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Opinion of the Court.

best of their judgment, and in good faith; that they then believed the security was ample, and that the bond and mortgage were a desirable security for providing for the legacy; that Coats was then believed by the defendants to be worth, in her own right, the sum of at least $75,000 over and above the real estate covered by the mortgage; that they then believed also that the real estate was a good and sufficient security by itself to secure the payment of the $4000 and interest thereon; that the money secured by the bond and mortgage was not collected from Coats, because they believed the security, as it stood, was an entirely satisfactory and altogether desirable one, and an investment as good as they could make; that on such setting apart of the security, Charlotte Sherman was informed thereof, and thereafter Grant collected from Coats, on the bond and mortgage, four sums of $200 each, which he paid to her, he having, in January, 1874, paid to her $200, all on account of her legacy; that no other sums have since been collected by the defendants on the bond and mortgage, and there is due thereon $4000 of principal, and interest from May 1, 1876; that when the interest ceased to be paid the defendants notified Charlotte Sherman thereof, and asked her advice and direction as to foreclosing the mortgage, and since her death they have requested the advice and direction of the plaintiffs in regard to collecting the bond and mortgage, and have advised them of the setting apart of the security; that the defendants have offered, and now offer, to transfer the bond and mortgage to the plaintiffs; that they have paid $132.43 for taxes on the mortgaged land, which were a lien on it, and which should be reimbursed to them; that since the investment, Charlotte Sherman and the plaintiffs have had no right to claim payment of any part of the legacy out of the estate of Little; and that the investment has remained the sole fund out of which the legacy should be paid. The answer then admits that the amount which came into the hands of the defendants from the estate of Little was sufficient, after paying all the debts of Little, to pay the legacy to the plaintiffs. and all the other legacies payable before that legacy, according to the directions of the will, but such amount and the es

Opinion of the Court.

tate was not sufficient to pay all the legacies, not including the residuary legacy. It then avers that, according to the provisions of the will, it was not their duty to pay over the $4000 to Charlotte Sherman; and that the other legatees under the will always objected, after such investment had been made, to any other provision or payment being made out of the estate on account of that legacy.

It was stipulated by the parties that Charles A. W. Sherman was administrator of Charlotte Sherman, and that Page had not, at the time of the filing of the bill, or at any time, any funds in his hands belonging to the estate of Little, except as alleged in the bill.

The case was heard on bill and answer. A decree was made providing, that the defendants, as executors, have in their hands, and hold, said bond and mortgage, in trust for the payment to the plaintiffs of the legacy specified in the fourth clause of the bill; that the plaintiffs are entitled to the payment of the proceeds of the bond and mortgage, after deducting therefrom the expenses of the collection thereof, and the amounts paid, and to be paid, by the defendants for taxes on the property covered by the mortgage, to preserve the lien thereof, and the costs of this suit; and that the defendants foreclose and collect the bond and mortgage, by proper legal proceedings, and, out of the proceeds, retain the necessary and reasonable costs and expenses of such foreclosure and collection, and the amounts so paid, and to be paid, by them for taxes, and their costs of this suit, and pay the balance of the proceeds to the plaintiffs in payment and discharge of the legacy. From this decree the plaintiffs have appealed.

The only question necessary or proper to be disposed of on this appeal, in view of the pleadings and of the terms of the decree below, is whether the special matter alleged in regard to the setting apart of the bond and mortgage, is a defence to the suit.

At the time of the execution of the paper of October 20, 1874, the unpaid $4000 secured by the bond and mortgage had been overdue more than seventeen months. There is no suggestion that any of the legatees named in the fourth article of

Opinion of the Court.

the will consented to the setting apart of the bond and mortgage, or that there was any order of any court on the subject. The fourth article gives directly to Charlotte Sherman the interest of $4000 for life, and at her decease gives directly to such of the other three persons named as shall then be living, "the said sum of four thousand dollars," to be equally divided among them. Under these circumstances, the execution of the paper of October 20, 1874, by the defendants, setting apart the bond and mortgage, to be held by them in trust, even though the paper was put on record, amounted to no more than if they had retained the bond and mortgage, without executing any such paper, and had merely made a mental resolution to consider the bond and mortgage as set apart for this legacy. There was no second party to the paper, no transfer in it, no contract, and the beneficiaries never assented to it, or ratified it, or waived their rights; and, in the absence of any such action by the beneficiaries, it was revocable at any time. Without deciding what course, if any, might lawfully have been taken by the defendants at the time in question, to effect the object they sought, we are of opinion that what they did was of no more avail to that end than the mere mental determination of the executor in Miller v. Congdon, 14 Gray, 114. Even though the mental determination took the shape of a written declared purpose, it did not amount to the decisive and irrevocable act which must exist to have the effect to transmute the property.

The decree of the Circuit Court is reversed, and the case is remanded to that court, with a direction to take such further proceedings therein as shall not be inconsistent with this opinion.

Statement of Facts.

UNITED STATES v. NORTHWAY.

CERTIFICATE OF DIVISION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Argued January 4, 5, 1887. - Decided February 7, 1887.

The question whether either of the counts in an indictment charges an offence under the laws of the United States, is too vague and general to be certified in a Certificate of Division of Opinion.

An indictment charging that the defendant, "as president and agent" of & national bank, did the acts forbidden by Rev. Stat. § 5209, does not vitiate the counts in which he is so described.

In an indictment, under Rev. Stat. § 5209, for wilfully misapplying the funds of a national bank, it is not necessary to charge that the moneys and funds alleged to have been misapplied had been previously intrusted to the defendant; since a wilful and criminal misapplication of the funds of the association may be made by its officer or agent without having previously received them into his manual possession.

In charging, in an indictment, the president of a bank with aiding and abetting its cashier in the misapplication of the funds of the bank, it is not necessary to aver that he then and there knew that the person so aided and abetted was the cashier.

An indictment which charges in substance that the defendant was president and agent of a certain national bank theretofore duly organized and established, and then existing and doing business, under the laws of the United States, and that, being such president and agent, he did then and there "wilfully and unlawfully and with intent to injure the said national banking association, and without the knowledge and consent thereof, abstract and convert to his own use certain moneys and funds of the property of the said association of the amount and value," etc., sufficiently describes and identifies the crime of abstracting the funds of the bank created by Rev. Stat. § 5209.

An indictment which charges that the defendant "was then and there president and agent of a certain national banking association, to wit: [naming the association] theretofore duly organized and established, and then existing and doing business at [naming the place] under the laws of the United States," sufficiently states that that bank was organized under the national banking act, or to carry on the business of banking under a law of the United States.

THIS was a certificate of division of opinion as to the sufficiency of the counts in an indictment for abstracting and misapplying the funds of a national bank. The case is stated in the opinion of the court.

Opinion of the Court.

Mr. Solicitor General for the United States.

Mr. J. B. Burrows and Mr. A. J. Marvin for the defendant. MR. JUSTICE MATTHEWS delivered the opinion of the court.

On the 23d of April, 1885, the grand jury for the Eastern Division of the Northern District of Ohio returned an indictment, apparently founded upon § 5209 of the Revised Statutes, against Stephen A. Northway, as president and agent of the Second National Bank of Jefferson, a national banking association. On July 13, 1885, the record was, on motion of the district attorney, remitted to the Circuit Court. There are fifty-nine counts in the indictment; all of these were quashed except counts 2, 12, 15, 16, 28, 30, and 46, to each of which the defendant interposed a general demurrer. This demurrer came on for hearing before the Circuit Court, composed of the circuit judge and the district judge for that district, who certify to us that on the hearing they were divided and opposed in opinion on the following questions :

*

"1st. Whether either of said counts charges defendant with an offence under the laws of the United States.

"2d. Whether the charging of the defendant with committing the acts therein charged against him as 'president and agent' did not vitiate said counts of said indictment.

"3d. Whether under § 5209 of the Revised Statutes of the United States it was necessary in the indictment to charge that the moneys and funds alleged to have been embezzled and misapplied, or either, had been previously intrusted to the defendant.

"4th. Whether it is necessary in charging said defendant with aiding and abetting Sylvester T. Fuller, cashier of said bank, as in counts sixteen, twenty-eight, and forty-six, with the misapplication of the funds of said bank, to charge that the defendant then and there knew that said Fuller was such cashier.

"5th. Whether said second count sufficiently describes and identifies the crime of abstracting the funds of the bank created by the act of Congress.

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