life estate was to cease and the gifts made by the will were to become operative was necessarily wholly uncertain, and, that the terms of the will and codicil evidently relate to the condition of the estate at the time that they were made, and not to that which might exist at a subsequent and uncertain period. The reasoning, moreover, must rest on a selfevident disregard of the terms of the will, which does not, as is expressly asserted to be the case, "direct" the trustee to convert the real estate into personal property, but simply "authorized" it to so do.

that the designation by name found in the codicil must be held as dominant, and must be construed as obliterating the clear and legally precise indication of the thing intended to be revoked, which the codicil itself affords, does not commend itself to our approval. That reasoning thus proceeds: The codicil contains a revocation and a gift. The two are wholly distinct, the one from the other. As, therefore, the revocation refers by name to the bequest made to the Home for Incurables, and revokes it, therefore the provision made by the will for testacy as to the entire remainder is destroyed, ever although the gift made by the codicil is only of five thousand dollars, and despite the fact that it plainly, by its terms, refers solely to a bequest of that amount made in the will. But to adopt this view compels a distortion of the language of the codicil, a mutilation of its context, and a division of its provisions into two distinct and substantive matters, when in fact on the face of the codicil it contains but one provision, a revocation and a gift, the one dependent upon the other, the one caused by the other; that is to say, a revocation made in order to give and a gift made solely of the thing revoked. Indeed, to support the view that because the name of the Home for Incurables is stated in the codicil, that instrument had reference to the bequest and devise of the remainder of the estate made by the will, requires not only the arbitrary division of a single sentence in the codicil into two parts, although they are indissolubly connected, but also necessitates a misconstruction of another portion of the will. This follows from the fact that even although the revoking part of the sentence be alone taken into view, dissevered from that with which it is connected in the codicil by a union of thoughts and of words which cannot be disassociated, the codicil cannot be said to apply to the gift of the remainder without destroying the signification of its language. The thing annulled and re-ary thereof, as "the bequest" voked by the codicil is not the bequest and devise of the remainder, but the bequest by the will made. The language of the codicil [397]*is: "I hereby revoke and annul the bequest therein made by me." But only one "bequest," that is, the one for five thousand dolJars, existed in the will. To cause the word "bequest" to refer to the remainder is to enlarge its scope and significance beyond its legal import. True, to justify the construction that the word "bequest" is synonymous with a bequest and devise of the remainder, it is said that the testatrix by her will "directed" the trustee to sell the real property and to convert all the estate into personal property, and therefore that it might well have been contemplated by her that when the time arrived for a distribution of the estate that the remainder would consist solely of personal property, and therefore, in mental contemplation, the testatrix may naturally have assumed that the transmission of the remainder would be but a bequest exclusively of personal property. This overlooks the fact that the will and codicil were written on the same day; that the period when the

And this analysis, which demonstrates that the terms of the codicil do not apply to the bequest and devise of the remainder so as to bring about intestacy, also with equal conclusiveness shows that the codicil cannot be construed as reducing the bequest and devise of the remainder to the extent of the five thousand dollars which the codicil gives. To so construe would be to obliterate the words "the five thousand dollars heretofore in my will bequeathed." It would be to assume that a revocation of a gift in the will had been made by the codicil when there was no necessity for so doing, for if the testatrix had intended simply to give five thou sand dollars out of the residue, the mere expression of an intention to give *five thousand[398] dollars would have been entirely sufficient in law to effect such purpose without the slightest necessity of any revocatory clause whatever. This is but to state in another form

the abounding reason we have already mentioned, that the express result of the words of the codicil was not alone to revoke a provision of the will, but to do so solely to the extent and for the purpose of executing the new intention conceived by the testatrix by dedicating a particular and named bequest made by the will to the new purpose, and, hence, that the thing selected for revocation and substitution was accurately described in the codicil, omitting the name of the benefici


five thousand dollars heretofore in my will bequeathed." Considered in its ultimate aspect, the proposition that the codicil gave five thousand dollars to the legatee named therein out of the remainder necessarily affirms that the codicil relates to the remainder, and therefore asserts that the testatrix intended, not simply to revoke in order to substitute the new beneficiary to the specific sum revoked, but to create an independent provision wholly disconnected from the bequest made by the will. But this cannot be maintained without striking out the major part of the codicil, and thus frustrating the plain intention of the testatrix unambiguously expressed in the letter and obviously within the spirit of the instrument.

As, then, the codicil does not, in whole or in part, refer to the bequest and devise of all the residue and remainder made by the will in favor of the Home for Incurables, it remains only to consider whether it operates upon the bequest of five thousand dollars made by the will in favor of the Hospital of the University of Pennsylvania. If it does, it substituted the legatee named in the codi

without denying the reason of things, be successfully asserted that although the testatrix specifically pointed out the clause in her will which she revoked, nevertheless by the mere mistaken use of the name of the person she destroyed or intended to destroy the plain and specific description which she vividly embodied in the very sentence where the name was inadvertently stated.

From the foregoing it results that the use of the name Home for Incurables, in the codicil, was but a mere mistaken designation, dominated and controlled by the description of the character of thing to be affected by the codicil stated therein. Guided by the principles enunciated in the authorities to which reference at the outset was made, such mere mistake may be corrected, in construing the will, by disregarding the error and following the full and accurate description which will then be contained in the instrument; and hence that the effect of the codicil was to revoke the bequest of five thousand dollars made by the will in favor of the Hospital of the University of Pennsylvania, and to substitute therefor the legatee named in the codicil.

The decree of the Court of Appeals of the District of Columbia must be reversed, and the cause remanded to that court, with directions to affirm the decree of the Supreme Court of the District, the costs of all parties to be paid out of the estate. And it is so ordered.

cil for the institution in question. If it does not, the codicil is void for uncertainty, since there is no other source from which the sum to execute the gift which it makes can be taken. Conversely it results that all the reasoning by which it has become manifest that the codicil did not apply either to the gift or the remainder, establishes that it does so apply to the gift made by the will in favor of the Hospital of the University of Pennsyl[399]vania. In the first place, the gift to that corporation is the only specific bequest found in the will, and, in the second place, it is of the same amount as that named in the codicil. It is therefore embraced within the strictest letter of the description given by that instrument, "the bequest therein (in the will) made by me," and "the five thousand dollars heretofore in my will bequeathed." And a consideration of the whole scope of the will strengthens the force of the language of the codicil. The bequest of five thousand dollars given by the will to the Hospital of the University of Pennsylvania was to be used by it "to endow and forever maintain a first-class perpetual bed in said hospital in the city of Philadelphia, said bed to be in the name and memory of my beloved son Malancthon Love Ruth." The bequest and devise of "all the residue and remainder of my said estate of whatever kind" in favor of the Home for Incurables was "to endow and forever maintain one or more beds in said home in the name and memory of my beloved son Malancthon Love Ruth." The purpose, then, of both gifts was the same. Now, the declared motive generating the making of the codicil in favor of Mrs. Colville was "on account of her kindness to my son and myself during his and my illness and my distress." The natural interpretation of the intention upon which the three provisions rest is reasonably as follows: Having provided CHRISTIAN MOERLEIN BREWING COMfor the perpetuation of the memory of the son by the execution of works of charity of substantially the same nature by two different institutions, the one by the use of five thousand dollars to support one bed, and the other and more important by the application of all the residue and remainder of the estate to support one or more beds, when the mind of the testatrix came to the conclusion that her tenderness to the memory of her son should be manifested by a gift to one who had befriended him, the means of executing this thought which she selected was this, not the revocation or impairment of the greater provision made by the will for honoring the memory of the son, but the transfer of the previous and lesser provision of five thousand dollars to the new legatee. By this means the general plan expressed by the will [400]was unaltered, despite the execution of the

conception which the codicil embodied. It may, in consonance with reason, be considered that the testatrix, whose mind, as the codicil shows, was charged with the recollection of the purposes expressed in her will, should have inadvertently used a wrong name, especially as each of the beneficiaries under the will was to apply the thing given to a like good work. It cannot, however,

Mr. Justice Gray, not having heard the argument, took no part in the decision of this case.

JACOB SONNENTHEIL, Plff. in Err., [401]


PANY et al.

(See S. C. Reporter's ed. 401-416.)

Suit against a United States marshal-suit against him and attachment creditorsacceptance of deed of trust by creditors, when question for the jury-knowledge of fraud-declarations of grantors, when evi





A suit against a marshal of the United
States for acts done in his official capacity
is a sult arising under the laws of the United

A suit against a marshal of the United
States and his sureties, and also attachment
creditors for whom he has seized goods, is
not one in which the judgment of the circuit
court of appeals is final, under the act of
Congress of March 3, 1891, 6, as the juris-
diction does not depend entirely upon citizen-
ship, although a separate sult against the at-
tachment creditors would have come within
that section.

Under the laws of Texas the question of the acceptance of a deed of trust by creditors may be left to the jury, notwithstanding their positive oral testimony to the acceptance, where this question is closely connected with a question of their participation with the debtor in defrauding other creditors.

4. The knowledge of local creditors who have accepted a deed of trust, that it is fraudulent, may be left to the jury, where the debtors are shown to have remained in practical control of the business, obtained credit on false rep resentations to commercial agencies, and made large purchases of goods on credit just before an assignment, and where the rumors of their insolvency could hardly have escaped the ears of such creditors.

5. Declarations by persons who have made a
deed of trust, which are not mere admissions
of prior facts, but are propositions for a con-
tinuance of their business after settlement

with their creditors, are admissible against
them, at least in an action attacking the
deed as a fraud upon creditors, in which there
is other evidence of a common purpose of the
vendors and vendee to defraud, when the
rights of the secured creditors are carefully
guarded in the charge to the jury.

[No. 45.]

Another deed of trust, dated December 17, was executed by the same parties to the same trustee to secure the same debts. This deed differed from the first only in inserting some words which had been erased from the first deed, in giving the trustee the power to compromise or sell the debts due the firm, and in binding the grantors, and each of them, in the name of the firm, to make such further assurances as to the property conveyed as would speed the execution of the trust.

Sonnentheil was holding the property in question under both of these deeds when, on December 23, 1892, a United States deputy marshal seized and took it from his possession against his protest. This seizure and dispossession were made by virtue of a writ of attachment from the circuit court for the eastern district of Texas, in a suit for debt by the brewing company against Freiberg, Klein, & Co., and the seizure was directed by

'Argued October 18, 19, 1898. Decided Janu- an agent of the company. The brewing com

ary 3, 1899.

ERROR to the United States Circuit
review a judgment of that court affirming a
judgment of the Circuit Court of the United
States for the Eastern District of Texas in
favor of the defendants the Christian Moer-
lein Brewing Company et al. in an action
brought by Jacob Sonnentheil to recover the
value of a stock of goods seized by the mar-
shal of said district, under writs of attach-
ment in favor of the Brewing Company.
Judgment of the Circuit Court of Appeals

See same case below, 41 U. S. App. 491, 75
Fed. Rep. 350.

pany was not secured in the deeds of trust.
This suit was brought by Sonnentheil, the
recover value of
trustee, against the marshal and the brewing

thus seized and taken from him.

The defendant demurred to the jurisdiction of the court; pleaded a general denial, and attacked the deeds of trust as void on their face, and as not having been accepted by the trustee or preferred creditors, and as having been made with the intent to defraud the unpreferred creditors of the firm, of which fraud they alleged the trustee and preferred creditors had knowledge. The specific objections urged to the deeds were that a provision allowing the trustee to compound and compromise doubtful debts due the makers was erased from the first deed before filing, as well as one authorizing each of the This was an action at law, brought by makers to make further assurances of title Sonnentheil, trustee under a deed of trust and transfer with the same effect as if made executed December 16, 1892, by Freiberg, by each in person. That the makers of the Klein, & Co., of Galveston, Texas, against the first deed had, a short time prior to its exeChristian Moerlein Brewing Company, an at-cution, represented to two commercial agentaching creditor, and one Dickerson, whose cies that they were solvent, and had thereby[403] Christian name is unknown, marshal of the deceived the defendant company into selling United States for the eastern district of Tex- them a large amount of goods on credit; that as, to recover the value of a stock of goods the deeds conveyed property exceeding in seized by the marshal under writs of attach-value the debts secured; that the claims proment in favor of the brewing company.

Statement by Mr. Justice Brown:

Prior to December 16, 1892, Moses Freiberg, Sam Klein, and Joseph Seinsheimer were under the firm name of Freiberg, Klein, & Co., conducting a wholesale liquor and cigar business at Galveston, Texas. Having become embarrassed and unable to meet their liabilities upon the date above named, they conveyed by deed of trust to the plaintiff Sonnentheil their stock of goods, together with their other property and the debts due them, authorizing him to take immediate possession thereof, to sell the property and collect the debts, and apply the proceeds to the payment of certain creditors named in the deed of trust. This deed was filed as a [402]*chattel mortgage with the county clerk of Galveston county, Texas, on the day it was executed, and the plaintiff in error as trustee took immediate possession of the property therein conveyed.

vided for in the deeds were also secured by
solvent indorsers; that the makers had, not
long before the execution of the first deed,
conveyed to L. Fellman a large amount of
real estate for a feigned consideration and
in secret trust for themselves, and for the
purpose of removing the same from the reach
of their creditors, and had conveyed to oth-
ers a large amount of assets to hold for their
benefit; that they had made to H. Kempner
a deed of trust to secure a pretended debt;
that the makers of the deeds had long prior
to their execution, and whilst insolvent, en-
tered into a conspiracy with L. Fellman, who
was indorser on a large amount of Freiberg,
Klein & Co.'s paper, and, with other per-
sons, to remove the then present embarrass-
ments of the firm and to continue business;
and then, after enlarging their stock by pur-
chases to a sufficient amount, to fail and se-
cure Fellman and other home creditors, and

that the deeds of trust were the result of tion and laws of the United States. Feibelthis conspiracy.

The plaintiff replied, denying the allegations of the answer, and alleging acceptance of the deed of trust before levy of the attachment. Upon the trial it was shown that the deeds of trust under which Sonnentheil claimed were duly executed; that the first was duly filed for record, and that Sonnentheil was in possession of the property as trustee at the time the second deed was executed; that the debts preferred in the deeds amounted to about $140,000, all of which, except $10,000, were secured by the accommodation indorsement of Fellman & Grumbach, and none were secured otherwise; that several of the creditors had accepted the deed of trust before the levy of the attachment, and some of the secured debts were paid thereafter.

The jury returned a verdict for the defendants, whereupon the case was taken by the plaintiff to the circuit court of appeals, and the judgment of the court below was there affirmed. [41 U. S. App. 491], 75 Fed. Rep. 350. Thereupon the plaintiff sued out

a writ of error from this court.

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1. At the last term of this court motion was made to dismiss the writ of error upon the ground that under section 6 of the act of Congress of March 3, 1891, establishing the circuit courts of appeals, the judgment of the court of appeals affirming the judgment of the circuit court was final. By this section the judgments or decrees of the circuit courts of appeals shall be final in all cases in which the jurisdiction depends entirely upon the opposite parties to the suit being aliens and citizens of the United States, or citizens of different states. In this case the plaintiff Sonnentheil was a citizen of the state of Texas; the defendant brewing company was a corporation created by the laws of Ohio, and a citizen of that state, and Dickerson a citizen of the state of Texas; but it also appears upon the face of the original petition that Dickerson was marshal of the United States for the eastern district of Texas, and that he made the seizure of the goods in question through his deputy, John H. Whalen, and under a writ of attachment sued out by the brewing company against Freiberg, Klein, & Co. as defendants. It thus appears that the jurisdiction of the circuit court did not depend entirely upon diversity of citizenship between the plaintiff and the brewing company, but upon the fact that one of the defendants was marshal of the United States, and was acting in that capacity when he seized the goods in question.

Had the action been brought against the marshal alone there can be no doubt that the circuit court would have had jurisdiction of the case as one arising under the Constitu

mann v. Packard, 109 U. S. 421 [27: 984]; Bachrack v. Norton, 132 U. S. 337 [33: 377]. It is true that in these cases the action was against the marshal and *the sureties upon[405] his bond, but there is no difference in principle. The right of action in both cases is given by the laws of the United States, which make the marshal responsible for trespasses committed by him in his official character. Bock v. Perkins, 139 U. S. 628 [35: 314]; Buck v. Colbath, 3 Wall. 334 [18: 257]; Texas & P. R. Co. v. Cox, 145 U. S. 593 [36: 829]. If suits against a bank or railways chartered by Congress are suits arising under the laws of the United States, as was held in Osborn v. The Bank of U. S. 9 Wheat. 738 [6: 204], and The Pacific Railway Removal Cases, 115 U. S. 1 [29: 319], with even greater reason must it be considered that a suit against a marshal of the United States for acts done in his official capacity falls within the same category.

The joinder of another defendant, jurisdiction over whom was dependent upon diversity of citizenship, deprived the marshal of no right he otherwise would have possessed. Though there are two defendants, the case diction was not dependent entirely upon the was one, and that a case in which the jurisopposite parties to the suit being citizens of different states. Had two suits been brought, one of them would undoubtedly have been dependent upon citizenship, and the other a case arising under the laws of the United States. But as the plaintiff chose to join both defendants in a single action, jurisdiction of that action was not wholly dependent upon either consideration. Had the jurisdiction of the circuit court been originally invoked solely upon the ground of diversity of citizenship as applied to the brewing company, the case would have fallen within the Colorado Central Consol. Mining Company v. Turck, 150 U. S. 138 [37: 1030], but as the original petition declared against Dickerson as marshal, for an official act as such, that case has no application.

The record contains twenty-three assignments of error, most of which it will be unnecessary to consider separately. For the purposes of this decision they are reducible to three.

2. Several of these assignments are based upon an alleged error of the court in submitting to the jury the question whether the deed of trust was accepted by any of the preferred creditors before the levy of the attachment.

*Under the laws of Texas it is conceded that[406] the instruments in question were deeds of trust, in the nature of chattel mortgages, under which the proceeds of the property sold were, after paying expenses, to be appropriated to the payment of the debts enumerated in the deeds, and any surplus remaining to be turned over to the makers of the instrument, and that such a deed of trust must be accepted by some bona fide creditor secured therein in order to give it effect.

In this connection the plaintiff requested the court to charge that "the deed of trust in question in this case is valid upon its face, and the debts secured therein are shown to

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have been, at the time of its execution, bona | fide debts of the makers, Freiberg, Klein, & Co. It has been further shown that some of the creditors named therein accepted said deed before the levy of the attachment of the Moerlein Brewing Company, and it has.not been shown that at the time of such acceptance such creditors had knowledge of any fraudulent intent in the making of such deed, or had any cause to suspect that the same Iwas made with fraudulent intent."

This the court refused, and in lieu thereof charged that the deed, upon its face, was a legal instrument; that it differed under the laws of Texas from an assignment in the fact that an assignment presumes that "all the creditors named accepted it. In order to make a deed of trust operative it is necessary that the parties for whose benefit it is made should accept it. It is not necessary that the acceptance should be in writing, nor is there any particular form of acceptance. By the term 'acceptance' it is simply meant that when they understand what has been done, they consent to it; they agree to it, no matter in what form that may be done. Anything that shows that after being informed of what has been done, that with a knowledge of these facts, they assent to it, or they agree to it, constitutes and is, in fact, an accept I hold as a matter of law that if you find as a matter of fact that if any creditor accepted the terms of this instrument before the levy of the attachment, and you do not find that debt to be infected with fraud, as I shall hereafter instruct you, in that event you are instructed that the entire [407]property named in this deed *passed to the trustee, and in this action he may recover for whatever it is shown the property was worth at the time and place it was taken."


To the charge as thus given exception was taken upon the ground that it left the question of the acceptance of the deed of trust by the beneficiaries to the determination of the jury, when such acceptance was a question of law which should have been determined by the court; that the entire and uncontradicted proof showed that before the levy of the attachment, the deed of trust had been accepted by a portion of the beneficiaries named therein, and also by the trustee, and that there was no question of fact for the jury to determine.

ness. I said I would, and for that purpose
he would call a meeting later on.
That was
my notice of the failure. I answered him in
a few words. Cannot exactly recall them. I
said it was all right; very glad he was as
signee; hoped we would get our money back.
I attended two or three meetings.
I did more than indicate my acceptance of the
security that was given me by the deed of
trust. We acted there as if it were our own
property. We were discussing how it was
best to dispose of it so as to get our money
out of it; that was my idea."

Lobit, his partner, testified as follows:
"When I learned of the failure I also learned
that the notes which we held were secured by
the deed of trust. This I also learned from
the *newspaper. I also talked with Moses
Freiberg a few days after the deed of trust
was made. He regretted the failure and was
sorry. I told him that I was satisfied, inas-
much as they had protected us in the deed of
trust, and that I supposed they had done the
best they could, and we were satisfied with

One Marx, the Galveston agent of S. A. Walker, a creditor of the firm, also testified: "I learned of it next morning after it occurred. [408] Did not know of it before. I talked to Fellman about the deed of trust. He was indorser of Walker's paper; did not talk particularly to any member of the firm of Freiberg, Klein, & Co.; I accepted under the deed of trust, probably the next day, I think to Joe Seinsheimer. I assented to the deed of trust securing Walker. I was authorized to do so for Walker.”

Of course, if the acceptance had been in writing, the construction of such writing would have been a question for the court. With reference to parol understandings, the rule is that if there be any conflict as to the words used, or if the words themselves be ambiguous, the question of intent must be left to the jury. Notwithstanding the testimony of these witnesses was so positive to the effect that they accepted the trust, we are of opinion that it was not improper to submit the question to the jury. In its charge the court instructed the jury that the creditors who accepted the deed of trust must themselves be free from the taint of fraud, and the question of fraud was so connected with that of acceptance that it was possible The evidence upon this point was that the for the jury to have found that the accepting deed was made on December 16, 1892, and filed creditors had knowledge of the fraud at the in the county clerk's office the same night, time of their acceptance. They were all apand that the goods were seized by the mar-parently interested in sustaining the deed, shal under the attachment of the brewing company on December 23; that one Fry was one of the creditors secured in the deed; that he was informed of the deed of trust the night it was executed, and that he was secured in it. He answered that it was all right, and repeated the same thing next day.

Of the firm of Adoue & Lobit, who were also bona fide creditors secured by the deed, Adoue testified as follows: "The assignee, Sonnentheil, came to our office in the morning before twelve o'clock and told me that we were one of the secured creditors in the trust deed, and he would expect me to give him my assistance in the management of the busi

and in denying all knowledge of a fraudulent
intent, and while the jury has no right to
arbitrarily disregard the positive testimony
of unimpeached and uncontradicted witness-
es (Lomer v. Meeker, 25 N. Y. 361, 363; El-
wood v. Western U. Teleg. Co. 45 N. Y. 549,
553 [6 Am. Rep. 140]), the very courts that
lay down this rule qualify it by saying the
mere fact that the witness is interested in the
result of the suit is deemed sufficient to re-
quire the credibility of his testimony to be
submitted to the jury as a question of fact.
*Munoz v. Wilson, 111 N. Y. 295, 300; Dean[409]
v. Metropolitan Elev. R. Co. 119 N. Y 540,
550; Canajoharie Nat. Bank v. Diefendorf,

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