or to go into an arithmetical computation as to whether the required consents had in fact been given, as to value or number. No error was committed at the trial, and all the exceptions taken by the defendant must be overruled. In addition to the foregoing considerations, it appears that the bonds and the coupons were delivered to the railroad company in payment for the subscription made by the commissioners to the stock of the company, as authorized by section 4: of the act of 1869. This made the town a stockholder in the' company, and it must be assumed that the commissioners did their duty, and that the town received the stock and hali retained it, in the absence of any statement to the contrary, though the bill of exceptions is silent on that point. But it does appear that the road has been built and put in operation, and that- the defendant paid the interest on its bonds for three years after they were issued. Under the cases of Supervisors v. Schenck, 5 Wall. 712; Penn. G. Co. v. Amy, 13 Wall. 297, and Commissioners v. January, 94 U. S. 202, it must be held that, as against the plaintiff, as a bonafide holder, the town has ratified with full knowledge by the record of the alleged defects, the acts of those who issued the bonds. The motion for a new trial is denied, and the stay of proceedings is vacated, and judgment is ordered for the plaintiff on the verdict.
BACON and others.
July 17, 1880.) 1871 (GEN. ST.
(Oircuit C01trt, D. lJfassachusetts. L
ADOPTED CHILD-VESTED lllTEREST-ACTS
110) .AND OF 1876 (c. 213, § 9)
Bill in equity, praying that the defendant John H. Bacon, as he is trustee under the will of Edward C. Tirrell, may be ordered to convey to the complainants and others, heirs at
TmRELL t1. BA.CON.
law of said Edward, one undivided eighth part of the residue of his estate. The case was submitted upon the bill, the answer of thosedefendants who made answer, and oertain agreed faots, the substanoe of whioh is as follows: Edward C. Tirrell, of Boston.made his last will in 1846, and died in 1851. After a specifio bequest to his wife, he devised the residue of his estate to thedefendant Baoon and others, in trust, to pay the income to his wife for life, and at her death to his children during their lives, respeotively, in equal shares; and, upon the deoease of eaoh child, to convey and transfer his or her share and portion of the property, real and personal, above devised, eto., to his or her ohild or children then living, in equal shares, and tothe lawful issue then living of any deceased child of suoh ohild; and in default of any suoh child, children, or issue then living,.. to the testator's heirs at law. The testator left eight ohildren, of whom one was Edward' Q. Tirrell, who enjoyed one-eighth part of the income of the trust fund until 1879, when he died, leaving no children, unless the defendant Willie K. Tirrell is to be considered his ehild. Willie K. Tirrell was duly adopted as a child by Edward Q. Tirrell, in 1874, in accordance with the then existing laws of Massaohusetts. The question raised by the pleadings and statement was,. whether Willie K. Tirrell took a share of the trust fund as a. "child" of Edward Q. Tirrell. John P. Treadwell, for the heirs of Edward C. Tirrell. John Hillis, for the widow and adopted ohild. LOWELL, C. J. The law of adoption of children in Massachusetts was first enaoted in 1851, and modified a few years later in Gen. St., c. 110. In 1871 it was modified in some respects. Under both those laws an adopted child was conclusively taken to be the equivalent of a legitimate child of the parent or parents who had adopted him, excepting in two particulars. Sewall v. Roberts, 115 Mass. 262; Burrage v. Briggs, 120 Mass; 103. The first statute had but one exception, and the law of 1871 added the other. The first was that such child should not take under a limitation to the heirs
of the oody of the adoptive parent; but this was held in Sewall v. Roberts,ulli. supra, not to include a limitation to children. The other was, that he,should not take by "representation;" and there is no pretence that Willie K. Tirrell claims by that title. is argued that the will expresses a general intent to favor those who were of the testator's blood, by its final limitation over t.:> his heirs if his children's children should leave no issue. But the eases decide that an adopted child is a child, and is issue, and no general inferential intent can overrule the language. The argument was equally strong in one of the cases above cited. I cannot doubt that Willie K. Tirrell takes, by purchase, unless cut off by a later statute. The statute of 1876, c. 213, repeals the act of 1871, and changes the law of adoption very materially, with a view to limit the operation of the earlier statutes as construed by the supreme court. Section 9 declares tha.t "the term child, or its equivalent, in any grant, trust, settlement, entail, devise, or bequest, shall be held to include any child adopted by the settler, grantor, or testator, unless the contrary clearly appears by the terms thereof;" but in all other cases the ptesumption should be against that construction; "provided, however, that nothing in this act shall be construed to restrict any right to the succession to property, which may have vested in any person already adopted in accordance with the laws of this commonwealth." When this law was passed Willie K. Tirrell had already been adopted, and the question is whether his rights are affected by it. In Massachusetts the devise of a life estate, with a limitation over to the children of a person living at the death of the testator, gives all the children then living a vested remainder, which opens to let in after-born children. Dingley v. Dingley, 5 Mass. 535; Weston v. Foster, 7 Met. 297. In this case, the limitation being to those children of the life tenant who shall survive him, the interest of Willie K. Tirrell would be contingent on such survival; but it would be assign. ltble by him if he were of age, aud would, therefore, go to his
assignees, if he should becoDle bank;upt insolvent, sQb. jeet" of course, to the contingency. Higden v. Williamson, 8 P. Wms: 132; Winslow v. Goodwin, 7 Met. 363; Gardner v. Hooper, 3 Gray, 398; Nash v. Nash, 12 Allen, 345; Belcher v. Burnett, 126 Mass. 230, and cases cited. It was, therefore, a valuable interest which he owned in 1876. The llame which we may give to this interest of Willie K. Tirrell is not important, because, in my opinion, the proviso of the statute preserved all interests. It does not say that vested remainders shall be preserved, and contingent remain· ders destroyed; the word "vested," in the proviso, qualifies "tight" and not "property," and declares that a right of succession vested in any person at the date of the act shall not be restricted, not that property or estate which is vested shall not be taken away. The "vested rights" which it preserves are all existing rights. This is the meaning which that phrase bears in ordinary use in this country, though it has not acquired a technical meaning. It is not to be supposed that the law intended to destroy all contingent remainders and executory devises, and to preserve vested remainders alone. Such nic.:.:y of construction is not reasonable. Were it not for this proviso a court would say, withont hesitation, that 'the statute of 1876 was to be applied only to deeds and wills taking effect after its passage. This was taken for granted, and acted on, when the rule in Shelley's case was repealed. Loring v. Eliot, 16 Gray, 568. I doubt whether the proviso means more than that future settlements, though they should concern children already adopted, should be governed by it. Without it there might have been an ar· gument, from the general scope of the act, that it had no application in any case to children who had been adopted before its date. n the legislature should undertake to pass a law construing deeds and wills already in operation, to the disadvantage of persons who had some existing interest or estate under them, it would be justly chargeable with attempting to exercise ,judicial powers, and the\law would, in respect to such cases, be void. Dunn v. Sargent, 101 Mass. 336. v.3,no.2--5
I therefore decide in favor of the defendant Willie K. Tirrell. The agreement provides that I should decree a conveyance to the person or persons whom I should find entitled; but I doubt whether, under the pleadings, I can properly. make the decree in that form. Decree to be drawn in accordance with this opinion.
MUCHANTS' NATIONAL BANK OF BALTIMORE 17. NATIONAL BANK OF BAL'J.'IMOBE.
(Oireuit Oourt, D. ltfarylaM. June 30, 1880.)
L lNnoRSEE-STATUTE OF LIMITATIONB.-In a suit by the drawee of a bill exchange against an indorser, where such bill was drawn by 'he treasurer of the United States, and the name of the payee forged, ,be statute of limitations does not begin to run until judgment has been. obtained by the United States against the drawee.
Appeal from the district court. Marshal et Brown, for appellant. Daniel et Sterling, for appellee. WAITE, C. J. On the sixteenth of March, 1867, t'he treasurer of the United States made his draft on the First National Bank of Baltimore, a government depository, for $1,609.55,. payable to the order of William Orndorff. This check, apparently indorsed by Orndorff, the payee, and one Hargert, \1'a& forwarded by the Shenandoah Valley National Bank, with if;s, own indorsement, to the Merchants' National Bank of Baltimore for collection. On the twenty-second of March it wast indorsed by the Merchants' National, and, on presentation. paid by the First National in due course of business, both parties supposing the indorsement of the name of was genuine. When the payment was made the amount was charged in account by the First National against the United States, and the draft forwarded with the next weekly: statement to the treasury for credit, which was allowed without objection. Ten years afterwards, in 1877, Ule United States having become satisfied that the indorsement of Om-,