'I'EDJ!:RAL ;REPOR'rER, ,vol. 45.;,!

land) exceeds in value the sum of $2,000. At least such is the natural and reasonable of the allagationsof{.,the petition, read iI? connection with, the gqwplaint.. The in is to be construed with' refel'ence to the stihjetltl.u1aUer iirid' the matter in dispute. andrea4iQg,them Taking the petition and the in ert#; ;Within the jurislliQtion ,of this Gl),Prt. and that the va).Ui:} of the said rElalproperty surn Of There ingoo of interestJ upon the think if was essential for the petitioner to use the term "interest" in his petition; in other words, the elimination of that taM from· his, petition does not entitle the plaintiff to have this cause remanded. The nlotionshduld be denied, and it is accordingly so ordered. 'j\,
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CAUSBs:..mI'VWBali: e!Tt.IIJBNBxir. ,,: ','" ':', in a ,C9urtof Washillgton territory,anp:which was pending . admission of the'state of. Washinll"ton into tbilUnion; aud involVing ·,"ouly' controversy ,betllteen'cltizeu& of' a iI'ate: and citizen'll lilf: Isaid ,territory, dots ,; accpunt' of, t..he pal,'tillS" within ,the j u,risdictlono! a United States cirl;U1tcourt, and 1s not transferable the1'eto, unless the jUrisdiCtion call be predioated UpOD:80IDe other groun(L,. ""', ' : . ' . " <81IUabtUI by tMOouTt.) ,,: ,: i" , ' i . "
q8S6· CIJ1D,meIlcell

At Law, . ,Pown ·... ,', "" <!c; for C/:,ook,.,,, ! ,D()f)little, PritchAJ,rrJ, .¢ Stevens, Carroll" Coiner <!c DaviS, and G.S.GrQScup" for other, defendants.
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HANFORD,

J.' By a stipulation, of the parties this case was transferred

to tbis court from ·the superior court of Pierce. county. . In doing so it

was assumedthatthis 'court would.: have jurisdiction by reason of the fact that the plaintiff is a citizen of the state of Pennsylvania; and the· defendant Mrs. Crook isa citizen of the .state of Maryland,and the other defendants are all citizens of·the stateof.Washington. The case was menced in a territorial qistrict court:, and was pending at the: time of the admission of the stateiof Washingtoninto the Union. Whetherit is one ofwbich this courtis:given jurisdiiotionisaquestion $wera true interpretatio'n of section 23 of,the-enabling act. ;,2581. U. S. 683. Between ,and ,Mrs.' Croak there appears to be no controversy j certaibly no, separate'aDd .severable oontroversy.. The other defendant-s are;'Rll citizens of the state of Washington,: and were at the time the suit wli$ commenced: Jresidents oftha territory of Washington,

NICKERSON ""CROOK.,

659

and not citizens of any state; so at that time the case was not one involving a controversy between';citizene of different states, and not cognizable in a circuit court of the United States on the ground of the diverse citizenship of the parties. There is no other ground apparent upon which the jurisdiction of this court can be predicated, and it is my opinion that the court without jurisdiction, and the case must be remanded to th,esuperiQI court of Pierce county, for it is notto be regarderl as. if it were one commenced since the real defendants acquired their status as citizens of a state. The important fact cannot be overlooked that the case was pending at the time of the admission of the state. It is one of the cases controlled by section ,23 of the enabling act, and, as that section expressly refers to the time of the commencement of the suit, and prescribes as the t-6Elt of jurisdiction the question whether at that time the case was, on aceountof the parties or the nature of the questions in dispute, cognizable in the national courts, I cannot feel warTallted in ma:irltaining the jurisdiction on the 'ground that, by reason of a change in th'e status of the parties at a subsequent time, the case lms become so changed in its oharacter as to be now within the jurisdiction of acii'cuit <lo\trt of the United StateEl, although not so at the time of its OOlllmencement. To say that -the SUppOEled existence of the court presupposes the existence of the state, and that if the court had been in -existence w,heh the case was commenced there would have been a been state 'of WaShington, of which the real defendants would <litizens, and therefore the case would have been one of which the court might have had jurisdiction, is but another .way of saying .that, if the facts were different from what they are in this case, it might have been within the jurisdiction. The court, however, is bound to deal with the and declare the lawapplicable:thereto, and to interpret the law fairly according to tneintentof the legislature, in harmony with the langullge'inwhich it is enacted;,and it is not permissible by constructwu''tO, make a law different' from whll.t the law-making power has 'made it. ' ' :' lam aware that in the cases of Hermarl, v. McKinney, 43 Fed. Rep. 689,'ll.nd Dome v. Mining Co;, Id. 690,the;oircuit court of South,Da'kotahasdecided this question differently, and in the opinions rendered by'Judges SHIRAS andEDGERTbN the opposite view has been ably'algue,d; But,on the other hand, in'Strasburger v. Beecher, 44 F,ed. Rep. 209, ,the circuit- court of Montana. has also passed upon thequestitln, aild, as I ctmsider, in deciding contrary to the South Dakota casesiFqdge KNOWLES has simply gi\ten e·ffectto the law according to its words.. The demurrer interposed by certain of,the defendants after filing an answer inthil!licourt will be,'overruled, because out of time, and an order the court's own motion, remanding t4e case to ,the superior court of Pierce county.
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FEDERAL REPORTER,

vol 45.

et al.

COMSTOCK ". HERRON

(otrcuit Court, S. D. Ohio, W. D. April 98, 1891.)
EQUITY-PLEADlNG-RIISPONSIVE AVERMENTS.

Where a bill against the executors and trustees under a will charges them with having delayed, neglected, and refused to invest a certain sum as directed' by the will, and to pay the income to complainant, the averments in the answer that defendants' conduct was known to and approved by complainant, and that sbe had never, until shortly before the sUit, requested the investments to be made, are responsive to the bill, and will not be stricken out on exceptions.

In. Equity. Matthews Olevela.nd, for complainant. John W' Herron and R. B. Rowlin, for respondents.
o

SAGE, J. This cause is before the court upon exceptions to the answer of the respondents. Herron and Fisher. The bill charges that as executors. and trustees under the will .of Margaret Poor, deceased, they have delayed, neglected, and refused, and still delay, neglect, and t:efuse, to invest the sum of $56,667, as directed by the will, in productive real estate and mortgages or stocks and bonds, and to pay the income therefrom to the. complainant. The respondents .answer, denying the averments, and stating that they have never been requested untiUhe present year, by the complainant or any other persons, to make said investments, and that,on the contrary, it was·well to the complainant that they were proceeding as ·rapidlyas possible to convert the estate into money or .productive property, so as to make said investments; also that their entire couduct in this matter:w.as fully known to the complainant, and approved by her, and thatshe has never expressed the least dissatisfaction, in reference thereto. To these averments the complainant exctJpts. . They are directly and propfi1rly re,sponsive to the charge of the bill. I do not think that the respondents, when .charged with derelictioh .of duty and violation of their trust,ought to be limited to a simple denial, and to be precluded from setting up that .not only was no objection made by the complainant, but that sheapproved their entire conduct in this matter. While it may be true that that may not affect the final decree in this case, I think the trustees are .entitled to relieve themselves from the imputations which are at least implied by the averments of the bill. Moreover; these averments of the answer are directly responsive to the charge that, the respondents refused to make investments. The same line of remark applies to of the answer in which the respondents state that they were assisted by the complainant in their efforts .to sell the Newport cottage; ahebeing familiar with it, and owning the furJuture in it. Without entering into detail, it is enough to say generally that the bill charges the trustees with neglecting their duties and refusing to carry out the provisions of the will, and that by their failure to execute the trusts reposed in them the estate is constantly being depleted, and that there is danger of the