Syllabus.

A statute of Florida, approved February 22, 1881, contains the following provisions :

"Sec. 4. The verdict in actions of ejectment shall, when for the plaintiff, state the quantity of the estate of the plaintiff, and describe the land by its metes and bounds, by the number of the lot or other certain description.

“Sec. 5. The judgment awarding possession shall, in like manner, state the quantity of the estate, and give description of the land recovered."

This was an action of ejectment, and the verdict, which was for the plaintiff, did not state the quantity of the estate or describe the land. This is assigned for error, among others, and Perry, the defendant in error, in the brief which has been filed in his behalf, confesses that the judgment in his favor is thereby vitiated. Without considering any of the other errors assigned, therefore, we reverse the judgment on this ground alone and remand the cause for a new trial.

Reversed.

SHERMAN v. JEROME.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

Argued December 17, 1886.- Decided February 7, 1887.

A clause in a will gave to C the interest of $4000 for life, "the said sum' of $4000 to be equally divided, at C's death, between M, S, and J, or so many of them as should then be living. The will appointed P executor for New York, and G and D executors for Michigan. G and D, before the death of C, executed a paper and recorded it in Michigan, by which they, as executors, "set apart for the benefit of " C and "to be held" by them "in trust for the purpose of paying" said interest, and, upon the death of C, "for distribution" among M, S, and J, a bond and mortgage for $4000, on land in Michigan, given to the testator in his lifetime, which was overdue seventeen months when the paper was executed. None of the legatees assented to this proceeding or ratified it or waived their rights, nor was it authorized by any order of any court. C having died without the full interest on the $4000 having been paid to him, his administrator and M, S, and J filed a bill in equity in Michigan against G and D,

Opinion of the Court.

as executors, praying for an accounting and for the payment of the legacies. The executors set up as a defence that the bond and mortgage were the sole fund for the payment of the legacy, and that the general estate was not liable for it; Held, that the paper was revocable at any time, and did not amount to the decisive and irrevocable act which must exist to have the effect to transmute the property.

BILL in equity. The case is stated in the opinion of the

court.

Mr. George W. Miller for appellants. Mr. James C. Smith, Jr., was with him on the brief.

Mr. J. II. McGowan for appellees. Mr. Benton Hanchett filed a brief for same, submitting on his brief.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

In 1872, Sarah E. Little, then a resident of Perry, Wyoming County, New York, died at that place, leaving a last will and testament executed August 30, 1872, and a codicil thereto, executed September 9, 1872. The will, after giving sundry money legacies, proceeded as follows: "Fourth. I give and bequeath to Charlotte Sherman the interest of four thousand dollars during the term of her natural life, and at her decease the said sum of four thousand dollars shall be equally divided between Maria Cameron, Sarah E. Morse, and James Sherman, children of C. A. W. Sherman, or so many of them as shall then be living." By subsequent articles other money legacies were given, and then followed these articles: "Twenty-second. All bequests herein contained to persons residing in New York, and that to Maria Cameron, I desire paid first, and the remainder as fast as the money is available." "Twenty-sixth. I hereby appoint Henry N. Page my executor for carrying out the provisions of this my last will and testament, so far as they relate to parties and property in this state (in New York), and Charles W. Grant, of East Saginaw, and D. H. Jerome, of Saginaw City, Michigan, my executors for everything, so far as they relate to parties and property in the State of Michigan and elsewhere, and my executors are hereby authorized and

Opinion of the Court.

empowered to sell and convey any real estate of which I may be possessed as they shall deem for the best interest of the legatees."

On the 24th of December, 1881, the present suit in equity was brought, in the Circuit Court of the United States for the Eastern District of Michigan, by Charles A. W. Sherman, as administrator of Charlotte Sherman, deceased; Maria Cameron; James Sherman; and Sarah E. Morse; against David II. Jerome and Charles W. Grant. The bill sets out the foregoing provisions of Little's will and states these facts: Charles A. W. Sherman is the C. A. W. Sherman named in the will. Charlotte Sherman was his wife, and died in May, 1880, and he was appointed her administrator in December, 1881. In January, 1873, the will of Little was proved before the surrogate of Wyoming County, New York, and letters testamentary were issued to Page, named in it as executor. In March, 1873, letters testamentary on the will of Little were issued by the Probate Court for Saginaw County, Michigan, to Grant and Jerome. Page, in New York, and Grant and Jerome, in Michigan, entered upon their duties as executors. In New York, Little left property not exceeding a few hundred dollars in amount, which went into the hands of Page, and was used in defraying funeral expenses, leaving nothing in his hands with which to pay the legacies. Little left a large real and personal estate in Saginaw County, Michigan, which came into the hands of Grant and Jerome, as executors, and they have now in their hands a greater amount of the estate than is sufficient to pay to the plaintiffs their legacies and to pay all the other legacies. Grant and Jerome paid to Charlotte Sherman the interest on the $4000 down to April 1, 1876, but nothing more has been paid on the legacies to the plaintiffs. Maria Cameron, Sarah E. Morse, and James Sherman were living at the time of the death of Charlotte Sherman, and are still living. The bill prays for an accounting by the defendants, as executors, and for the payment to the plaintiffs of the amounts due to them for the legacies.

The answer admits that a part of the estate left by Little in Michigan came into the hands of Grant and a part into the

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hands of Jerome. It avers that, aside from the Coats bond and mortgage hereafter mentioned, Grant has none of the estate now in his hands, and Jerome has $9621.75, including any fees, commissions or compensation for his services. Accounts of receipts and disbursements by each defendant, as executor, are annexed to the answer. It then sets forth, that the defendants believed it to be their duty to set apart and invest, out of the estate, $4000, the interest of which, as they should be able to collect it, should be paid to Charlotte Sherman during her lifetime, and the principal be retained by them in such investment, and, after her decease, be paid over to Maria Cameron, Sarah E. Morse, and James Sherman; that, for that purpose, they took out of the estate and set apart a bond executed by one Coats to Little, in the penalty of $10. 000, dated May 1, 1869, conditioned to pay $1000 May 1, 1871, $1000 May 1, 1872, and $3000 May 1, 1873, with interest annually on all sums unpaid at 10 per cent., and a mortgage given to secure the bond, bearing the same date, executed by Coats to Little, mortgaging a parcel of land in East Saginaw, Saginaw County, Michigan, and recorded in the office of the register of deeds for Saginaw County; that, to set apart the bond and mortgage, they, on the 20th of October, 1874, executed and acknowledged the following instrument in writing, which was recorded in the office of said register of deeds on the same day:

"Whereas, by the last will and testament of Sarah E. Little, the interest of [the] sum of four thousand dollars is bequeathed to Charlotte Sherman for her life, and upon her decease the said sum of four thousand dollars is to be divided between parties therein named;

"And whereas, among the assets of the estate of said Sarah E. Little is a bond and mortgage made by Alice L. Coats to said Sarah E. Little, dated May 1, 1869, for the sum of five thousand dollars, on which there is now due four thousand dol lars, and which mortgage is recorded in the office of the regis ter of deeds of Saginaw County, Michigan, in liber O of mortgages, on pages 324 and 325:

"Now, therefore, we, the undersigned, executors of the said

Opinion of the Court.

will, do hereby set apart for the benefit of said Charlotte Sherman, and to be held by us in trust for the purpose of paying the said interest, and upon her decease for distribution among the persons named in said will, the said bond and mortgage. "In witness whereof, we have hereunto set our hands and seals, this twentieth day of October, A.D. 1874.

"Signed, sealed, and delivered in presence of —

"On this 20th day of October, A.D. 1874, before me, a notary public in and for said county, personally came the above-named David H. Jerome and Charles W. Grant, to me known to be the executors of the last will of Sarah E. Little, deceased, and acknowledged the foregoing instrument by them subscribed to be their free act and deed.

"BENTON HANCHETT,

Notary Public;"

by means whereof they set apart the bond and mortgage, as an investment in their hands, to be held by them as executors under the will, in trust, from which to collect the interest on the sum of $4000, represented by the bond and mortgage, as principal, and pay the same to Charlotte Sherman, and to collect and receive the principal, and pay the same, in pursuance of the direction of the will, to Maria Cameron, Sarah E. Morse, and James Sherman; that they made the investment properly, and in accordance with their duty; that their action was, in effect, the same, in all respects, as if they had taken the sum of $4000 in money and purchased a security for that amount, or had loaned that sum on security for the purpose of obtaining interest and retaining the principal to meet the payment of the legacy; that the investment was made according to the