Buckner's ex'rs, &c., vs. Cromie's ex'rs. executor qualified on the 5th of March, 1869, and, on the 7th of April afterwards, this action was brought by the executor and devisees of Buckner against the executors of Isaac Cromie, alleging the foregoing facts, and charging that the defendants to said action (now appellees) had no power to make the sale and conveyance to their testator, James P. Buckner, and that he acquired no title to the property thereby; that the executors of Cromie had not settled their accounts as such, and had not distributed the estate of their testator, and prayed that the attempted sale should be set aside on equitable principles and for general relief. The petition was demurred to by appellees. The demurrer was sustained by the court and appellants; having declined to tender an amendment, their petition was dismissed, and they have appealed. The executors of Cromie claim the power as being directly conferred on them under the sixth clause of his will, which is in the following language: "I give, devise, and bequeath all the rest and residue of my estate, real and personal and mixed, of which I shall be seized and possessed, or which I shall be entitled to at the time of my decease, in as nearly equal amounts or parts as may be--say one half to the Presbyterian Orphan Asylum of Louisville, and the remaining half to the House of Mercy of the city of New York, to be divided equally within two years, or sold within five years, and the proceeds accruing to be divided as previously set forth." And furthermore, that the intention of the testator to confer the power on his executors is shown by that part of the second clause of the will, in which $6,000 are bequeathed to his sister, to be paid her within twelve months, if the same can be realized from the sale of any of my estate without unnecessary sacrifice, &c. Buckner's ex'rs, &c., vs. Cromie's ex'rs. The will of Isaac Cromie is no stranger to this court. The case of Cromic's heirs vs. Louisville Orphans' Home Society, &c., reported in 3 Bush, 365, involved the legal interpretation and effect of said will. In that case it was expressly decided by this court, that the institution or corporation, denominated in the sixth clause of the will The House of Mercy of the city of New York, took no part of the real estate of the testator. It was so adjudged in the following language: "None of the real estate devised to that corporation should, therefore, be adjudged to it in this case, but relapses to the testator's heirs, and should be decreed to them." If one half of the real estate of the testator did not pass at all by his will, but relapsed to his heirs, the title vesting absolutely in them, and no express power given. the executors to sell it, it seems to result, necessarily, that the sale and conveyance to appellant's testator was without authority. If the one half of the said Cromie's real estate passed to his heirs by descent, the will as to that, being inoperative, they have a right to take it as real estate, and that right cannot be defeated by any act of the executors. But, besides that, in the clause of the will quoted, the Orphans' Asylum of Louisville have the right to elect, within two years from the probate of the will, to take the one half of the real estate, instead of the proceeds thereof; and if the devise had been good to the other corporation, it would have had the same right; so that, under any state of case, the executors could not have sold the real estate, if these institutions elected to take it. They had two years to make that election in, and, until the expiration of that period, there was no power of sale anywhere, unless the election had been made before the expiration of the time. The alleged sale was made in less than two Marshall & Kilpatrick vs. H. H. Curtis, &c. months after the probate of the will. From all that appears, the attempted sale was made without any power in the executors therefor; and, consequently, the demurrer should have been overruled. Wherefore, the judgment is reversed, and the cause is remanded for further proceedings consistent herewith. CASE 62-PETITION EQUITY-SEPTEMBER 28. Marshall & Kilpatrick vs. H. H. Curtis, &c. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The local law of a State can give no liens to be adjudicated and enforced in the State courts by a proceeding in rem against a vessel plying between the home port and a port in another State, even to a resident of the home port and against a vessel whose owners reside at the same port. It would be in conflict with the Constitution of the United States (clause 1, sec. 2, art. 3, and the Judiciary Act of Congress of 24th September, 1789), which gives jurisdiction exclusively to the United States Admiralty Courts. (The Moses Taylor, 4 Wallace, 411; Hine vs. Trevor, Ib., 571.) 2. A proceeding against "The Steamboat Magnolia and owners," in which the thing itself is seized and impleaded as a defendant, without naming the debtor and present owner, and making them parties, is strictly an action in rem. 3. The marine lien, of which the United States Admiralty Court has exclusive jurisdiction, attaches to the thing which can be followed anywhere and enforced against any person, by making the thing a defendant. No such remedy was known to the common law, Marshall & Kilpatrick vs. H. H. Curtis, &c. therefore, such cases do not fall within that clause of the Judiciary Act of 1789, saving to the State court's jurisdiction where the common law afforded a remedy. (The Moses Taylor, supra; The Dine vs. Trevor, supra; Bird vs. The S. B. Josephine, 39 N. Y., 19; The Belfast, 7 Wallace, 631.) 4. The act of 1789 saves to the State courts a common law jurisdiction, with common law remedies; but the right of proceeding in rem against a vessel as the defend int, was never a common law remedy, and was derived from the civil law. At common law, the debtor or owner is an essential party, and must be before the court by actual or constructive service. His interest in the vessel may be attached. 5. By the Admiralty law, as understood both in England and America, no lien attaches, even on a vessel engaged in a foreign trade, for repairs done or materials furnished at the home port, except such as a shipwright had at common law, which was so long as he retained the possession. 6. Most of the States, by legislative enactment, have given material men, mechanics, &c., a lien on vessels for repairs, materials, &c., which, there can be little doubt, the local law might authorize the State courts to enforce by a common law proceeding in personam, and by attaching the interest of the original debtor or his vendee, inasmuch as such liens are not of original Admiralty jurisdiction. J. F. & T. W. BULLITT and JAS. O. BROADHEAD, CITED For Appellants, 8 B. Mon., 87, 88; Dudley vs. Price. 1 Parsons on Contracts, 3d edn., 320, 321, and note c. Judiciary Act of Congress of 1789, sec. 9. 4 Wheaton, 438; The General Smith. 2 Gallison, 398, 401. 2 Parsons on Maritime Law, 511. 11 Peters, 184; The Orleans. 12th Rule of Admiralty. 21 Howard, change of 12th Rule of Admiralty. 1 Black, 526; Steamer St. Lawrence. Abbott on Shipping, 162, 163. Benedict's Admiralty, secs. 31, 32. Marshall & Kilpatrick vs. H. H. Curtis, &c. BARRET & ROBERTS and JOHN M. HARLAN, CITED For Appellees, Civil Code, secs. 264, 268, 762, 46, 118. Sec. 9, Judiciary Act of Congress of 1787, 1 Brightly. Rev. Stat., 1 Stant., 201, 204. 1 Bush, 532; Kendall and wife vs. Coons. Act of 1839, Loughborough's Digest, 112. 34 California R., 676; The People vs. Steamer America. 4 Bush, 396; Steamboat Hyatt vs. Reitz & Haney. 7 Mon., 584; 5 B. Mon., 449; 8 B. Mon., 307. 1 Code Reps., N. S. (N. Y.), 175; Patterson vs. Taylor. CHIEF JUSTICE WILLIAMS DELIVERED THE OPINION OF THE COURT, IN WHICH JUDGE HARDIN DID NOT CONCUR: Appellees, as material men, mechanics, &c., by proceeding in rem against the "steamboat Magnolia and her owners," attached her at Louisville, Kentucky, averring that she was then in that port, advertised for the port of New Orleans, Louisiana, and that she would soon be taken beyond the jurisdiction of the court and out of this State; also, that they had furnished said boat, and done work upon her; that they and the owners were residents of St. Louis, Missouri, and that, by the laws of the latter State, they had a lien upon the boat, her tackle and furniture. Neither the debtor nor present owners, by name, were made parties other than by the designation of "owners." Appellants bonded the boat, and put in their defense to the action, in which they deny any responsibility for said claims, as they had, since their creation, bought said boat; that she was plying between the ports of St. Louis, MisVOL. V-39 |