tion. See some of them in 4 Kent's Com. 321, note, 5th ed. In such cases, till the sale is made, the title usually vests in the heirs, if no other intent is manifest. Jackson v. Burr, 9 Johns. 105, 106; Denn v. Gaskin, Cowp. 661. But where it is given by devise, as here, and the devisees were not the cestuis que trust and heirs as to those lands when he died, it is proper that the title should be considered as passing by devise, and as being in the compiainants by devise rather than descent. Jackson v. Schauber, 7 Cowen, 197; Cowp. 661; 8 Wheat. 206, 207; 2 Wend. 34; Coster V. Lorillard, 14 Wend. 326. And the more especially is it so, when, if the heirs took it as heirs, it might escheat.

The case of Jackson v. De Lancy, 13 Johns. 555, reviews most of the cases connected with this question, and comes to the conclusion, 270*] *substantially, that the title to the trust estate would pass in a case like this to the residuary legatees, and be held by them for the cestuis que trust. See the cases there cited, among them Braybroke v. Inskip, 8 Ves. 417; 2 P. Wms. 198; Ex-parte Sergison, 4 Ves. 147; 1 Merivale, 450; 5 Pick. 112; see, also, Dexter v. Stewart, 7 Johns. Ch. 55. The better opinion is, that a trust estate always passes in a

rather pass a title to the executors in trust. 2 Wash. C. C. 447. So it has been held that, if it can be avoided, a court will not vest the estate in an alien by construction, in order to have it escheat, when otherwise it would not. 3 Leigh, 513, and cases cited.

We are prepared next to see whether Samuel Savage or his representatives are liable to account for this property in Alabama, provided he is chargeable anywhere. Because, if not so liable in Alabama, this part of the case must fail for want of jurisdiction in the State in which the proceedings were instituted; and the further questions as to his liability need not be examined.

*First, then, it happens, that though [*271 the heirs of Nathaniel Forbes and Elizabeth are the same persons here as the residuary legatees of William F. Taylor, yet they take an interest in the Kentucky lands and their proceeds, in a different right and for a different purpose from what they do in the property of William F. Taylor held in his own right. It happens, too, that the interest they thus take is derived from the deed by Mary Forbes to William F. Taylor, and not through the will of the latter, except as directing the trust property to be sold by his executors and paid over to them. It is impor

tees, if no circumstances appear to indicate a contrary intent. Braybroke v. Inskip, 8 Ves. 417, 436; 3 Ibid. 348; 4 Ibid. 147; 13 Johns. 537; Ballard et al. v. Carter, 5 Pick. 115; Marlow v. Smith, 2 P. Wms. 198, 201. Here, the circumstances fortify the idea, rather than impair it, that the trust estate was intended, in the end, to pass to the residuary legatees, as they were then probably supposed to be the cestuis que trust, and in fact became so before the devise took effect.

Another reason is, that the devisee would, if not cestuis que trust, hold the estate for them, and be bound to account for it to them, so as to make it safe. Marlow v. Smith, 2 P. Wms. 201.

This view of the case disposes first of the point made, that these lands had, before the sale by Savage, escheated to the State of Kentucky. It was hence argued that they could not be sold by him, though no office had been

taking of this property and the sale of it are neither of them by virtue of any letters testamentary issued in South Carolina; that the property is not assets of William F. Taylor collected or to be accounted for there; and as the sale made by Samuel Savage of a part of these lands was made in a different State,' and of property situated in a different State, and the proceeds of it never carried into South Carolina, and the sale made after he had removed therefrom and closed up his administration there, no reason exists for making him account in that State for the sale. See 1 Rich. S. C. Rep. 116; 2 Wend. 471; 6 Pick. 481; 3 Mon. 514; Story's Conflict of Laws, sec. 523. So, not having taken out letters testamentary in Kentucky, or even proved the will there, and residing elsewhere, he could not be sued in that State. Fletcher's Administrators v. Wier, 7 Dana, 348. It follows, then, that if liable at all for the proceeds of the sale of this trust

alien can always hold it till office found. Knight v. Duplessis, 2 Ves. Sen. 360; Co. Litt. 2, 6; Powell on Devises, 316; Hubbard v. Goodwin, 3 Leigh, 512; 3 Wheat. 589; Governeur's Heirs v. Robertson, 11 Ib. 332, 355; Fairfax v. Hunter's Lessee, 7 Cranch, 618.

It will be seen, on a very brief examination, that the idea of a descent cast upon aliens of these lands, on the death of William F. Taylor or Nathaniel Forbes, cannot be sustained under the opinions we have just expressed. The aliens took them by devise, and not by descent, in either of the two constructions of the will which can be at all vindicated. As a general principle, too, in all cases, a court of chan cery will not raise a use "by implication," in

made on him by the complainants; where George M. Savage, his executor, took out letters on his estate, and where alone George M. Savage could be proceeded against for any claim against his testator. Bryan et al. v. МсGee, 2 Wash. C. C. 338; Trecothick v. Austin et al. 4 Mason, С. С. 29.

Being liable, then, in Alabama, if at all, for the acts done in respect to these lands, it is next to be considered whether Samuel Savage or his representatives are responsible for them to the complainan mplainants at all, and if so, to what extent. When applied to in 1838, by Primrose, the attorney of the complainants, to pay over the proceeds of his sale, Savage admitted that in 1818 he executed releases of about one fourth of these lands, in which he acknowledged a consideration received by him of more than two thousand dollars; that he professed to make the sale and receive the consideration as surviving executor of William F. Taylor, and by virtue of a power in his will, and that he never had accounted for the proceeds since, but contended that the sum actually realized by him was much smaller than that named in the deeds, and objected to pay over anything, though 272*] *not assigning particularly his reasons for the refusal. But the counsel for the respondent now interpose various specific reasons against accounting for those proceeds beside that already disposed of, which questioned the jurisdiction over the matter in Alabama. One of their objections is the want of interest in the complainants as legatees or cestuis que trust to recover. Another is the irregularity, and indeed illegality, of his sale. Another is the small amount received, not exceeding his expenses. And another, still, is the statute of limitations. But we have already shown that the complainants, as residuary legatees, were entitled to the trust estate under the devise immediately, and, in any permissible view, as soon as it was converted into money, and would be bound to manage and account for it to the true cestuis que trust, if they were not so themselves. See before, 13 Johns. 555, and 8 Ves. 417, 436, and other cases. Being now, however, cestuis que trust themselves, as well as devisees, their interest in the proceeds of the sale is beyond controversy, there having been, as already shown, no previous escheat of the lands.

In respect to the informality and illegality of the sale, they are insisted on from its not appearing that all the executors except Savage were then dead, from his not recording the will in Kentucky, and from the verbal denial at first of the validity of his sale by Primrose. But it is to be remembered that this is a bill in equity, that the executors had a power under the will to sell this property, which was a power coupled with a trust. That is not a title to be made out at law under a special statute, where much strictness is required. 6 Mass. R. 40; 14 Ibid. 286.

Nor is it only a naked power, not coupled with any trust or interest, where much strictness is also requisite. Williams et al. v. Peyton's Lessee, 4 Wheat. 79; 10 Peters, 161, and others cases cited. But it is merely a case to show such a sale as may make, in a court of equity, an agent or trustee liable to those for whom he acts. Minuse v. Cox, 5 Johns. Ch. 441, and Rodriguez v. Hefferman, Ibid. 429.

Now, it appears that Savage, in his deeds of this land, averred himself to be surviving executor of Taylor's will. And the case discloses the death of two of them, but says nothing of the other, except, in 1824 and 1825 he is referred to as dead "some time ago." Considering him also as then dead, which is the probable inference from these facts, the right of Savage alone to sell under the will would be good. A power to sell, not merely a naked one, but coupled either with an interest or a trust, survives to the surviving executor. Peter v. Beverly, 10 Peters, 533; Co. Litt. 113 a, 181 b; Lewin on Trusts, 266; Sugden on Powers, 165, 166; 2 Johns. Ch. R. 1; 7 Dana, 1; 5 Paige, 46; 2 Story's Eq. Jurisp. sec. 1062; 10 Johns.

562; 8 Wheat. 203; Jackson v. Ferris, 15 Johns. 346. Several of the States have positive statutes regulating this matter, and usually in this way.

*Again, if all of several trustees de- [*273 cline the trust except one, the estate vests in him, and he is authorized to sell alone. 3 Paige, 420; 4 Kent's Com. 326, note; King v. Donelly et al. 5 Paige, 46; In re Van Schoonhoven, 560; Cro. Eliz. 80; 7 Dana, 1; Zebach v. Smith, 3 Binney, 69.

All the executors in this case, except Savage, declined to have any concern with these lands, and do not appear ever to have done anything concerning them. It is obvious, likewise, on principle, that where a sale is made under a will, which is merely the evidence of authority or power to do it, the omission to record it will not vitiate the sale, unless recording is in such case required by a local statute. If so required, the statute must of course govern. 9 Wheat. 565; 10 Wheat. 202. Probably the necessity for this must depend entirely on the local laws applicable to the transaction-the lex rei sitæ, 2 Hann. 124; Kerr v. Moon, 9 Wheat. 570; 7 Cranch, 115, and not on any general principles of international law applicable to immovable property. If not necessary by those laws, the omission to do it would not be taken advantage of by anyone in any case; and if necessary, it would not seem very equitable to let the executor take advantage of it, who himself had been guilty of the omission.

But however this should be decided, looking to the laws of Kentucky, and how far it may be cured by the subsequent proof and recording of the will by Primrose for the complainants (11 Peters, 211), and whether it is necessary to take out letters testamentary in Kentucky to make such a sale, Lewis v. MacFarland, 9 Cranch, 151, we need not give any decisive opinion; since this branch of the inquiry, as to the liability of Savage, can be disposed of under a different aspect of the case.

If the land was sold informally by Savage. still it was sold in fact; it was conveyed in the character of surviving executor; the authority for doing it was claimed under the will; the money for it was received in this way; the lands were occupied quietly under his deed for near twenty years; the consideration was never paid back to the grantees, nor by law liable to be, as his deed was without warranty except against those claiming under W. F. Taylor, and, as regards them, was in the end expressly confirmed by his heirs and devisees under the compromise before detailed.

It is true that their agent at first denied the legality of the sale by Savage, but from its having actually taken place, money been received under it, and the lands occupied in conformity to it so long, he was in the end obliged to compromise and confirm it for much less than the real value of the lands, and expressly reserved. the right to resort to Savage for the amount he had received.

On a consideration of these facts, can there be a doubt that it is equitable to make Samuel Savage and his representatives pay over to the cestuis que trust the money he thus received on their account? *Can they be allowed [*274 to set up his own imperfect doings or neglect as a justification for not paying over what he to the complainants? Have they not suffered in their interests to this extent by his conduct? Have not he and his estate profited to this extent by his sale of their property? These questions can be answered only in one way, and the replies must give a stamp and character to the whole transaction in a court of conscience unfavorable to Savage. Consequently, in this bill in equity between the parties as to a trust, we think it manifestly just that the complainants, as against Savage's estate, are entitled to this money; at least, to the amount adjudged in the court below. 1 Johns Ch. R. 620; 1 Paige's Ch. R. 147, 151; 6 Paige, 355; 2 Johns. Ch. R. 1; 7 Ibid. 122. Simple interest in such cases seems proper, and was allowed. 4 Ves. 101; 5 Ibid. 794; 16 Ibid. 410. As an analogy for estopping Savage to deny what he has said in his own deed, see Speake et al. v. The United States, 9 Cranch, 28, and cases in Com. Dig. Estoppel, a, 2. So, "it is a settled principle of equity, that when a person undertakes to act as an agent for another, he cannot be permitted to deal in the matter of that agency upon his own account and for his own benefit." Sweet v. Jacocks, 6 Paige, 365.

So, "every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity, as a trustee, for a breach of trust." Kane v. Bloodgood, 7 Johns. Ch. 110; Scott v. Surman, Willes, 404; Shakeshaft's case, 3 Bro. Ch. Cas. 198.

He is liable, then, first, on the ground that the cestuis que trust might confirm the sale and resort to the proceeds, as they finally did in this case. Story's Eq. Jurisp. sec. 1262; 2 Johns. Ch. 442; 1 Ibid. 581. It is true that such a confirmation must be full and distinct; whereas here a disavowal of it was at first made by their agent, and when it was in the end agreed to be ratified, the act was done on the receipt of additional money.

This, however, would not seem to vitiate it under the reservation made of a right to proceed against Savage for what he had received. The complainants, then, fully confirmed Savage's acts as a sale, just as much as if no further money had been paid. Though they asked for this additional sum, this was no injury to Savage, and should constitute no objection to his paying over to them what his vendees agreed he should, and what he virtually promised to do, when taking the money for their property. But if this view of the matter was at all doubtful, another ground exists on which he might be made liable to a like extent, and on which the complainants seek to charge him for a much larger amount. The sale by Savage, if 275*] not valid and not confirmed, was *still injurious to the complainants. It gave such a color of title to the tenants as to prevent the complainants from obtaining anything more for their lands, but by way of compromise, and then a price in all, including what was paid to Savage, far less than their true value.

Bro. Ch. Cas. 198. But when we come to inquire, as the complainants insist, whether Savage was not liable for a much larger sum on this ground than what was allowed in the court below, we are met by several difficulties. The amount, beyond the money received and interest thereon, rests on estimates somewhat conjectural after so long a lapse of time; and the neglect itself is not so easily fixed with much certainty, from a like cause, and the death of parties preventing explanations, and an extraordinary omission for almost a whole generation by the complainants themselves to bring this business to a close. Savage, also, may have proceeded no further in subsequent years to sell the rest of the lands, and take charge of the judgments which had been recovered, because discovering that Samuel and Mary Taylor, the heirs, had appointed Hutchinson and Bennock special agents instead of himself to manage the Kentucky property. The degree of neglect to be made out for any sum beyond that actually received is also different and greater. When the trustee is made liable for more, it must be, in the language of the books, "in cases of very supine negligence or willful default." 14 Johns. 527; Ibid. 634; Pybus v. Smith, 1 Ves. Jun. 193; Palmer v. Jones, 1 Vern. 144; Osgood v. Franklin, 2 Johns. Ch. 27; 3 Bro. Ch. R. 340; 1 Madd. 290; Caffrey v. Darby, 6 Ves. 497. It would hardly be justifiable to find the existence of either of those after such a length of time, obscuring so much by its mists and obliterating so much by death.

Damages, likewise, for mere neglect would stand in a different attitude as to the statute of limitations from what we shall soon see it does as to money held in trust; and if the claim was on account of a breach of trust committed and perfected when the neglect first occurred, it would be difficult to overcome the bar ocсаsioned by nineteen or twenty years since.

As to the remaining objection, under this head, that the sum received. did not exceed Savage's expenses, this is not in the first answer, and comes from an executor who could not possess full means of knowing the facts, and is not entitled to so much weight as if it had been put in and sworn to by Samuel Savage himself. Carpenter v. The Providence Insurance Company, 4 How. 185, and cases cited there.

Besides this, there is no evidence to support the denial. It is *not accompanied with [*276 any exhibit of expenses; and no account for them seems to have been offered in evidence in the court below. To overcome this denial stands the admission in the first answer of receipts, to the extent of three or four hundred dollars, and no set-off claimed; next, the acknowledgment to Primrose of something received; next, the recorded confession in the deed that $2,118 was paid to him; and, finally, the testimony of several witnesses to actual payments, and the solvency of all the purchasers. But if any doubt existed as to this amount being the proper one, with interest, it would be removed by the proceedings in the District Court, where the account was stated in this

JOHN S. PRESTON, Defendant in Error.

Louisiana practice-one "peremptory exception" -no error that when first tendered it was not allowed-refusal to allow clerk to take down oral and documentary evidence-in agreement between indorsers to share loss equally, consideration is mutual promises.

Under the practice of Louisiana, peremptory ex

ceptions must be considered as specially pleaded

when they are set forth in writing, a specific or detailed form, and judgment prayed on them.

Although the court should refuse to receive exceptions thus tendered, yet if the party has

1838, March 1, 1839, March 1,

1840, March 1, 1841, March 1, 1842, March 1,

1843, March 1,

20,242 24

21,349 23

22,456 22

23,563 21

$141,695 68

The act of sale, which was signed by Barrow and Carr, and executed before Louis T. Caire, a notary public, contained, amongst other things the following provisions, viz:

1. After reciting the cash payment, it proceeded thus: "And in payment of the balance, the said purchaser handed over to me, the undersigned notary, six promissory notes, bear

ment and in a bill of exceptions, the refusal of the

court is not a sufficient cause for reversal.

The statute of Louisiana, requiring their courts

to have the testimony taken down in all cases where an appeal lies to the Supreme Court, and the adoption of this rule by the court of the United States, includes only cases where an appeal (technically speaking) lies, and not the which are carried to an appellate court by writ of

error.

Where the laws permit a waiver of a trial by jury, it is too late to raise an objection that the waiver was not made a matter of record, after the case has proceeded to a hearing.

In a suit by the first indorser of promissory notes against a second indorser, upon contract that the second indorser would bear half the loss which might accrue from their nonpay

ment by the drawer, it is not a sufficient objection

to the jurisdiction of the court, that the second dorsee and defendant were citizens of the same

State. Such an objection would be well founded if the suit had been upon the notes.

But not where the suit is brought upon a collateral contract.

A contract between two indorsers, that they will divide the loss between them, is a good contract,

founded a sufficient consideration.

Being a collateral contract, by parol, parol evidence can be given to prove it. The payee is a

competent witness, and so is the notary, bringing

with him the act of sale.

the order [of] John S. Preston, indorsed by him, the said John S. Preston, domiciliated in the parish of Ascension, as first indorser, and by George W. Phillips, domiciliated in the parish of Assumption, as second indorser, it being understood that, although each of the indorsers is responsible for the whole amount of said notes, they are between themselves equally responsible; said notes have been made payable at the domicil of the Union Bank of Louisiana, and their amount and terms of payment are as follows, viz." (then followed an enumeration of the notes as above).

2. An agreement that the property should stand mortgaged.

3. An agreement that the last mentioned notes should be substituted, if possible, for those given by Barrow to Allain, and if it *should not be possible to do so, then [*280 that payments made upon the last set of notes should be applied to the first set, as they became

due.

The notes given by Carr to Barrow were indorsed by John S. Preston, as the first indorser, and by George W. Phillips, as the second indorser.

On the 1st of March, 1838, the first note became due, and was not paid by Carr. But it appeared by the record not to have been protested until the 30th of March, 1839.

On the 1st of March, 1839, another note became due, which appears to have been protested in proper time.

On the 5th of April, 1839, Barrow filed a petition in the District Court of the Fourth Judicial District of the State of Louisiana (a State court), representing the above mentioned facts, and stating further, that he had made the necessary payments and arrangements with Allain, respecting the notes due in 1837, 1838, and 1839, and praying for a sale of the property.

On the 1st of March, 1840, another note fell due, which was not paid, and was protested.

On the 5th of August, 1840, the property was sold in block by the sheriff to Isaac T. Preston, for his brother, John S. Preston, for the sum of $67,500, the purchaser assuming the payment of the notes due in 1841, 1842, and 1843.

On the 20th of August, 1840, the sheriff exe