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filed against the probate thereof, no proceedings | rusi conveyed to Samuel Carusi all his real eswere taken or decree made in reference thereto. tate in trust to convey the same to such person The bill charged that the will of Lewis Carusi or persons as the said Lewis Carusi might, "by fully designated the beneficiaries of the trusts his last will and testament, or other paper writcreated by the deed of trust of July 18, 1872, ing under his hand and seal, by two persons and that Samuel Carusi had no estate in the witnessed, designate and direct;" and that alproperty belonging to Lewis Carusi which he though the will was revoked by the trust-deed, could dispose of by his last will so as to devest it was, nevertheless, effectual as a designation of the plaintiff and her sisters of their rights under the persons to whom said real estate was to be the last will and testament of Lewis Carusi, and conveyed by Samuel Carusi, the trustee; and that Samuel Carusi was only a trustee to hold that the complainant and her sister, Genevieve the property during the lifetime of Lewis Caru- Carusi, were the persons who were so designated si, and upon trust to convey the same upon the by the will. It is clear, therefore, that comdeath of Lewis to the complainant and her sis- plainant's case can derive no aid from the decters in manner set forth in Lewis Carusi's last larations of the testator, Lewis Carusi, alleged will and in said deed of trust. to have been made before and after the execution of his will, in relation to the disposition which he intended to make of his property. It must stand or fall upon the designation made in the will.

The bill further alleged that Samuel Carusi, with the purpose of defeating the provisions of the will and deed of trust executed by Lewis Carusi, did, during his own lifetime, suppress the deed of trust and claimed an absolute title in fee simple to all the estate of Lewis Carusi under the will of the latter and the deed of October 17, 1872. Finally, the bill alleged that Lewis Carusi, during his lifetime, repeatedly "Declared, in the most unmistakable terms, that it was his intention to leave his estate, by any testamentary disposition he should make thereof, to his nieces, to the exclusion entirely of any nephews that might survive him, and to the exclusion of the wife of the said Samuel Carusi, should she survive him; * 語 *

It is clear, also, that the will is to receive precisely the same construction, as an instrument designating the beneficiaries of the trust-deed, as it would have received as a last will duly proven and recorded. The question is, therefore: what estate did the testator intend to give the complainant by his will of March 18, 1872?

This will gives, first, an estate in fee simple to Samuel Carusi; it contains, second, the expression of a hope and trust that he will not unnecessarily diminish the estate; and, third, it gives to the nieces of the testator so much of and that it was the intention of Lewis Carusi to his estate as Samuel Carusi shall not at his make provision at all events for his said sever-death have disposed of by sale or devise. We al nieces in preference to all persons and to every person who might, by reason of affinity, have any claim upon him or his estate."

The bill prayed for a decree declaring the deed of trust dated July 18, 1872, to be in full force and effect, and that the will of Lewis Carusi was operative as designating the beneficiaries under the deed of trust, and its terms and conditions; that the will of Samuel Carusi, so far as it devises any part of the estate of which Lewis Carusi died seised, might be declared null and void; that a receiver might be appointed to take charge of and manage the estate, and that the defendants, Adelaide S. Carusi and John McLean Carusi,named as executors of the will of Samuel Carusi, might be enjoined from interfering in any way with the estate of Samuel Carusi, and for general relief.

Separate answers were filed to the bill by each of the defendants, to which the complainant filed replications.

Upon final hearing on the pleadings and evidence in Special Term, the Supreme Court of the District of Columbia dismissed the bill. Upon appeal to the General Term, the decree of dismissal was affirmed. From the decree of affirmance the present appeal is taken.

Messrs. W.B. Webb and Robertson Howard, for appellant.

Mr. L. G. Hine, for appellees.

Mr. Justice Woods delivered the opinion of the court:

The case made by the bill of complaint is based on the will of Samuel Carusi, and upon the deed of trust alleged to have been executed and delivered July 18, 1872. The contention of complainant is that, by the deed, Lewis Ca

have, then, devised to Samuel Carusi an estate in fee simple, with an absolute power of disposition either by sale or devise clearly and unmistakably implied. Therefore, according to the adjudged cases, the limitation over to the nieces of the testator is void.

The rule is well established that, although generally an estate may be devised to one in fee simple or fee tail, with a limitation over by way of executory devise, yet when the will shows a clear purpose of the testator to give an absolute power of disposition to the first taker, the limitation over is void.

Thus, in the case of Atty-Gen. v. Hall, Fitzg., 314, there was a devise of real and personal estate to the testator's son and to the heirs of his body, and that if he should die leaving no heirs of his body, then so much of the real and personal estate as he should be possessed of at his death was devised over to the complainants in trust. The son in his lifetime suffered a common recovery of the real estate, and made a will as to the personal estate, and died without issue, and a bill was filed against his executor to account. It was held by Lord Chancellor King, aided by the Master of the Rolls and the Chief Baron of the Exchequer, that the devisee was tenant in tail of the real estate, and had barred the plaintiffs by the common recovery, and that the executrix was not to account for the personal estate to the persons claiming under the limitation, for that was void as repugnant to the absolute ownership and power of disposal given by the will.

In the case of Ross v. Ross, 1 Jac. & W., 154, a limitation over was declared void because it was limited upon the contingency that the first taker did not dispose of the property by will or otherwise. See, also, Cuthbert v. Purrier, Jac.

SUPREME COURT OF THE UNITED STATES.

415; Bourn v. Gibbs, 1 Russ. M., 614; Holmes
v. Godson, 8 DeG., M. & G., 152.

The American cases are to the same effect.
Thus, in Jackson v. Bull, 10 Johns., 18, Charles
Bull died seised of the premises in question.
By his last will, after devising a certain lot of
land to his son Moses, he declared: "In case my
son Moses should die without lawful issue, the
said property he died possessed of I will to my
son Young, his lawful issue," etc.
that the limitation over was void, as being re-
It was held
pugnant to the absolute control over the estate
which the testator intended to give.

In Ide v. Ide, 5 Mass., 500, the devise was to the testator's son Peleg, his heirs and assigns, with the following provision: "And further, it is my will that if my son Peleg shall die and leave no lawful heirs, what estate he shall leave to be equally divided between my son John Ide and my grandson Nathaniel Ide, to them and their heirs forever." Held, that his limitation over to John and Nathaniel Ide were void because inconsistent with the absolute unqualified interest in the first devisee.

OCT. TERM,

without heirs, shall leave, or without selling or der over is void because of his preceding fee; devising the same; in all such cases the remainand 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, Com., 271.

revoked and had been duly proven and recorded, If the will of Lewis Carusi had remained unthe property devised to him by Lewis Carusi and Samuel Carusi had died intestate, with all undisposed of, the complainant would be ennothing by the will. If the will can be held to titled to no relief, for she would have taken designate any beneficiary under the trust-deed of July 18, 1872, it designated Samuel Carusi and not the complainant and her sisters. complainant and her sisters were only entitled to But by the terms of Lewis Carusi's will, the 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 plainant, all the property devised to him by the persons therein named, among them the comlast 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.

from the precatory words of the will of Lewis The case of complainant receives no support 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.

He is not made a trustee for any purpose, and The words do not raise any trust in Samuel. 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

To the same effect is the case of Bowen v. Dean, 110 Mass., 438, where a man devised all his estate, real and personal, to his wife, to hold to her and her assigns, but should she die intestate and seised of any portion of said estate at the time of her death, then over. The wife took possession of the land and died having made a will by which she devised and bequeathed all her estate, real and personal. It was held that the will of the husband gave the wife, by necessary implication, an absolute power of disposal, either by deed or will, and this power having been fully executed by her will, nothing remained upon which the devise over in the will of her husband could operate. In Melson v. Cooper, 4 Leigh, 408, the case was this: John Cooper died in 1813 seised of the messuage and land in controversy, having, 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 tes-power of disposal. tator 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, unlim- in his Commentaries on Equity Jurisprudence, The rule is thus stated by Mr. Justice Story ited power to sell the land was given to William section 1070: "Whenever the objects of the supCooper by the devise, that he took a fee simple, posed recommendatory trust are not certain or and that George Cooper was not entitled to re- definite, whenever the property to which it is cover. See, also, Gifford v. Choate, 100 Mass., to attach is not certain or definite, whenever a 343; Hale v. Marsh, Ïb., 468; Ramsdell v. Rams-clear discretion or choice to act or not to act is dell, 21 Me., 288.

by the Master of the Rolls, Lord Langdale: "If In Knight v. Knight, 3 Beav., 148, it was said 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, that no trust was created." And see, S. C. nome Knight v. Boughton, 11 Cl. & F., 513. it has been held

*

property import absolute and uncontrollable
given, whenever the prior dispositions of the
ownership, in all such cases courts of equity
will not create a trust from words of this char-

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 pos-acter." sessed of the property without lawful issue, the remainder over the property which he, dying 1092

Wrightv. Atkyns, Turn. & R.,143; Stead v. Mel-
See, also, Wood v. Cox, 2 Myl. & C., 684;

ler, L. R.,5 Ch. D.,225; Lambe v. Eames, L. R., 10 Eq., 267; S. C., L. R., 6 Ch. App., 597; Hess v. Singler, 114 Mass., 56; Pennock's Estate,20 Pa. St., 268; Van Duyne v. Van Duyne, 1 McCarter, 397; 2 Pomeroy, Eq. Jur., secs. 1014-1017, 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.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

COUNTY OF SHERMAN, IN THE STATE OF NEBRASKA, Piff. in Err.,

v.

HENRY W. SIMONDS.

(See S. C., Reporter's ed., 735-741.)

County bonds, when valid-estoppel as to bona fide holder-Act authorizing bonds-construction of.

1. A bona fide holder for value of county bonds is not bound to go behind the law and the recital of the bonds, to inquire into the amount of the county indebtedness.

2. A decision by the officers whose duty it is under the law to fix the amount of bonds which can be lawfully issued, cannot be disputed by the county which issued them, in a suit by a bona fide holder for value.

3. An Act authorizing a county to issue bonds for its indebtedness, does not violate a constitutional provision that the Legislature shall pass no special Act conferring corporate powers.

4. Such an Act is not repugnant to a constitutional provision that the Legislature shall not pass any local or special laws granting to any corporation any exclusive privileges, immunity or franchise. 5. The word" corporation," as used in the Nebraska Constitution, does not apply to a county. [No. 975.] Submitted Dec. 10, 1883. Decided Jan. 7, 1884.

IN ERROR to the Circuit Court of the United

States for the

of Nebraska.

The history and facts appear in the

Statement of the case by Mr. Justice Woods: This was a suit brought on the coupons of certain bonds issued by the Commissioners of Sherman County, in the State of Nebraska, dated January 1, 1876, under an Act of the Legislature of that State, approved February 18, 1875, entitled "An Act to Authorize the Commissioners of the Counties of Colfax, Platte, Boone, Antelope, Howard, Greeley and Sherman to Issue Bonds for the Purpose of Funding the Warrants and Orders of Said Counties."

The Act referred to authorizes the commissioners of each of the counties named to issue

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bonds of the county, and to sell and negotiate the same for money, and declares that the proceeds arising therefrom should be used for the redemption of all warrants and other evidences of indebtedness drawn on the treasurer of the county, which were outstanding at the date of the approval of the Act, or might be outstanding prior to the first day of January, 1875. The Act contained the following provisos: "Provided, That no more of the bonds authorized to be issued by virtue of this Act shall be issued than is necessary to pay off and redeem such warrants so outstanding; and provided further, that the said commissioners shall not issue of said bonds to exceed in value the amount of said indebtedness up to January 1, 1875, nor shall said bonds be negotiated at a less price than eighty-five cents on the dollar."

The bonds recited on their face that they were issued by authority of said Act.

The answer averred that bonds were issued under said Act by the commissioners of said County of Sherman to the amount of $45,000, and that on January 1, 1875, the debts of said County did not exceed the sum of $16,000, and that the said bonds were negotiated for less than eighty-five cents on the dollar. On this answer the plaintiff below took issue. The parties waived a trial by jury, and submitted the cause to the court, which made findings, from which the following facts appear:

On January 1, 1876, the Commissioners of Sherman County, in pursuance of the Act of February 18, 1875, issued among others the bonds and coupons described in the petition, and the same came into the possession of the plaintiff, who was a bona fide purchaser for value, without notice of defects other than appear on the face of the bonds, and was still the holder and owner of said bonds and coupons.

The record of the Commissioners of Sherman County showed the allowance of $15,000 in claims against the County from the organization of the County to January 1, 1875, for which warrants were drawn on the Treasury, and no more; but they also showed that the Commissioners at one of their meetings estimated the amount of the county indebtedness which might be funded, at the sum of $36,874.95, for which it would be necessary to issue bonds to the amount of $43,400, and that bonds were issued pursuant to such estimate,

but it was not shown what the actual indebted ness of the County was at the time the bonds were issued.

Upon this finding the circuit court rendered judgment in favor of the plaintiff below for $5,671.60. To reverse that judgment this writ of error is prosecuted.

Messrs. Turner M. Marquett, C. S. Montgomery, Lewis A. Groff ‍and Hamer & Conner, for plaintiff in error.

Messrs. Nathan S. Harwood and John H. Ames, for defendant in error.

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Mr. Justice Woods delivered the opinion of the court:

The plaintiff in error insists that the facts found by the court show an issue of bonds by the county in excess of the amount authorized by the statute, and that they are therefore void. evidence of the facts recited: estoppel by. See note to cuit court to be a bona fide holder for value. The defendant in error is found by the cirMercer County v. Hackett, 68 U. S., XVII., 548.

NOTE.-Recitals in negotiable bonds or securities;

According to repeated decisions of this court, being such, he was not bound to go behind the law and the recital of the bonds to inquire into the amount of the county indebtedness. Marcy v. Oswego, 92 U. S., 637 [XXIII., 748]; Humboldt v. Long, Id., 642 [XXIII., 752]; Wilson v. Salamanca, 99 U. S., 499 [XXIV., 330].

But if it be conceded that a purchaser of the bonds was required to inspect the records of the County to ascertain the amount of its indebtedness, and whether there had been an over-issue of bonds, it appears from the findings of fact that the records of the commissioners contained an estimate of the indebtedness of the County made by them for the express purpose of fixing the amount of bonds to be issued, and in pursuance of which they were issued, which showed that there was no over-issue.

bonds, should be and the same were thereby le galized, confirmed and made valid in law. This Act was attacked as in violation of the same section of the Constitution which the plaintiff in error invokes in this case. It was contended that the Act in question, by legalizing bonds of the city, was void, because it had no power to issue them, was legally equivalent to an Act conferring upon the city power to issue bonds, which was conferring corporate power and, being a special Act, was, therefore, unconstitutional. But this court, speaking by Mr. Justice Matthews, said: "As the City of Plattsmouth. was bound by force of the transaction to repay to the purchaser of its void bonds the consideration received and used by it, or a legal equivalent, the statute which recognized the existence of that obligation and, by confirming the bonds themselves, provided a medium for enforcing it according to the original intention and prom

This was a decision by the very officers whose duty it was under the law to fix the amount of bonds which could be lawfully issued. A pur-ises, cannot be said to be a special Act conferchaser of bonds was not required to make further inquiry, and if the finding of the commissioners was untrue, he could not be affected by its falsity. See, cases above cited; also Lynde v. County, 16 Wall., 6 [83 U. S., XXI., 272]; Comrs. v. January, 94 U. S., 202 [XXIV., 110]; Warren Co. v. Marcy, 97 U. S.,96 [XXIV.,977]; Comrs. v. Bolles, 94 U. S., 104 [XXIV., 46]; Pana v. Boiler [ante, 424].

ring upon the city any new corporate powers. No addition is made to its enumerated or implied corporate faculties, no new obligation is, in fact, created." And the court added that the very proposition there involved was maintained by the Supreme Court of Nebraska in the case of Jefferson Co. Comrs. v. People, 5 Neb., 127, above referred to. See, also, R. R. Co. v. Otoe Co., 16 Wall., 667 [83 U. S., XXI., 375]; Foster v. Wood Co. Comrs., 9 Ohio St., 540.

The next contention of the plaintiff in error is that the Act by which the issue of the bonds In the cases of Clegg v. School District, 8 Neb., in suit was authorized was forbidden by section 178,and Dundy v. Richardson Co., Id., 508, cited 1, article VIII., of the Constitution of Nebraska, by plaintiff in error, it was held that an Act auwhich was in force at the date of the passage of thorizing a school district or a city to contract the Act. That section declares "The Legisla- a debt for the purpose of erecting a public buildture shall pass no special Act conferring cor-ing, and to issue bonds therefor, was forbidden porate powers.'

ror.

by the Constitution because it was a special Act In the case of the Jefferson Co. Comrs. v. People, conferring corporate powers. These cases are 5 Neb., 127, decided at the July Term, 1876, clearly distinguishable from those we have cited. the Supreme Court of Nebraska has conclusive- In the latter, as in the case now under review, ly settled this point against the plaintiff in er- a debt already existed, and the statute simply In that case, an Act of the Legislature, in authorized a change in the form of the obliga all material respects similar to the Act in ques- tion by which the debt was evidenced. The tion in this case, except that it related to but one distinction is clearly stated in Read v. Plattecounty, was brought under consideration. The mouth, ubi supra, the court remarking: "The answer averred that the Act was unconstitutional statute operates upon the transaction itself, and void. Upon this point the court said: "That which had already been consummated, and seeks Jefferson County is justly indebted to the re-to give it a character and effect different in its lator for the amount of the warrants in question legal aspect from that which it had when it was will not be controverted; and when such is the in force;" and adds that such a result" is not case, there is no doubt of the power of the leg-affected by the supposed form of the enactment islature to require the county to issue its bonds as a special or general Act conferring corporate for the amount of its indebtedness." powers." The cases cited effectually dispose of the point under consideration.

The question raised by this contention was also considered by this court in the case of Read v. Plattsmouth [ante, 414]. In that case an Act of the Legislature of Nebraska, approved February 18, 1873, was brought under review. The preamble of the Act recited that the city council of the City of Plattsmouth had issued and sold certain bonds, and with the proceeds thereof had proceeded to let the contract for the erection of a schoolhouse, and had appointed two persons, naming them, superintendents of the construction of the same, and that the work on said building had commenced. The 1st section then declared that all the acts and proceedings of the city council in relation to issuing said bonds and letting said contract and the appointment of said superintendents, and all matters and proceedings connected therewith, which might in any way affect the validity of said

Lastly, the plaintiff in error contends that the Act under which the bonds in suit were issued is repugnant to section 15, article III., of the present Constitution of Nebraska, which went into effect November 1, 1875; after the law authorizing the issue of the bonds was passed, but before the bonds were issued. The section referred to declares: "The Legislature shall not pass any local or special laws in any of the following cases: * * * Granting to any corporation, association or individual, any exclusive privileges, immunity or franchise whatever, In all other cases, where a general law can be made applicable, no special law shall be enacted."

It is a sufficient answer to the contention to say that the word "corporation," as used in this section of the Constitution, does not apply to a

county. If a county is a corporation at all, it is necessarily a municipal corporation. But the Supreme Court of Nebraska, in the case of Woods v. Colfax Co., 10 Neb., 552, expressly held that in Nebraska, a county was not considered to be a municipal corporation. And it is clear that the authority given by the Act of February 18, 1875, to Sherman and other counties, to fund the indebtedness evidenced by county warrants, by giving their bonds in exchange therefor, does not of itself make them municipal corporations. But it is unnecessary further to discuss this 109 U. S.

branch of the case. The decision of the Supreme Court of Nebraska in Jefferson Co. v. People, 5 Neb., 127, ubi supra, which, as before stated, was a case in all respects similar to this, and in which the constitutionality of a similar Act of the Legislature was put in issue, is precisely in point and is conclusive of the question in hand. We find no error in the record. The judgment of the Circuit Court is, therefore, affirmed. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-111 U. S., 96.

1095

END OF VOL. 109.

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