Cowen v. Adams

SEVERENS, District Judge, haring made the foregoing statement of facts in the case, delivered the opinion of the court. The first question, in due order, which we are required to decide, is whether the suit is defective for the want of parties in respect to the object sought to be attained. The suggestion of the defendants is that the other legatees than William Means should have been made defendants. The object of the bill is to obtain a decree setting aside a receipt given to the administrators by William Means for the legacy given him by his father’s will, and establishing the right of the complainants to recover the amount of such legacy. It cannot be doubted that the subject-matter of the suit is one of equitable cognizance, and that the bill was filed in the proper court. Payne v. Hook, 7 Wall. 425; Byers v. McAuley, 140 U. S. 608, 13 Sup. Ct. 906. The transactions in which the receipt was obtained were conducted in behalf of the estate by the administrators, and by them only. They alone represented the estate, and they are its sufficient representatives in a suit to set it aside. In respect to the other branch of the relief sought, attention must be given to the essential nature of the controversy. It related substantially to the question whether certain funds which had been supplied by Thomas W. Means to William Means were in the nature of a debt to the estate, and so competent to be set off against his legacy. This is the theory of the counsel who represent the administrators, and we think it is entirety correct. Ad — 544 — ministrators and executors are possessed of tlie legal title to the personal property of the estate. If there is a debt, they have a right to it in their representative capacity. In any controversy as to whether it is a debt or not, they are the proper litigants, and the only proper ones on that side of the controversy. They are trustees of the estate, and whether a certain claim is or is not parcel thereof is to be determined in a suit in which they stand for the estate. That there are legatees who are consequentially interested in the result does not make it necessary that they should be present in the suit, unless in a case where the trustees b'ehave fraudulently towards them. The beneficiaries may sometimes be proper parties, but ordinarily, at least, they are not necessary parties. The controversy, as above stated, is the only one which exists, except that which relates to the receipt. No one questions the existence of the will, or the right of William Means to the, legacy, and the only question is, as before stated, whether he owes a debt to the estate which must be set off against it. The question in this case is one relating to personal property only. The administrators have not the title to real estate. That passed directly to the devisees. The personal property they take from the hand of the administrators. We think that the administrators were the competent representatives of the estate, and the only necessary ones as the controversy now stands. It may be that the court cannot go so far as to order distribution, but it may go so far as to determine the right of complainants, and set aside the receipt, if that should be held proper. This would be no new thing. There are several cases in the supreme court and circuit court reports, where that has been the limit of the action of the court. Payne v. Hook, supra, is one of them, and is familiar. Nor is the bill premature for such purposes. In the court below no question was raised as to the necessity of other parties until the hearing, when it seems to have occurred to the court that the suit might, on bringing in the other legatees, be treated as one for the settlement of the estate and proceed as such. In his opinion the learned judge held against the complainants on the principal question, “that the balance due by William Means to the estate of his father at his death was properly a debt, and not a gift.” The court thereupon caused to be entered an order giving leave to the complainants to amend their bill, so as to make it a bill for the general settlement of the estate of Thomas' W. Means, but that such amendment must be upon the basis of the conclusions of the court upon the issues already joined, as stated in the opinion of the court, and that, in default of such amendment, the bill be dismissed. The complainants having declined to amend, the court directed the following decree, which was entered: “The complainants having failed and declined to amend their hill herein, as permitted hy the order entered May 25, 1S95, or within the extended time allowed ' by subsequent orders of this court, it is now adjudged and deci-eed that their said bill be, and the same is here6y, dismissed,' ¿nd the defendants shall recover their costs herein expended. But this dismissal is without prejudice to the right of complainants to recover in another suit the amount of one-fifth interest in the estate of Thomas W. Means, deceased, over and beyond the amount of the receipt — 545 — of William Moans for $136,035.75, montioned in said bill, and without prejudice to any issues not joined and found against them in this suit.” For the reasons already stated, we think there was no defect of parties for tlie principal objects of the bill. And, clearly, at that late stage of the case, no objection of the kind having been previously taken, the defendants were not entitled to have the complainants turned out, if they were entitled to some part of the relief sought, even if the suit were so constituted that all the purposes of a bill of wider scope could not be accomplished. Mc-Gahan v.Bank, 156 U. S. 218, 15 Sup. Ct. 347; Society of Shakers v. Watson, 15 C. C. A. 632, 68 Fed. 730. The court below must have thought that the bill was sufficient for the purposes of deciding that the advances made to William Means constituted a debt to the estate, for it entered a decree which was expressly made final on that subject. The court declined to decide whether the receipt in question was valid or not, leaving that as one which might be tested on the final settlement. But the bill alleges the title of William Means to the legacy, and, in effect, the fraudulent procurement of the receipt from Mm without payment, and with knowledge of the complainants’ rights under their assignment from the legatee. The pleadings were understood to involve the validity of the receipt while the parties were taking the testimony. We cannot doubt that this question was fairly open for decision, and we conclude ihat the proper parties were before the court for deciding as well the question of the existí nee of the claim as a debt as also the question whether the receipt was a valid recognition of it, and a release thereof. Counsel for the administrators claim that, if William Means owed this debt, as one which survived the testator’s death, it was and is proper matter of set-off against his legacy, and we think this claim well founded; and the proposition has, in this case, the support of an additional equity arising from Use insolvency of the legatee. 2 Woerner, Adm’n, § 564; Wat. Set-Off, §§ 189, 190; Courtenay v. Williams, 3 Hare, 539; Hodgson v. Fox, 9 Ch. Div. 673; Blackler v. Boott, 114 Mass. 24; Brown’s Adin’r v. Mattingly, 91 Ky. 275, 15 S. W. 353. Upon the merits, the fundamental question is that which relates to the construction of the will of Thomas W. Means, the fourth and fifth paragraphs of which are set out in the preceding statements of facts. Much acute analysis and criticism has been bestowed by counsel on both sides upon its interpretation, and various canons of construction invoked. But we think the intention of the testator is so clearly indicated as scarcely to require the aid of more than the primary rule that, when the dominating purpose is clearly seen, the language of the will is to be construed, if jiossihle, in such a way as to give it effect. This is called the “pole star” in discovering the intention. By the fourth paragraph, the testator devises and bequeaths all his personal property to his four living children, and the son of Ms deceased daughter, share and share alike. Then, by the fifth, after reciting that he had already made advances to the legatees, which had been charged — 546 — upon his boohs, he goes on to say that he desires the equal division he made in the fourth paragraph “to be a provision for them, respectively, in addition to the advances” already made or which might thereafter be made, and that, in the division and distribution of his estate, the advances which he had made, whether before or after the making of his will, to any of his children, should “be treated, not as advancements, but as gifts, not in any manner to be accounted for by my said children or grandson, or any of them.” The language could hardly have been made plainer to indicate that the leading purpose of the testator was that the property which he should leave at his death, irrespective of what he might have advanced to them during his life, should be divided among the five persons named. What they should have received from him, by way of loan, no longer was to be treated as such, but was to be forgiven. He uses the word “advances” in the sense of “furnishing,” “supplying,” in advance of the final distribution of his will. It is absurd to suppose that he used the word as equivalent to the technical word’ “advancements,” for, in the face of the disposition to be made of his property at his death, he must have known that if, in the meantime, he should bestow property upon them, whether by way of gift or loan, it would not be an “advancement,” as that word is used in legal phraseology. In the nature of things, it was not possible for him to have intended by “advances” the same thing as “advancements,” for that involves an intention, at the time of supplying the money, that it shall be such. Besides, he uses that term indiscriminately to apply to what he had given and charged to his children before the making of the will, as to what he might thereafter charge them. The legacies of the equal provision were to be “in addition” to such advances, and how could the testator be supposed to have used the word “advances” in its technical sense, which involves a satisfaction or diminution of the legacy pro tanto, when he expressly declared that the legacies should be in addition to them ? The testator intended that they should not be eaten away by what he should be moved to do for his children during his life. The will becomes operative upon the death of the testator. What this will then meant was this: Whatever the testator has helped his legatees to before this time, when distribution has finally come, though then a debt, is now forgiven. It “is not in any manner to be accounted for.” The equal distribution now to be made of .what remains is “in addition to said advances.” For the lack of a more suitable word, we have frequently used this word in this opinion to express a similar meaning to that for which the testator employed it. We are not prepared to say that under no circumstances could a debt from a legatee to the testator be created as an obligation independent of the absolution accorded by the will. Indeed, we think otherwise. But we think, also, that, having regard to the manifest purpose of the testator, when this will was made, to hold a free hand to help his children during his life as their necessities might require,, and then at the end to divide what remained of his property equally among them, the court ought to require clear proof of -some distinct purpose; on the part of the testator, during the — 547 — transactions when he furnished the helping- means which is supposed to have created the debt, to put that debt outside of the pale of the forgiveness which he had written in his will. And it must have been Ms purpose, and not that of some other. Even an expectation on the part of the legatee that the moneys paid for his benefit would, in the end, come out of his share of the estate, would not change the situation, unless the testator himself had a corresponding intent. He was the master of his fortune, and if he did not lend his money with the intent that if not repaid in Ms lifetime it should be repaid to his executors, then it would fall under the provisions of this will. There is not to be found in this record any such clear proof of the purpose of the testator to establish by the furnishing of the financial help, which he did, to his son, an independent obligation on the son’s part which, if not paid during his life, should not be condoned by the provision in his will. At the time when he sent John to Cincinnati to aid William hi his distress, the substance of all be said, according to John’s account, was to go and do for William what he thought best. John at that time held a power of attorney from his father, some time previously given, “to receive money, sign checks, notes, drafts, and bills of exchange; to indorse notes, checks, drafts, and bills of exchange payable to me or my order; to buy, sell, and transfer notes, bonds, stocks, bills of exchange, drafts, and checks, — hereby allowing, ratifying, and confirming whatever said John Means, attorney in fact, for me and in my name, may do by virtue of this authority.” So far as appeax-s, this, and the direction from his father to do what he thought best, was all the authority which John had when he went to Cincinnati and paid off William’s liabilities to the bank, amounting to over $125,000,- — a sum almost as large as the amount covered by the receipt in question. It does, indeed, appear that, by the father’s acquiescence, upon the suggestion of John, who had the handling of his father's books, the account of these transactions was entered in a distinct place in these books, and they were kept separate from the former accounts with William. Rut there is not much, if anything, in all this, or in anything else disclosed by the testimony, to prove that Thomas W. Means had a purpose to banish William Means from his favor, or isolate him from the benefits of the plan of distribution of his .property after death which had become the settled purpose of his life. It was immaterial to that purpose in what book or how the account was kept. Whenever and however kept, the charge would fall under the provision of exclusion by the will in the end, and the details of the bookkeeping he may well be deemed to have left to John, who had all such matters in charge. He had himself become blind, and incapable of supervising his books In person, and, as he confided in John, there was no reason for his going over them with the help of others, even if we assume that there was something on their face which disclosed this extraordinary purpose, which, indeed, we think is contrary to the fact. John’s attention, when he testified in the case, was repeatedly drawn to his interview with his father about helping William, and the mode of keeping the books, but he continued to say that substantially all — 548 — his father said was to do as he (John) thought best in respect to both those matters. In reply to this question of his counsel, “State what, if anything, you said to your father with reference to taking a note from William Means for the amounts that he obtained after the failure of the bank in preference to a receipt,” he said, “I gave as a reason to him that a receipt or charge on his books, simply, would not have the same effect, in law, that a note showing indebtedness to him would; that my understanding of his will, as he had made it, .as he understood it, that it was better to take note than have an account or receipt, — to take a note showing evidence of indebtedness, and the collaterals received or redeemed from the bank on sale to be applied as credit on the note, keeping it as an indebtedness, in the shape to indicate and show an indebtedness.” To the further question, “State what answer, if any, he made,” he replied, “He told me to do as I thought was the best way to do,— to do as I thought best.” As the father undoubtedly intended to keep it as an indebtedness, John’s statement to him imported nothing more than the mere question as to the best mode of doing the business “in the shape to indicate and' show an indebtedness,” and there is nothing in the very full detail of testimony given by John to show that on ány occasion the idea of establishing an indebtedness beyond the scope of the will was ever broached to his father, or that anything ever fell from him to show that such an idea had occurred to him. There was no suggestion by John to William, at the time when he came to his relief, that anybody expected that the money which was being supplied to him by his father was to be put beyond the operation of the will, or would stand on any special footing in that regard. On the other hand, we think the moral probabilities are all against the appellees’ contention. Thomas W. Means was a man of strong character and fixed adherence to his plans in life. He was also a man of strong paternal affections, and had been accustomed to extend his assistance and support to all his children by employing his large means on every occasion of their need. It is incredible that he should have changed his attitude when William’s calamities came upon him. The latter had gained considerable distinction in life, and no doubt he felt sensible of the credit to the family which his son’s attainments reflected. He was the character of man who would be likely to have taken pride in them. He did not then know what, if any, moral delinquency there was in William’s transactions. He knew that his son was in financial distress, and he came forward as was his wont, to help him out and re-establish him on solid ground. We are fully persuaded that we do him exact justice in refusing to believe that he then had a thought of inaugurating a new plan of dealing with William’s expectancy. And if he jiid not then have such purpose, there- is nothing in the evidence which would justify the belief that he at any time afterwards formed one. There is much testimony going to prove the vigorous and persistent efforts of others interested in the estate to impress upon those transactions the character which their interests inclined them to think would be just. We greatly doubt whether John — 549 — Means had at any time any desire or intention to treat the advances made for William as excluding him from his share in his father’s estate. It appears, and much stress is laid upon this by the ap-pellees, that William gave his notes for the sum paid out for him, and towards the last appended to them a sort of pledge of or charge upon his expectancy. The giving of the notes would not, of itself, alter the character of the advances. There is no doubt that Thomas W. Means was accustomed to enter his charges in his books as denoting an indebtedness from his children to himself, or that he intended to continue that practice, and to hold them as debtors. The will signifies as much, when read in connection with his books, to which it refers; and, if his advances had meant gifts, the provision about them would have been superfluous, for a gift is neither an advancement nor a loan. If they were intended as loans for the time being, as no doubt they were, there was nothing out of the way in taking notes for them. But in the original and main transaction even (his was not done. The subsequently taking a note was evidently an afterthought, and we think the probabilities are very strong that the taking of the note was not with any view to confirm, as against William, the idea that he was creating a debt to his father of any extraordinary character. There are many letters in evidence which passed between John and William during the time that these transactions were going forward. They are too many to transcribí! here. We shall state the substance of them. On John’s part they are full of manly tenderness and sympathy. He speaks in them of taking-notes, but there is no intimation that they were to he taken for the purpose for which they are now sought to be used, and so of the pledges attached to some of the later notes. They signify, on the contrary, that the object was to put up a bulwark against the attacks of creditors, and to shield the collaterals which John had taken from William’s creditors on paying them his debis, and probably, also, the legacy of William, for the father was old, and, as John’s letters show, was not expected to survive for moni than a short time. After John had returned home from Cincinnati on the occasion when he paid out §125,911.74, lie wrote William, stating the sum he had paid, and said, “I think you had better send me a note at one day in father’s favor for the amount,” and that he had had a talk with a lawyer on his way up, who agreed with him that that was best, to close the matter up at present. This was the 16th of 'February. On the 20th of February, he wrote William again, saying: “Herewith find forms which explain themselves. Please copy, sign, and return to me at your earliest convenience. * ⅜ - Í also think it best for yon to have as herewith indicated, fearing- suits will he brought against you and other directors which may give yon trouble as it now stands.” One of these forms was that of the note for $125,911.74. To this William, on the 21 si, replied: “Yours of the 20th received, and I send you by this mail my note to Thomas W. Means, or order, for $12f>,911.74; receipts for §700, $1,200, and $1,000, February 10th, 11th, and 18th, respectively; and authority to dispose of sccu550 ri'ties, — all as' requested by you. I fully agree with your action in the premises as the best preparation for the civil suits which are likely to follow.” On the 23d John again wrote to William, saying: “My Dear Will: Yours of the 21st inst., note and authority to sell securities, came to hand last evening. Am sorry that my reference to father’s sight caused you trouble. He keeps cheerful and contented, walks out every day if good weather, some one taking his hand as he walks. Have explained to him my -xaction in your affairs, amounts paid, how obtained, the advantage of saving 'securities pledged from being sacrificed, etc. He understands all, but soon forgets details, so that have to explain again when next I see him, and always ends by telling me to do as I think best for you.” In this correspondence, John’s purpose in taking the note and authority to dispose of the collaterals is somewhat (though not very) obscurely stated, but it is not difficult to understand what he meant, or how William understood it. It is contended that this was a dishonest and illegal purpose, and that William should be precluded from setting up the invalidity of the notes. But the suggestion of taking them came from John. The correspondence between him and William, above referred to, shows that William was in great trouble and distress. He was agitated by the sense of his financial disaster, his becoming discredited as a man, and the fear of impending criminal prosecution. H¿ confessed to John his unfitness for doing business, and he therefore turned over to him the.charge and management of affairs. This correspondence, as well as the other evidence, all concur in showing that William yielded^ to John’s suggestions, and followed them without question. John stood in the relation of a fiduciary toward his brother. In such circumstances it would be a strange perversion of the doctrine of estoppel to hold that William should be the party who is estopped. Such facts would indicate the propriety of holding the administrators to be estopped from setting up the products of John’s unlawful proceedings, assuming they are such, as a bar to William’s claim. The administrators do not represent any person who could have been defrauded, and it does not appear how these administrators of Thomas W. Means can assert any rights which belong to creditors, unless they are themselves such. We are convinced that the notes and instruments charging' the legacy were intended to be operative only in case the creditors should proceed against the collaterals or for the purpose of subjecting William’s legacy to the payment of their debts. It is contended, on the part of the administrators, that it is not competent to controvert, by parol testimony, the plain terms of a written instrument, and this is undoubtedly a well-settled .rule; but it does not apply to an instrument which has been given with the intention of both the parties thereto that it should' become operative only upon some condition. 2 Whart. Ev. § 927; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816. In the case cited, the rule was stated and applied in an opinion delivered by Mr. Justice Harlan, in which he cited and discussed a large number of authorities illustrating the subject. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174; Pym v. Campbell, 6 El. & Bl. 370, 373; Davis v. Jones, — 551 — 17 C. B. 625; Wallis v. Littell, 11 C. B. (N. S.) 369; Wilson v. Powers, 131 Mass. 539; Pawling v. U. S., 4 Cranch, 219. Besides this, when we consider the relations of the parties, it could not be permitted that the administrators should avail themselves of instruments, procured by John Means for the professed purpose of benefiting William, as a means, by converting it to another purpose, of cutting him off from his legacy. We cannot, therefore, hesitate in reaching the conclusion that there was no intention on the part of the testator, in making the advances to William on February 15, 1888, and subsequently, to create an obligation on William’s part which would not be forgiven by his will. Whether John Means conceived such an idea, at a late stage in the transaction, we are not sure, and it is not necessary to decide. It is probable that William anticipated that some such fate might befall him. After his downfall, he seems to have been unsteady in his course, sometimes inclining strongly, to his father’s family, and seeming to be anxious to secure their affection and favor, and willing to do as they wished to that end. At other times he turned to consider the welfare of his own family, and his own obligations towards its members. Having reached the conclusion that the debts incurred by William Means to his father were extinguished by the will, and that the administrators had no just foundation for claiming William’s debts as a set-off against, his legacy, it remains for us to consider whether what has been done between the administrators and William should be treated as a satisfaction of it. The defendants have exhibited extraordinary diligence in obtaining from William repeated renunciation of his claims. Some days before the testator’s death, they obtained one such, and then, upon the day of their appointment, they solemnly indorsed upon the instrument their acceptance of the same as administrators, notwithstanding he had in the meantime revoked it; and on later occasions they obtained like concessions, culminating in the receipt and order of October 16, 1890, now in controversy. Such activity on the part of an administrator executing a will, in procuring the surrender of one who, by its terms, is a legatee, excites suspicion that they were conscious of standing on dubious ground, and ill comports with the duties of one standing in the place of a trustee for all the parties in interest. It is a violation of his duty when an executor becomes a partisan for one legatee and sacrifices the other. The law will not permit any unfairness on his part, or sanction a proceeding whereby the legatee is induced by his trustee to give up valuable rights without any, or a wholly inadequate, consideration. Here there was no consideration for the abandonment of his legacy by William Means to the administrators. It is com tended by the appellees that the collaterals given up were valuable, and that William could not retain them and repudiate his receipt, Nearly all of them had been realized upon during the father’s life, and the proceeds credited to William. A small part of them only were left. The collaterals which they surrendered to him had become his own property, when the debts which they secured had — 552 — been extinguished by the will. While the father was alive, he was a creditor of William in respect of the moneys loaned to him, and undoubtedly he had the right to enforce the collaterals, and thereby satisfy or reduce William’s debt; but the situation was changed at his death. Then the will came into effect, and, the debt itself being discharged thereby, the purposes of the security ended by inevitable consequence. These collaterals had all the while remained in John’s hands, and were obtained from him by one of the administrators, to turn over to William, whose receipt states that they were “received of E. C. Means (from John Means).” These collaterals the administrators claimed as property which they held in pledge for the debt which they asserted in favor of the estate against William. William had lost all his property, and was in very straitened circumstances. Since his downfall, he has been broken in spirit and wavering in his purposes. He seems at times to have been impressed that the administrators had a moral, if not a legal, claim upon him that he should yield up his legacy to the estate, and this claim was pressed and insisted upon by the administrators. That they had no such legal claim upon him we have already determined. His brother and sisters all being in affluent circumstances, and his own family in needy circumstances, that he should have voluntarily given up the whole of this large sum, with no mistake in regard to what his legal rights were, it is difficult to believe. It amounted simply to a gift to the administrators for the benefit of the other legatees, whose only claim rested on the bounty of the testator. Courts of equity view such transactions with distrust, and, if the circumstances indicate that the trustee has dealt with the beneficiary unjustly, will not hesitate to set them aside. The absence of any adequate consideration in itself raises a presumption of unfairness, which the trustee is bound to repel. Equity will relieve the legatee in such transactions, where he has, under a misapprehension of his legal rights, surrendered to the trustee valuable interests without any adequate consideration, especially where the situation is such that no harm will come to the interests, of others. Such would be the case where the claim relates to a fund which has not yet passed beyond control. These propositions are amply sustained by authority. 1 Story, Eq. Jur. §§ 307, 308; 2 Pom. Éq. Jur. §§ 948, 951, 955, 956, 958, 1088; Taylor v. Taylor, 8 How. 183; Comstock v. Herron, 6 U. S. App. 629, 5 C. C. A. 266, and 55 Fed. 803, and the cases there cited; Mills v. Drewitt, 20 Beav. 632; In re Ashwell’s Will, Johns. Eng. Ch. 122; Snow v. Booth, 2 Kay & J. 132; Oil Co. v. Hawkins, 20 C. C. A.' 468, 74 Fed. 395. “It is not,” says Mr. Justice Story, ubi-supra, “upon the feelings which a delicate and honorable man must experience, nor upon any notion of discretion, to permit a voluntary gift or other act of a man, whereby he strips himself of his property, that courts of equity have deemed themselves at liberty to interpose in cases of this sort.” They “will not, therefore, arrest or set aside an act or contract merely because a man of more honor would not have entered into it. . There must be some relations between the parties which compel the one to — 553 — make a full discovery fco (lie oilier or to abstain from all selfish projects. But when such a relation does exist, courts of equity, acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive ad van! age from that circumstance, for it is founded in a breach of confidence.” It makes no difference that the other legatees would ultimately obtain the benefit of the wrong. However innocent of it they may be, it would come tainted to their hands. Even gifts between persons who stand in no confidential relation to each other are watched with jealousy. 2 White & T. Lead. Oas. Eq. 58.2; Cooke v. Lamotie, 15 Hear. 234. Where the transfer is of a large sum, and constitutes the whole of the property of the party making it, himself having obligations to those in need, to one standing in no need, it raises an almost insurmountable presumption that there has either been some untoward influence or gross misconception on the part of the party making if; of his rights and obligations. It is possible that the administrators were actuated by a purpose to get William’s share out of the way of creditors, thinking the other legatees were more justly entitled to it; but they do not charge themselves with "v such purpose, and we shall not impute it to them. We art*, dierefore, of the opinion that the transactions which took place between the administrators and William Means, among them that, of taking the receipt of October 1C, 1890, ought not to be allowed to bar the enforcement of the payment of the legacy. In view' of the conclusions which we have reached in respect to the title of William Means to the legacy in question, it is not necessary for us to decide whether, as against the administrators, there is any sufficient proof of the existence of the agreement between William Means and the members of his family which is said to have been made in February, 1890. The trust deed executed by him on December 26, 1891, conveyed his interest to the present complainants as trustees. As bet.ween William Means and the complainants in the Greene county court of common pleas, there having been due service of the process upon him, the decree therein rendered, and the trust deed, were effective in transferring the title, and estop him from denying that it was in fact transferred. It is no concern of the administrators whether they are required to pay the legacy to the legatee, or to his assignee; nor can they require that the rights of William Means’ creditors should be litigated in this suit. They are not parties, and tha.t subject could only be considered in independent litigation. Akin to that matter is the question presented in regard to the complainants’ trust being in part for the benefit of the grantor in the decid. Whether, as to creditors, that part of (lie trust would be obnoxious to their attack, we do not, for the reasons above stated, think it is necessary or proper to decide. The result is that the descree of the court below must be reversed, and the cause; remanded, with directions to enter a decree for the complainants setting aside the; receipt of October 16, 1890, and directing an account to be taken for the purpose of ascertain — 554 — ing the amount due in respect of the legacy of William Means, and that thereupon the complainants are entitled to recover the same. The complainants will recover costs in this court and in the court below, to be paid by the administrators from the funds of the estate.