21 F.(2d) 325 out for their benefit and use as the Secretary of the Interior may authorize in said cases.' This proposed amendment was speedily adopted and became a part of the departmental rules and regulations. In the latter part of November, 1922, McGugin, Ward, and Mott were again in Washington, and McGugin remained there until February of 1923. From time to time, some negotiations were carried on with the Department in respect to a purchase of a farm for the Barnetts near Coffeyville, Kan. Nothing came of this project. But, according to McGugin, in one of his conversations with Burke, the latter said: "What would be the attitude of you, as attorney for Mrs. Barnett, toward a distribution of a part of this estate to some worthy charity, and taking care of Barnett, rendering him secure?" In reply, McGugin said that Mrs. Barnett had never been adverse to a part of the estate going to such a charity, but it was her desire that whatever was given for that purpose should be for the benefit of the Indians, and that this was Barnett's desire as well as her own. McGugin went on to say to Burke that it had never been the desire of Mrs. Barnett or himself to try to "hog" the estate unreasonably, and that Mrs. Barnett should not have anything except what was a fair share. Further, he called attention to the fact that Barnett had already made two wills in which he had made liberal provision for Indian charities. McGugin informed the Commissioner that Mrs. Barnett would be opposed to any gifts to take effect during the lifetime of Barnett unless, at the same time, she was made a gift in some reasonable amount. The Commissioner said that the restrictions by which Barnett's property was burdened would probably be released in 1931; and, if the Creek died before that year, there would be endless litigation concerning his estate, and that therefore he would like to see at least a part of his property placed where it would be of lasting benefit to the Indians. He went on to say that, if some plans could be worked out in figures, which would be satisfactory to the Department, and which met with the wishes of Barnett, he was willing and ready for the Department to make some distributions from the estate. At this, McGugin and Ward went into an anteroom and talked over the details of distribution as should be made. Ward, it appears, called attention to the fact that several Indians had made gifts to Bacone College, which was under the jurisdiction of the American Baptist Home Mission Society. McGugin ob served that, while he had never talked about such a matter with Jackson and his wife, other than upon the occasion when he drew the Indian's will, he had no doubt that Bacone University would be a desirable agency to receive the money, and to distribute it for the benefit of the Indians. It is probable that at this conference the amounts to be distributed out of Jackson Barnett's funds were first seriously discussed, Ward proposing that the school be given $700,000 and that Mrs. Barnett receive $400,000. This division of the funds did not appeal to McGugin as being a suitable provision for Mrs. Barnett. Nevertheless, then and at later times Ward insisted that the division should be $700,000 to the school, and $400,000 for Mrs. Barnett, giving McGugin to understand that these figures would meet with the approval of the Department, and that it would not approve anything else. So matters continued, and McGugin had, with reluctance, about reached the conclusion to accede to Ward's position. But, before doing so, he again came into contact with Mott, to whom he related the status of the pending negotiations. Mott made the suggestion that the Department was in mighty poor business in giving the woman any money except such an amount as she would inherit if Barnett died without a will. He proceeded to state that: "The Department has recognized that woman as the dutiful wife of Jackson Barnett, and there are no circumstances justifying or excusing them from even giving her a penny less than one-half-just what she would inherit if Jackson Barnett died intestate.” The matter had not been placed before the Department in that light, but the following day McGugin hastened to do so. He talked with both Burke and Ward, with the result that they went into conference, and at its conclusion McGugin was advised that the Department would not be adverse to placing its approval upon a distribution of one-half of the Indian's estate for the benefit of Mrs. Barnett and one-half for the benefit of Bacone University, provided such plan met with the sanction of Mr. and Mrs. Barnett, and if the details could otherwise be satisfactorily worked out. McGugin lost little time in wiring to the Barnetts to come to Washington. In passing, it is to be observed that so far this plan had not been suggested to the man whose funds were thus to be distributed. McGugin was well satisfied with the successful outcome of his negotiations at the Department; and that night he again saw Mott. So happy was he at what had transpired, that he voluntarily picked up a piece of paper on witnesses who have known the Indian for a which he inscribed the following: "Whereas there is under consideration in the Department of the Interior, the possibility of my husband giving me $550,000, and such gift being approved by the Department of the Interior, as and when that gift is consummated, if consummated, I agree to give to M. L. Mott, $15,000." He signed it Anna Laura Barnett, by Harold McGugin. The paper was given Mott, and when Mrs. Barnett received her bonds, and had transferred a part of them to McGugin, in payment of his fee, he discharged the obligation of $15,000 he had given to Mott. In compliance with the request contained in McGugin's telegram, Barnett and his wife, accompanied by a man named Keith, went to Washington, and on December 15, 1922, Jackson Barnett placed his thumb mark on the authorization that resulted in the instrument that plaintiff seeks by this suit to set aside. It is unnecessary, I think, to cite all the details that led to the final execution of the formal instrument; but for a moment let some inquiry be made as to the extent of Barnett's knowledge of what was going on. He received no information from either Mott or McGugin. There is no evidence that Burke gave him an explanation of what was in prospect, or of what the result would be. If Mrs. Barnett took up the matter with her husband, the record is barren of proof of the fact, for she did not choose to testify. The work of informing Barnett seems to have been left to Ward. He said he had three or four conversations of fifteen to thirty minutes each with Barnett about the proposed gifts. The talks were had in English, and the most definite statement of Barnett's understanding of the matter that the witness was able to give was that when the instrument was about to be executed he asked Barnett: "Now, Jack, I would like to know what your understanding of this is,' and he says, 'My wife he get half, and the Bacone School get half.' 'Well,' continued Ward, 'Is that all?' 'Well,' said Barnett, 'I get money as long as I live.'" Previous discussions of the subject were, to use Ward's words, "monosyllabic." In the manner described, a king's ransom was transferred from its rightful owner to the donees under the documents that now engage the attention of the court. In addition to the revelation of Barnett's mental capacity as revealed by what has already been said, the record contains a considerable quantity of testimony given by various number of years, and who have formed opinions as to his intelligence and mental competence as a result of their contacts with him. The evidence given by these witnesses is in conflict; those of the plaintiff declare Barnett's incompetency, and those of the defendants believe him to have been fully capable of understanding the effect and purport of the instrument to which he affixed his thumb mark. At the trial, none of the litigants saw fit to call Barnett as a witness. Being desirous of forming some judgment of his mental capacity from my interrogation of him, I called him to the stand. At the time of doing so, each litigant conceded upon the record that the Indian did not understand the nature of an oath. He was therefore not sworn. From his answers to the questions put to him, I gained a distinct impression that he is a harmless, kindly, mentally undeveloped man, who was extremely bored at the court proceedings, and had no comprehension of their significance. He was able to impart information as to where he lived, as to the number and type of his automobiles, and that he was possessed of several cow ponies. He knew how long he had been in New York in connection with the trial, gave the name of the hotel at which he was stopping, and expressed some idea of the location of one of the restaurants at which he procured his meals. He was aware, too, of his ownership of a farm of about 70 acres, and that he had another piece of property on which there was an oil well; also that money came to him from the oil well, but he did not know the amount of his income. When asked if he had any idea of a million dollars, he answered, "No." Nor could he tell what might be done with that sum of money. Being interrogated concerning schools in Oklahoma, he replied: "Yes, there are lots of them out there; there is a blind school out there, and some Bacone School." When asked what he liked about Bacone School, he said he did not know. He could remember having been to the school, which had a lot of buildings, and where there were a good many Indians. He was then asked if he wished to do something for Bacone School, and his answer was: "I do not know. When I die, I ain't dead yet." At this point, it is well to quote the questions propounded by the court, together with the answers made by the Indian: "Q. What do you want to do with that school when you die? A. Well, they say they are going to let them have the money. gin. 21 F.(2d) 325 "Q. That is what who said? A. McGu- a negative nod answered that he did not put his thumb mark on a paper for the erection "Q. To let them have the money when you of a hospital. When asked as to what Mcdie? A. Yes. "Q. And what about the money while you are alive? A. I am going to keep it and eat off it. "Q. What was that? A. I am going to keep it and eat off it all the time while I live. "Q. Do you know where that money is now? A. No. "Q. Did you ever make a gift to this school, sign any papers about the school, giving them the money after you died? A. I do not know. "Q. Do you remember having signed any papers? A. I do not know. “Q. Well, would you like to give some money to some school here in New York for children? A. I do not know. “Q. Well, if there was a good school here in New York to take care of poor children? A. Yes. "Q. Would you like to help that school? A. I do not know. "Q. Would you like to do something for some hospital here in New York where they take care of poor children? Would you like to give some of your money when you die to some school or hospital here in New York A. Nodding affirmatively. "Q. You would? A. Yes; when I die. "Q. Do you like children? A. Yes. "Q. Do you want to do something for Indian children? A. What? "Q. Do you want to do something for Indian children? A. When I die, that is what they say. "Q. What was that, when you die they say? A. Yes. "Q. Would you like to do something for Indian children now, if you did not need all your money? Would you like to give some of your money to help Indian children? A. I do not know." On further examination, the witness recalled both Commissioner Burke and his predecessor, Commissioner Sells. He could remember that he saw the latter in Muskogee and later in Washington, and that Sells wished him to give money to a hospital. He was asked what Sells said to him about a hospital, and his answer was: "He said I ought to put up a hospital out there, and I told him 'No.'" He said he thought Sells asked for about a million dollars, and that he would have put but that there was not so much sickness at that time. He disclaims ever having told Sells that he would build a hospital, and by it up Gugin said about Bacone School, he said: "Well, nothing. He said when I die I am leaving to the Bacone School children to have the money." Barnett was then asked what he said. The reply was: "I told him I think I will go ahead and come back, and asked him the same thing, and when I died I could not have nobody, I would have to let him take it up when I died.” Asked if he had ever been in court, he said, "No;" but he remembered having talked to a judge in Coffeyville. He said that he had never spoken to any other judge, and at the present examination declared that he did not know that he was talking to a judge. He recalled certain persons who visited him in California some time prior to the trial, and could remember his marriage. When dependent upon his own resources, he had been able to save about $100, and stated that he had owned some horses and a cow and chickens, together with some beef cattle which he sold. He was able to tell what it cost to stay at his hotel in New York, and to give some idea as to the purchase price of his clothes; also, that his house and farm cost about $30,000. He did not know, however, whether it would cost $1,000 to go from New York to his home in Los Angeles. When asked if he knew how much money would go to Bacone School from his gift to that institution, he answered: "Well, I do not know; I have to use that money to eat. I am living yet." When asked if he knew how much money Bacone School would get after his death, he replied: "Well, yes; but they are not getting that while I am living yet." He then said that he did not know what the amount would be. This inquiry was then made: "Well, can you not tell me anything like what it would be?" He answered: "I do not know. About fifty or twenty-five." When inquiry was made as to whether he knew the difference between $100 and $1,000, he said, "Yes;" and answered that "$1,000 was more than a hundred and that a hundred is not quite a thousand.". He could not tell, however, how far short of $1,000 $100 is. He also knew that $100,000 is a larger sum than $1,000. He believed that $7,500 is a greater sum than $100,000, but could not tell whether $500,000 was more than $100,000. As to his talks with McGugin in Washington, the witness declared that he did not say anything, and then added: "I told him that I would not like to have Bacone School. When I died, I would let them have the rest of the money." When asked if his wife was to receive any money, he said: "No; never figured on her." He said that he did not talk to Ward about Bacone School. Asked as to the amount of money he would like to have to eat with and for his own use over the period of a year, he said he did not know, but finally added, in answer to questions, that $50 would not be enough and did not know if $1,000 would be sufficient. He remembers having given some money to a Baptist Church in Henryetta, but could not tell the amount. Outside of some details as to his immediate personal desires and wants, he was unable to express any intelligent conception of what had been done with his property or of what action he had taken in connection with it. [1, 2] From all the evidence in the case, I am strongly of the opinion that the gifts which purport to have been made by Barnett cannot be regarded as his acts and deeds, and must be held to be void and of no effect. The alleged donor had no real comprehension and understanding of what he was induced to do, and thus was without that clear and unmistakable intention to part with his property which is, as I understand the law, an essential requisite of a gift inter vivos. Snavely v. Henderson (C. C. A.) 204 F. 978, and cases cited in 28 C. J. 627. It is impossible for me to think that Barnett had any more appreciation or concern for the welfare of Bacone University than was felt by some one of his ancestors who passed to "the happy hunting grounds" of legend, long before he was born. That he knew the value and extent of his property, or conceived the nature of the provisions for himself in the trusts that were created, appeals to me as incredible. While he is not insane and is not an idiot, his intelligence is so stunted and undeveloped that he lacked the capacity to know what he was doing. In consequence of this, and as stated at the outset, there was nothing upon which the approval of the Secretary could operate, and his acts in the premises were a nullity. Whatever may have been his authority to release restrictions upon Barnett's property, and admitting the honesty of his belief and that of his subordinates, that the arrangements made were for the Indian's benefit, he was without authority, as were Burke, McGugin, Ward, and Mrs. Barnett, to appropriate and give away property to which they had neither title nor power of disposition. [3, 4] As the instrument under which Barnett's funds were removed from the custody of the Secretary of the Interior was and is invalid, the defendants, both of which were put on notice of the Indian's incompetency, and the gifts having been without consideration, can take no property or beneficial interest therein, and must be found to hold the same, together with the interest thereon, for the benefit of the rightful owner of the property. Each of the defendants will be required to account for their possession and control of the property, its income and proceeds that came into their hands, and to turn over the whole thereof to the Secretary of the Interior, to be held by him as property of the said Jackson Barnett, under and pursuant to the acts of Congress relating thereto. [5] Since this case was tried, the appointment of Elmer S. Bailey as guardian of the estate of Barnett, heretofore made by one of the courts of Oklahoma, has been set aside, but without an adjudication that he is or was competent at the time of the appointment. Such fact does not impair the right of plaintiff, as prochein ami of Barnett, to maintain this suit. In any event, the United States, as intervener, may have the relief which will be accorded by the decree. The question of the right of the United States to be here as intervener has been previously passed upon, and will not again be considered by this court. In conclusion, and as bearing upon Barnett's competency, it is fitting to observe that, shortly after the gifts with which this opinion has dealt, he was, at the instance of his wife, declared to be incompetent by a court of California, and guardians of the person and estate were there appointed. In view, however, of the fact that the property of Barnett in the hands of the present defendants should not have been removed from the custody of the Secretary of the Interior, under the circumstances then presented to him, I think the same should be returned to the custody of that official, and there is no necessity to deal with the question of the relative rights thereto of the Secretary and the guardian of Barnett, who may at any time have been appointed by the courts of either of the states of Oklahoma and California. 21 F.(2d) 333 SOUTHERN RY. CO. v. QUERY et al., District Court, E. D. South Carolina. On Rehearing June 27, 1927. No. 410. 1. Courts 314-Domestication of railroad corporation did not deprive it of right to invoke federal courts' jurisdiction on ground of diversity of citizenship. Domestication of railroad corporation under state law did not deprive it of the right to invoke jurisdiction of federal courts on ground of diversity of citizenship. 2. Courts 299(1)-Federal court's jurisdiction must be determined according to averments of bill. Question of federal court's jurisdiction on ground that suit arises under Constitution of United States must be determined according to averments of the bill. 3. Courts 101-Application for Interlocutory injunction involving validity of administrative order of state tax commission requires hearing before 3 judges (Judicial Code, $266, as amended by Act Feb. 13, 1925, § 1 [28 USCA § 380]). 7. Constitutional law 284 (2)-Failure to give notice and opportunity to be heard before assessing state income tax held not denial of due process (Income Tax Act S. C. 1922). Failure to give notice and opportunity to be heard before taxes were assessed under Income Tax Act S. C. 1922 (32 St. at Large, p. 896), held not to constitute taking of property without due process of law. 8. Taxation 608 (12) —Showing that assessment of state income tax creates cloud on title constitutes ground for injunctive relief, absent remedy at law (Income Tax Acts S. C. 1922, 1926). Railroad, seeking to recover additional income tax assessed by state, held to have shown ground for exercise of equity powers of the federal court to enjoin such tax, provided there is no adequate remedy at law, in that the action of tax commission would create a cloud upon the title under provisions of Income Tax Act S. C. 1922 (32 St. at Large. p. 896), and Income Tax Act S. C. 1926 (35 St. at Large, p. 1) authorizing levy on property within state which became liens thereon. 9. Taxation 608 (12)-Federal court will not enjoin collection of state tax creating cloud on title, if cloud can be removed by payment under protest. If railroad can remove cloud on title occasioned by assessment of state income tax by payment of taxes on protest, there exists an Application for interlocutory injunction in adequate remedy at law, and injunction will not case where administrative order of a state tax commission is attacked as unconstitutional should be heard before three judges in accordance with Judicial Code, § 266, as amended by Act Feb. 13, 1925, § 1 (28 USCA § 380 [Comp. St. § 1243]). 5. Courts 262(2)-Remedy at law, to defeat federal jurisdiction in equity to enjoin state tax, must be complete. Remedy at law, in order to preclude jurisdiction of federal court of equity to enjoin collection of state taxes, must be plain, full, and complete, and, where remedy at law is doubtful, taxpayer need not speculate as to what the decision of court of law will be, whether state or federal, but is entitled to injunction. 6. Taxation 611(9)—Railroad held to have made sufficient prima facie case on application for interlocutory injunction against collection of state income tax. Interstate railroad, suing to recover additional income tax assessed by state, held to have made a prima facie case as to illegality of the assessments, provided other essentials necessary to interlocutory injunction were shown. issue by federal court in equity. 10. Courts 262 (2)—Remedy at law, not available in federal courts, does not preclude federal jurisdiction in equity (Act S. C. March 22, 1922 [32 St. at Large, p. 1017]). 1922 (32 St. at Large, p. 1017), to compel reRemedy authorized by Act S. C. March 22, fund of state income tax by mandamus, not being available in federal courts, is not such adequate remedy at law as precludes federal jurisdiction in equity. 11. Courts 265-Federal courts may not issue mandamus as an original proceeding. Federal courts have no power to issue writ of mandamus as an original proceeding. 12. Courts 262 (2)-Remedy by proceedings unknown in federal courts is "inadequate" as affects federal jurisdiction in equity. In order to prevent a court of equity in federal courts from assuming jurisdiction in a proper case, remedy at law must be available in federal courts, and, where machinery provided by act creating remedy is unknown to federal courts, the remedy is inadequate. 13. Courts 365 (1)-State court decisions cannot define equity jurisdiction of federal court. Decisions of state Supreme Court cannot define jurisdiction of equity of federal court. 14. Courts371(6)-Right under state law to recover illegal taxes may be enforced in federal court if jurisdictional elements exist. Right given by state law to recover illegal taxes paid to state under protest by ordinary |