"That the practice, pleadings, forms and modes of proceeding in civil causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and. .forms and modes of proceeding eXisting at thz time, in like causes, in the courts of record of the state within which such circuit and district courts are held jand that in common-law causes the plaintiff shall be entitled to similar remedies, by attachment or other process, or by execution or otherwise, against the property of the defendant, which are provided by the laws of the state in which such courts l;U'e held for the courts thereof." .
Whether the said act is a cumulative remedy or not, it is certainly a simple and efficacious one for all persons' having unsatisfied executions against towns, townships, boroughs, or other municipal corporations. When the plaintiff shall file proof that he has caused the marshal to serve copies of the said executions upon the assessors and collectors of the 'defendant corporation, or upon the municipal officers whose duty it is to assess and collect its ordinary taxes, he will be in the position to petition the court for a mandamus commanding the assessors to assess and levy, in addition ·to the regular taxes, the amounts due upon the said executions respectively, with interest to the time when the same shall be paid to the marshal, or to show cause befol'e the court, at the, opening of the next stated term, why they have not performed the said duty.
UNITED STATES V. GILLESPIE
and another, F-xr's, etc.
(Circuit, Court, D. New Jersey.
EQUITY-JURISDICTION-TRUSTS UND:ER A WILL.
A court of equity has jurisdiction over a bill by a que tru8t, to have the will construed; the directions of the court to the. trustees and executors in regard to the proper methodof executing the trust; and, as auxiliary t.o,this, to have an account rendered to enable it to. ascertain what is the residue of the estate for the purposes of the trust.
R. and G01·tlandt Parker, for defendants. Before l\fCKENNAN, C. J., and NIXON, D. J. NIXON, D. J. The bill of complaint is in this cause against the executors of Joseph L. Lewis, lateof Hoboken, in the county of Hudson and state of New Jersey, deceased, and it alJegesthat the said Lewis departed this life on or about the fourth flay of March, 1877,
UNITED STATES, V. GILLESPIE.
having first duly made and executed his last will and testament, bearing date October 1, 1873, and a codicil thereto, dated June 5, , 1875, by which will and codicil, after certain specific bequests, he devised and bequeathed all the residue of his estate as follows:
.. I give, deiise, and bequeath all the rest, residue, and remainder of my estate, real and personal, and of every kind whatsoever, of which I may die seized and possessed, and to which I may be at Illy death entitled, unto my executors, in trust, to expend and apply in reducing the national debt of the United States of America, c0l1tracted in the course of the rebellion of 1861. In the execution of this trust my executors, as trustees, may use their discretion as to the manner of applying 'the said residue and remainder of my estate to the reduction of the said debt; but I strictly enjoin them that they personally superintend the application of the said residue and remainder to the purpose aforesaid, that there may be as little waste of it as possible, and that it may not be diverted to other uses by dishonest officials."
It further allegesThat the executors propounded the will for probate in the prerogative court of New ,rersey about the fifteenth of MaY,1877; that tlie same was admitted to probate, and letters testamentary granted thereon to the said executors on the twenty-ninth of May, 1878: and that they thereupon took on themselves the administration of the estate, and have thereby obtained the possession of and now hold United States bonds and securities, and other property of great value, belonging to the said Lewis at the time of his death.
The bill states various other matters, to which it is not deemed necessary to refer in this connection; and, Mter alleging that the will has created a trust in favor of the United States which the defendants are legally bound to execute, and that the United States has full right and power to enforce its performance in this court, it praysThat an account of the estate of the testator, n.nd of the receipts and disbursements of the executors, shall be taken and aUdited, and that the debts, leg'ddes, and expenses remaining unpaid shall be duly paid, under the direction of the court, in due course of administration; that the amount of the net residue, applicable to ,the reduction of the national debt, shall be ascertained and settled; and that the executors shall bring tpe funds in their hands into the court to abide the administration thereof, and the decree to be rendered therein; and that it may be adjudged and decreed that the said bequest in favor of the United States is valid and operative; and that the defendants be of the estate; and that decreed to execute the trust in regard to the the defendants shall answer, state, and set forth how they propose to perform and fulfil the trust, after the residue of the estate ball been ascertftined; and that, if such proposal be satillfacto±-j to thElCoutt,'the defendants shall be authprized and directed, by the decree of the court, to execute the said trust in the manner so proposed; and that the complainant may have such other and further relief in the premises as the nature of the case may reqUire.
To the bill the defendants have interposed six pleas, the same by an answer. They substantially allege;
(1) That the complainant has made no reasonable demand for the legacy or relief prayed for. (2) That no suit can be maintained against all executor, in a court of equity, for a legacy, or other such relief as is prayed by the bill, on sllch allegatio.ns as are made in the bill, until a reasonable demand has been made for such legacy or relief, and that no reasonable demand has been made. (3) That by the statute law of New Jersey no suit at law can be maintained for a legacy or bequest until after reasonable demand made upon the executor who ought to pay the same; and that no such demand has been made for any part of the relief prayed for, or for any. action on the part of the executors, in relation to the discharge of their duties under the will. (4) That no persons interested in the estate of a testator as legatee or cestui que trust can lawfully cite e¥ecutors to. account. alleging only the facts alleged in the bill of complaint, until after a year from the probate; and in. case of a suspension of their authority by an appeal from the probate until one year after the affirmance of the probate; that in the present case the probate was granted May29, 1880; that it was appealed from by J olm S. Cathcart and others on the first of .June, 1880, and was affirmed by the court of errors and appeals, March.1, 1881; that said appeal suspended all rights and powers of the executors, except such rights and powers as they had before the probate; and that they were unable to sue, or be sued for or in respect of any matter stated in the bill, until they had an unsuspended authority for one year after probate, and that when the bill was filed, to-wit, June 7, 1881, they had had an unsus· pended authority for only 102 days. (5) That by the laws of New Jersey an order may be made by the ordinary, or other anthority granting probate, that the executors of an estat.e give notice to creditors of the decedent to bring in their demands against the estate within nine months, on the expiration of which time the court may decree that all creditors who have not brought in their claims shall be barred; that such order was taken in this case, March 12, 1881, which was the earliest time that an effectual and undoubted order could be obtainetl in consequence of the suspension of their authority by the appeal; that until the date of the expiration of said order, to-wit, December 12, 1881, it cannot appear that there is any residue of the estate after paying creditors; that many persons have made claim to all, or a large portion, of the testator's assets, under deeds of trust and secret trusts created by testator before his death, not disclosed; and that these claimants to the corpus of the estate should be barred before any decree against the executors. (6) 'l'hat by statute no action can be brought, either at Jawor in equity, against executors within six months after probate granted, 'unless upon, suggestion of fraUd; and that six months has not elapsed from and after probate was granted to them of said will, within the meaning of said statute.
These pleas have been Bet down for argument under the thirty-third equity rule, and the respective parties have been fully heard. After
UNITED STATES V. GILLESPIE.
a careful consideration we are of the opinion that they must be overruled. They seem to have been founded upon a mistakenapprehension of the nature, character, and of the bill of complaint. It is not a suit for a legacy or bequest, and hence the several statutes quoted, and the reasons for a stay of proceedings against executors in suits of that sort, have no application. The theory of the bill is that there is an estate in the course of administration in one of the courts of the state of New Jersey which the complainant desires to have' administered here; that the defendants are the executors and trustees of the estate, and have the trust fund in their hands, to be disposed of according to the provisions of the will; thlj,t the complainant, as cestui que trust, is entitled to have the will construed by this court, and to have the directions of the court, to the executors and trustees, in regard to the proper method of executing the trust;' and; as auxiliary to this, may require an account in to 'ascertain what is the residue of the estate available for the purposes of the trust. The general jurisdiction of courts of chancery over questions of this kind, in the admInistration of estates, is undoubted, and such jurisdiction must be exercised by this court, sitting in equity, when the proper parties appear to invoke it. Entertaining this view it is not necessary to follow the counsel in their learned discussion of questions which are not involved in the subject-matter of the bill of complaint. But, perhaps, we ought to advert to the apprehensions expressed on the argument that the mere allowance of the suit might be construed into a reflection upon the conduct of the defendants; We do not so regard it. We find nothing in the bill Buggesting unfaithfulness on their part, and look upon the proceeding as a request by the complainant that the court should aid the trustees in the discharge of their delicate and responsible duties, and should require only the exercise of such reasonable diligence as the condition of the estate and the circumstances of the case demand. With what speed they should be ordered to proceed is under the control of the court, to be determined on the answer, and not on' the pleas; and it ought not to be assumed in advance that the court will make any order which will unreasonably subject the defendants to either hazard, loss, or practical inconvenience. The pleas should be overruled, and it is ordered accordiniliv.
UNITED STATES V. BIXBY."
(Di8trict Court, D. Indiana. November 3, 1881.)
1. }ImoRB-NoTARY PuBLIC.
There is nothing in the constitution or statutes of the state of Indiana making minors ineligible to the office of notary: such office is not a county office within the meaning of the constitution, wherein it provides that none but elect. ors shall hold county offices; 2. SAJoiE-OI<'FICES. At common law minors are eligible to offices which are ministerial in their character, and call for the exercise of skill and diligence only, and they are not eligible to offices which concern the administration of justice. The office of notary is purely ministerial.
Indictment for Perjury. Plea that the notary who administered the oath was a minor. Demurrer to the plea. ChaB. L. Holstein, U. S. Atty., and Chas. H. McCarer, Asst., for , the United States. McDonald it Butler and. Gordon, Lamb it Sheppard, for defendant. GRESHAM, D. J. The indictment charges that the defendant committed perjury in swearing to the truth of a quarterly report as assignee in bankruptcy, before Auretus W. Hatch, a notary public. The defendant pleads specially that at the time the alleged oath was administered to him by the said A. W. Hatch, as notary public, the latter was, a citizen of Marion county, Indiana, and a minor, under 21 years of age. A demurrer to this plea presents the following questions, viz. :
(1) Are minors ineligible to the office of notary public under the constitution or statutes of the state of Indiana? (2) If not, are they ineligible at common law?
Article 6, § 2, of the constitution, declares that there shall be elected in each county, by the voters thereof, a clerk of the circuit court, auditor, recorder, treasurer, sheriff, coroner, and surveyor. Section 3 declares that such other county and township officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law. Section 4 declares that no person shall be elected or appointedll's a county officer who shall not be an elector of the county. Article 2, § 2, declares that only males, 21 years of age, are electors. The first' section of the act providing for the appointment of ,notaries public, and defining their powers and duties, (1 Ind. Rev. St. 634,) provides that such officers shall be appointed and commissioned by *Reported by Chas. L. Holstein, United States Attorney.