find that unnecessary force was used in expelling him; and then, on the undispute<;l facts of the case, the resistance he offered to the conductor would contribute to those injuries to that extent, that, in this case, he would be entitled to recover nothing on that score. .A,nd now, on the undertaking of the defendant's counsel that a verdict may be entered up for the money paid by the plaintiff for the extra tickets, if the oourt shall conclude, on the motion for a new trial, or on further consideration withotlt such motion, that the plaintiff in this action is entitled to it, you are instructed to find for the defendIlont company. The court added that it was his opinion, and it was proper to express it, that, in consideration of the extreme age Qf this lady and gentleman, the conductor should have exercised a discretion he clearly had to not enforce the rule, by taking tham at least to Collierville, where they could have had better accommodations than at the plaoe he put them out; but this was, strictly, only a. privilege or courtesy t?be shown to old age, and not a legal right. i . ,. ,
UNITED STATES V.
LEVERICH and others.
(District Court, S. D. NI!JW York.
UNITED STATES V. LEVERICH.
On June 7,1864, Stephen Duncan executed to CharlesD. Leverich and Henry
S. Leverich a deed of personal property, consisting of stocks, bonds, railroad
shares, etc., to the amount of abQut$227,500, in trust, to take possession of tile same, to collect the interest thereon, and to·pay the income thereof to himself and to his wife, in manner stated in the trust deed, until the death of the survivor of them, and thereafter to distribute the principal and any accumulated interest to his children. Charles D. Leverich, prior to and at the time of the execution of t4e deed of trust, had in his individual custody and possession all the property so conveyed. Both trustees signed the trust deed accepting the trust, but Henry S. Leverich never had the custody of any of the property, never received any of the proceeds of it, and never took any part in the execution of any of the duties imposed by the trust deed. The whole business of the trust was managed by Charles D. Leverich alone, who retained possession of the property, collected the income, and paid it over as directed by the deed-in part to Stephen Duncan, until his death, in 1866, lj,nd in pari to his wife, who died in 1868. Upon her death he distributed the whole property to and among the children of the grantor according to the terms of the .trust. Charles D. Leverich died in 1876, and no tax was ever paid or claimed up to the time of his death. This suit to recover $3,805, the taxes alleged to be due upon the distribution of the shares to the children in 1868, was brought on September 13, 1879, against Henry S. Leverich, the surviving trustee, and the other defendants, who are the executors of the deceased trustee. r am of opinion that no tax accrued to the government upon the shares distributed under this trust deed, under section 124, as claimed. This case does not come under the first clause of the general words of that section, for the reason that the property here did not "pass after the passage of this act from any person possessed of such property, either by will or by the intestate laws of any state or territory." To come under the second clause of the general words of section 124 the case must be one of "a person having in charge or trust (. *' · any personal property · · · transferred by deed, etc., made or intended to take effect in possession or enjoyment after the death of the grantor, to any person or . persons;" and it must also come under some one of the five following subdivisions of that section. But the only persons described in any of those five subdivisions are persons who, being entitled to the beneficial interest in such property, also stand in a certain relationship "to the person who died possessed of such p1·operty." Now, the facts here show that the grantor did not "die possessed" of said property. He had parted with the title :to the' property and the possession of it, by deed executed and delivered '·sevetal years hefore his death, and before the passage of the act. The deed created a valid trust of personal property under the laws of this state, (1 Rev. St. p. 773, part 2, c. 4, tiL 4, §§ 1, 2; chapter 1, §§ 55, 60, p.
729,) and in such cases "the whole estate is vested in the trustees in law and in equity, subject only to the execution of the trust. The person for whose benefit the trust is created takes no estate or interest in the property." 1 Rev. St. 729, § 60. No interest in this property which 111'. Duncan had at his death ever passed to his children. The whole legal title and the possession were in the trustees long before- the grantor's death, and so continued for two years afterwards, without change, until the death of his wife, when the legal title to the property and the possession passed direct from the trustees to the children. What the children thus took was not anything which Stephen Duncan or any other person had "died possessed of," but what the trustees had had in their own possession along with the legal title long before. It appears, therefore, that the children did not take this property from any person Udying possessed of it," and therefore section 124 of the act of 1864 does not embrace this case. As to beneficial interests accruing, not "by will or intestate laws," but by deed "intended to take effect after the death of the grantor," the act can only apply to cases where, under such deeds, the ahcestor or other relative of the beneficiaries mentioned in the five subdivisions of section 124 was entitled to hold possession till his death, and "died possessed" thereof. This is not such a case. The language of section 125 confirms the same view. It provides that the tax: or duty aforesaid shall be a lien or charge upon "the property of every persQn who may die as aforesaid," etc. The words "every person who may die as aforesaid" can only refer to the words which are repeated substantially in each of the five subdivisions of section 124, viz., "the person who died possessed of such property," and the lien is given upon the property of such person only; and there is none such in this case. The act, I think, plainly contemplates those cases only, whether arising under will, intestacy, or trust deeds,inwhich the grantor, the testator, or deceased relative had the legal possession or ownership of the property up to his death, and not cases like this, where, in consequence of a valid trust created before the passage of the act, the grantor or ancestor had, according to the law of his domicile, no legal or equitable estate in the" propf'rty at the time of his death, and where the property was subsequently distributed among bis children through the medium of a long prior trust. The complaint should, therefore, be dismissed.
SEAY V. WILSON.
SEAY V. WILSON,
(Circuit Court, W. D. Missouri. 1881.)
1. CREDITORS' LIENS ON PROPERTY OIl' THIRD
Where a creditor of a bankrupt has a lien on the property of a third party, as part of the security for his debt, he cannot release his lien for a consideration . without crediting the aJUount of the consideration on his claim.
On Appeal. L. F. Parker, for appellant. B. B. Kingsbury, for appellee. MCCRARY, C. J. The controversy in this case relates chiefly to the amount which should be allowed appellant upon a judgment in his favor, and against the bankrupt and one Hawkins,rendered in the circuit court of Phelps county, Missouri.
That judgment was upon a note executed by the bankrupt as prhlcipal, and Hawkins as surety, and the jUdgment was against both. Hawkins died insolvent, leaving assets enough to pay a portion only of his indebtedness. The judgment above mentioned, in favor of appellant, Seay, was a lien upon certain real estate of Hawkins, deceased, as were also two other judgments,-one in favor of one Love and the other in favor of one Branson. The appellant also held another and a subsequent judgment against Hawkins, deceased. Certain real estate of the estate of Hawkins having been sold, and the proceeds being in the hands of the administrator for distribution, it was agreed between appellant, Love, and Branson, all being judgment creditors of Hawkins, and entitled to share ptO rata in such distribution, that appellant should receive $450 as his full share of said proceeds, and the remainder should be divided between Love and Branson. In pursuance of this agreement the said sum of $450 was paid to appellant, and by him credited upon his junior jUdgment against the Hawkins estate, and not upon the prior judgment against the bankrupt and the Hawkins estate. The district court held that the application of this payment of $450 to the satisfaction of the junior judgment was improper, and that the same was in equity a payment upon the judgment against the bankrupt and should be credited accordingly. This ruling is assigned as error.
It is said that the payment was not made by the bankrupt, nor by the assignee, nor by anyone for them, or either of them. This must be admitted, but the admission does not dispose of the question. It is equally true that the payment was not made by the administrator of Hawkins, nor out of the assets of his estate. If, under the peCUliar circumstances of this case, we were to adhere to the rule that the money paid must be applied on the debt of the party making the payment, we should meet the same difficulty, whether we sought to apply it on the judgment against the bankrupt, or on that against the ,