DUNSOOMB V. HOLST.
the shipper shall desire to consign, to said complainant's yards,"and transport and deliver the sam.e upon the same terms and in the Same manner that stock is received and transported and delivered unto the United Railroads Stock Yards Company, upon giving bond in the sum of $20,000." It may be noted, as a part of the history of this controversy, that the Marietta & Cincinnati Railroad Company, operating the Cincinnati & Baltimore Railroad, had established a switch to the United Railroads Stock-Yards, and made that its live-stock station for the city of Cincinnati, and refused to establish or permit the establishment of a switch to, or station at, the stockyards of the complainant in the. principal case. 'J.'hat being the only road reaching the stock-yards of the complainant he was practically cut off from access to or from the railroads of the city. The Marietta & Cincinnati Railroad Company was in the hands of receivers appointed by the common pleas court of Ross county, Ohio. An application was made to Judge Baxter to compel the receiv.ers to afford the complainant equal facilities with those accorded his competitor. As the receivers had been appointed by the state court, and its road and property were therefore under its control, his honor refused the application and remitted the complainant to the state court for redress. Afterwards application was made to the Ross county court, and, after full hearing, an order entered directing the receivers to afford to the complainant equal facilities with those granted to the rival yard. For a report of the decision of the Ross county common pleas. court, which was delivered by Judge Minshall, see 7 Cincinnati Weekly Law Bull. 295. See, on.the8ubject of railroad di!,criqJ.ination, Hallsv. Pennsylvania Go. 12 FED. REP. 309, and note thereto. Also the EaJPress Oompany Gases, before Justice Miller and JUdge FED. REp. 210, 869.-[REP.
June 21, 1882.)
At a llale.of land at pUblic auction by an officer of the court, where the title to the land was acquired by the defendant under the following devise in a will : "I bequeath to my daughter [the land In question] for her and herchiJdren's sole and separate use, free from any qlaim or control of her husband,"-and the purchaser at the sale declined to comply with the terms of his purchase, alleging a defect of title, held, that.a title acquired by such a devisee is not of such Clear and indisputable character as the purchaser bas a right to demand, and that a court of equity will relieve the purchaser from complying with his bid made at the sale.
That under such circumstances" and· after anlnvestfgatlOD of the tItle Ily the master, the court will order a r8i&le of luch interest in the land u the defendants to the suit may hav..
Under a decree of sale in this cause the marshal was ordered to sell at public auction the interest of the bankrupts in certain real estate and leasehold property in Memphis, the terms of sale being one-third cash, the balance in equal payments, on a credit of six and twelve months. Among other property was a tract known as the east 100 feet of lot 4, in block 50, South Memphis, 75 feet deep. At the marshal's sale Robert R,. Church became the purchaser of this land at a bid of $260, but under the advice of counsel, who examined the title to this land for him, Church declined to comply with the terms of his purchase for an alleged defect in the chain of title, and his action was reported to the court. On April 10, 1882, an order of reference was made to the master in chancery of this court to investigate this title, and make report whether said purchaser qught to comply with his bid. On May 26th, John B. Clough, Esq., the master, filed his report in the case, the material portion of which is as follows:
"I find and report that the said purchaser declines to comply with the terms of his'purchase for an alleged defect of 'Mrs. Margaret Holst's title to the said land. This defect, as claimed before me, arises under the will of Narcissa Brooks, under which Mrs. Holst's immediate grantor, Mrs. Amelia E.Rogers, <1erived title; and it is admitted that if, under the said will, Mrs. Rogers took a fee-simple title, Mrs. Holst took the same under her deed from Mrs. Rogers, dated September 23,1868. ... .. ... It is further admitted on this reference that the said purchaser, Robert R. Church, is desirous to comply with his bid made for this land at the marshal's sale herein, provided he obtains a good title in fee-simple to the same, and that his refusal to comply therewith is made solely on account of the supposed defect of title. "The devise to the said Amelia Rogers in' the said will is in these words: .I bequeath to m1/ daughter, Amelia, [the said land,] j'or her and her children's sole and separatf! use, free from any claim or control of her hushand.' By another the following clause of· s&id will the testatrix devises other and land .to the above .devisee and another danghter by this language: 'I also bequeath the residue of m, lot '" ... ... tomytwoda'ughters, ,Amelia Rogers and Ellen Holst, and their e1iildren,' foranrlfor their sole and separate use, free from any eontrolof their husbands; and in case of the demise of orie or either of mydaughters.without children, then the portion inherited by her is to revert to the otherapd her cpUdren, retaining;1ll the conditions.'. are the ,oJ;lly, pequ,estsxnade by the will, and William Rogers, the husband of Am'elia, was named executor. will was made and executed May 3, 1866, and in the probate court May 5, lS68. tbl;\ testatrix having (iie.d.in thep,tec£ldingApril. . date of Mrs. death,AmeUa E.R:ogers and her husband, were both living, and had at that time six daughters liVing, all minors, the eldest being some sixteen years of age and the youngest only one or two years old. Subsequently a son was born, who died in infancy. The
DUNSCoMB V. HOLST.
mother, Amelia E. Rogers, is now living, together with her six daughters, three of whom are married and three unmarried, their ages being now respectively about 14,15,21,23, 26, and 30 years. I assume, and it has not been controverted, that since the date of her deed, September 23, 1868, Mrs. Margaret Holst has been in actual, continued, and uninterrupted possession of this property. "The case of Beecher v. Hicks, 7 Lea, 207, was the construction of a deed to 'Sarah ---, the wife of J ames--, for her sole and separate use and benefit, and free from all the debts, liabilities, and contracts of her said husband, and to the children of the said Sarah upon her body begotten by her said husband;' and it was held by the supreme court of this state that I the mother did not take a fee in the land, but only a separate life estate,' and that on her death the entire estate passed to her children by the terms of the deed. .. The will construed by the same court in Bowers v. BouJers, 4 Heisk. 298, was in these words: · I bequeath to my daughterOaroline' (wife of Bowers) certain land described in the will, ·to have and to hold the same to her and her children, to their special use and benefit, forever;' and the court held that 'the legal title was vested in the daughter. but she was to hold it as trustee for the joint Use and benefit of herself and her children. The daughter, therefore, had the legal title to the whole property, and an equal equitable interest therein with each of her children. ... " ... The testator intended that his daughter and all of her children should enjoy the use and benefit of the property until the legal and equitable title shOUld be vested in the children when his daughter should die. It was further the intention of the testator to give to' his daughter the sole and separate use of the propert,y' for herself and chilIt is well settled that the dren, excluding the right of the husband. · · term 'children,' as well as all other similar terms descriptive of clltssesor relations, must always be understood in wills in its primary and simple signification when it can be done; in shott; where there are any persons in existence at the time of the will, or before the time of thede'Vise or legacytakes' effect, answering the meaning of the terms, such persons will beintended'to bedeiiigmited.' See, also, Stubbs v. Stubbs, 11 Humph. 43j' Williams v. Sneed, 3 Cold. 538;'Booke1' v. Booker, 5 Humph. 505. .. In Turner v.' bYiJe,' 5 Heisk.' 222, the devise in the Will was as follows: 'I give to my son John, in trust, for the sole use arid benefit of 'mydaugliter Sarah and to her children, if she shou.ld have anY,a tract of 'Fand; · '. "and Should my daughter, the said Sarah, die without any"child or children, the property to return to my' children." .At the death of thE!' testator Sarah was but 11 years old. She afterwards married and haclchildren, and she and her husband conveyed the land to the defendants. After her death the children brought suit, and, in deciding in their favOT,tbecourt says: 'Therecanbe 'no doubt thattheiritention of the testator WitS to 'give, to his daughter the equitable titletoth& land during her life, and at lier death to give tM legal title to any child or children she might then llave;"" .. , ' ""Pierce v; Ridley, 1 Bax. 145, involved It coitstrubtk>n oHbe following final clause of a will: 'The balance of my estate ,to'be equany divided among the heirs of my body. The portion that, goes to my sons i give to the heirs of their bodies, and hereby appoint each of inySODS trustees, 'Withoiit hoM;;)f
his respective portion;' and it was held that the legal title was vested in the sons respectively as trustees of their children, who took the beneficial interests. "In the case of Belote v. White, 2. Head, 703, the will gl.tve real and personal property to three trustees ·for the use and annual support of my daughter Elizabeth and her children;' the concluding clause providing that the trustees were to hold the same I in trust for the use and benefit of my daughter Elizabeth and her children, present and future, .. .. .. and after her death the. whole to be equally divided between all her living children and the heirs of those who may be dead;' and the court, in construing the rights of the parties under that will, held that-' the trustees took the legal title of the whole of Elizabeth, and at her death the entire estate became property during the invested in her children; that at the testator's death Elizabeth and her children toolt -an equitable estate as tenants in common in equal shares, her interest being for life only, with remainder as to that interest to them and their interests in fee.' "In Ellis v. Iri,sher,3 Sneed, 230, the testator made a devise in these words: 'I give to my sons, W. and J., as trustees, in trust for the use and benefit of my daughter Nancy, a tract of land,' with $1,000 in money, the interest on which was to be 'for her separate use and benefit during her natural life. .. '" If< The land is.to vest in my said sons .. .. .. in trust for the use and benefit of my said daugliter during her natural life, and at her death to the use of the heirs of her body, if she have any, and in default of the heirs of her 'boilY, ,then to my own right heirs.' Nancy died in 1850, leaving a husband and three minor children suryiving her. Held,' that the trustees 'took the legal estate only for the life of Nancy, the trust being merely to protect the property against the marital rights of her husband. Upon the death of Nancy the absolute title vested in the of her body. .. .. .. On Nancy's death the .limitation to the beirs of her body was instantly executed in them, consequently they became vested with the legal estate, not as heirs, but as p.urchasers.' HUut in Middletonv.Bmith, 1 Cold. 144, the devise was to Jane, 'for the benefit of my daughter Jane and her bodily heirs;' and, the court held she took an estate tail,orconditional fee at common law,' which under our statutes became an estate in fee-simple in Tennessee. "The deed construed in Kirk v. F'wrger80n, 6 Cold. 479, was as follows: Which said lot I give, gJ.:ant, and convey to the said Racbel, and to her heirs, -the natural issue of her body,-forever; if there should be no issue, then the said lot to descend to my grll-ndchildren;' and the court decided that the ,limitation to the grandchildren was void, and that the grantee took an absalute title, subject to ber husband's life estate. "Bkillinv. Loyd, 6 Cold. 563, involved tbe construetion of a will in the following language: ·I give and bequeath to Julia (Wife of S.) and the heirs of her body, for her sole and separate use during her natnrallife,' certain real ,and propeJ;'ty therein described: and tbe decfsion followed that of the preceding case of v. Ferguson, the court, holding that Jullatook an estate in fee-simple, in which the marital rights ()( her husband were excluded. See Tennessee Code, §§ 2006, 2008.
U The following cases are cited'for the convenience of the court and connsel, as bearing upon the construction of the will in question bere:M,oyston v. Bacon, 7 Lea, 236; Ragsdale v. 8 Bax. 300; Wyyne v. Wyyne, 9 H;eisk. 308; Alexande1' v. Miller, 7 Heisk. 81; Owen v. Hancock, 1 Smith v. Metcalf, Id. 64; Woodrum v. Kirkpatrick, 2 Swan. 224; Petty-v. 'Moore; 5 Sneed, 127; and Hamilton v. Bishop, 8 Yerg.41. I have not consulted authorities, outside the decisions of our own state supreme court, as the Tennessee adjudications, it seems to me, must control the question made here. "As a result of the foregoing cases, and my investigation, I report-that Mrs. Amelia E. Rogere did not take a fee-simple title under, the will of her mother; that she could not, therefore, and did not, convey such a title to Mrs. Margaret Holst by the deed of September 23, 1868, and that, consequently, at the marshal's sale the purchaser, Mr. Chutch, by complyIng with his bid, could not obtain a good title in file to the said land, and should not pelled to pay the amount of his bid. "Yet the decree of sale made in the .cause contemplates the l\isposal of aU Mrs; Margaret Holst's interest in this land, and whatever interest she has, if of any value, may yet be sold, and such assume was the intention oftlle court on the decree ordering this reference. "should it be ftIiall)i determined that said Mrs. Holst has any interest therein less than the fee. ' "Whatever interest or title Mrs. Amelia Rogers took under her mother's will, it is conceded, passed to Margaret Holst by the last-mentioned deed of this lot, and the case of Bowers v. Bowers, supra. in my opinion, is entirely I can see little, if any, difference between conclusive of what that the will in that case and this bne. the language being almost identically the same in both, I think of the same legal effect; and :( therefore report that under her mother's will Amelia E. Rogers took the legal title for the joint use and benefit, in common. of herself and ber six daughtere; ,and that upon her death. her interest being for life only, the entire .estate will pass to her said daughters. The interest in this land which passed to Margaret Holst was therefore only the life interest of Mrs. Rogers, as above stated, and I so report."
Gantt J; Patterson, for R. R. Church.
Calvin F. Vance, for plaintiffs. HAlIIMOND, D. J. This cause comes again before 'me on the report of the master as to the title of the land purchased and bid in by R. R. Church at a public ,sale by the marshal under a pre:viou& dec:t:ee. No formal exceptious have been filed to tliis report; and ,while I have not critically examined the question of the alleged inYrs. Margaret Holst's'title to this land, I am satisfied from, tlie mast9r's report that she did not ta:ke, such a. title as the purchaser is bound to accept, and that neither a deed from the marshal nordne from Margaret Holst would. convey to this purchaser the clear dotlbted character, of title he has a right to demand. It is, perhaps,
not necessary to now determine just what interest she has in the property, it sufficiently appearing that she has some interest. From the statements of counsel at the bar, and, indeed, from the report itself, it appears that the purchaser is desirous ot complying with his bid, and is perfectly responsible for the amount, if he can thereby acquire a good and indefeasible title to this land, and that his bid was made in good faith. Under such circumstances a purchaser has a right to require a good title, and will not be compelled to complete his purchase if such title cannot be given. The usual course in such cases is to direct a reference, as has been done here, and if it appears that the title is not good, and cannot be made perfect by deeds from the parties in the suit before the to the purchaser from his bid and order a resale of the property. 2 Daniell,Ch. PI. & 1276-1285, and cases cited in notes. Let a decree be entered relieving the purchaser from complying with his bid, and ordering a resale of such interest as the defendants have in the property.
and others, Adm'rs, v.
(Circuit Court, No D. Illinois.
ESTATES OF DECEASED-INvEsTMENT BY LEGATEE.
A legatee, being also executor, of the estate of a decedent purchased an interest in a firm, using for that purpose certl\oin funds derived from that estate, one-third of which belonged to him as legatee, one-third to a sister, and onethird to the children of a deceased brother. When he entered the firm he stipulated to become liable with the partners for its debts. He subsequently died, and his executor became a mem\)er of the same firm, and not only allowed the interest of his testator in that firm to remain, but, upon the basis of certain notes payable to his testator, negotiated loans from Ayer and from a bank for the use of the firm. In an action brought by the personal representatives of the original decedent the supreme court decided that the notes in question, in fact, belonged to the estate of such decedent, and they were accordingly delivered up to his personal by the parties to whom they were passed as collateral security for said loans. Thereupon the personal representatives of the original decedent brought an independent suit against the maker of the notes to enforce their payment, and in the progress of the suit the entire amount due on the notes was paid into court. Held(II That the judgment of the supreme court <leciding that the notes belonged to the estate of the original decedent, and.the decree in pursuance of the mandate requiring their delivery to his personal representatives, do not prevent the creditors of the firm, of which his legatee was a member, from asserting in this independent suit any equity they or either of them may have, to have their debts paid out of the proceeds of the notes.