BOWLES t1. WITTERS.
and proceedings for forfeiture must be strictly construed. Whatever questions of protection to manufacturers may incidentally arise are for political, and not judicial, consideration; Outside of the section referred to, I know of no special or general provision of law which would prevent the sale of any property forfeited for violation of the customs laws, regardless of the price it may bring. The aguadiente in this case did not bring as much as the duty would be on it, but I know of nothing that would permit a destruction instead of a sale. \Vhatever property brings, be it much or little, goes to increase the revenue to that extent, with no profit to those through whose fault or crime it has been forfeited. But the provisions regarding the repacking and stamping are direct, positive, easily complied with, and should be observed. The collector of internal revenue is custodian of the internal revenue stamps, and although it is provided that upon requisition they may be furnished to the officer without payment, that was undoubtedly intended to apply to property forfeited under the internal revenue law, where the entire proceeds were finally placed to the credit of that division of the treasury; but, where the proceeds are to be paid to the department of customs, it seems but proper that the amount due the internal revenue should be paid from the proceeds, and it is so directed. The marshal will therefore procure from the collector of internal revenue and the collector of customs the proper stamps; have such cigarettes properly repacked in packages of 10, 20, or 50, properly stamped, the stamps canceled, and the cigarettes delivered. in accordance with the terms of the sale, and bring the proceeds into the registry of the court.
July 25, 1889.)
(Oircuit Oour, D. Vermont.
DESCENT AND DISTRIBUTION-EFFECT OF PROBATE DECREE.
H. left a will, of which· defendant was executor andS. residuary· legatee. S. also made defendant her executor. and complainant, defendant's wife. her residuary legatee. Defendant administered on. both estates, and converted many of the assets, taking leases, deeds, mortgages, and assignments of property belonging to or purchased with funds of the estates in his own name, or as executor. Complainant petitioned the probate court to decree to defendant all the assets of H,'s estate, and to decroe to complainant all of the residuary estate of S., without finding the amount in defendant's hands under either will, and stating that she accepted the property without inventory, and exonerated defendant from all further .liability. The court decreed according to her prayer. Held, that the decre.e was conclusive on complainant, who could thereafter claim nothing except under the decree.
Defendant would thenceforth be liable for only such assets of the estate of S. as he had not converted and become chargeable with at the date 0.1 .the decree, including leases already executed, and mortgages assigned to him as executor.· . . .
While at the the decree complainant, being a ,married woman, could n'otp'ersonally bind'herself by a contract, she was able to dispose of her sep-"; arate estate, and thadecree, fOllnded on her, consent; was valid. 4. 'SAME-WtFE'S, :PERSONALTY. The possession of the personalty by defendant as executor would not amount to a reduction into possession as husband of complainant, so as to extinguiSh the latter's title as residuary legatee. 5. BANKS AND ',Defendant, for the purpose of helping a bank, of which complainant was a stockholder, in a financial crisis, loaned it cert'ain securities belonging to complainant. and when complainant was informed of the fact she did not object. ,She was assured by, the bank's officers that if the bank was saved the securities would be returned. and if it failed the avails would be credited on her assessment as a stockholder The bank failed, and the securities were not returned. He'd. that she waS not entitled, as against other creditors, to set off the value of the'securities against her assessment, but was, as to such value, on the same footing as any other creditor.
3.SAME-HuSRAND AND WIFE;
In Equity. Bill by Margaret B. Sowles, a married woman, suing by her next friend, against Edward A. Sowles, her husband, and Chester VV. \Vitters, receiver of the First National Bank of St. Albans, to recover the avails certain stocks and notes, and to have set aside or transferred to her certain leases and a mortgage. Henry A Burt, for complainant. Ohester W Witters, pro se. Edward A. Sowles, pro se.
VVHEELER, J. The defendant Sowles is the husband of the oratrix, who is a niece of Hiram Bellows. He died leaving much real and personal estate, and a will, of which the defendant Sowles was executor, and in which many bequests and devises were made, and Susan B. Bellows, his widow, was residuary legatee. She died leaving a will making nearly the same bequests and devises, and the same person executor, and the oratrix residuary legatee. The execlltor took possession of the assets of both estates, and managed and disposed of same according to his pleasure. He discharged a mortgage on the Bremmer farm belonging to the estate, and took a new mortgage to himself; he bought the Smalley farm with moneys of the estate, and took the title to himself; he took the title of the Fairfax house to himself, in discharge of a debt due to and for a house belonging to the estate; he bought the Yandro house with, flloneys of the estate, and took the title to himself; he purchased a mortgage on the American House in Swanton with moneys of the estate, and took a second mortgage on it for a debt due the estate, foreclosed both as executor, and took a quitclaim deed of the mortgagors to himself, for which he paid $20 to shorten the time of redemption and get possession; he purchased anote against Francis and Duclos with funds of the estates; he took 29 shares of Northern Pacific railroad stock transferred in blank, in payment of a debt due the estate; he exchanged some reqeemable leases belonging to the estate for others running to himself, arid some for others running to himself as executor; of old Chicago,
SOWLES tI. WITTERS.
Rock Island &; Pacific railroad stock belonging to the estate he exchanged 100 shares for 200 shares of new stock, 100 of which were issued to himself, and the other 100 to him as executor; and he paid and satisfied some of the legacies an.d bequests. After all these, among other things, had been done by him, he applied to the probate court having and eXe ercising jurisdiction for an order for the settlement of his account, and of notice thereof to all persons interested therein, according to the laws of the state, which was granted, and the notice was given. Whereupon the oratrix appeared and presented this petition to the court: sonal property 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 said executor's hands; and you are also requested to decree to the undersigned all the residuary portion of real and personal property named in Susan 13. Bellows' will, or owned by her, witholltfinding any definite amount in E. A. Sowles' executor's hands. without any inventory or specification of items or articles or estate. and I accept the i'ame withollt further specification. and exonerate said E. A. Sowles as executor nallled in said wills from further duty 01' liability in the premises.
"New Y01'k. March 30. 1881.
"To the Hon01'able Judge of P1'ubate for the District 0/ Franklin and State of Vermont: You are hereby requested to decree the amount of real and per-
"Residual')" Legatee Named in Said Wills."
Thereupon, and upon hearing had, the court found and stated of record that the order of notice had been complied with, and decreed payment of the legacies of the will of Hiram Bellows by the executor, and the remainder to the executor of the will of Susan B. Bellows, and stating the petition of the oratrix decreed payment of the legacies of the will of Susan B. Bellows and the remainder of that estate to the oratrix. No appeal was taken by anyone from these decrees. The defendant Sowles became largely indebted to the hank of which the defendant Witters became receiver, and delivered the certificate of 100 shares of Rock Island stock taken to himself to the bank on his indebtedness,. which the bank appropriated, and credited to him. Afterwards, while the bank was in distress caused by a run, he delivered the 100 shares of the same stock which he took as executor, as stated, and other 100 shares of the same standing in his name as executor, 10 shares of stock in the National Car Company,. standing in the name of the 01'3trix,. and the 29 shares of Northern Pacific stock,. to the bank, to aid it in its necessities; and further, afterwards, he mortgaged the American House, the Fairfax house, the Bremmer farm, and the Smalley farm, assigned some of the leases taken to himself and some of thosp taken to himself as executor, and delivered the Francis & Duclos note to the bank for securitv of his debt. This bill is b;oughtto have the avails of these stocks and the note and the receipts from the leases and the leases decreed to the matrix, and the mortgage set aside in her favor. The defendant receiver claims that the stocks were deli vered to the bank to be applied upon the debt of the defendant Sowles, with the can· sent of the oratrix. Upon the whole evidence the fa,ct is not So found.
FEDERAL REPORTER, vol. 39.
She wll:s'a stockholder in the bank, liable to an assessment upon her shares. Witters v. Sowles, 32 Fed. Rep. 130, 38 Fed. Rep. 'fhe stack appears to have been delivered upon the exigencies of the occasion without her knowledge, for the purpose before stated. When the transaction came to her knowledge she appears to have been assured that if the bank was saved those or like stocks would be returned to her, and if it failed the avaiis would apply on her assessment, and on these assurances to have assented to their retention. The rights of the respective parties to the property involved are to be determined upon substantiallythese proceedings and facts. In Vermont, these probate courts have exclusive jurisdiction of the settlement of estates, and of the accounts of executors and administrators. R. L. Vt. § 2018; Adams v. Adains, 22 Vt. 50; Boyden v. Ward, 38 Vt. 628. In Adams v. A dCl/ms, REDFIELD, said: "!twas clearly the intention of our legislature, from the very first, to give the entire jurisdiction of settlement of estates to the probate cOllrts in the same manner and to the same extent that the jurisdiction of other matters of contract, Or tort, inter was given to the common-law courts." Section 2096 provided that "an executor or administrator shall be chargeable in his acc<?1j·nt with the goods, chattels, rights, and credits of the deceased which come to his possession; also with the proceeds of the real estate sold for the payment of debts and legacies, and with the interest, profit, and income which come to his hands from the estate of the deceased;" and section 2150, that "a debt secured by mortgage with the mortgaged premises belonging to the estate of a deceased person," when not foreclosed in the life-time of the deceased, "shall be personal assets in the hands of the executor or administrator, and administered and accounted for as such." When the defendant Sowles was before the probate court' for the settlement of his accounts as executor of each of these wills he was chargeable, at the instance of the oratrix,or any of tees, or of any bne interested, with all the property and the avails of all property-of either estate, including mortgages which he had taken to himself. Holmes v. Bridgman, 37 28. They did not prosecute their right to charge him for any of these things, but he was specially exonerated of record by the oratrix from being charged for any of them, and on her petition acquiesced in by the others, all charges for them were ,,,aived and omitted by the court in its decree covering the whole subject of them. This clecree, unappealed from, became final. and conclusiveagainst any right to charge him for these matters. Rix v. Smith, 8 Vt. 365; Probate Court v. Vanduzer, 13 Vt. 135; 2 Redf. Wills, 895. That right to charge him :for the property so appropriated to himself was the only remedy those interested in the estate then had for the reco¥'ery of it. Probate Courtv. Chapin. 31 Vt. 373. The property of the executor in the assets was a special and limited one, but he had full power of disposition over them, and when he had sold or converted them to his own use thEditle had passed, and his accountability in this pro-ceeding only remllinedtothose interested'as their right of action. Letting the decree· which covered this accounting pass without making or
BOWLES ". WITTERS.
attempting to make him chargeable, by, the act of theoratrix and acquiescence of the others, extinguished their right of action and left the avails of that part of the property in his hands, without further liability for them, except as provided by the decree. Brooke, Abr. "Executors," 114; Fryer·v. O:ildridge, Hob. lOa, note; Platt v, Sheriff, Plow. 36; Woodward v. Lord Darcy, 1d.184. The effect was the same as ifthe accounting had been prosecuted and he had been charged with this property, or the right to chf,lrge him had been disallowed in his favor. No obligation rested' on him afterwards in respect to it but to perform the decree as it was made, and left to stand and become absolute. The property taken by the executor to himself was altered by the law at the election of the oratrix and of the others interested in the estate. 1d. 1B6; Em, thorpe v. Elri:ngton, Year Book, 2 Hen. VII. 8. The legatees had, respectively, their rights of action against hil1l personally, and the oratrix had the right, as residuary legatee, to the remainder of the property. Bellows v. Sowles, 57 Vt. 411; Weelrs v. Sowles, 58 Vt. 696,6 Atl. Rep. 603. The defendant receiver claims that all right of the oratrix to any part of the estate became extinguished by these proceedings. But she did not exonerate the executor to that extent; neither did the decree. She a"ked that the residuary portion be decreed to her, and exonerated "from further duty or liability in the premises." The residue and remainder was decreed to her, and became hers. This defendant further claims that the executor, as husband of the oratrix, became vested with the right and title to this residue. But he had done nothing in assertion of his right as husband. Being in his hands as executor wrought nothing in that direction. 2 Redf. Wills, c. 5, § 26, subs. 4; White v. Wa'ite, 47 Vt. 502. Counsel for the oratrix insist that she was, as wife, without power to part with her right to any of the property, or to take or consent to proceedings to divest herself of it. Merriam. v. Railroad Co, 117 Mass. 241. In Vermont, at that time, a wife could not bind herself personally by any contract. Brown v. Summer, 31 Vt. 671; Ingram v. Nedd, 44 Vt. 462. But she had, however, fulLcontrol ov.er the disposition of her separate estate, so far as could be done without creating a personal obligation. Child v. Pea,rl, 43 Vt. 224; White v. Waite, 47 Vt. 502; WittC1's v. Sowles, 38 Fed. Rep. 700. The proceedings and decree appear to have been binding upon all, and to have effect upon the property involved, of all. These considerations are to be applied to the several parcels of property as they existed on March 30, 1881, the date of the decrees. The Duclos and Francis note and the Smalley .farm had been bought with moneys of the estate, for which he was chargeable. These were left his property. The Derrick hOllseappears to have been c0nveyed by license from the probatecourt in such manner as to leave him. chargeable with the avails. He appropriated them and debts due the estate to the purchase of.the Ji'airrax house to himself. Hew/ls Qhargeable for these avails and debts, and the .Fairfax house was his. The Yandro house was purchased with. moneys of the estate for which he was chargethe on the BremlUer farm able, and it was his. He
to'his own use by discharging it and taking another to himself, and foreclosing his own. He was chargeable for the mortgage which had belonged to the estate, and the farm was his. The leases of the farms which were his were taken to himself, and followed his title to the land, and belonged to him. The 100 shares of Rock Island stock which he took to his own name were converted to his own use, and he was chargeable with the value of whathegave for them. They became his. The 29 shares of Northern Pacific stock had hot been converted by him. Neither had the other 200 shares of Rock Island stock, which stood in his name as executor. The Willey lease remained in his name and hands as executor. He bought a il10rtgage on the American House with moneys of the estate, and took another for a debt due the estate, and foreclosed them in his name and right as executor. The quitclaim deed taken to himself to shorten the time of redemption and give possession did not divest the mortgage title. That remained in him as executor. The $20 paid by the executor for the quitclaim deed was involved in his account, and was merged, and the right to it disappeared with that. These were of the residue and remainder of the estate, and the right to them passed to the oratrix by the decree to her as residuary legatee. The avails of these stocks were retained by the bank upon her after she was informed of their transfer. The bank failed, and could not return those or similar stocks to her. The assessment is for the enforcement of the liability of the shareholders to the creditors of the bank. Rev. S1. U.S. § 5151. It is enforced by the comptroller and receiver for their benefit. Section 5234. There was no one to agree in their behalf that if the bank. failed these stocks should apply on her assessment. The bank held these stocks or their avails at the time of the failure on an understanding which it could not carry out. It was liable to her for them or for their avails. This liability was like that to its depositors, or its other obligations. She seeks to recover the avails of the stocks, and is a qnasi creditor to their amount on an equality with the other creditors. Case v. Bank, 100 U. S. 446. The avails of the stocks amounted to $26,034.75. The receiver has collected $40 rent on the Willey lease. She was not a creditor of the bank for this, and this amount should be returned to her; and she is entitled to have the mortgage as to the American House and the assignment of the Willey lease set aside and her title to them quieted. Other legatees have sought to become parties here with the oratrix, but they have no rights in common with her as residuary legatee, and their motion in this behalf is denied. The costs in equity cases are within the discretion of the court. And as this decree is in favor of eachparty in substantial proportions, neither appears to be justly entitled to costs against the other, and none are allowed. Let a decree be entered that the defendant receiver pay to the oratrix $40 out of the assets of the bank in his hands; that the oratrix is a creditor of the bank to the arnount of $26,034.75, and that he pay her dividends thereon out of the assets of the bank in his hands at the same rate dividends have been paid to other creditors, before paying
ERIE TELEGRA-!?H& TELEPHONE CO. 11. BENT.
uther creditors fmther. and that she stand equal with the other creditors as to future dividends; that the mortgage of the American House and the assignment of the Willey lease be set aside, and enjoining defendant perpetually, from setting up any claim receiver, and his thereto, and denying the prayer of the bill as to the residue, without costs to either party.
(Circuit Court, D. Massackusetls.
ARBITHATION AND AWARD-ACTION OK AWARD-STATUTORY SUB)URSION.
No action at common law can be maintained on an award of arbitrators rendered under a statutory submission which does not comply with the statute.
At Law. Action on award. B. P. Butler, for plaintiff. G. F. Richardson and H. R. Bailey, for defendant.
COVf, J. This is a suit at law, brought to enforce an alleged award in favor of the plaintiff against the defendant for the amount of certain fees and costs paid by the plaintifl'. The case was heard by the court, jmy trial having been waived. The underlying question to be determined is whether an award rendered un(ler a statutorv submission can award has been be enforced at common law in a case where the rejected by the court as not being in conformity with law. On December 31, 1885, the parties to this suit entered into an agreement to submit their demands to arbitration. It is clear from the record that this was a statutory submission. The attorney for the plaintiff corporation was authorized by the board of directors to execute a statute reference, and the agreement was for a statutory submission. This is fUi'ther shown by the supplemental agreement of June 4, 1886, which extended the time six months "within which the report of the arbitrators within named is to be filed in the superior court for the county of Middlesex." The whole form of proceeding shows that a i'tatutory submission was intended by the parties, and we do not understand that this position is seriously controverted by the plaintiff. The supreme court of the state rejected the award on the ground that it was not returned to the superior court within the time specified in the submission, and that the extension, though signed by the parties in writing, was invalid because not acknowledged before a justice of the peace. Under these circumstances it was held that the superior court had no jurisdiction to accept the award. Bent v. Telegraph Co., 144 Mass. 165, 10 N. E. Rep. 778. If the plaintiff in this action can recover it must be on the ground that .an action at common law can be mairltained upon an award made in pur.suanee of astatlitory sUbmissio,n, even though the submission is inop-