n:DER+L REPORTER, vol. 50.
,be dismissed for want of. the joinder therein of the other
this cOQc!usion, we do not deem it necessary to con· othf.rreason urged in support of tbe motion to dismiss, namely, that the appeal was taken tQo late.
ATMORE et aZ.
April 29, 1892.)
(Circuit Court of Appeats, Third Circuit.
AND CO'N'rI1!fGBNT RBllUI1!fDBRl!. Testator direClted that his wife should receive the interest on $5,000 durin( herlife; aftefWardS: such iriterest·to be paid fj() her daughters E. and A.; if they or eitber of them died within 10 years from the date of the Will, his son "to have the use of the said $5,000 by paying the interest to ,the cllildren" of E. and A.; and, "after the deathof both E. and A., (if t.lley should die before the expiration of the Faoove-nietltlone4 ten years, BttJ;le expiration of the above-mentioned ten years, in case either or both the aforesaid or A. should have died,) the money shall be divided in two equal parts, and be divided between their children equally." The will then gave to the son allt,es,tator'S l'llal and personal property, after the debts and funeral'expenses "arid" the above-mentioned $5,000 are paid or secured.", Held, that the parenthetical clause was merely intended to preserve to the son the ten years' "use" before given, $1}. case E.' and A. died before that ·time, and that on the death of the teststor the corpus of tbeproperty vested in the children of E. and A., and was not contingent upon: the death of E. and A. before the expiration of the 10 years. '. . "
2. ,SAME-:.LEGAOY'-"CHARGE ON L41ifDS.
The devise to the son of altthe real and personal property, after paying the debts and, "the, above-mentioned 15,000, "constituted the $5,000 a charge on the real estate.
'The statut.ory bond givenby'the son as executor was merely fOf the faithful discharge of his official duties, and was not a security for the payment of the $5,000 legacy. 46 Fed. Rep. 429, affirmed.
Appealfrom the Circuit Cbu'rt Of the United States for the District of Delaware. " .' " '" , . . .In Equity. Bill by Jane Atmore, administratrix, and the heirs at law of Ann Jones, deceased, againstJ'ohn H. Walker, administrator d. b. n. c. t. a., and the heirs a,t law and' creditors, of Joseph Dean, for a construction of the will of the said Joseph Dean. Decree below, was infavor of complainants. See 46' Fed. Rep. 429. Defendants appeal. Af· firmed. Edward G. Bradford and Benj. NieldB, for appellants· .H. Gordon Me Couch , for appellees. Before ACHESON, Circuit Judge, and DALLAS and BUTLER, District Judges. BUTJ.'ER. District Judge. Joseph Dean on the 6th of January, 1860, made a will which contains the follpwiIig provisions:
"Secondly. Ido direct that 'my bElloved wife Jane Dean shall receive the interest of five thousand dollars during her lifetime in lieu of her dower at common law if she shall 80 elect, one hundred dollars on account of the first
WALKER V. ATMORE.
year's interest of the fi ve thousand dollars to be pAid as soon after my death as possible. I do also direct that my beloved wife shall have whatever articles of household furniture she may think proper (at a fair valuation) of which I may die seised or possessed, in part payment on account of the first year's interest of said five thousand dollars. On the death of my beloved wife the interest of said five thousand dollars to be paid to her daughters, Elizabeth Scarborough lind Ann Jones, in eqlIal parts during their lives; in case of the death of either or both the aforesaid Elizabeth Scarborongh and Ann Jones, before ten years from tht' date of this will, my son William Dean, is to have the use of the sai<t five thousand dollars by paying the interest to the children of the said Elizabeth Scarborough and Ann Jones. After the death of both Elizabeth Scarborough and Ann Jones (if they should die before the expiration of the above-mentioned ten years, at the expiration of the above-mentioned ten years; in case either or uoth the aforesaid Elizabeth Scarborough 01' Ann .Tones should have died,) the money sha1l be divided in two equal parts and be divided between their children equally, with the exception of Robert Kershaw; three hundred dollars.ofhis share to be paid to my son William Dean, for a debt due the firm of Joseph Dean & Son, by Paul Keltz. of which Rouert shaw received the benefit. Thirdly. I give and bequeath to myson, William Dean. after all my debts, funeral expenses and the above-mentioned five thousand dollars are paid or secured to be paid, the residue of my estate, real and personal, of all and every description, of which I may die seised or possessed... The questions for consideration arise out of the foregoing provisions; and are: First, are the legacies to Elizabeth Scarborough's and Ann Jones' children vested or contingent? Second, are they charged on the land devised to William? The appellees contend that they vested on the testator's death, and became a charge on the land devised; while the appellants claim that they were contingent on Elizabeth and Ann dying within 10 years after the date of the will; and that as Elizabeth and Ann survived this period, the legacies were lost. The language of the testator does not seem to leave his intention doubtful. The general scheme of his will is obvious. It was to give his son William all his property, except $5,000; to his widow the interest of this sum for life, and on her death to her daughters, (by a former husband,) Elizabeth and Ann; and after their deaths to give the principal to their He starts out with the provision for his wife,-setting aside $5,000, and giving the interest to her. On her death he gives the interest to Elizabeth and Ann; and in case they die within 10 years after the date of his will, he provides that his son William shall have the "use" of the $5,000, "by paying the interest" to Elizabeth's and Ann's children. Thus far his intention is not questioned; and it should be observed that if he had stopped here, the children would have taken the interest not for the ten years simply, but for life. William is given the "use" of the principal, and the children the interest without limitation as to time. What follows gives rise to the questions presented. It was added to dispose of the principal,-by conferring it on tDe children, and thus increasing thr. legacies before given them. The mltnifest intent, and effect of the language is to give them the 85,000 at their mother's death, reserving to William the "use" before mentioned,
within the'tel1 The Iariguagf here' emWilliam"s" use "\vas; manifestly I iilterjected,parentheti,callY, ,il' occn, d,' inind, th,at the use be lost. When,: powever, the'senten.ce is properly it will notbElal' any reasonab,leconstruction than the one stated. It is as follows: "After the death of Elizabeth and Ann (if die before the expiration of the aho\'e-:mentioned ten years, at expintHon of the ten years, in 'Case either or both the aforesaid Elizabeth and Ann shqulij 'have died) the money shall be divided and between t,b.eir children That is ,to Sl:ly: After th", dE1flth,of Elizabeth..andAnn the $5,000 shall be thus divided among their children; if, however, the said Elizabeth and Ann shall die, within. the period mentioned (during which William has 'been given the "use") it iato be divided at the e±piration'of that period. That the language here placed within parenthesis marks was inserted simply to save the "use"be(ore given William, seems clear from its te.rms, and the context, as well RlJfrom the testator's manifest purpOSe to dispose absolutely of the $5,OOO,-..and in doing so to increaBe the, legacies previously given the ohildren. A part of this language is' pure repetition, and may be omitted in reading the sentence; it tends to confuse. The words "in case either or both the ,aforesaid Elizabeth and Annshorild have died," express, in similar terms, precisely what is expressed two lines above. Omitting this repetition, the sentence reads: "After the death of both Elizabeth and Ann (if they shall die before the expiration of ten years, at the expiration of the above-mentioned ten years) the money shall be divided I between their children." Now if the words within parenthesis marks are 'placed at the end of the sentence, (after a dash, or semicolon,) instead of being interjected near the beginning, there would seem to be no room I whatever for the controversy which has arisen. Adding the word how'eIJer between the words" if" and" they," so as to make the sentence read "if, however, they should die before the expiration of the ten years," etc., will produce the SlLme effect. Such transposition is clearly permissible; it does not change the sense but simply serves to illustrate it. The word however, in the connection stated, is a plain implication from the context. The same effect is produced by simply breaking the flow of language in the sentence, by proper punctuation,-the addition of parenthesis marks as inserted above. That the courts may make such transpositions, insert implied words, and so punctuate, when the context or general scheme of dilltribution warrants it, is well settled. 3 Jarm. Wills,708; Chapman v. Brown, 3 Burrows, 1634. There is no occasion here to invoke the aid of canons of construction, -such as that legacies are to be construed vested, rather than contingent where the language will permit; that a testator must be presumed to intend the disposal of his entire estate, etc. Their only use is to assist in ascertaining the testator's purpose where it is obscure. Here, as we have seen, it is not. ' The appellants admit that the language will bear this construction; but claim that it will also bear another, which favors the heirs at law;
BBAL' ,. CITY OJ' SOMERVILLL
and thAt tbiflatter should;therefore be adopted. It must be platn from what has been said that we do not think the language will bear another reasonable construction. To hold that it Will, we must ignore the plain intent of. the testatelr, expressed throughout the will, and find that he contemplated dying intestate as respects the $5,000, not only against the contrary legal presumption, but also against the plain import of his language relating directly to the subject-if not indeed against its express terms. In bequeathing the residue to William he not only takes pains to exc11,idethe $5,000 from the bequest, but speaks of its payment in terms which seem to preclude the idea of contingency. The thought that the children might not receive it, under all circumstances, we think, never entered his mind. That thelegacies are charged on the land, is not open to question. The testatorrningled his real and personal property together and gave the residue to William"after paying his debts and "the above-mentioned 85,000," ,Such language, under such circumstances has been uniformly held, in modern times, to create a charge on the testator's land. Lewis v. Darling, 16 How. 1; Fenwick v. ChapfMn, 9 Pet. 461. The rule in Delaware, where this land is located, is shown to be the same, by the decision in Rambo v. Rumer, 4 Del. Ch. 9. The statl;1tory bond given by William Dean, as executor, was intended to secure the faithful discharge of his official duties, and had no relation to the payment of this legacy. The time when it might become payable was uncertain, while the obligations of the bond were limited to six years; arid expired long before the legacies became due. The bond did not, therefore, "secure" its payment, within the terms of the will, as the appellant urges. The decree of the circuit court is affirmed.
A city treasurer deposited checks in a bank, indorsed by him -For depollt,-04 'he checks were immediately credited to him on his pass book, though not in pur8uance of any agreement to that etrect. He had been a depositor in the bank for some years, but had no agreement that his checks should be treated as cash, or 'hat be should draw against them before collection. The bank became insolven' before the ohecks were colleqted,and their proceeds passed into the hands of a receiver. Held, that no title passed to the bank except as a bailee. and that the depositor was entitled to the proceeds. 4,9 Fed. Rep. 700, aftlrmed.
BANXING-CIJBCXll )'OK CoLLBCTIOll....INSOLTBNCY.
Appeal from the Circuit Court of the United States for the District of Massachusetts. Suit by the city of Somerville against Thomas P. Beal, receiver of the Maverick National Bank, to recover the proceeds of certain checb. From a final decree for plaintiff, defendant appeals. Affirmed. The allegations of thebiU were, in substance, as follows: