the time of her death, but were not completed until many months thereafter. but whether they were yet entirely paid for the plaintiffs were not certainly informed, and that, if not paid for, it was the only debt known to them, now existing against the estate. Reading the twenty-second clause in connection with the other parts of the will, and in the light of the attending facts, it is quite clear that the words 'take effect' are used by the testatrix as synonymous with or equivalent to the word 'executed,' with which they are coupled, and not as signifying that the devises and bequests shall not vest immediately, but only that they shall not be paid or carried out until the debt contracted by the testatrix for the construction of the Hodgson Memorial Hall shall have been paid out of her estate. Each devise and bequest is present and immediate in form, introduced by the words 'I give, devise, and bequeath.' The bill shows that the building and improvements referred to were, at the time of the death of the testatrix, in the course of construction, and so far advanced that they were actually completed within some months afterwards, so that the probable cost must have been capable of estimation at the time of the making of the will. The twenty-second clause is but a declaration of what the law would require, that the debt of the testatrix for the construction of the memorial hall must be first paid out of her estate before her devisees and legatees receive any benefit therefrom." In Treadwell v. Cordis, 5 Gray (Mass.) 341, we have the case of a will which made certain bequests and legacies, and provided, "and the rest, residue and remainder of the testator's estate, real, personal and mixed, not before disposed of, after payment of my just debts, funeral charges and charges of settling my estate, as well as the charges of my executors, * * * I give, devise and bequeath to my executors" in trust, etc. The Supreme Judicial Court of Massachusetts said: "The first and principal question upon the construction of this will is: How is this residue to be formed and ascertained, of what it shall consist, and in reference to what time it shall be considered to be made? (1) As to the first branch of this question, it appears to us that this 'residue' is to consist of the whole of the real and personal property which the testator leaves, subject to certain deductions, to be made by operation of law, or by direction of the testator. The executors are to administer the estate according to law, and for that purpose the first charge upon the property in their hands is for the payment of debts and charges on the estate; and to this they are liable whether the testator so directs or not. But in the present case he does direct that all debts and charges shall be deducted. There is also to be deducted that part of his estate 'otherwise disposed of' by the same will. *(3) The next material question is, at what time this residue must be deemed to be formed and established; and, though this has been already alluded to, it may be proper to add something further. We are of the opinion that this residue must be considered as formed at the time of the decease of the testator. He gives this residue, both of the real and personal estate, to the executors-the real estate in fee, the personal not subject to any condition precedent-so that the whole property vests in them by relation from the time of the decease of the testator, subject, of course, to charges upon it created by law, and others imposed by the will. The real estate is upon trust, to pay the net amount of the rents and profits 'as soon as received'; the personal upon trust, to pay all the dividends and income subject to charges 'as fast as they shall be received.' Now, as owners of the real and personal estate by the bequests, they are entitled to receive, and must actually receive, rents, dividends, and income; and they become accountable for such income to those entitled to it, from the decease of the testator. It is no objection to this view, we think, that the testator uses the term 'the residue of my estate, after the payment of my just debts.' The term 'after' does not always designate the time at which one thing is to be done in reference to something else; but it expresses the relative priority and subordination of one claim to another in matter of right. So we think it does here; the residue is to be formed subject to the payment of debts and charges, although they may be actually paid afterwards. And so of all other receipts and payments to be taken into consideration, as ascertaining the 'residue'; they cannot be made at the time of. the decease; some time must be required to prove the will, and do many other things; but they may be charged and credited as of that time, and so by an 176 F.-21 easy computation show the residue ascertained as of that time, for the purpose of adjusting the relative rights of those entitled to the income, and those entitled to a distribution of the capital." * In Haug v. Schumacher, 166 N. Y. 506, 60 N. E. 245, the words in a will which were construed, "immediately after the death of my said wife and the death of my said two sons * ** I give, devise, and bequeath all of my estate, real and personal," to grandchildren, were held to create future estates that vested at the time of the testator's death in the grandchildren in being at that time. The court quoted from the previous case of Corse v. Chapman, 153 N. Y. 466, 47 N. E. 812, the following words: "It is a well-settled principle of construction that the law favors the vesting of estates, and that the words 'from' and 'after,' or like expressions, as relating to the termination of the life estate, do not postpone the vesting of the estates in remainder until the death of the life tenant, but rather refer to the period when the remaindermen would become entitled to the estates in possession." In Lamb v. Lamb, 11 Pick. (Mass.) 378, the court construing the words, "It is my will that after settling my estate my wife have the interest of the remainder of my personal estate," said: "After settling my estate' seems equivalent to subject to the settlement. The word 'after' does not always nor necessarily refer to time, but to order in point of right or enjoyment." We deem it unnecessary to make other citations of authorities, and hold: (1) That the will of the testator did not create a distinct trust for the payment of his debts, which should continue beyond the lives of the wife and daughter, and until such debts were actually paid. (2) That the will did not, in violation of the statute of Michigan, suspend the power of alienation beyond the continuance of two lives in being. (3) That the testator did not die intestate as to the McGraw building and the lots upon which it is located. (4) That the grounds upon which the plaintiff seeks to establish an interest in the McGraw building and the lots on which it is situated cannot be upheld. These conclusions render it unnecessary to consider other questions discussed by counsel. The demurrers must be sustained, and the bill dismissed. It is so ordered. Henry B. Graves, for appellant. Orla B. Taylor, for appellee Ivey McGraw Serrill. Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges. PER CURIAM. Bill to remove a cloud cast upon the title to certain property to which complainant claims title as heir at law as not validly claimed under the will of Thos. McGraw, though claimed thereunder by some of the defendants. The cause came on to be heard upon demurrers to the bill, which were sustained, and the bill dismissed by the court below. This court upon full consideration sees no error in the decree below, and is content to affirm upon the opinion of Circuit Justice Harlan, who heard the case below in connection with District Judge Swan. Judge LURTON participated in the hearing and decision of this case, while a member of this court. HARRISON v. PHILADELPHIA CONTRIBUTIONSHIP FOR THE INSURANCE OF HOUSES FROM LOSS BY FIRE.† (Circuit Court of Appeals, Third Circuit. February 12, 1910.) No. 67. INSURANCE ( 55*)—MUTUAL COMPANIES-MEMBERS-RIGHT TO QUESTION VALIDITY OF PRE-EXISTING BY-LAWS. The holder of a policy of insurance containing a provision giving the company the right to cancel it on certain terms in accordance with the deed of settlement constituting the fundamental law of the company when it was issued cannot defeat such right on the ground that a prior amendment of the deed of settlement by which such provision was incorporated was ultra vires. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 69; Dec. Dig. § 55.*] Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. Suit in equity by S. Graeme Harrison against the Philadelphia Contributionship for the Insurance of Houses from Loss by Fire. Decree for defendant, and complainant appeals. Affirmed. For opinion below, see 171 Fed. 178. R. Mason Lisle, for appellant. W. W. Montgomery and John G. Johnson, for appellee. Before GRAY, BUFFINGTON, and LANNING, Circuit Judges. BUFFINGTON, Circuit Judge. This case is interesting historically, from the fact that it concerns the first organization in this country to insure property; but the facts and legal questions involved in its disposition are few and simple. The bill is by a member and policy holder to prevent the company from enforcing discontinuance of a policy of insurance on his property, unless he pays hereafter an increased premium. On final hearing the court below, in an opinion reported at 171 Fed. 178, dismissed the bill, whereupon complainant appealed. The company was formed in March, 1752, by a deed of settlement which constituted the subscribers members thereof, stipulated for their sharing the profits and loss "for and during the respective terms in his or their respective policies," and providing insurance for their property as follows: "Every person insuring shall deposite in the Hands of the Treasurer, as a Pledge for the Performance of his Covenants a certain Sum for every One Hundred Pounds insured, according to the greater or less Hazard of the Building on which the same is insured, agreeable to the Table hereto annexed. Which Deposite Money shall be returned to the person or Persons so depositing it, his, her or their Executors, Administrators or Assigns, at the Expiration of His, Her or Their Respective Policies, together with a proportionable Dividend of the Profits in the meantime, after Deduction of Losses and incident Charges only." *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Rehearing denied. In 1836 the deed of settlement was further changed by this provision: "Every policy hereafter to be issued by this Society shall be made to continue in force for an unlimited period. * * And it shall moreover be lawful for this Society, upon giving thirty days' notice, to cancel the policy, returning the deposit money upon a surrender of the policy. It shall also be lawful for the insured, on giving five days' notice and surrendering the policy to withdraw the deposit money, allowing a reduction of five per centum thereon." The relation between the complainant and the company is contractual, and originated in 1856, when his ancestor deposited $225 with the company and received its policy, dated June 3d of that year, for $1,500 on his property, and on February 27, 1871, another policy on other property for $7,500, he having deposited $490 therefor. Such policies provided that they were made "on the terms, conditions, and provisions in the said deed of settlement and in this policy contained or referred to." They contained the provision cited above, as amended in 1836. The insurance contracts continued undisturbed until September 20, 1907, when respondent notified complainant, who had succeeded to the rights and liabilities of his ancestor, of its intention to return his deposits and cancel the policies within 30 days, unless he would accept a partial reduction of the risk and an increase in the rate, with the return of a proportionate part of the deposit. No question of good faith is involved or that the action of the company is not justified by judicious insurance practice. The complainant refuses to modify his policies so as to permit them to remain in force, and by this bill seeks to enjoin their cancellation and the return of his ancestor's deposits. His contention is that his deposits constitute 1/874 part of the deposits in the company, that he is equitably interested in the assets in a similar proportion, and that a return thereof and cancellation of the policies would deprive him of the right to participate in assets and profits. To sustain this contention the plaintiff contends that the alterations of 1836 and other precedent actions of the company were ultra vires, illegal, and void. With that question this court has nothing to do; but, assuming for present purposes such provisions were open to such challenge by a proper party, those questions do not concern the complainant. His ancestor's connection with this company rests on the contract he made with it in 1856, and with the stipulations in that contract in his favor he must accept the stipulations his ancestor made in favor of the company. While that contract provided for the creation of rights to him, it likewise provided for the termination of those rights. His position is not unlike that of a tenant under lease, who, so long as that relation exists, is denied the privilege of contesting the title of him who created the tenure. Western Union Telegraph Co. v. Pennsylvania R. R. Co. (C. C.) 120 Fed. 362. In other words, standing on the insurance contract, to establish a right to relief, he must accept such relief only as is warranted by enforcing all the provisions of the contract. To sustain this bill, and prevent the company from in good faith forfeiting these policies in accordance with their stipulated provisions, would be to use the pow ers of a court of equity to aid in the violation, rather than the enforcement, of contracts. The decree of the court below is affirmed. GREAT WESTERN MFG. CO. v. ADAMS. (Circuit Court of Appeals, Eighth Circuit. February 23, 1910.) No. 3,095. 1. EQUITY (§ 3*)-GROUNDS FOR RELIEF RELIEF AGAINST NEGLIGENCE. Courts of equity will not relieve parties when their condition is attributable to a failure to exercise ordinary care for their own protection. [Ed. Note.—For other cases, see Equity, Cent. Dig. § 16; Dec. Dig. § 3.*] 2. REFORMATION OF INSTRUMENTS (§ 16*)—RIGHT TO REFORMATION-NEGLI GENCE. Complainant executed a deed for leasehold property which it held under a long term lease containing a provision for a reversion to the lessor for breach of a condition subsequent. Its deed contained a covenant of warranty which did not except such right of reversion and such right having been exercised it was sued on in its covenant by its grantee. Its attention had been particularly drawn to the omission, and it executed the deed only after verbal assurance from its agent contrary to the plain terms of its covenant. Held, that if the deed did not express its true intent it was due to its own fault or negligence, and that it was not entitled to a reformation of the same in equity on the ground of either mistake, fraud, or accident. [Ed. Note. For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. § 16.*] Appeal from the Circuit Court of the United States for the District of Kansas. In Equity. Suit by the Great Western Manufacturing Company against W. W. Adams. Decree for defendant, and complainant appeals. Affirmed. James A. Reed (W. W. Hooper and John H. Atwood, on the brief), for appellant. H. C. Mechen, for appellee. Before SANBORN and ADAMS, Circuit Judges, and McPHERSON, District Judge. ADAMS, Circuit Judge. This was a bill to enjoin an action at law and reform a deed. Relief was denied in the Circuit Court, and complainant appealed. The facts are these: On April 30, 1898, the complainant, the Great Western Manufacturing Company, executed a deed conveying to defendant Adams a leasehold term in and to a lot of ground in the town of Ozark, Ark. Before the execution of that deed the lot had been leased by the town, its owner, to the Ozark Canning Company for the term of 99 years. That company subsequently reconveyed it to its owner, and the town again leased it for practically the unexpired term of the Canning Company lease to W. S. Schultz and J. T. Jones, from whom the Manufacturing Company deraigns *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |