to enjoin or restrain the proper officer from proceeding in matters properly before said officer, and over which said officer has jurisdiction.

similar, although some of the notices referred to the personal property as follows: Money, bills receivable, choses in action; others, choses in action, merchandise, money, and bills receivable; others, stocks and bonds; and others, household furniture, royalties, and rentals. Then the notice disclosed the year said property was omitted, and the value.

A number of the parties who received notices appeared and filed a written motion with the county treasurer requesting he furnish said parties a detailed list of the property belonging to said parties supposed to be omitted, and in default of furnishing said list moved the proceedings be dismissed, for the reason the notice was insufficient. This motion was overruled. Thereafter, said par ties, about 50 in number, brought an action in the district court of Creek county to enjoin the county treasurer from proceeding further with said assessment. The prayer Original action for writ of prohibition by of the petition was that the county treasurer James E. Payne, County Treasurer of Creek be enjoined, restrained, and prohibited from County, against Fred A. Speakman, Judge assessing any property of the plaintiff or any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of them, or any other persons similarly situated, and the county treasurer be enjoined and restrained from proceeding in any hearing or determination of the property of the

plaintiff, or other parties similarly situated, unless the defendant gave the plaintiff a notice as required by law describing the character and value of the property alleged to have been discovered, and not listed and assessed, and for general relief.

A temporary restraining order was issued. The county treasurer appeared and objected to the district court exercising jurisdiction, in said proceeding, because of want of jurisdiction in the district court. The court overruled said motion, and assumed jurisdiction and issued a temporary injunction. It is contended that assumption of jurisdiction by the district court of Creek county is unwarranted, and without authority of law, and the same is unlawful and unduly interferes with the county treasurer in the performance of the duties enjoined by law, and the county treasurer applies to this court for a writ of prohibition to prohibit the district judge from proceeding further

in said cause.

complaining party cannot resort to a court of equity unless the tax is illegal and void."

This court, on the proposition of enjoining the collection of taxes, has held in substance where the Legislature has prescribed the remedy and the aggrieved taxpayer has an effectual remedy, or one provided for him, that is all that is necessary, and when such remedy, is provided the same is exclusive. See Perry, County Treasurer, v. Carson, 61 Okl. 263, 161 Pac. 175.

[3] The plaintiff, however, contends that the proceedings before the county treasurer were void for the reason that notice was in

sufficient to give the county treasurer jurisdiction; it being contended the notice was too indefinite and uncertain. The statute does not provide the form of the notice that shall be given, nor does it provide for the listing of the property before giving the notice. Section 9798, C. L. 1921, reads:

The notice had been given. A somewhat similar notice was held sufficient by the Supreme Court of Iowa in Re Seaman's Appeal, 135 Iowa, 543, 113 N. W. 354. The general rule relating to assessing property is announced in 26 R. C. L. 357, as follows:

"An assessment of personal property need not describe the items of property assessed in detail and an assessment in general terms of the money and all other personal property is

sufficient."

Cases supporting this general proposition are as follows: Security Savings Bank v. Carrol, 131 Iowa, 605, 109 N. W. 212; Spring Valley Water Co. v. City and County of San Francisco, 246 U. S. 391, 38 Sup. Ct. 356, 62 L. Ed. 790; Lamson Consolidated Store Serv

[1, 2] It is the contention of the petitioner herein that the district court is without jurisdiction for the reason the proceeding before the county treasurer to assess omitted property is a summary proceeding and a plain, speedy, and adequate remedy at law is provided by appeal, and that remedy is conclusive, and no matter how defective the proceedings may be before the treasurer, it is a matter of which he has jurisdiction, and any errors and defects in the proceedings can be remedied by appeal. This court has held in substance that the county treasurer in assessing omitted property is an inferior tribunal exercising statutory authority, and that prohibition will lie against the county treasurer in cases where he is acting without authority of law. See Osage & Okla-ice Co. v. Boston, 170 Mass. 354, 49 N. E. homa Co. v. Millard, 45 Okl. 334, 145 Pac. 797. This court, in the case of Busey v. Prehistoric Oil & Gas Co., 79 Okl. 121, 191 Pac. 1033, held the tax ferret law provides a remedy by appeal to the county court from the final action of the county treasurer upon the assessment of omitted property, and, where the party failed or neglected to avail himself of the remedy provided by statute, the courts are without jurisdiction to exercise its equitable powers by restraining the collection of taxes due under said assessment.

The Supreme Court of Iowa, in a proceeding to assess omitted property under a similar law to that in this state, in the case of Bednar v. Carroll, 138 Iowa, 338, 116 N. W. 315, stated as follows:

"Where a special remedy such as that of appeal in proceedings for the assessment of property is provided for, it is exclusive, and the

630; In re Morgan's Estate, 125 Iowa, 247, 101 N. W. 127; Robbins v. Magoun, 101 Iowa, 580, 70 N. W. 700; Noyes v. Hale, 137 Mass. 266.

The respondents rely upon the case of Commonwealth v. Glover, 132 Ky. 588, 116 S. W. 769. In that case, however, the statute was different from the statute under consideration. The statute there under consideration defines the duties of the revenue agent which is the same as a "tax ferret" in this state, as follows:

"He shali file a statement of the property omitted from taxation and such statement shall contain a description and value of the property proposed to be assessed." Ky St. 1909, § 4260.

There is no such requirement under our statute. It simply requires the treasurer shall give the party a notice in writing. We