180

I '

FEDERAL ll.EPORTER.

WITTERS,

'!

':' I'

Receiver, etc.; ".

SOWLES,

Ex'r, and others.

(. :

(Circuit Court, D.Vermont.August 18. 1887.)
ASSETS-TRANSFER

1,.

, AJ;' tilxtilcutor representing had llufficient ,assets to pay all legacies, butfi;lIng no inventory, obtained"a decree that he pay'the legacies, and that the residue be paid to the residuary legatee, and afterwards transferred to the residuary with her assent, certaip. shares of bank pelonging to the estate, the dividends on were afterwards paid to the executor, who was the 'husband of the residuary legatee. The remaining assets were insufficient to satisfy the legacies. In an action brought, to charge the estate with an assessment qn the stock, kela. that the transfer was valid, and passed the title to . the residuary ltlgatee. . . . .',' .. ' " ' '
2. SAME-CONVEYANCE BY EXECU'l'OR-RESIDUARY. LEfGATElll.

'EXEcUTOlUl-PAYMENT OF Oll' BANK STOCK TO RESIDUA-ayLEGATEE..

A conveyance by an executor to the residuary legatee, who is his wife, is good at coinmon law. , :, "',:" , Dnder Rev. St. D. S. '§ 5151, rendering shareholders individually responsible for the liabilities of a national ban'lr. to the extent ofthe, value of:theirstock; and section 5152, providing that: estate of a sb,areb,older in: the hands of the executor shall be liable in like manner and to' the same extent that the testator would be if living,-assetswhich' have been transferred to devisees or legatees cannot be subjected to liabilities of the bank accruil),g after transr er .: ,,: ' .. ; '.,'. ' . '. '

8.

NA.TIONAL, BAN,KS-LIABILITYOF SHAREHOLDERS-EsTATlil OF SHARE:\IC;>LDERLIABILiTY OF LEGATEES AND DEVISEES. ' " '

4. SAME-A.SSE,SSMENT ON STOCK-LaBILITY OF LEGATEE.

5:

Ori the representations of the executor that he had morethansufficientas' sets in his hands to satisfy all' debts aud legacies, he wl\sdecrelld to pay deS, B. to do $0 until after t.\lefallure ?f the natlOnal bank III the testator was a stockholder, when he dehvered property'to her trustee in satisfaction. of the legacy. Held, that under the statutes,d.bove quoted, the legatee, and her trustee were chargeable with an accruing al\sessment upon testator's stock meet the liabilities beforeactUltI delivery to the legatee.' . ..
OF STOCK FORTAXES-LTRANSFER ON'BOOKS oiFRhrK.

In. 1865; ata.x collector assumed to se1150 shares Gf testator's bank stock for delinquellt and bi,d in by defenda?t E. B., were tran!\ferredon the books of thebank. E. S. recelvedthe dlVldends untl1 the validity of the'tax was adjudged: and afterwards they were received by testator..Hddthat; under the lawaof Vermont then in force relating to the enforpementoftaxes,no title passed",and,that.there was no suc1:l, acquiescence on the part testator as to makell\.e I\lilegood. . Where an executor, without consideration, transfers bank stock in trust for his own benefit. and to enable the transferee to of the bank, the title, for the purposes of assessment, remainswlij:l, the,executor.
" .. :;" '

6.' SAim"-'-TRANSFltIi OF 8'rocK-{)oNSIDERATION-TITLE."

7.

SAME-INSOLVENCy-AsSESSMENT-SET-OFF.

In an action by a receiver of an insolvent bank to charge the estate of a shareholder with an assessment on his shares, the executor claimed, bv way of set-off, that property belonging to the estate had been delivered to the bank, upon the understanding that it should be applied on the assessment if the bank should fail. Held not a proper subject of set-off, even though the bank examiner assented to the agreement.
TAXABLE PROPERTy-SWORN INVENTORIES-DISCLOSURE OF CONTENTS-EVIDENCE.

8.

Under Laws Vt. 1882, No.2, §§ 26-28, providing for sworn inventories by tax-payers of taxable property. the listers of the town, in an action between a receiver and stockholders of an insolvent national bank, will not be allowed to disclose the contents of such sworn inventory; nor will the town clerk,

131
117 to produce qut a who tax-pay.er In makmg the mventory/ and saw Its contents; wIth her pernliSSlOn, ' before it'was taken by the lister,' may be examined as to its contents. 9.
SAME-"RuLE IN

to.

The rule 'of the VeI;'mont statutes, the disclosure by listers, or the production' bythetpwp the swornlnventories of tax-payers, will be enforced in anactibn in the' Utlited States Circuit court for the district Of Vermont, a suit in equity, brought by the receiver of a national bank, to charge thll,assets olthe estate of a testator, in the hands Of th'e executor and devisees and lEigatees, with an 'assessment on certain shares of the capitallitock of the bank, the bill W6S framed 80 811 to charge defendantM. with the assetB:inher hands ,a.s,lega,tee, with tbe; ;payment of the assessmeI;lt 0,0, the testator's.stock. Held, that she could not be charged in this action as owuerof the stOCK.

UNITED STATES COURT.

NATIONAL,BANKB-AsSESSMENi4-SUIT TO CHARGE ESTATE-PLEADING.

11.

, .' EMore'the decree is entered or signed, the court. at the suggestion 01 either party, Or on its own motion. will correct any error or oversight that mayap: pear in decretal o r d e r . , '

EQUIT-i-DEPREE-CORREO'l'ION BEFORE SIGNATURE' OR ENTRY.

In " ', Chester W. Witters and GuyC. Noble, for orator. Edwar,dA:S01.vles and Kittredge Haskins, for Edward A. Sowles lind Margaret B. Sowles. , " EdwardA,. Sowles, forSusan)3. Sowles. w. p. W-as<m, for Town of Fairfax. Alberd>. CroBB, for,Town o{St. Albans and defendants Atwo'od. This bill is 'brought to charge the ,assets of the, estate of Hira:rn Bellows, in the handS of the defendant Sowles, as executor, and of the other defendants, ad devisees and legatees, witli an assessment on 430 shares of the capital stock of the First National Bank of St.Al bans, of the par value of $100 each, made by the comptroller of the currency equal to that amount. ,At the time of the organization of the bank, in 1864, the testator took 450 of its 1,000 shares, and they werfl placed to his name on the books, of the bank. In 1865 he refused, tf' pay his taxes, and the collector advertised and assumed to sell 50 of this stock, which were bid off by the defendant Sowles and paid for by money of the bank, for which he gave his note. The collector made no transfer of the stock on the ,books of the bank, and it stood thete the same afterwards as before. The validity of the tax was in suit between the testator and collector, and was finally decided against the testator in 186l1. BeUows v. Weeks, 41 Vt. 590. To about that time Sowles received the dividends; afterwards the testator did. After the death of the testator, Sowles paid his note given for the stock to the bank. It is claimed now that Sowles became the real owner of these 50 shares, and that the estate of the testator is not liable for the assessment upon them, The laws of the state for the distraint, keeping, aI,ld sale of property fOJ taxes did not, at that time, apply to property of this nature, and the attempted sale by the collector had no effect whatever upon the' title. Barnes v. Hall, 55 Vt. 420. It is urged, however, that the acquiescence of the testator, shown by permitting Sowles to receive the dividends,

132

BDERA.L REPORTER.

madetbe sllle good. However this might, have been if Sowles had continued to receive the dividends after the contest was over, his yielding the right to them, from that time, to the testator, shows. with plainness thatthey both understood that the stock belonged to the testator, and that the receipt of dividends and payment for the stock were to be adjusted on that basis. Sowles has, since the death of the testator, undertaken to tl'ansfermoreshares llS executor than would remain to the testator, without these, which shows the same thing. The real title to these shares appears, therefore, to have been in the testator, as the record title on the books of the bank was, at the time of his death. He died October 18, 1876. At that tim,e he was stillthe ow.ner of the 45C shares, and they all stood in his Dame OD the 'the bank. He left a will providing for various devises and bequests. to the defendants other than Sowles, the executor, and made his wife, SusanB. Bellows, residuary legatee, and appointed the defendant Sowles executor, without requiring additional surety on his bond. Letters testamentary were granted accordingly, with additional surety for the payment of debts, as required by the laws of Vermont in such cases. Rev .. Laws, § 2067. Proceedings were taken for ascertaining the debts due from the estate, and the executor satisfied some of the legacies wholly, and others in part, out of the assets of the estate. Ten shares of the stock were transferred by the executor to Oscar A. Burton, and 10 to George W. Foster, in a manner about which no question is now made. In 1880, Susan B. Bellows died, leaving a will making, so far as is material, the same devises and bequests as were made by the will of Hiram Bellows, that their adopted daughter, Margaret B. Sowles, wife of Edward A. Sowles, executor of his will, was made residuary legatee in her will; and Edward A. Sowles was appointed executor of her will, :with the same provision that additional surety should not be required on his bond, and that he should not be required to file any inventory ofher estate. Letters testamentary were granted to him upon her estate accordingly, with additional surety upon his bond for the payment of debts, of which, however, there appears to have been none. Prior to or on March 11, 1881, Sowles, as exeoutor of each of the wills, appears to have applied to the probate court having jurisdiction for an order for the settlement of his accounts, and for decrees of distribution under each will, whereupon notice was ordered to be given for that purpose, as required by law for such settlement and decrees, on the twenty-sixth of the same month, and notice having been given the hearing waS continued to the thirtieth. On that day Margaret B. Sowles made an application in writing to that court, signed by her as residuary legatee, wherein she requested the court to "decree the amount of real and personal estate named in Hiram Bellows' will to E. A. Sowles, executor therein named, according to-the terms of said will, without finding any definite amount in saiuexecutor's hands," and" to decree to the nndersigned all the residuarY'lJortion of real and personal property named in Susan B. Bellows' will, or owned by her, without finding any definite amount in E. A. Sowles', executor's, hands, without any inven-

WITTERS '/1; SOWLES.

133

tory or specification of items, or articles or estate," and aided, "and I accept the same without further specification, and exonerate said E. A. Sowles, as executor, named in said wills, from further duty or liability in the premises." And the court made decree in the case of Hiram Bellows' estate, reciting the notice and continuance, and the appearance of Sowles, executor, and representation by him that he had paid, and had in his hands sufficient funds and estate to pay, an the legacies, leaving to be decreed to the residuary legatee both real and personal estate, and that after paying the bequests, naming them particularly, the residue was devised and bequeathed to Susan B. Bellows, who had deceased, and of whose will Edward A. Sowles was executor, and that Sowles, as ex. ecutor of her will, had requested the court to decree the residue to him, as such, without an inventory or specific amount found; and that the court found from the evidence that the testator, Hiram Bellows, died . seized of estate sufficient to pay all the debts and legacies, and leave a large amount of real and personal estate to be decreed to the residuary legatee; that he pay to each of the legatees named in the will the sum bequeathed in the manner specified, and that the real and· personal estate therein devised to each was thereby decreed and assigned to each as in the will provided; and that the remainder, after paying the legacies, was thereby decreed to the estate of Susan B. Bellows, residuary legatee, of whose will Sowles was executor. And after similar recitals respecting the estate of Susan B. Bellows, naming the bequests, and reciting the application, in substance, of Margaret B. Sowles, the court decreed that the executor pay all the legacies, and decreed the residue to her. No. appeal was taken from these decrees, and on the next day after they were passed, Edward A. Sowles, as executor of the will of Hiram Bellows, transferred to Margaret B. Sowles, on the books of the bank, in accordance with the by-laws of the bank, 400 shares of this stock,and that number of shares was credited to her on the stock ledger of the bank, and charged to the stock account of Hiram Bellows. These 400 snares stood in her name on the books of the bank until its failure April 7, 1884. The bill alleges, as to these 400 shares, referring to this transfer previously therein set out, that such pretended transfer was made before the conditions of the decree had been complied with, by paying the legatees the several sums bequeathed to them, of which sums the amount of about $40,000 remained unpaid, with less than $30,000 of property in the hands of the executor, aside from this bank stock, from which to pay this balance; that she had no knowledge of the transfer until a long time after it was attempted to be made, and after the bank became insolvent; that she never accepted or assented to the transfer, nor received any certificate of the stock, or dividends thereon. The answers of the executor, and of Margaret B. Sowles, who is made a defendant on account of the receipt of assets, admit these allegations, and she affirms their truth. The answers of the other defendants deny them. That the executor had not assets in his hands, aside from this bank stock, sufficient to pay the balance of the legacies, at the time of

: the sufficientlYrappears; . On ,the question whether Margaret B. Sowles knew of the tra.l1sfer of the stock to: .her, al?-d accepted it or as. seuted to it, the some of them, took the testimony of, the listers of, the town, to whom .tax-payers are required to return a sworn inventory of their taxa,ble property, as to the contents of her inventories, with reference to whether this stock was therein set down by her as her taxable property after the transfer, and called upon the town clerk having cUl:itody of some of these inventories to produce them. Motion was lUade to suppres!;l this testimony, and the offer to have the town clerk required to produce the inventories was objected to. The laws of the sta,te provide that these inventories,after they are made by the tax. payers, shall be taken up by tp.e listers, and on or before a certain day' be lodged in the. town and there kept three years; that the allow cerwin prosecuting officers, the listers lind selecttown clerk men, and the tax-payers their own, and no others, to examine them; that they sQall be produced in court, by the town clerk, on subprena; and that t44:lir, contents shall not be disclosed by;any person having access to them, except as set forth, and in the event of prosecution for breach of the provisions of that act. Laws 1882, No.2, §§ 26-28. By section 858, Rev. St.U. S., the laws of the state are made the rules of decision in the courts ,of the United States as to the competency of witnesses, except in some respects not material.. This provision requires ,this c()urt to enforce that part of the statute of the state prohibiting disclosure. Insurance Co. v. Trust 00.,112 U. S. 250, 5 Sup. Ct. Rep: 119. The provision of that statute, as to production of the inventories in court on subprena, applies to production on prosecutions under that act, as all other disclosure is prohibited. The listers should not be required or allowed to testify to their contents, nor the town clerk be required to produce them, except in such prosecutions. The motion to suppress is therefore granted, and that testimony not read, and the offer of production excluded. The testimony of a witness who assisted her in making one of the inventories, and saw its contents by her permission before it was taken up by the listers, was examined as to what they were. Motion was made to suppress this. The state law imposes the obligation of secrecy only after the inventories are taken up by the listers, and has no application to exhibitions of them by the tax-payers before. This testimony is in .the nature of proof of declarations and written statements by her, bearing upon her testimony when she testifies that she did, not know that the stock was transferred to her. The motion t08uppress is denied as to this, and the testimony read and considered. It shows that this stock was put into her inventory as maqe by her. The grand lists, on which taxes are made out, are open and public, and are in evidence. They show that this stock ceased to be set to the executor at the time of the transfer, and was set to her afterwards, and taxes assessed upon it were paid by or for her. Hiram Bellows was president of the bank, while he lived, after it was organized; she was the only child and resided in the .same village. She must have known of the stock, and have known that

WITTERS !I. SOWLES.

135

a large part of the estate, which included that, was coming to her. She did not receive any certificate of the stock, and the dividends were paid to her husband by being credited to him in his bank account. This latter circumstance is not very strong as showing that she knew of the transfer, for they would probably have been credited in the same manner if the transfer had not been made. Taking all the circumstances together, it does not seem reasonable to suppose that she did not expect that this stock, which was then worth considerably more than its par value, would come to her with the residue that she asked for. She did not repudilJte it; her husband was, by the common law, which had not been changed in this state, entitled to the dividends, and had them. The conclusion that thE're was no want of knowledge and assent on her part, necessary.to the validity of the transfer, is irresistible. The ol'l1tor insists, however, that the decrees were so unlawful and irregular as to furnish no foundation for the transfer; and that the transfer, without them, and without consideration, was inoperative to divest the executor of the stock. There is no question here between legatees and devisees about this stOCk, nor between any such and the creditors of the estate. Hiram Bellows had been dead several years, about seven, before the debts of the bank, for the payment of which this assessment is wanted, were· contracted. These assets are therefore only liable for this assesSment by virtue of section 5152, which provides that executors shall not be personally holden, but the estates and funds in their hands shall be liable in like manner as the testator would be if living. The question iswhether this stock was in the hands of the exp,cutor, within the meaning of this statute, at the time of the failure. The legatees had no title or right to the property, except under the will. By the terms oft,he will, and the law of the state, they had only the responsibility of the executor for security. 'the creditors could not be defeated in their rights, but they were provided for, as the laws of the state required, by a bond with such sureties, and to such an amount, as the probate court should require. Rev. Laws, § 2067. The highest court of the state, whose construction of these proceedings is binding, has held in respect to this very decree that, in an action by one of the unpaid legatees for the legacy, the question whether debts and expenses had been paid was not a proper subject ofinquiry, but was res adjudicata, and that the decree laid a foundation for the recovery of the legacy. Week8 v. Sowles, 58 Vt. 696,6 All. Rep. 603. The executor took the risk of having assets sufficient for all when he represented and showed to.the court that he had them. 'I'his showing gave the court ·jurisdiction to decide that he had them. He elected to treat this stock as a part of the residuum; whether it was or not, is not now open. It is suggested that no inventory had been filed, as directed by the statute, and that there was no property before the court for the decree to operate upon. An inventory does not appear to be necessary to bring the assets of a deceased person within the' jurisdiction of the probate court for administration. If none is filed, the court may proceed to ascertain and decree the assets on proof, as was done, on notice to all, and proof to the satisfaction of the court furnished by the executor.

136

FEDERAL .REPORTER.

Holmes v. Bridgrr/4n, 37 Vt. 28; Weeks v. Sowlcs, 58 Vt. 696, 6 Atl. Rep. 603. The de.cree did not separate this stock from the rest of the assets, but it settled conclusively the rights of all others to the estate, as between them and the executor, and left him with control of the whole, without liability to further account, or otherwise than 011 his bond. His election to treat this stock as a part of the residue therefore made it such, when carried out. The relation of husband and wife between the executor and residuary legatee is put forward as preventing the validity of the transfer, to change this stock frbm his hands to hers. They are one person in lavr, as by the common law, in this state, for most purposes, and a sale by him to her of his own property would be of no validity, both on that account and by reason of her disability to make contracts. But this was not a sale orthe stock to her, and involved the making of no contract. He did not own the stock, ·and did not transfer it as his own, but as of the testator, by virtue of the authority given by the will to him as executor. As 'early as A. D. 1495, it was adjudged that a feme covert executrix could make sale of lands to her husband, and it was a good bargain. Year Book 10 Hen. VII. 20; Brooke, Abr. "Executors," 175. And in Coke upon Littleton it is laid down that, if a cestui que use had devised that his wife should sell his land, and made her executrix, and died, and she took another husband,she might sell the land to her husband, for she did it enatitre droit, and her husband should be in by the devisor. 112a, Hargrove's Notes, 143; Newis v. Lark, 2 Plow. 414. This appears to be good law now. Gridley v. Wynant, 23 How. 500; Gridley v. Westbrook, ld. 503. The reasons are equally strong why a conveyance by a husband executor to his wife should be good. The executor separated this stock from the rest of the estate, in his hands, and made it a part of the residue by the transfer, which was a mere delivery, and it became hers by title from the testator. From that time it appears to have ceased to be in his hands as executor, and was in hers as legatee. On the fifth day of September, 1882, the executor transferred 10 shares of the stock to Bennett C. Hall. The bill alleges that this transfer was without consideration, and in mere trust for the benefit of the executor, and for the purpose of enabling Hall to become a director. The answer of the executor, in substance, admits this, and there is in reality no question made but that the allegations are true. These 10 shares. upon these facts, remained in the hands of the executor, for the purposes 9f this assessment. Bank v. Case, 99 U. S. 628; Witters v. Sowles, 25 Fed. Rep. 168. These considerations leave 30 shares in the hantls of the executor subject to the assessment, and for which the "estates and funds," in his hands are liable. Rev. St. § 5152. The assessment amounts to $3,000, with interest from September 10, 1884, the time at which it became due. The receiver claims that the assets of the estate which have been paid, delivered, or otherwise have gone to the devisees or legatees, in satisfaction of their legacies and devises, are still liable for this assessment, and that they are chargeable for the amount received up to the amount of

WITTERS V. SOWLES.

137

the assessment. The devisees and legatees who have received the assets insist that only those which were left in the hands of the executor are liable. The shareholders are liable only by force of the statute, which declares that they shall be held individually responsible for all contracts, debts, and engagements of the bank, to the extent of the par value of their stock. Rev. St. § 5151. The liability of the shareholder attaches when the contracts are made, debts are created, or engagements are entered into, by the bank, and it is an original liability, made by the law a part of them. Hobart v. Johnson, 19 Blatchf. 359, 8 Fed. Rep. 493; Richmond v. Irons, 121 U. S. 27,7 Sup. Ct. Rep. 788. The testator did not become liable on account of the stock, except for such debts, contracts, and engagements as the bank became liable for during his life-:time. The ownership of the stock would not of itself create any, not even a contingent, liability; but ownership of the stock, and creation of a liability by the bank, together, would create a liability of the shareholder contingent upon the discharge by the bank of its liability. Both are necessary to the creation of a contingent claim against a shareholder or his estate. If such a claim 1J.ad arisen against the estate, it could be enforced against the legatees and devisees to the extent to which they have received assets; not by bringing the assets back into the hands of the executor, but by proceeding directly against those who have received them. Rev. Laws, §§ 2209,2211,2214. None of the liabilities of bank to meet which this assessment is made, are shown or claimed· to have been iJ;lCurred during the life of the testator. Therefore this is not a contingent claim for which the assets can be pursued under the law8 of the state relating to such claims. The statute of the United States provides that an executor shall not be personally subject to any liability as a stockholder, but that the estate and funds in his hands shall be liable in like manner, and to the same extent, that the testator would he if living. Rev. St. § 5152. So far as appears or is claimed, all the assets of the estate in the hands of those sought· to he charged forthem were received before any of the liabilities of the bank now in question were created, and most of them several years before. If. the testator had lived, and had disposed of his property as it had been disppsed of under his will,he would have been personally liable to this assessment, but none of thiil property could have been reached to satisfy it. The meaning of this statute seems to be that such estates and funds as an execut.or or administrator has in his hands, at the time when the liability attaches, are liable in like manner as the testator would be if living at that time, and having in his hands the stock and other property, as the executor had it in his hands; and not that they are holden as the testator would have been if the liability had attached in his life-:-·time. This case . is very different in this respect from Davis v. Weed, 44 Conn. 369. There the liability attached before letters testamentary were granted, if not before the death of the testator, and therefore it was impressed upon all the assets, and would follow them into the hands of the devisees and legatees everywhere. And it is understood that there the executor or administrator can recall property from heirs, devisees, or legatees, if necessary to meet a

138

FEDERAL REPORTER.

liability of the estate arising or appearing after distribution. Therefore the assets were followed and reached, in that case, through the administrator. But that does not show that these assets ('.an,be reached through the executor, and are therefore in any sense in his hands 80 as to be liable to the assessment; The statute appears to contemplate the stockholders as they are at the time of the incurring of the liability, and to hold them responsible ,equally and ratably, and not one for another, as they stood then. Rev. St. § 5151; U. S. v. Knox, 102 U. S; 422. \ Each stands by himselfas he is at that time, solvent or insolvent; and, ifhe is an executor or administrator, the estate ,then in. his hands, adequate or inadequate, and that only I is holden. When these devisees and legatees received their shares of the estate of the testator, the bank was apparently, and, in fact, so far as is shown or claimed, amply solvent, and there was nothing in that direction then fie} prevent them from taking a clear title, and the law doesIlot appear to be such as to make what happened afterwards, in which they had no part, disturb their title. The orator has therefore no claim forrelief·againstthese devisees and legatees, and the bill must be dismissed as to them. The executor appears to have delivered to the bank, while its failure was impending, ·stocks and securities belonging to the estate, to an amount much larger than the amount of these shares, which were disposed of by the bank in pa·yment and security of claims against it. He sets up in.his answer that this waS done upon an understanding that the property 'should be restored by the bank, if it survived, and applied on an assessment, if it failed,and one should· be ·made. And he now claims that 'Boroneh of this property orits proceeds as is necessary should be applied ,upon this assessment, and bar further recovery. He claims, upon the,evidence, that this understanding was had, with the bank examineras well as with the officers of the bank. This assessment is for the purpose of· paying those who were ,creditors of the bank at the time of its. failure; That property went to pay others not creditors at the time' of the failure, so far as it did pay them. .The delivery of the property may have. created a liability of the bank; if so, the assessment upon this and the, rest of the stock would go ratably upon that and the other Jiabilities-ifproved and established. A set-off cannot be made without depriving others of their ratable proportion. Besides this, the claims are not in any sense mutual. . The claim of the executor, if he has any, is against the bank. The assessment never was due to the bank, and does notbe]ong to it. The assessment belongs to the creditors of the bank, and is recoverable ,by the receiver, only for the purpose of ratable distribution among them. Delano v. Butler, 118U. S. 634, 7 Sup. Ct. Rep. 39. This' claim is therefore no answer to the claim for the assess.ment, whether this: understanding was had or not, or with the bank examiner or only with others. There was no receiver, and the examiner did not, and probably did not assume to, represent the creditors. . The bill is not framed to charge Margaret B. Sowles with the assessment as owner of the stock, but only to charge the assets in her hands .as legatee; and it. is said by Mr. Justice SWAYNE, in Kennedyv. Gibson,

WITTERS 'V. SOWLES.:

139

8 Wall. 498, in the opinion of the court assessments: "Where the whole amount is to be recovered, the relIledy must be at law." The bill must be dismissed as to her, but without prejudice to the right to recover against her as holder of the stock. As she has not been joined in her defense by next friend, but only with her husband, who is held chargeable in another capacity, the dismissal must be with. out costs to her. Let there be a decree for the orator against the defendant Edward A. Sowles, that he pay to the orator, out of the assets of the estute of Hiram Bellows in his hands, the sum of $3,000, with interest from September 10, 1884, t() the time of entering the decree, together with the costs of this suit, within 10 days from the entry of the decree; and that in default of such payment execution against such assets issue; and dismissSowles, without costs and without prejuing the bill as to Margaret dice. and as to the other defendants, with costs.
(August 24, 1887.)

On rehearing the following opinion was delivered: WHEELER, J. Since the filing of the decision and decretal order in this cause, and before entry or signature of any decree pursuant thereto, on motion of the orator, further hearing has been had as to charging the assets of the estate of Hiram Bellows, which' have passed to Margaret B. Sowles, trustee of Susan B. Sowles, with the assessment upon 30 shares ofstock of the national bank, of which the orator is receiver, still held by the executor.' At this stage of the case correction of any oversight or err()r can be made on suggestion of any party, or by the court of its own motion. Such correction is not the alteration of a decree, for as yet there is no decree; but is a mere change of the directions for a decree, if necessary, which may always be done until the directions, 8S finally settled, are carried into the decree itself and the decree is entered. On re-examination of the case on this point, which was not made on the argument in chief, it fully appears that, at the time of the creation of the debts ofthe bank, on account of which this assessment is niade necessary, there were estates and funds in the hands of the executor, which were of the testator,to an amount several times greater than this assessment upon this stock. It is said in argument that the title to these assets had before that time vested in the legatees under the decrees of distribution. None of these assets were 8pecifically bequeathed or distributed to the legatee. A legacy of $25,000 was bequeathed to her by the testator. The decrees were made on representations by the executor that he had more than sufficient assets in his hands to satisfy all debts, legacies, and charges. Thereupon he was decreed to pay this legacy. He had not done so at the time of the failure of the bank, which, of course, was after the accruing of these liabilities of the bank. He has since assumed to pay it out of these assets by delivering them to the trustee at agreed prices, in satisfaction of the legacy. The statutes of

140

FEDERAL REPORTER.

the United States provide that the estates and funds in the hands of an executor shall be holden as the testator would have been holden. This statute fixed theljen upon these assets,and it would follow them, wherever they should go; in any subsequent division or distribution of them. The delivery of them by the executor subsequent to this did not remove them away from the lien, but left them in the hands of the trustee of the legatee, or in the hands of the legatee, if they had reached her, subject to the lien as before: The statutes of the state make heirs, devisees, and legatees, who have received aSSets of an estate, liable for debts,chargeable for the debts,-to the extent of the assets received. Rev. Laws Vt. This is not a debt of the testator, but is a liability of the estates, .and funds in the hands of the executor, which attaches to them in the same manner that a debt of the testator would if contracted when. he had the same assets. '1.'hey may be followed, therefore, in the same manner. It is said that Some of these assets are real estate, and that such estate goes to the residuary, and not to the peeuniary. legatee, or the executor. But the statutes of the state leave real estate in the hands of the executor, if needed to pay debts or legacies, (Rev. Laws, § 2137;) and the statutes of the United States PJake no distinction in the kinds of estates and funds which are left in his hands, but make all that· are left liable. Rev. St. U. S. § 5152. If this was not so, a large part ofthe assets so delivered by the executor were strictly personalty, and a still larger part redeemable leases reserving annual rent, which are in the nature of mortgages, and go to the executor, and not to the heir. It is not disputable, and conceded, that the amount of the latter is greater than this liability. The legatee and trustee are chargeable, therefore, with the amount of this assessment. So much of the decretal order heretofore entered herein as directs that the bill be dismissed as to Susan B. Sowles, and Margaret B. Sowles, trustee for. her, is hereby vacated. And there is added thereto that the decree provide that in default of payment by the defendant Edward A; Sowles, exe,cqtor, paywent be made by the defendant, Susan B. Sowles, or Margaret B. Sowles, her trustee, within 10 days thereafter; and, in default of such payment, that execution issue against the assets of the estate of Hiram Bellows, in the hands of Edward A. Sowles, executor; and for thereof against such assets in the hands of Margaret B. Sowles, trustee of Susan B. Sowles; and for want thereof against the goods, chattels, and estate of Susan B. Sowles, in her own hands, or in the hands of Margaret B. Sowles, trui;ltee.

IN RE HEARN.

141

I'll. re HEARN.

(Di8f!riet Oourt, No D. Ohio. E. D.

Februarv Term, 1887.)

MINORS-ENLISTMENT IN UNITED STATES ARMY-CONSENT OF PARENTS.

Rev. St. U. S. §§ 1116, 1117, authorizes the enlistment in the army of the United States of men above the age of 16 years, and provides that no person under the of 21 years shall be mustered into military service without the written consent ('If his parents or guardians. Held, that a contract of enlistment entered into by a minor, over 16 years of age, without the consent or knowledge of his parents, could not be avoided ,by the minor himself. but could only be avoided by the parents, who might claim the right to his custody before majority.

Habea8 Corpus. Jay L.,Athey, for complainant. Get/t. Ed. S. Meyer, for respondent.
WELKER, J. The said l\L Seward Hearn was hom on the twentyfourth day a! September, 18,62,and became 21 years old on the twentyfQurth day of September, 1883. Onthe first day of August, :1882, he enlisted in the service of the United States asa private soldier, then being over 19 years of age. He remained in the service until the summer of 1883, when he left the service without discharge, then lacking a few months of being 21 years of age. He is now in custody of the military officers for deflertion from the army. At the time he enlisted he had a father and mother living, whQ were entitled to his services during minority, and who did not consent to his enlistment, either in writing or oth" erwise, and had no knowledge of said enlistment until after he had left the recruiting station for service. No efforts were made by the parents to procure his release on the ground of minority during such minority, his father stating at the hearing he thought it best for him, after he learned of the enlistment, to allow him to remain in the army. The relator is now over 24 years of age, and makes this application for discharge for himself. Statutes of the United States provides that Section 1116 of the "recruits enlisting in the army must be effective and able-bodied men, and between the ages of sixteen and thirty-five years' at the time of en listing." Section 1117 provides that "no person under the age oftwen ty-one years shall be t>nlisted or mustered into the military service of thl: United States without the written consent of his parents or guardians' provided, that such minor has such parents or guardians entitled 't9 'hiB custody and control." Section 1118 provides that" no minor under thl: age of sixteen years * * * shall be enlisted or mustered into the military service." The relator claims that under the provisions of the statute his enlistment, without the consent of his parents, was voidable by him, and having left the service before he arrivt>d at the age of 21, he therehy elected to avoid the enlistment, and cannot now be held to service. This claim