854
FEDERAL REPORTER.
yeats from the day of sale affects his rights a.s a transferee of the lien of the state and county cannot be determined upon the record as now presented. The rights of Stout ill this particular, whatever they may be, are based upon the assumption that he is an actual mvnerby purchase of the premises,but the bill avers that the transfer to him is colorable only, and that he holds'the title for his co-defendant, and the court cannot assume the contrary. This question of the actual ownership by Stout of the realty may have a bearing upon the right, if any, of complainant to recover tor the city taxes alleged to have been paid by him, and the consideration thereof will not be entered upon at this -time, the more especially that the court believes that the parties will now be enabled to reach an amicable adjustment on these questions touching the repayment of the sums paid by complainant for the real interest and benefit of the true owner of the property, whoever that may in fact be. Certainly it would seem that a fair compromise thereon would be to the best interests of all, rather than to incur the expense of prolonged litigation over the mere question of the amount to be repaid to complainant.
HAZZARD t1. O'BANNON,
Collector.
(OlrcuU Oourt, E. D. Mi880Uri,E. D. December IS, 1888.
1.
TAXATtON-AsSESSHENT-ILLEGALITY-REMEDIES-INJtrN'C'l'ION.
A bill enjoin a levy onpersonalt,Y under a tax-bill, pending cerfiorari proceedings against the board of equahzation to correct the assessment, which , alleges that the assessor illegally. willfully, and erroneously assessed complainanfs land at a fictitious and speculative value. more than double the valuation of other like lands ,In the county. assessing wild lands and lands having no mineral. the same'as improved and mineral lands, shows a fraudulent assessment, and, the writ under which defendant seeks to collect the tax not being v()ld, and therefore protecting him against a suit for trespass, the Injunctipn '\iVill be granted as to such an amount as is claimed to be excessive. An injunction to restrain the collection of a tax alleged to have been fraudulently asseBBed. will not be refused on the.ground that a proceeding by cer· correct the assessment is pending in the state court. since the mo. tlves Which may have actuated the assessor in making the assessment are not open ,w review In the certiorari proceedinA'.
S.
SAME-PENDENCY OF ACTION TO CORRECT ASSESSMENT.
8.
SAME-FAlLu:R:mOF ASSESSOR TO CALL FOR STATEMENT.
The omission of the assessor to call at complainant's office for a statement of hill taxabl,e property. and to leave a notice as provided by the statute, not alIectthe validity of the assessment; such provisions being merel.rdirectory.
In Equity. .On motion for preliminary injunction. Bill by Rowland Hazzard against Thomas O'Bann9n, collector of Madison cOUlity, Mo., to restrain a levy under a'tax-bill on cert/l.in personal property of complainant. John W. Noble and Johnson "' Lentz) for complailmnt.
lfAZZAfI,D V. O'BANNON.
:855
George D. Reynold8and R. A. Anthony, for defendant. THAYEJOt,. J. Thjs case comes before the court on an application for a preliminary injunction to restrain the defendant, who is collector of taxes for Madison county, Mo., from making a levy under!t tax-bill upon.certain personal property belonging to the complainant. Complaina:qt's property, situated in Madison county, was heretofore assessed for taxation for the year 1888 by the county assessor at the sum of about $400,000. From the assessment so made complainant appealed to the county board of equalization, which reduced the assessment in the neighborhood of $40,OQO. Thereafter complainant sued' out a writ of certiorari in the circuit court of Madison county, Mo., to obtain a review of the action of the board of equalization, which proceeding is still pending. The defendant has recently served 'notice.on the complainant of his intention to levy on the complainant's personal property to enforce the state and county taxes which are claimed to be due under said assessment. The application for an injunction is based in part on the ground . the tax about to be enforced was illegally and that the proceeding already. pending to test is as yet undetermined, and that great injury maybe done to the complainant if the threatenfld levy is made before the validity ,of -the tax is determined. . It has been held, in this state that an injunction may l,e granted to restrain. the of a tax tbat has been levied, at a hiKher rate.than the law permits, (Arnold v.lfawkins, 95 Mo. 470,,88. W.E,ep.718; OveraU v ,Ruenzi,67 Mo. 206;) or to imposed property that is not subject ,to restrain the collection ora taxation; ,because it Hes o\1tside of the taxinK district, (Ewing v. Board, 72 Mo. 438j) or to restraiq. the,collection ofa at-ed out!'>jdeof the state, and not subject to taxation here for that reason, ·(Valk v .ZiegWr, 84 Mo. 217.) These decisions are in harmony with the · general rule that prevails elsewhere, that the collection of a taxrpay 1;>e .. test,rained if it is based on an asseSSment that is clearly voi(i. The rule in this. state; and it is so held elsewhere, that .a tax is also founded on a fraUdulent assesslDent may be enjoined. By a fraUdulent ·&aaessment is ,meant, an :;tSSessment .that is purposely made too, high, with a. view o( :casting an unO.ue of the public burdenS! on a certain or an assessment ml,tde ip pursuance of a rule of valuation adopted !bythe assessor that is designed to operate unequally in the distribution ·of taxation. Cumming8 v. Bank,"101 8. 154; Hamilt<m v. Rosenblatt,S Mo. App. 240, 241; Rq,cific Hotel v. Lieb, 83 lll. 602; ¥erri(lv:.,Humphrey,24,Mich. 172; Cooley, Tax'n, (2d Ed.) 785, and cases cited. ,But in the absence of actual bad faith, or of suchan utter ., disregard ofoffi0ial ,;Luty ll/? to.amount to bad faith, on the pftrt of the · sessoI' orbaard of allsessors, the collection of a tax-bill cannqt be enjoined because through an error of judgment the assessment on which it is pased is too high, eitherwnsidered by itself or ip comparison with other assessments On similar. property; nor can a tax-bill be enjoined because the assessment wa,s :conducted irregularly or ,erroneously, unless the error · i880 far ,vitaLasto render the assessment voio., y. lloseT+bla,tt,
856
BUpra; Everitt's Appeal, 71 PEl.. St. 216; Kelly v. Pittsburgh. 104 U. S. 78, and cases cited; Meyer v. Rosenblatt, 8 Mo. App. 602; Cooley, Tax'n, (2d Ed.) 748, 775, and cases cited. It is also well settled that the sole remedy for an excessive or unequa.l assessment which has resulted merely from an error of judgment without the violation of any rule of law, is by an appeal to boards of review or equalization, when the state has created such boards for the purpose of correcting erroneous assessments; and it is generally held that the decision of such boards as to the value of property, and as to whether assessments are uniform in amount, are concIusiveupon the tax-payer. C,ooley, Tax'n, 748, and caSes cited. . In view of these principles it becomes necessary to determine whether the bill shows the assessment involved in this case to be so far illegal or affected by fraud as to warrant a court of equity in interfering by injunction with the collection of the tax in question. It ,is first alleged that the assessor, before making the assessment, did not call at the complainant's office or residence and demand a correct statement of aU his taxable property, or leave a notice at his office or residence requiring him to make out a sworn statement of such property, as the law directs him to 'I do not regard the omission :of these acts-as affecting the, validity of the , assessment. The provisions Of the statute alluded to are directory, and, if not complied with, the assessment is to that extent irregularly made, but it is not invalidated. The next charge is that the constitution of the state of MISSOUri requires taxes to be "uniform on the sf\me class of subjects," and further requires property to be taxed "in proportion to its value," but that in the present instance the assessor "arbitrarily, and withou't regard to equality or justice, affixed a fictitious and speculativev81ue upon all the complainant's real estate" ih Madison county, and did assess his land "in excess of its real value, and at values much larger proportionately than the assessed value of other real property in the county;" that the aggregate value of all complainant's property situated in Madison county is $155,350, but that the assos!"or, "illegally and willrully * * * did erroneously and unjul:ltlyassess said land at $400,000, that is to say, at more than double a reasonable and just valuation, and much more than double the valuation of other and like lands ill said county as assessed 'by said assessor." The bill also charges that the assessor grouped together lands situated in a town, and covered with buildings and other improvements, and mineral lands, and wild and unimproved land's, and, 'Iwithout any discrimination between .. them as to value," assessed the whole at a sum largely in excess of their . true value; that he grouped together about 2,200 acres of mineral land, 1,000 acres of improved farming land, and 11,800 acres of wild and uniin proved lands having no value as mineral land, and "illegally and willfully treated aBsaid lands as mineral yielding lands, and placed the improvyd farm lands and wild lands at values much in excess of anvother lands in the county of similar quality and value, alld much in excess of their real or actual cash value." I regard that portion of the bill to which I have last alluded (and only a portion of which is here quoted) as charging in effect that the county assessor, intentionally orbya reck-
HAZZARD'll. O'BANNON.
857
less and willful disregard Of his duty, placed a higher valuation on plainant's property than on similar and equally valuable property of other tax-payers,.and that he also valued it for the purpose of taxation above its real or actual cash value. If that be true, he intentionally violated the duty imposed on him by law, and the assessment, so far as {}omplainant is concerned, was fraudulent. In such cases, as has been before stated, it is held that a court of equity may restrain the collection of so much at least of the tax bas,ed on the fraudulent asspssment as is excessive. It is insisted, however, that an injunction ought not to issue in the present instance, because the application is for an order to restrain a threatened seizure and sale of personalty, and not realty. There are several cases in this state, to-wit, Deane v. Todd, 22 Mo. 92; Sayre v Tompkins, 23 Mo. 445, and Lockwood v. St. Louis, 24 Mo. 20, holding that an injunction ought not to issue'to restrain the seizure and sale of personal property for taxes illegally assessed; but this rule applies, as I understand. in that class of cases where the tax-bill under which the levy is about to be made is so utterly void that it would not protect the collector against a suit for trespass. In that class of cases the remedy at law is deemed adequate. In the present case I h,ave no doubt that the process under which the defendant proposes to proceed is so far valid that it would prote9thim against any suit for trespass which the complainant might hring: The complainant is therefore without an adequate remedy for the threatened wrong, unless a restraining order is granted. It should be furtherremarked that in a later case (Valle Y. Ziegler, supra) the supreme court of this state has sanctioned the practice of granting an injunction to restrain the collection of an illegal tax levied on personal property. ,My conclusion is, therefore, that a temporary injunction ought to be a warded, to restrain for the present the collection of so much of the tax as is claimed to be excessive. It is not apparent to me that the granting of such an order will seriously embarrass the count}. as it only affects a portion of the tax claimed to be due from one tax-payer, while it is apparent that, if the charges contained in this bill are true, the complainant is entitled to redress. Nor is it apparent that the pendency of the certiorari proceeding will be liable to lead to any conflict of jurisdiction, considering the narrow range of questions that may be reviewed m that proceeding. In that proceeding, as I understand the law, the motives which may have actuated the assessor in making the assessment {}annot be inquired into, while in this proceeding that is the main subject for consideration. Furthermore, the fact that a levy has been threatbefore the certiorari proceeding can be heard which may serIously complainant's business operations, is an additional reason for prohibiting such action. I shall accordingly enter an order restraining the defendant from levying upon or selling any of complainant's property with a. view of enforcing the tax. This order will only continue iIi force for five days from this date, unless in the mean time complainant shall have paid to defendant on account a sum eqnal to the taxes at the -rate fixed by law on a valuation of $200,000, which was the assessment for 1886, as I understand, upon complainant's property in Madison
858
FEDERAL REPOllTER.
county. If such payment is made, the restraining order will continue in force until further directions be given. The defendant may at any. time hereafter apply to have the injunction dissolved or modified.
RICE
11.
Rnm et al. 1
(l»routt Oourt. D. Delaware. December 12, 1888.)
VENDOR ANDYENDEE-VENDOR'S LIEN.
2.
SAME-WAIVER OF LIEN.
A vendor of .land took from his vendee a note indorsed by a third party for an unpaid port/o·n of the purchase money. The vendee mortgaged the land. which was afterwards sold at sheriff's sale under one of the mortgages to the mortgagee. At the time ofthe mortgage and sale the land was treated by all the parties, who were living in intimate relations, as unincumbered, and it was testified that the joint note was taken to secure the sum still owing, and that the vendor had given no notice to the mortgagee, until after the mortgage, of any claim against the land. Held, that t):le vendor had taken the security of a third person, and waived his lien on the land for the amount unpaid.
In Equity. Bill by James H. Rice against John V. Rice and Josiah Morris, to enforce a vendor's lien on lands owned by defendant Morris. George H. Eates and Edward G. Bradford, for complainant. Wm. O. Spruance and Anthony Higgins, for defendant. WALES, J. This suit is brought to establish and enforce a vendor's lien oil certain lands, with an iron foundry erected thereon, in the city of Wilmington, noW-owned by the defendant Morris. James H. Rice, the complainant, and John V Rice, one of the defendants, on the 10th ofSeptember, 1864, were copartners in the business of iron founders at the foundry aforesaid, and seized in fee of said lands; and on that day James H. Rice and John V. Rice, by an agreement and indenture in writing under their hands and seals, dissolved their partnership, and James sold to John thenndivided part and share of James "in the joint trade and all the property, goods, wares, merchandise, money, debts, and effectstheretobelonging, or in anywise appertaining, or in which the said H. Rice,has any right. title, or interest by virtue of said copartnership, and ,allthe right, title, and use of JamesH.Rice of, in. and to the said capital, joint stock, property, effects, money, and debts, and any and every part thereof, and all the profits, gains, and proceeds thereof."
or
JReported by Mark Wilks Collet, Esq., of the Philadelphia bar.
RICE fl. RICE.
859
By the.agreemept.Jamesappointed John his attorney to wind up the business, andcovenapted not to interfere with John. therein; .and in consideration thereof John covenanted to pay J ames $600 in each year for 10 years from date, if James should so long live, in semi-annual payments of $300 each; and $5,000 at the end of the said 10 years if were then living, but, if he were then dead, to pay to the personalrepresentatives of James the $5,000, less the sum of $300 for each year aiter the date of said agreement until the death of James·. In conclusion, John covenanted to pay all the partnership debts, and to indemnify James from all liability on account of them. On the same day, September 10, 1864, John gave to Jl;lITleS the joint note of himself and Theodore Byatt,of which the following is a copy: "WEST CHESTER, September 10th, 1864. "Ten years after date we promise to pay to James H. Rice five thousand dollars, without defalcation, for :value received, Bul ject, however, to the conditions expressed in the of agreement between J ameB H. Rice and J V. Rice, hearing this date. "$5,000.00. [Signed] J. V. RICE, "THEO. HYATT." Seven months afterwards, on the 10th of April, 1865, James conveyed the said real estateto John, by a deed of bargain and sale, for the consideration, of $5,000, the receipt of which sum is duly acknowledged. The complainant says that this deed was prepared for execution at the time Qf,making the agreement of dissolution of 'partnership, and as part of that transaction, but was 'riot in fact executed until the day of lts date. Within less than two years and a half after the execution and delivery of deed, the John V. Rice borrowed from the defendant Morris several sums of money, to secure the payment of) which he gave to Morris three several mortgages on the foundry property,; as follows: one dated February.(), 1866, for $12,000i one dated Septe;illber 22, 1866, for $3,000; and a third, datel! September 2, 1867, for $10,000, all of which mortgages were duly recorded. On this last mortgage Morris recovered a judgment, Qn a writ of 8cire facias, in the superior court of Delaware, for NewCastle county, at the November term, 1875, against John V. Rice and wile, and under a writ of levari faciasto the May term. 1870, on said judgment, the sheriff sold the property described in the mortgage to the defendant Morris, for $3,100. subject to the first two mortgages. The sale was confirmed by the court; and the sheriff, by deed, dated June 6, 1876, conveyed the property to Morris, who still owns it; The complainant alleges that Morris accepted the three gages, and aftetwards became the purchaser of the real estate, with full knowledge and notice that the consideration money, and its interest, for which the complainant had conveyed the property to John V. Rice, had never been paid, and therefore. took and holds the property subject to an equitable lien in favor of the complainant for the unpaid purchase money and interest; that John V. Rice is insolvent. and the cOlllplainant without reIUedy,. except by enforcing said lien. The bill does notalleg13 that the vendor's lien was expreSSly reserved, but claims that it exist!?
860
by the operation of law, from the fact that John V.Rice, the vendee, did not pay the consideration· money, and that Morris knew this fact when he loaned the money, and also when he bought the property. Morris denies that he took the mortgages, or purchased the property, with any knowledge or notice that the complainant had not been paid the $5,000. He also denies that any such lien can exist, because (1) the complainant took for the purchase money the promissory note of John V. Rice, with Theodore Hyatt as surety, and accepted the same in lieu of all liens or claims against the property, (2) that the said note has since been paid and satisfied by Hyatt; (3) that when Morris took the mortgages from John V. Rice, the latter assured him that the property was free and clear from all liens and incumbrances, and this was verified by searches made by Morris' counsel; (4) that the right of a vendor of real estate to an equitable lien thereon for the unpaid purchase money, has never been recognized or adopted by the courts of Delaware, and no such right tlxists under the laws of that state. The English doctrine of the vendor's equitable lien for unpaid purchase money, upon an abwlute conveyance of land, is adopted in some of the states, rejected in some, and remains undecided or doubtful in others. It is conceded that unless this doctrine is in force in Delaware this court cannot recognize and apply it in the present case. It is also admitted on the part of the complainant that, so far asjudicial decisions have gone in Delaware, the question is an open one. In Budd v. Busti, 1 Hal'. (Del.) 69, the question of the existence of the lien was directly made to the court of appeals, and appears to have been the only one by the able and learned counsel who took part in the discussion. The whole law relating to the subject was brought under review, and, after a full consideration, a majority of the court were disinclined to accept the doctrine as a part of the law of Delaware; The court below had decidedly refused to recognize it. This was in 1833, and, so far as we are informed, no application to enforce this lien has been made to the court of chancery of Delaware from that day to this. In Godwin v. Collins,3 Del. Ch. 199, to a bill for the specific performance of a contract for the sale of land, the defense was made that the payment of the purchase money was not in any manner secured to the vendor, to which it was replied that he was made secure by the vendor's lien. In referring to this, Chancellor BATES said: "This, if true, would 31tlJI"d only a precarious security, since the vendor's lien does not follow land into the hands of a purchaser for value without notice. But whether what is known in England as the ·vendor'S lien,' is recognized here, remains in doubt since the case of Budd v. Busti, in the court of errors· . In that case, though the decision went upon other grounds, a and :majority of the judges expressed opinions decidedly acl verse to the recognition in this state ofa vendor's lien for purchase money. The policy of our law isagainst liens not of recol'd, and the necessity for the vendor's lien is practically superseded by the long-settled and uniform habit of our people to take special securities for unpaid purchase money." On appeal the decree in Godwin v. Collins was affirmed. 4 Houst.28. This last case came down to the year 1869. It has been generally understood that the l:lUpreme court of the United States will not consider the
So!
lien as existing in any state unless it has been previously adopted by the law, or is recognized by the courts of the state in which the land sought to be charged is situated. Ahrend v. Odiorne, 118 Mass. 267; Brown v. Gilman,4 Wheat, 290; Bayley v. Greenleaf, 7 Wheat. 46; McLeam v. McLellan, 10 Pet. 640; Ohilton v. Braiden, 2 Black, 458; Cordova v. Hood, 17 Wall. 1. It may be reasonably assumed that the court, in adopting this course, was governed by the consideration that it had no power to create or impose a lien growing out of the mere relation of vendor and vendee of real property, which had not already been recognized or established by the law of the state. In all matters relatmg to the execution and construction of deeds, wills and contracts for the sale and disposition of real property, the courts of the United States, in entertainingjurisdiction of controversies arising from any of these causes, will be guided and controlled by local laws and adjudications. Thus, in Daniel v. Whartenby, 17 Wall. 641, which was on a writ of error to the circuit court of the United States for the district of Delaware, in an action of ejectment, the contention of the defendants below being that, in the construction of a will under which both parties claimed title, the rule in Shelley's CUse applied, the court expressly took notice of the fact that that rule was in force in Delaware, although it had been abolished in most of the states of our Union. So in Cordova v. Hood, supra, the court held that the vendor's lien was a part of the law of Texas, and decided accordingly. In view of what was said, as well as of what was left unsaid, in Budd v. Busti, and of the pregnant remarks of Chancellor BATES, above quoted, the question ·of vendor's lien in Delaware can hardly be said to be an open one. If such a lien was ever known to be in force there, of which there is mueh doubt, it has lain dormant, or become obsolete; and for the reasons already suggested we do not think that this court would be justified at this late day in reviving and applying it. A secret lien isa dangerous one, and is not entitled to favor, especially in a state where every facility is afforded for the recording and preservation of incumbrances, and of giving notice to the world of their existence. The enforcement of such a lien is fraught with danger to the innocent purchaser, since it may put it into the haws of a fraudulent vendor to fasten it on land which has been bought and paid for in good faith, when, after the lapse of time and the loss of evidence, the purchaser may be unable to prove the real history of the transaction. In the case at bar it is somewhat remarkable that, at the distance of nearly a quarter of a century from the date of the articles of agreement between the complainant and John V. Rice, aU the material witnesses, with one exception, survived to testify concerning the actual terms on which the property was conveyed to John V. Rice, and the intention of both vendor and vendee at the time of the execution of the deed. Their testimony on the main issue is conflicting, but after a careful examination of the evidence we have had no difficulty in coming to a satisfactory conclusion on the facts. Even admitting the law of England, respecting the lien of vendors for the purchase money after the execution of a deed, to be the law of Delaware,-a point we do not mean to decide,-we think it perfectly clear, on
862
FEDERAL .REPORTER.
the did the court in iBi"own v. Gilman, supra, that no lien was retained, and none was intended to be retained, by the complainant in this 'caE!e.;We are also of the opinion that the lien did not attach by iniplication by operation Of law, and that, if it could be said ever to have attached, it was waived by the act of the complainant in taking the security of a third person for the payment of the purchase money. The relationship of and between the parties to this suit,-that of brothers and brothers,in-law,-the qualified admissions of John V. Rice that he may have told Morris at the time the mortgages were given that the land was free and unincumbered; and the testimony of Hyatt and Carter that the joint note was taken by the complainant as security for the consideratiOl1 named in the deed, so that John V. Rice would be better able. to borrow money outside on mortgage, and the settlement of the action brought on the note, convince us that, under the broadest application of the law of vendor's lien. the proofs do not sustain the allegations of the bill. The complainant says that he mentioned his claim for the unpaid. purchase money to Morris somewhere between 1873 and 1875,-long after. Morris had loaned his money and taken the mor.tgages; while Morris denies that he ever had any notice, or knowledge of the claim, until shortly before the bringing of this suit. Morris was in California before and at the time when the Rice brothers dissolved their partnership, and did not return until after the negotiations for the sale of the foundry had been completed. All the parties, including the witnesses Hyatt and Carter, lived together under the same roof, at West Chester, for'several months subsequent to the sale; and during. many years thereafter John V. Rice and his family were supported by Morris, at whose house, in Salem,.N" J., the complainant was also a frequent guest. The dissolution of the partnership, the transfer of the property and business of the firm to John V.Rice, and the conditions on which these changes were made, were more or less discussed in the family, councils, and the witnesses are thus able to speak of them with some 9.egree of certainty. John V. Rice is only flo nominal defendant, and does not appear to advantage as a witness, while the complainant's testimony is overweighed by that of Hyatt, Carter and Morris. The complainant received some interest on the note from John V. Rice; and Hyatt swears that" when the action on the note was begun, Lf.l had, in various ways, paid 'to the complainant as much as $4,500j and the proof is uncontradicted that that action, as far as Hyatt was concerned, was settled by his paying to the complaillant the sum of $500. Mr. Morris appears to have been agenerouB benefactor to the Rice broth. ers, and,'if there was any deception practiced on the complainant, in the sale and transfer of the foundr.v- property, it was caused by the complainant's own fault in neglecting to take a mortgage for the purchase money, .and trusting to the security afforded by the note of his brother and Hyatt. A decree will be entered dismissing the bill with costs.
MERCANTILE TRUST & DEP. CO. V. RHODE ISLAND HOSPITAL TRUST CO.
863
MlmOANTILll: TRUST
&:
DEPOSIT Co. et TAL TRVSTCO.
al.
11. RHODE ISLAND HOSPI-
et al. September 29, 1888.)
(Circuit OO'U'I"t, D. Rhode 18land.
execution of his parent's will, "without having any provision made for him in such will," shall inherit as if the parent had died intestate, a will made by a married man, having no children, lD which he gives hig'sister a certain legacy in case of his death leaving no children born of his wife, and a smaller legacy in case of his death leaving children born of said wife or their descendants, and in either event bequeaths all the residue of his estate to his wife, does not make luch provision for after-born children as will bar them from inheriting. A demurrer to a bill for want of equity will not lie when the complainant il entitled to part of the reliet prayed for.
In Equity. On demurrer to bill of the Mercantile Trust & Deposit Company and others against the Rhode Island Hospital Trust Company and others. Miner Roelker, for complainants. Arnold Greene and Jas. Tillinghast, for defendants. CoLT, J. This case was heard upon the demurrer of the Rhode Island Hospital Trust Company. The principal ground of demurrer is want of equity in the bill. The bill is broup;ht by the trustee and cestuia que trustent under the will of Carlotta 1. Whipple, deceased, to obtain from the Rhode Ir:;land Hospital Trust Company 'certain personal property leged to bea part of the trust property under said will. It appears from the bill of complaint that Jeremiah Whipple, husband of Carlotta, made a;will, having at the time no children, and that afterwards a daughter, Sarah, was born, and that he died leaving his wife and his 'riving. His wife proved his will, and was appointed executrix thereof. Afterwards she died, leaving a will which pro\1ided that all her residuary estate, real and personal, should go to her daughter, Sarah, and in case of the death of her daughter without children, the estate was de\1ised to a trustee in trust for the children of her sister, Ellen L. Norris. Sarah diedintestate, and without issue. The Mercantile Trust & Deposit Company has been appointed trustee under the will, and suit is now brought for the property claimed· to be covered by the trust. The property in dispute belonged originally to Jeremiah The defendant the Rhode Island Hospital Trust Company has possession of the fund, claiming to hold it either as administrator of Carlotta,: or guardian of Sarah, or in both capacities. The ret1l dispute is between the complainants, who claim that the fund passed under the will of Jeremiah Whipple to his wife Carlotta, and by her will to themselves as devisees, and the adIIiini'stratotandnext of kin of Sarah, who claim that the birth ofSarah, after the execution of her father's will, entitled her,