tion'ofllls trust. The receiver's answ.er renders it unneeessary for the court toao more than direct thatdhe petition remain on tile for future action Sho\11d' there be occasion for it.
'(Virtu;t (Jourt, P. D. NeM York. ' Maroh 16, ,1888.)
OOnPORATTONS.;...:0FFtCERS AND. AGENTS ..... FRAUDULENT COMBm.uTO!'S- RWHT& OF ,THTRpP4,RTIES. . " . ."
, ,An fora valuableconsideratiop. of all the claims and tights of ac:tion at law brl'Il.' e'quity of a corporatIOl'1'against its former directors and trustees, who, by a fraudulent combination with outsiders, succeeded in wreckconcl\rn, 1tnd to !lnd. who, by and malpractICe, secured the dismIssal of bonafide sUItsIDstltuted by 'the'corporatibnagainst'themselves to recover the property, has no standing in a court of equity as against sujlh ip. the 8):ls.ence of. allegation and proof that hllis a creditor,or of the ,corporation. '
iQp"demurrElr for complflinapt'. .for
the <!tefendants. heretoforedirectors of the )Etija Axle & Springvompany, It Connecticut by afrau,dulent'.arid corrupt combination with outside 'partiest ,carry out a secret conspiracy tq .wreck the company; that they Pli!l!tppropriated its funds and propertyto their own use, and defrauded,and qespoiled its creditors and 'stoekholders, realizing by theirupwards of$17/)',000 of afsaid company; that thecom,paRY ,has attempted, in gQod to recover the moneys, thus misappr,?ipriated,. by ,causing actions' for tM sarrie or some part theTepf to in itl! behalf against some of the defendants; but Hby collusion and malpractice said suits have been dismissed, discontinued.or corruptly disposed of to the greatinjury of the comits cr:editorR,. and stockholders." The bill, tlien avers that compl./'rinant is.. for a valuable consideration ' * of all and its cllj,ims, demands, and rIghts of action, * * * either in law or in, equity, against the ,defendants." By, such an assignment c;:omplainan,tiiJhtained no proper title to institute such a suit as this. Gt'ahq,rn v. Raur/Jad Co., 102 U. 8.)48. It was claimed on the argume))t that he,is8:creditor an4 It stockholder of the company. There is no such averrnent in the bill. If he has rights in that character he may no· dop.bt but he has not out any such cause of aCtl:on in. thisbill.!, . ' The demurrer is sustained, with leave to amend the bill.
(lOOK fl. COOL
(Circuit Court, /8. D. New York. March 17'.1888.)
ExEOUTORS AND ADMINIS,TRATORS-lNvESTMENTS-Iw BONDS OF FOREYGN CORPORATION.
An investment of trust funde by aNew York administrator with the will an· nexed.'inmortgage bonds of a Pennsylvania corporation. made without order of court. is not good as against the New York beneficiaries; and if such bonds prove to be worthless. the administrator. or. he being dead, his estate in the hands of his sole legatee anil devisee. is liable for the loss.
SAME-WASTE-LIABILITY OF EXECUTOR'S ESTATE-MEASURE OF RECOVERY.
A bill by the life-tenant and remainder-men in fee of asum of money. to subject the estate of the administrator in the hands of his sole legatee and devisee to the payment. of a de'Dasta'Ditwrought bv him, set out the loss at $8.000: The answer of the administrator's executor, and of his co-administrator. admitted that tbat was the aII).ount received, but the answe:r; of the legatee-devisee Jlut it at "about $7,000." The C(jJ'pUB of the fund was $7,072.02. and there wail no administrator in fault had received more than that positive proof that sum. It was in evidence that the last payment of interellt to 'the life-tenant was made in 1884. Held. that the measure of recovery against the estate in the hands of the legatee and devisee was the original corpus. viz.. $7.072:02. with lawful interest thereon for 1884 and each year thereafter, compounded anI).uaIly.
Where the sole and devisee of a defaulting administrator has disposed, of a,Il the real e,state, gotten undl'r his Will,' and th,e personal, est,a,te reo maining in h,er hands ,is sufficient to make good the d6'DaBta'Oit. a decree will not go against the real estate, and this is especially so where the grantee of such real estate is not a party to the bill. ' A decree in favor of the life,tenant and his children. remainder-men in fee of a sum of money, went against the estate of the administrator wit/l the will annexed for a d6'DaBta'Dit wrought by him. To this bill a co-administrator was a party. but there was nothing beyond his refusal to proceed against the.estate to sho,w that he was not, 8 proper person to receive the ,money ll.wardedby the decree. In addition, the trust \fund was to go over upon the death of the lifetenant without children. Held,in New York.-where the appointment and removal of such administrators, and the proper management of the fllnde in their .hands, are for the surrogate's court,-that the federal circuit court would not take the matter out of the surviving administrator's hands In advance of any action by the surrogate, but .that the money should be paid to him· Under Code Civil Proc. N.· Y.§1841, for a creditor of the estate to recover against a legatee it is ol1ly necessary to show that no assets have been delivered to a !lurviving consort or next of kin. and under sections 1844. 1848,1849, to recover against a devisee it must be shown ,that three years have ela.psed without grant of or after such grant, before suit, and that the debt cannot be collected of anyheit. or in the court. against the executor or againSt any other distributee. with anydeg,ree of diligence. Held. that these provisions did not. except so far as the rights of the parties arising therefrom were concerned,' govern the practice in equity in such Caflp.s Of the federal courts sitting in that state. A bill by the life-tenant and rein,ainder-men in fee of a sum of money alleged that the will creating the trust fund had directed that it be invested; that H., who. with C., was administrator with the will annexed. had put the money in United,States bonds. w.hich he subsequently sold al/-d then reiuvested the proceeds in mortgage bonds of a foreign corporation, and that these bonds turned out to be worthless; that B. had died testate, one N. being his sole legatee "nd devillee. and that, his eatate'b.d been wound up .and turned over to .said
'- SAME-RIGHTS OF CO-Ar>:MINISTRATOIL
.. DESCENT AND DISTRIBUTIOl!f-LIABILITIES OF HEIRS AND DEVl8EES.... PRACTICE IN STATE LAWS. ,"
SAME-AcTION AGAINST SOLB LEGATEE-PLEADING.