above recited agreement of August 13, 1894, to Cudaback, and Cudaback entered of record satisfaction of the deficiency judgments. This action is based upon the above-quoted provision of the written agreement of August 13, 1894, and was brought to enforce the claim: of King against Hay and Fisler, arising from their failure to furnish King money to pay said bonds and mortgages. The argument of the plaintiffs in error in support of their assignments of error proceeds upon the assumption that the covenant sued on is simply an agreement of indemnity to King against resultant damages, and that this case belongs to that class of cases in which the covenantee cannot recover until he has been actually damnified, and then only to the extent of the injury he has sustained. But this view is quite inadmissible. By the plain terms of the agreement Hay and Fisler covenanted to do two things: First, "to furnish all sums of money necessary from time to time to pay the taxes on said lots and the interest and principal on said bonds and mortgages as the same become due and payable"; second, "and to indemnify and save harmless said party of the first part from all costs, charges, and expenses by reason of his executing said bonds and mortgages or any of them." These are distinct obligations. Now, by the first Hay and Fisler bound themselves to furnish King with money to pay the bonds and mortgages as they became due. As between Hay and Fisler on the one hand and King on the other, the indebtedness for which the latter gave his bonds and mortgages was the indebtedness of the former, and they had agreed to put him in funds to meet the bonds and mortgages as they matured. This Hay and Fisler failed to do, and upon such failure a right of action against them immediately accrued to King to recover the money. This being our view of the first branch of the covenant in question, it is not necessary for us to express any opinion as to the scope of the second branch of the covenant. The satisfaction by Cudaback of his deficiency judgments against King is a matter of which the plaintiffs in error have no right whatever to complain. That satisfaction worked no injury to them. King might have paid off those judgments, and then brought his action against Hay and Fisler, but he was not bound to pursue that course. The parties concerned in this matter (King and Cudaback) had a perfect right to pursue the course they did, King assigning his rights, claims, and demands under the agreement of August 13, 1894, to Cudaback, and the latter satisfying his judgments. We find no error in this record, and therefore the judgment of the court below is affirmed. HERRON et al. v. COMSTOCK. (Circuit Court of Appeals, Sixth Circuit. July 20, 1905.) No. 1,378. 1. Federal Courts-JURISDICTION-APPEAL-LAWFUL CASE. Where, in a suit against trustees for an accounting in the federal courts, the Circuit Court of Appeals sustained certain assignments of error, and remanded the cause with directions to enter a decree for complainant for the balance of certain annuities, and to require the trus tees to account for the residue of the estate remaining in their hands subject to distribution under the provisions of a paragraph of the will, and when such residue should be ascertained to distribute it to those entitled thereto, the court having jurisdiction of the cause and of the parties, such decree was binding on them, and precluded them from subsequently objecting that the order directing the accounting constituted an infringement of the jurisdiction of the probate court of the state in which the settlement of the estate was pending. 2. SAME. Where the powers and duties of executors and trustees under a will were severable, and, prior to the filing of a bill in the federal court by a beneficiary under the trust, the administration of the personal estate by the executors had ended, and nothing remained but the management and disposition of the trust real estate remaining unsold for the completion of the trust, the federal court had jurisdiction to decree an accounting by the trustees and direct final distribution and settlement of the trust. 3. SAME-STATE STATUTES-CONSTRUCTION. Ohio Rev. St. 1892, § 6328, provides that any trustee under any last will, or appointed by competent authority as often as once in two years, shall render an account to the probate court of the county in which he was appointed, etc., provided that the section shall not apply in any case in which the will creating the trust designates any other tribunal for the settlement of the trust, or in which any other tribunal shall have acquired jurisdiction. Held that, though such section was applicable to a trust in real property, it did not confer on the probate court control over the property itself, but only authority to biennially settle the trustees' accounts. 4. SAME. Such jurisdiction did not attach where the subject-matter of the trust had been drawn into the possession and control of a federal court by the filing of a bill for settlement and distribution by one of the beneficiaries of the trust. 5. SAME-COMPENSATION OF TRUSTEES-PROBATE ORDERS-EFfect. Where a federal court had taken jurisdiction of the settlement and distribution of a trust in a suit by a beneficiary, it also acquired jurisdiction to fix the compensation of the trustees, and was therefore not bound by intervening orders of the probate court of the state in which administration or the will creating the trust had been granted, fixing such compensation. 6. SAME EXTRA COMPENSATION. Where the total amount passing through the hands of executors and trustees was $229,211.49, and the total amount obtained by the trustees for services, including the last amount, was $17,619.19, or nearly three times the statutory commissions, it was not error for the court to refuse to allow a further sum of $2,500 as extra compensation. Appeal from the Circuit Court of the United States for the Southern District of Ohio. W. C. Herron, for appellants. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. SEVERENS, Circuit Judge. Margaret R. Poor, a resident of Cincinnati, Ohio, died August 18, 1882, leaving a will, made in March preceding, and a considerable estate, consisting of both real and personal property. John W. Herron and William H. Fisher were therein appointed executors. On Septeinber 7, 1882, the will was duly admitted to probate in the probate court of Hamilton county, Ohio, and on September 25, 1882, letters testamentary were issued to them. The appointment was accepted, and they qualified as executors. In view of the questions raised on this appeal, it seems necessary to state with some particularity several provisions of this will. By the first and second paragraphs the testatrix gave certain legacies to the persons therein named, and then by the third paragraph devised and bequeathed all the rest and residue of her estate, real, personal, and mixed, which she owned or had any interest in, to John W. Herron and William H. Fisher, and to the survivor of them, absolutely and in fee simple, in trust, to sell, dispose of, and convey all such as was not in ready money, and to lease, repurchase, and reconvey, and do all other things in reference to the same as to them might seem best for the purposes of the trust. And in several succeeding paragraphs she directed the trustees to invest certain several named sums in productive real estate, or stocks or bonds, for the benefit of the several persons therein named, who were to receive the income thereof, and among whom was the complainant in this bill. In reference to her, in paragraph 5, she gave the following direction: "I do further will and direct that said trustees pay to my niece, Nellie Preston Barr, ten thousand dollars in money, and that they invest the further sum of fifty-six thousand six hundred and sixty-seven dollars in productive real estate, bonds and mortgages, or interest-bearing stocks or bonds, at their discretion, with full power to change the said investments or any of them as they may think best; and to pay the income therefrom statedly to my said niece, Nellie Preston Barr; and I further direct that until said sum of ten thousand dollars is paid to my said niece, and said additional sum invested for her benefit, as in this article directed, my trustees pay to her at the rate of four thousand dollars per annum, from the date of my decease." To still other persons the testatrix directed her trustees to pay out and out certain specified sums. Then, in paragraph 14, she gave this further direction: "I further will and direct that said trustees pay over and transfer all the rest and residue of my estate not herein devised, and all shares thereof at the termination of the estate for which it is devised, and all shares which from any cause shall fail to pass out of the possession of said trustees under any of the provisions of this will, to my six nephews and nieces, Nellie Preston Barr, William Alexander Barr, Mary E. Williamson, Margaret E. Merrill, Ada G. Huston and William B. Finley, to be equally divided between them." Finally, she appointed and directed as follows: "I hereby appoint John W. Herron and William H. Fisher executors of this will, and I direct that no bond be required of them, either as such executors or as trustees under any of the clauses of this will.” The trustees accepted the trust. The property left by the testatrix, not specifically disposed of by her will, consisted in part of stocks and bonds, but in far larger part of real estate in and about the city of Cincinnati. The executors proceeded to perform the duties imposed upon them by the will. "The debts and legacies not included in the trust were paid by them, and the legacies payable out and out included in the trust were also paid by the same persons, in what capacity is a subject to be considered later. The personal property was all exhausted in the payment of the debts and legacies, and some of the rents, as well as some of the proceeds of sales of real estate, as we understand, were required and used for the same purpose. All this had been done as early as 1885. Thereupon steps were gradually taken by the trustees for effecting the investments directed by the will as above stated. In course of time the annuities, which by the will were to be paid to the beneficiaries until the investments were perfected, were not paid in full, for the reason, as claimed by the trustees, that the receipts of income from the trust property were insufficient. The investment which the will directed to be made for the complainant not having been made, and her annuities having fallen in arrear, she filed this bill in the court below on December 24, 1890, setting forth the facts substantially as above stated, and praying that the trustees be required to make the investments as directed by the will, that they be required to pay her the arrearages of the $1,000 annuity, and that they make report of their proceedings in execution of their trust, and render an account showing the amount remaining for distribution after payment of all the sums directed to be paid by the paragraphs of the will preceding the fourteenth, above set forth, and that, when the residue should be ascertained, the trustees should be decreed to pay over to her the distributive share to which she was entitled, and for general relief. On January 21, 1891, the trustees filed their answer, in which they acknowledged the nonpayment in full of the annuity due to the complainant, and in excuse averred that the income of the estate was insufficient to meet the requirements of their trust; admitted that they had not, prior to the filing of the bill, made the investments directed by the will, but averred that they were then making preparations to do so, and that since the filing of the bill they had completed the investments. And in their answer they set out specifically the parts of the estate assigned to each of the beneficiaries of the investments, among them this complainant; and thereupon they say, "having now carried out the several provisions of the said will, they ask this court to approve the same." They admitted that there still remained a residue of the trust estate for distribution, consisting of real estate in Cincinnati and elsewhere, and they prayed the direction of the court as to whether such residue should be now distributed to the devisees or held until the determination of the life estate of each, and whether in kind, or in the proceeds of sale after conversion. The complainant, after some corrections had been made, accepted as satisfactory the investment made for her, and the court approved it. By the decree of the court, entered October 4, 1892, it was declared also that the complainant was by the terms of the will entitled to receive the annuity in full, and that resort might be had to the corpus of the estate, if the income proved insufficient, but that she had waived that right and accepted the lesser sum, and could not now reclaim the balance of the annuities. With respect to the rest and residue of the' estate, it was by the decree adjudged as follows: "That the complainant and the other residuary legatees, defendants herein, under item 14 of said will, the court further finds and adjudges are entitled to a present division of the residue of the estate, all the other provisions of the will having, as appears to the court, with the exceptions heretofore noted, prior to item 14 of said will, been carried out, and said defendants, trustees, etc., as aforesaid, are hereby ordered and directed to pay over and transfer to the said residuary legatees, complainant and defendants, their said respective one-sixth (%) shares and interest in said rest and residue of said estate," with the exception of one share to E. Mary Williamson, which the court reserved for further disposition. Thereupon the decree of the court proceeds as follows: "The court further orders, adjudges, and decrees that the complainant is not entitled to so much of the relief prayed for in her bill of complaint and supplemental bill herein as seeks an order from the court directing the defendants, trustees, etc., to make a report and itemized statement and description, and a full account render of all the rest and residue of the estate left and remaining after full payment shall have been made under and pursuant to the various devises preceding item 14 of the will, and as seeks an accounting from said defendants, trustees, etc., as aforesaid, and that said relief be, and the same hereby is, denied, and all said matters relating to the ascertainment of said rest and residue, and an accounting from said defendants, trustees, etc., as aforesaid, is hereby left to the probate court of Hamilton county, Ohio, where the affairs of said estate have heretofore been administered. "It is further ordered, adjudged, and decreed that as soon as the rest and residue of the estate shall have been ascertained by the probate court of Hamilton county, Ohio, and an accounting had therein that the complainant, the said residuary legatee, is entitled to have paid over, divided, and distributed to her her distributive share of said rest and residue in kind as prayed for in the bill of complaint, and said defendants, Herron and Fisher, as aforesaid, are hereby ordered and directed, in making the distribution as aforesaid of the rest and residue of said estate, to divide the different kinds of property of which it may consist into as nearly six equal shares as possible, and to pay over and to transfer to the said complainant and such other residuary legatees as may desire it their respective shares in each of said kinds of property in kind," with further direction for conveyances. The complainant appealed from those parts of said decree which denied to her the balance of the annuities and refused an accounting in that court of "the rest and residue of said estate left in their hands." This court on the appeal sustained the assignments of error in both particulars, and remanded the cause with directions to decree for the complainant for the balance of the annuities, and to require the trustees to account for the residue of the estate remaining in their hands subject to distribution under the provisions of paragraph 14 of the will, and, when that residue should be ascertained, to distribute it to those entitled. Comstock v. Herron, 6 U. S. App. 626, 55 Fed. 803, 5 C. C. A. 266. In all other respects the decree of the court below remained undisturbed. On the reception of the mandate, the court below, on June 21, 1893, entered the particular decree therein required, and made the following order of reference: "It is further ordered that this cause be and is hereby referred to B. R. Cowen, who is hereby appointed special master for said purpose, to state an account showing the rest and residue of the estate in the hands of said execu |