held in trust for him in his hands. The answer to this petition, sworn to and filed by George Hicey Moredock, the respondent, contains a complete account of his conduct as executor under the will of George Moredock in his relation to the trust created for Samuel Moredock, the petitioner, and sets out a complete account for the purpose of showing that no moneys came into his hands for the purpose of the trust created under the will for Samuel Moredock, the petitioner. As the answer to the petition was not replied to, nor any question raised as to the truth of the facts alleged in it, the facts alleged would be taken by the court under any system of pleading as admitted.

It will be noted that the prayer of the petition was that the respondent, one of the executors of George Moredock and trustee for the petitioner under the will of said George Moredock, be required to file an account showing the amount of money belonging to your petitioner and held in trust for him in his hands, so that the court had before it everything necessary to decide the case upon its merits, whether involving the consideration of the will to determine what sort of a trust was created and its qualities, what sums of money should go into it and from what source, and what sums of money were in the hands or should be in the hands of George Hicey Moredock as executor, which should be part of the trust estate, and, in fine, every question relating to the creation and conduct of the trust. And these questions the court necessarily disposed of by making the order of February 14, 1898. That order reads: "And now, February 14, 1898, rule discharged at the costs of the petitioner." Here was an adjudication under the pleadings upon the merits of every question arising under the will in relation to the trust, so far as Samuel Moredock is concerned.

A comparison of the bill of complaint in the case at bar with the petition and answer in the record pleaded shows conclusively that the identical matters now sought to be litigated by the present bill were sought to be litigated, adjudged, and disposed of by the proceedings set out in the plea.

The further question, however, arises whether or not, inasmuch as the present bill includes as plaintiffs certain persons alleged to be members of the family of Samuel Moredock, the proceedings set out in the plea are conclusive as to them. The bill alleges in the thirteenth paragraph that it was the duty of the defendants, as executors of George Hicey Moredock, to render a full and complete account to the orators of the said trust as conducted and administered by the said George Hicey Moredock during his lifetime, and to pay over unto Samuel Moredock the said trust fund or sum of money for the sole and separate use of the said Samuel Moredock, and of his family, which consists solely of the other orators. It appears from the second and third prayers that the defendants are required to account to the orators for the conduct and administration of the trust by George Hicey Moredock, and to pay over the trust fund in the amount so found to be due and owing to Samuel Moredock, upon such terms and upon such conditions as shall seem right and proper to the court to protect and conserve the interests of your other orators in and to the said trust fund. It will thus be seen that the bill is filed for the pur

pose of compelling an account and the payment over of the amount found to be due by such account to Samuel Moredock and the other plaintiffs.

Assuming then that the bill of complaint is filed for the purpose of having the rights of the other plaintiffs outside of Samuel Moredock determined, they not having been named as parties in the proceedings in the orphans' court, are they precluded as privies of Samuel Moredock by the former adjudication? This must be determined by interpreting the language of the will. The words of the will are:

"To my son George Hicey Moredock I give and bequeath the sum of One Thousand Dollars, in trust for my son Samuel, out of which he will pay, and the balance of said One Thousand Dollars if any and Samuel's share if any residuary fund, to be held by said George H. Moredock in trust for the sole and separate use of my son Samuel and his family and not to be liable in any manner by attachments or otherwise for his debts, now or hereafter to be contracted. The interest on said balance to be paid to him, or to amount of the principal as said trustee shall in his judgment deem necessary, leaving that to his own discretion.

"The residue of my estate, real, personal and mixed, after payment of debts, expenses and the foregoing legacies and devises is to be divided among the foregoing legatees and devisees in proportion to the sum given or devised to them especially Samuel's share in trust and John's share subject to the payment of the guardian money and expenses paid by George Hicey Moredock, as aforesaid."

The contention turns upon the construction to be put upon the term "his family," as used in the sentence, "to be held by said George Hicey Moredock in trust for the sole and separate use of my son Samuel and his family." The word "family" in its common and primary meaning, as defined by lexicographers, is that collective body of persons who form one household, under one head or manager, including children and servants. Webster's Dictionary; Century Dictionary. And it has also been given that meaning by the law decisions of some of the states (Wood v. Wood, 63 Conn, 324, 28 Atl. 520; Hart v. Goldsmith, 51 Conn. 479; Spencer v. Spencer, 11 Paige [N. Y.] 159; Bradlee v. Andrews, 137 Mass. 50) and also by some federal courts (Poor v. Hudson Ins. Co. [C. C.] 2 Fed. 432). In a bequest or devise for one and his family it has been held that the word "family," prima facie, means children. Raynolds v. Hanna (C. C.) 55 Fed. 783, where Mr.. Justice Jackson, then circuit judge for the Sixth circuit, in an exhaustive opinion holds that the primary meaning of "family" is childrenunder the will then under consideration, but, as it is further said:

"Its proper interpretation in each case must depend upon and be determined by the context of the will, the circumstances in which the testator is placed, and the character and situation of those who may be presumed to be objects of his bounty. Story, Eq. Jur. §§ 1065b, 1071, and cases cited. In Pigg v. Clarke, 3 Ch. Div. 672, it was said by the Master of the Rolls that 'every word which has more than one meaning has a primary meaning, and, if it has a primary meaning, you want a context to find another. What, then, is the primary meaning of "family"? It is "children." That is clear upon the authorities which have been cited, and, independently of them, I should have come to the same conclusion.'"

"The word 'family' admits of a still greater variety of applications. It may mean a man's household, consisting of himself, his wife, children and servants. It may mean his wife and children, or his children, excluding his wife; or, in the absence of wife and children, it may mean his brothers and sisters

or next of kin, or it may mean the genealogical stock from which he may have sprung." Story's Eq. Jur. § 1065b.

"In respect to certainty in the description of objects or persons in such recommendatory trusts, it may be proper to state that it is not indispensable that the persons should be described by their names. But more general descriptions will often amount to a sufficient designation of the persons to take, such, for example, as 'sons,' 'children,' 'family,' and 'relations,' if the context fixes the particular persons who are to take clearly and definitely. Thus a devise to the family of A. will often be a sufficient designation, and may be construed to mean the heir at law of A., or the children of A. or even the relations of A., according to the context. And, on the other hand, the language may be loosely and indeterminately used as not to amount to a clear designation of any persons, and thus the recommendation may fail to create a trust."

Finding the expression "his family" in this will, unaided by the context, we conclude that the meaning of "his family" is "his children." The devise in this will, then, as interpreted by us, was a devise in trust for Samuel Moredock and his children. The children do not take through Samuel Moredock, their father, but independently of him. To some extent their interest may be regarded as adverse to his. If this will be interpreted as meaning that the trust was for Samuel alone, because the words "his family" are too indefinite and uncertain to sustain a trust, his interest would be adverse because it would be to Samuel's interest to have it so interpreted. The children, therefore, were not in privity with their father, Samuel Moredock.

Mr. Chief Justice Waite, in Litchfield v. Goodnow, 123 U. S. 549, 550, 8 Sup. Ct. 210, 211, 31 L. Ed. 199, laid down the rule by which we are to determine what privity means. He says:

"Greenleaf, in his Treatise on the Law of Evidence (volume 1, § 523), states the rule applicable to this class of cases thus: 'Under the term "parties," in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment. This right also involves the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause. But to give full effect to the principle by which parties are held bound by a judgment all persons who are represented by the parties and claim under them, or in privity with them, are equally concluded by the same proceedings. We have already seen that the term "privity" denotes mutual or successive relationship to the same rights of property. The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and, whenever this identity is found to exist, all are alike concluded. Hence all privies, whether in estate, in blood, or in law, are estopped from litigating that which is conclusive on him with whom they are in privity.' The correctness of this statement has been often affirmed by this court (Lovejoy v. Murray, 3 Wall. 1, 19 [18 L. Ed. 129]; Robbins v. Chicago City, 4 Wall. 657, 673 [18 L. Ed. 427]), and the principle has been recognized in many cases. Indeed, it is elementary. Hale v. Finch, 104 U. S. 261, 265 [26 L. Ed. 732]; Railroad Company v. National Bank, 102 U. S. 14, 22 [26 L. Ed. 61]; Butterfield v. Smith, 101 U. S. 570 [25 L. Ed. 868]."

Measured by this rule, then, their interests were not a "mutual or successive relationship to the same rights of property," nor were they "identified with him in interest.' They were not made parties to the proceeding now set up in bar. They had no notice of that proceeding so far as the record shows. As we have seen, they were not in privity with him and he could not represent them in the litigation.

We therefore conclude that, while Samuel Moredock might have. been concluded by the proceedings in the orphans' court of Greene county, the remaining plaintiffs are not bound by that proceeding. Wherefore the plea is overruled, and the defendants ordered to answer within 30 days.

DONIPHAN v. LEHMAN et al.

(Circuit Court, D. Indiana. June 16, 1902.)

No. 9,867.

1. CONTEMPT (§ 2*)-ACTS CONSTITUTING CONTEMPT OF COURT-CONSPIRACY TO COMMIT CONTEMPT.

A conspiracy to commit a contempt of court is not in itself a punishable contempt.

[Ed. Note. For other cases, see Contempt, Cent. Dig. § 5; Dec. Dig." § 2.*]

2. CONTEMPT (§ 13*)—ACTS CONSTITUTING "CONTEMPT" OF COURT-TAKING DEPOSITION.

Neither the taking of a deposition to be used in a federal court in another state, in pursuance of a conspiracy to impose upon the court, nor the filing and publication of such deposition, is a misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice, punishable as a contempt under Rev. St. § 725 (U. S. Comp. St. 1901, p. 583); but to constitute such contempt the deposition must have been used or offered in evidence.

[Ed. Note. For other cases, see Contempt, Cent. Dig. § 32; Dec. Dig. § 13.*

For other definitions, see Words and Phrases, vol. 2, pp. 1489-1492; vol. 8, p. 7614.]

Suit by John V. Doniphan against Abraham Lehman and others. On motion to quash information for contempt and to vacate rule to show cause. Motion sustained.

Winter & Winter and John R. Bennett, for complainant.

Banning & Banning, Offield, Towle & Linthicum, Miller, Elam & Fesler, A. C. Harris, R. S. Taylor, Milton Krauss and Loveland & Loveland, for defendants.

BAKER, Circuit Judge. This is a proceeding by affidavit and information against John V. Doniphan and Abraham Lehman, charging them with the commission of a contempt, and asking that they be ruled to show cause, if any they have, why they should not be punished therefor. The information charges in general terms:

(1) That a contempt of this court has been committed by the complainant, Doniphan, and the defendant Lehman, in that they have secretly, fraudulently, and collusively imposed upon the court by settling and compounding all causes and grounds of action forming in any way the subject-matter of the litigation, and have continued thereafter to prosecute this action and suit as if there were in reality and substance an existing contest or subject-matter in dispute.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

(2) That the complainant, Doniphan, and the defendant Lehman. have conspired together in this action, under and after such settlement as aforesaid, to use this court as a means and an end to destroy the business of the defendants Charles J. Kraus and Hannah Kraus, to obtain large money judgments against them for the benefit of the complainant, and to enjoin them from the conduct and carrying on of their said business, to the sole benefit and advantage of the complainant, Doniphan; the defendant Lehman receiving large sums of money for his aid and assistance to bring about such results, as appears by the deposition of the complainant, Doniphan, in the case and affidavits filed herewith.

The affidavits show that the conspiracy alleged was entered into between Doniphan and Lehman in the states of Kentucky and New York, and the overt acts in furtherance of the conspiracy were committed in those states. The acts committed in Kentucky consisted in the sale and delivery of property and in the payment of money, and it is not claimed that those acts, however reprehensible, constitute any contempt of court. The only acts in New York in furtherance of the conspiracy consist in the taking of a deposition by the complainant, Doniphan, before an officer selected by agreement of the parties and sending the same by mail to the clerk of the court at Indianapolis, Ind., who received and filed the same to be used on the trial of the suit. Since the deposition has been filed, it has been published; but at whose instance is not shown. Do these acts constitute a contempt of this court?

The whole power to punish contempts is found in section 725, Rev. St. (U. S. Comp. St. 1901, p. 583), which provides as follows:

"The said courts shall have power to impose and administer all necessary oaths, and to punish by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness or other person, to any lawful writ, process, order, rule, decree, or command of the said courts."

This statute embraces three classes of cases in which the court is given jurisdiction to punish contempts: (1) Misbehavior of any person in the presence of the court or so near thereto as to obstruct the administration of justice; (2) misbehavior of the officers of the court in their official transactions; (3) disobedience or resistance by any officer, party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the court. The facts set out clearly do not present a case of contempt under the second or third clauses of the above section. If a contempt is disclosed, it is under the first clause, making misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice a contempt. A conspiracy to misbehave in or near the presence of the court for the purpose of obstructing the administration of justice does not of itself constitute a punishable contempt. It is the act of misbehavior in or near the presence of the court, and not the conspiracy, which constitutes the contempt. If the complainant, Doniphan, and the defendant