1l'ltDERAL REPORTER; ,"
which are prescribed . by the statute... The fee is annexed to the deposition under thoseconditiolls.· / When' the costs were taxed in this case, the, ,statutQry<:o:I;lditions, had nOF been complie? wit.h. The depositions had been taken, but they had not been admItted III evidence. Attorney's fees upon them were, therefore, not taxable, and the taxation by the clerk Wl.ij'l correct. '1,'he motion of the 'defendant to strike the amended bill from the files is according11' 'overruled.
. (Circuit Court, S. D. New York. November 12, 1897.)
CAREY v. ROOSEVELT et aI. , : ,. .
While, In general, a judgment against executors or administrators c. t. 11. Is 119t binding on legatees whe,n the suit is commenced or revived after the adIiifnl,strators' accounts have been settled, and all the property in their harins paid over to the legatees and trustees under the will, pursuant to a voluntarily asdecree of the proper court, yet it Is so binding if the sumed the expense of defending the action, made privies to It, and had the same benefits In connection therewith Q.s if they had been . named as defendants.
LIMITATION OF AOTIONS""':ACTION ON JUDGMENT.
If an actJonon a judgment is not itself barred by the statute of limitations, the fact that the original claim which is merged in the judgment was so " , barred Is Immaterial.
LACHES-AcTION ON, JUDGMENT-DEMURRER,'
In a suit on a judgment the alleged laches ot the complainant In prosecuting the original action, if avail'tble at all, cannot be considered on demurrer, If the bill excuses the delay and imputes it to thos" who defended that action.
This was a suit in equity by GeorgeG. Carey, as trustee, etc., against John E. Rooseveffandothers,tlstrustees and legatees under the will of Amos Cotting,· deceased, to enforce payment of a judgment previously rendered againstthe administrator c. t. a. of said Ootting's estate.' The cause was heard on detnul'l'er to the amended bill.
The demurrer to the original bill was sustained and the complainant had leave to amend. ,(81 Fed. 608, where the principal facts are stated:) Thereafter the complainants. filed an amended, bill. Among' other new' averments are the following: "And your orator further: sliYs that, ll.s he is informed and believes to be true, the. defense of the said action at Ia W' was conducted, and all proceedings therein were taken; by the said' defendants Roosevelt and Schermerhorn, with the knowledge and consent,and afthe instance and request, of the other defendants, beneficiaries -under said will, to wit, the defendants, J. Egmont Schermerhorn, as ,executor Elizabeth Cotting, deceased, and Jameson Cotting and Katie T. Schermerhorn individually, and of the defendants, John'E,..Roosevelt and W. Enllen. Hoosevelt, as trusteeis' of the trusts created by the said will of Amos Catting for the benefit of Elizabeth Cottlng, deceased, and of the said defendants, Katie T.'SchermerhoTll anti'Jameson Cotting, and that such defense was .benefit of the said trust estate .and of the said cOllducted bY tllew for the proportion of the expenses of such detrustee.s anf}, benefidaries, Thatfl\ their attorneys and counsel, and including also the fense, mcludmg, , expimses and counsel fees incIdellt to the proceeding in the surrogate's court hereinafterreferred,to,,,wasborne,by the said trustees and paid by them out of the trust .8.ACjlt the amount thereof was charged by them ratably against the shares of the sa1dbenefici!lries therein, who conSented thl?reto and severally paid. or cOJ'lsellted 'to sucb: payment of, thechllrges so madlhlgaim,t their re&p ctive ratable shares in the tl'UBt funds; and:that said trustees and bene-
CAREY V. ROOSEVELT.
ficiaries respectively were, at all times, after its rev!val, fully informed as to the nature of and issues in sald action at law and as to all the proceedings had in the said action at law, and took an active part in the defense thereof, with the intent and purpose of protectlIig the said trust funds and their respective shares and interests therein." The defendants again de:nur.
Burton N. Harrison. Arthur H. Masten, and Henry M. Ward, for complainant. George H. Yeaman, George C. Kobbe, and James A. Speer, for defendants. OOll, District Judge. The demurrer to the original bill was sustained principally upon the theory that the defendants had no opportunity to contest the claim against the testator which was revived against his administrators. As the allegations then stood the administrators had no interest in defending the revived suit, and, for aught that appeared, an unfounded claim might have been established to which a perfect defense could have peen interposed had the defendants been informed of the pendency of the action and been given an opportunity to defend it. The amendments change all this. It now appears that the defendants had the same opportunities to defend as though actually parties to the record. The suit was defended with the utmost vigor, and judgment was obtained only after two trials had been had. The defendants were informed of every important step in the litigation and the suit was defended at their instance and request. they paying the expenses thereof. In short, they voluntarily made themselves privies to that action and had precisely the same benefits therefrom as if they were named as defendants. Had they been so named they could have done nothing more. They have had their day in court, and should not now be heard to dispute a claim which they have already disputed without success. The doctrine that a party directly interested in the result of an action, who assumes and pays for its defense, is not permitted thereafter to dispute the judgment there rendered, has been frequently recognized and enforced in the federal courts. As pointed out in the former opinion this action is based solely upon the judgment which was recovered in 1895, less than two years before the original bill was 'filed. This action, then, is not barred by the statute of limitations, and the question whether the claim in the suit against Ootting was so barred is, upon the theory of the bill, wholly immaterial. Assuming that laches in the prosecution of the suit against Ootting and his representatives is available here, it certainly cannot be considered on demurrer f(lr the reason, inter alia, that the amended bill excuses the delay and imputes it to those who were defending that action. The bill may be maintained in this court for the reason that the parties are citizens of different states. The demurrer is overruled; the defendants may answer in 20 days.
83 FEDERAL REPORTER.
DUGGAN et al. v. SLOCUM. (CircuIt <Xlurt, D. C(}nnectlcut. October 15, 1897.)
CHARITIES-VALIDITY OF BEQUEST.
A bequest for a public library and for a protectory for boys Is a charitable bequeSt, and entitled to thebene1it of Gen. St. Conn. § 2951, which provides that "all estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemetery, cemetery lot, or of the monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall. be granted, according to the true Intent and meaning of tlhe grantor, and to no other use whatever."
Such a bequest Is not void for uncertainty as to the object, or for the want of a provision for the selection of the beneficiaries, the particular mode of carrying the intent of.the donor into effect being left to the discretion of the trustees.
SAME-FAILURE TO PROVIDE FOR SUPPLYING VACANCY IN TRUSTEESHIP.
The failure of the testator to provide for the appointment of other trustees In case (}f the dea1!h of the trustees named or their refusal to act does not Invalidate the gift, the rule of law that in such an event other trustees are to be appointed by the c(}urt being substantially a part (}f the will.
A direction to trustees to Invest the trust fund for a term of 10 years or more at their discretion does not contravene the rule against perpetUities, as the trUstees can be compelled to apply the fund t() the use of the beneficiaries within a reasonable time after the expiration of 10 years.
Charitable trusts are entitled to a favorable construction In courts of equity. The validity of a Charitable bequest Is determined by the law of the testator's domicile.
SAME-LAW OF TESTATOR'S DOMICILE.
John C. Donnelly and C. Walters, for complainants. John O'Neill, for defendant. TOWNSEND, District Judge. Demurrer to bill in equity. The three orators herein, describing themselves as British, subjects, residing, respectively, in the state of Michigan, city of Dublin, Ireland, and the city of Montreal, Canada, bring this bill in behalf of themselves and all other heirs at law and next of kin of one John H. Duggan,deceased, who may unite in the prosecution thereof, and aver that they are respectively the brothers and sister and next of kin of said Duggan, late of the town of Waterbury, in the state of Connecticut, who had never married, and who died in said town on the 10th day of November, 1895, leaving the orators and other heirs at law and next of kin, not known to them, surviving; that said John H. Duggan was a priest of the Roman Catholic Church; that on August 5, 1895, the decedent executed a will, which was admitted to probate on December 2, 1895; that, the executors and trustees therein named having refused to qualify, one William J. Slocum, of said Waterbury, was duly appointed and duly qualified as administrator with the will annexed, "and is now acting; and has possession and