by his last will duly executed, devised, inter alia, as follows: "I give to my son William Cooper the plantation I live on, to him and his heirs forever. In case he should die without a son and not sell the land, I give the land to my son George," etc. The plantation on which the testator lived was the land in controversy. George Cooper, the lessee of the plaintiff, was the testator's son George mentioned in the devise, who claimed the land under the limitation over to him therein contained. The testator's son William, to whom the land was devised in the first instance, attained to full age, married, and died, leaving issue one daughter, but without leaving or ever having had a son, and without having sold the land. The question referred to the court was whether, upon this state of facts, George Cooper was entitled to the land. The court held that a general, absolute, unlimited power to sell the land was given to William Cooper by the devise, that he took a fee-simple, and that George Cooper was not entitled to recover. See, also, Gifford v. Choate, 100 Mass. 343; Hale v. Marsh, Id. 468; Ramsdell v. Ramsdell, 21 Me. 288.

The rule is thus stated by Chancellor KENT:

"If there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A., in fee, and if he dies possessed of the property without lawful issue, the remainder over the property which he, dying without heirs, shall leave, or without selling or devising the same; in all such cases the remainder over is void, because of his preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate expressly given, or necessarily implied, by the will." 4 Kent, Comm. 271.

If the will of Lewis Carusi had remained unrevoked and had been duly proven and recorded, and Samuel Carusi had died intestate, with all the property devised to him by Lewis Carusi undisposed of, the complainant would be entitled to no relief, for she would have taken nothing by the will. If the will can be held to designate any beneficiary under the trust deed of July 18, 1872, it designated Samuel Carusi, and not the complainant and her sisters. But by the terms of Lewis Carusi's will, the complainant and her sisters were only entitled to so much of the estate of Lewis as Samuel should "not have disposed of by devise or sale." The bill of complaint charges. that Samuel Carusi, by his last will and testament, had devised to certain persons therein named, among them the complainant, all the property devised to him by the last will of Lewis Carusi. There was therefore no property of the estate of Lewis Carusi to which the supposed devise to complainant and her sisters could apply.

The case of complainant receives no support from the precatory words of the will of Lewis Carusi. These words express "the hope and trust that Samuel Carusi will not diminish the same (viz., the property devised to him by the will) to a greater extent than may answer for his comfortable support," and the testator then devises to complainant and her sisters what Samuel shall not have disposed of by devise or sale. The words do not raise any trust in Samuel. He

is not made a trustee for any purpose, and no duty in respect to the disposition of the estate is imposed upon him. But even if the will had contained an express request that Samuel should convey to the complainant so much of the estate as he did not dispose of by sale or devise, there would be no trust, for the will, as we have seen, gives Samuel Carusi the absolute power of disposal.

In Knight v. Knight, 3 Beav. 148, it was said by the master of the rolls (Lord LANGDALE :)

"If the giver accompanies his expression of wish or request by other words, from which it is to be collected that he did not intend the wish to be imperative, or if it appears from the context that the first taker was to have a discretionary power to withdraw any part of the subject from the wish or request, it has been held that no trust was created."

* *

*And see S. C. nom. Knight v. Boughton, 11 Clark & F. 513. The rule is thus stated by Mr. Justice STORY in his Commentaries on Equity Jurisprudence, § 1070:

"Whenever the objects of the supposed recommendatory trust are not certain or definite, whenever the property to which it is to attach is not certain or definite, whenever a clear discretion or choice to act or not to act is given, whenever the prior dispositions of the property import absolute and uncontrollable ownership, in all such cases courts of equity will not create a trust from words of this character."

See, also, Wood v. Cox, 2 Mylne & C. 684; Wright v. Atkyns, Turn. & R. 157; Stead v. Mellor, 5 Ch. Div. 225; Lambe v. Eames, L. R. 10 Eq. 267; S. C. L. R. 6 Ch. 597; Hess v. Singler, 114 Mass. 56; Bennocks' Estate, 20 Pa. St. 268; Van Duyne v. Van Duyne, 1 McCart. 397; 2 Pom. Eq. Jur. §§ 1014, 1015, 1016, 1017, and notes.

The views we have expressed render it unnecessary to consider other questions argued by counsel. It is quite immaterial whether or not Lewis Carusi had mental capacity to execute the deed of October 17, 1872, or whether he had any title to the property described therein. If that deed had never been executed the fact would not aid the complainant's case.

The result is that the decree of the supreme court of the District of Columbia, in general term, by which the decree of the special term dismissing the complainant's bill was affirmed, was right, and must itself be affirmed.



(110 U. S. 219)


(January 21, 1884.)


A naval officer traveling under orders, whether by land or sea, in the United States or out, is entitled to his mileage for the entire distance traversed; and this was the case when the act of 1835 was in force as well as now.

Appeal from the Court of Claims.

Sol. Gen. Phillips and Thomas Simons, for appellant.
Robt. B. Lines, for appellee.

WAITE, C. J. We are unable to distinguish this case in principle from that of U. S. v. Temple, 105 U. S. 97, in which it was decided that an officer of the navy who, while engaged in public business, traveled under orders by land or sea, the travel by sea not being in a public vessel of the United States, was entitled, under the act of June 30, 1876, c. 159, (20 St. 65,) to mileage at the rate of eight cents a mile for the whole distance traveled, whether by sea or land. The mileage sued for in this case accrued while the act of March 3, 1835, c. 27, (4 St. 757,) was in force. The language of that act, on which the question now presented arises, is as follows:

"It is hereby expressly declared that the yearly allowance provided for in this act is all the pay, compensation, and allowance that shall be received, under any circumstances whatever, by any such officer or person, except for traveling expenses under orders, for which ten cents per mile shall be allowed."

That of the act of 1876, passed upon in Temple's case, was:

"And so much of the act of June 16, 1874, * as provides that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States while engaged on public business, as is applicable to the officers of the navy so engaged, is hereby repealed; and the sum of eight cents per mile shall be allowed such officers while so engaged in lieu of their actual expenses."

It is found as a fact, in this case, that on the sixth of April, 1835, which was only a little more than a month after the act of 1835 was passed, circular instructions were issued from the treasury department to the effect that mileage at the rate of 10 cents a mile was fixed by law and should be paid for traveling expenses within the United States, but that the usual and necessary passage money actually paid by officers returning from foreign service, under orders or on sick ticket, when they could not return in a public vessel, would be paid as theretofore, as well as the like expenses of officers going out. The navy regulations, adopted in 1865, and in force in 1872, when the claim of Graham, the appellee, accrued, provided that "for traveling out of the United States the actual expenses only are allowed." It is also found that from the time of the passage of the act of 1835 until

the decision of Temple's Case in this court, the navy and treasury departments had, with a single exception, always held that the 10 cents a mile did not apply to travel to, from, or in foreign countries, but only to travel in the United States. In Temple's Case the long-continued practice in the departments was relied on to justify the decision of the accounting officers of the treasury against him, but the fact of the actual existence of the practice was not found as it has been


The operative words in the act of 1876 are, "the sum of eight cents. per mile shall be allowed;" and the act of 1835, "for which ten cents. per mile shall be allowed." In Temple's Case it was said the language of the act of 1876 was so clear and explicit as not to be open to construction, and to our minds the same is true of the act of 1835. Under both acts all traveling expenses are to be paid by mileage, and there is not in either of them any indication of an intention of congress to make a distinction between travel by sea or on land, in foreign countries or in the United States. As was remarked by Mr. Justice Woods, "the practice finds no higher warrant or sanction in the act of 1835 than in the act of 1876." Such being the case, it matters not what the practice of the departments may have been or how long continued, for it can only be resorted to in aid of interpretation, and "it is not allowable to interpret what has no need of interpretation." If there were ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling, in its effect. But, with language clear and precise, and with its meaning evident, there is no room for construction, and consequently no need of anything to give it aid. The cases to this effect are numerous. Edwards' Lessee v. Darby, 12 Wheat. 206; U. S. v. Temple, supra; Swift Co. v. U. S. 105 U. S. 695; Ruggles v. Illinois, 108 U. S. ; [S. C. 2 SUP. CT. REP. 832.]

The judgment is affirmed.

(110 U. S. 216)

HAMBRO and others v. CASEY, Receiver, etc.

(January 21, 1884.)


Where a debtor transmitted to his creditor certain foreign bills of exchange indorsed by him, with authority to collect them at maturity and retain the amount of the debt, and the creditor caused them to be protested when due, held that, being only the holder, and not the true owner, he could not recover of his debtor the statutory damages allowed upon the protest of foreign bills, over and above the actual expense.

In Error to the Circuit Court of the United States for the Eastern District of Louisana.

Thos. L. Bayne, for plaintiffs in error.

J. D. Rouse and Wm. Grant, for defendant in error.

WAITE, C. J. The controlling facts in this case are as follows: C. J. Hambro & Son, a banking firm in London, England, were the correspondents of the New Orleans National Banking Association, a national bank in New Orleans. The bank kept a running account with the firm, drawing upon them from time to time as occasion required, and remitting bills to cover its drafts. In the course of its business the bank became the owner of certain bills drawn by a New Orleans firm on their correspondents in France, amounting in the aggregate to 440,000 francs, or $93,121 in United States currency. These bills were indorsed by the bank, and remitted to Hambro & Son for collection and credit, but before they matured the bank and the drawers and drawees all failed. The failure of the bank occurred on the 4th of October, 1873, and, on a statement of accounts a few days after, the bank was found in debt to Hambro & Son for the sum of $89,798.30. The bills which had been remitted were protested at maturity at an expense of $1,356, which was paid by Hambro & Son. This item was not included in the balance shown by the account stated. Under the laws of Louisiana, the damages upon protest of foreign bills of exchange is 10 per cent. on the principal sum specified in the bills. Suit was brought against the receiver of the bank, to recover the charges for protest, and the 10 per cent. damages. Judgment was given against the receiver for the expenses of protest, but in his favor on the claim for damages. This writ of error was sued out by Hambro & Son to reverse that judgment so far as it was in favor of the receiver. In our opinion the judgment was clearly right. The protested bills are the property of the bank, subject, in the hands of Hambro & Son, to their lien as bankers, for the security of the balance due them on general account. All moneys collected by Hambro & Son on the bills, whether it be for principal, interest, or damages, must be passed as soon as collected to the credit of the bank. Hambro & Son are the holders of the bills, but in no legal sense the owners, though it may be their lien is for more than can be collected from the drawers or drawees. Clearly the law does not require the bank to pay the damages, when the payment, if made, must be passed to its own credit on the books of its collecting agents. That would be the operative effect of such a judgment as is now asked for.

Judgment affirmed.

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