.' :ltOl\G.jUif1.HUGGJiNS. '

IDents void forillegalitYi8nd; although the relation ofthedefendants to this issue may be different. in that the bank is the party in whose name the judgment was rendered, and Richards is the assignee thereof, yet the controversy presellte<l,by the bill as to both defendant's is one and the same, to-wit, can the judgment be vacated for fraud and illegality? There being but one controversy, and the defendants being proper parties thereto, it follows that this court has not jurisdiction, because the Bank of Rock Rapids, one of the defendants, and the complainant are botlt corporations created under the laws of Iowa, and therefore, for jurisdictional purposes, are,deemed to be citizens of Iowa. Motion to remand is granted, at cost of 'the defendant John N. Richards.

INDEPENDENT DISTIller OF ROOK RAPIDS ". MILLER

et al.

(Circuit Court,N. D.lowa,W. D. November 9,1891.)

In EqUity. Motion to remand. McMillan & Van Wagenen, for colllplainant. J. M. Parsons and James H. Oralie, for defendants.
SHIRAS, J. This cause is remanded to state court, at cost of cobson, for the reason that part of the defendants are citizens of Iowa, and there Is not a separable controversy in the case on behalf of J Rcobson. See opinion In 8ams Plaintiff v. Bank of Rock Rapids, 48 Fed. Rep. 2.

MORGAN

et 01. 17.

HUGGINS

et

01.

(CircwU Court, N. D. Georgia. .TuIY' 6, l89L
1.

COSTS

of ADIDNISTRATION-PLBADING. When, in, a suit in a federal Court to annul a will, the administrator. without objectIon, files an amended answer, allelting that' the complainants have attempted by litigation in this and the state courts to have the will declared VOid, and have thus required large sums to be paid out as counseUees, costs. and expenses, which are depts against the estate, and that these items are properly chargeable agaipst undevised property, etc., tbis is sufficient to warrant tho court in deciding ulion what part of the estate these expepses are charReable.

B.

SAJlB-CXARGEABLB UPON UNDEVISED ESTA.TE,.

Where a will names but a single legatee, and the conrt decides that the devise to him does not carry after-acqUired real estate, the costs of the administration and the debts of the estate are chargeable upon such undevised lands, under Code Ga. § 2533, which classes the "necessary expenses of administration" with the debts of the estate, and section 2584, making debts chargeable upon undevisedestste when not otherwise specially provided by the will, and when there is no residuary clause.

InEquity. Bill by Morgan and others, as assigneer of certain heirs at law of Riley Garrett t to. rlll3train H. H. Huggins, his administratort

FEDERALBEFDRTER, voL 48. from selling or otherwise disposing of the property of the estate, and praying.an accounting. On exceptions to the report of the special master. H. H. Perry, P. L. Mynatt, and G. A. Hwell, for complainants. Hopki'IUJ & Glenn and Alexander S. Erwin, for respondents. NEWMAN, J. When this case was before the court for the construetion,ofthe will of Riley Garrett, deceased, it was held that the intention.of the testator was to give all of his estate, after paying his burial expenses, to William Augustus Wheeles. 42 Fed. Rep. 869. It was that the reli'l estate acquired by the testator subsequently to the making of the will did not pass thereunder. The question now presented for determination arises on the report of the special master, to whom the case was referred for the purpose of ascertaining the amount, value, rents, etc., of the real estate left by Garrett at the time of his death, and the date that he acquired the same. The special master was further 'directed to report" what sums have been paid out or incurred on account of the costs or expenses in procuring administration, or in administering said estate, in establishing and probating the will, and in litigation in which the estate has been or is involved." The order provided that the court did not then determine what portio!l, if any. of said costs or expenses should be charged to the real estate. The report of the special master has been filed. After giving, the amount of the real estnte of the testator, and,rents collected for the 'same, insurance and taxes paid on the same, hennds thllt the amoullt ()f the costs and expenses' in. ,procuring the' administration and in. administering the estate, in establishing and probating the will, and litigation in which the estate has been or is involved, (and assuming that this relates to costs and expenses incurred and paid by defendant, and does not relate to the costs and expenses incurred and paid by H. G. Long, temporary receiver,) is $10,366.24. It .is urged that the pleadings in this case are not in shape to allow the question as to the amount of the necessary costs and expenses of from what portion of the estate they shall be paid, to be determined. It appears that on October 6, 1889, defendant filed an amendment to bis answer, as follows: .
H. H. lIuggins,administrator, etc., further said that complainants have no just or legal claims to any part of this estate. If respondent should be mistaken in this, then he shows as follows: 'rhe persons under whom complainants cilloimand complainants have attempted by litigation in this and the state court,s to have the. will declared void, and thus defeat all rights under it, and in Buch attempts have caused large sums to be paid out 8scounsel fees, costs, and expenses, and these were and are also debts against the estate; aIld respondent says all these items are propedy:cbargeable against undevIsed pj.'operty, if any there should be, which he denies."

My is thattbis was filed during the argument as to the construction of the will, with the statement that it did not affect the question then before the court; that counsel desired to file it for future use, if it should become necessary. No demurrl"'[" or objection Qf any kind to this amendment appears in the record, and it seems

MORGAN V. HUGGINS.

£)

to be sufficient to raise the question now under consideration, which question seems to be important to the final determination of the rights of the parties as to the subject-matter of the entire litigation. Besides this, the order of reference to the special master embraced this very subject, and that order was taken by consent, as the court understood at the time. The other question for determination now is as to how and from what part of the estate the costs and expenses shall be paid. Section 2533 of the Code of Georgia Classes the "necessary expenses of administration" with the debts of the estate, and states the order in which they shall rank as to payment out of the estate. Section 2534 is follows: "All the estate, real and 'personal, unless otherwise provided by this Code, Is liable for the payment of debtS. If there is a will, the property charged with the debts should be first applied; next the resid uum,or, if there be no residuary clause, the undevised estate; next, general legacies lDay abate pro rata; and, lastly. specific legacies must contribute." And so it will be seen that in this case, there being no property charged with the debts, the residuum of the estate, if there be such, is next liable, and, if there be no residuary clause, the undevised estate. It first be ascertained, then, whether or not there is a residuary clause in the will of Riley Garrett. Bouvier defines "residue:" "That which remains of something after taking away some part of it. The residue es: tate is that which has not been particularly devised by will." Wharton's definition of "residuum" is: "The surplus of a testator's or tate's estate after discharging all his liabilities." In the case of Graves v. Howard, 3 Jones, Eq. .302, the residue of the testator's estate and effects is said to mean "what is left after all liabilities are discharged, and all the objects of the testator are carried into effect." In Rapalje & Lawrence there is a distinction in the definition of this term, "residue," when applied to "devises," and to "legacies;" but it is substatt" tiaUy the same as that before given. As is urged hy counsel for the a,dministrator in this case, the residuary dause in the will is one which, together with the other clauses of the will, completely exhausts the esof all the property of the estate. The term" residuary clause" seems to contemplate former provisions in the will to carry into effect the wishes of the testator as to the disposition of his estate, and this expressi{)n is used to cover all that remains after such former dispositions of,property have been carried out. The intention of the section of the Code, evidently, is not to interfere with the wishes of the testator, as expressed, concerning the disposition of his estate; and so, if the testator himself had not, by the ,vill, specially charged any property with the payment of debts, the residuum should be next applied, or, if no residuary clause, the undevised estate. By the decision of this court only the personalty passes to Wheeles, as all the real estate left by the testator, it is understood, was after-acquired, and goes to the heirs at law or their assignees. Now, both under the letter and the evident intent and meaning of this statute, it would seem that the debts oftbis estate must be paid from, the undevised estate, and that, in

vol. 48. real left Gil.rrett at his death, and ac. quired to the ma:king of,rt;hafwill.It ibasbeel'l stated in ,a,rgument. that .Il1UhYi ;larg9 and expenses bas been incuned by the in: litigati<>.o' withtheheirsatlaw of Riley Garrett and ,and it ,fs. further stated that all this litigation has been determined against these heirs and assignees, and that they, having thus ,this expenditure foraollts and should be as to pay it.. I am unable' ftom the report f.(). this question, and it is probably unnecessary, the I have given, tbe sections of the Code referred to. In qf reported ,by the special master as costs claimed by the and o.fthl;l indefiniteness of someqf.the items,-:-especilllly the l/lstJlVO for $1,409 and $1,029,-:-1 think that the special master should be required to report, either upon the evidence already' tnken, or upon hearing additioMI l::vidence, as to whether all or how much of the amounfclaimed should be allowed the

JIaving heretofore concluded, as expressed above, that the pleadings in this case are sufficiant to the court to determine what have been the necessary expen,ses of administering the estate of Riley Garrett, deceased, and how such expenses shall be paid, and, second; that the nee. essary eXpeJ;1ses being,under Code of Georgia, a part of the debts of an estate, court referred the matter back to the speCial master toaseertain the necessary expenses of administration which should be allowed him in this case. special master has made another report in which he stites in detail, after having heard. ,additional evidE'nce, the necessary expenses of the administration, giving each item of expense and the vouchers for the same. Of the items alluded to by the special master in his report, the only ones about which I have had any serious difficulty are the expenses of propounding the will of Riley Garrett, and, especially, as to the large am01,mts of counsel fees paid out by the administrator before the will was finally establislied. It seems, however, from the evidence, and the receipts and records presented, that, as to the largest part of this eXPense, namely, the fees of Dunlap and Dorsey, suit was brought for .the same against the present administrator, Huggins, and fOr an amoupt considerably larger than that for which verdicts were afterwards obtained. It appears that the administrator resisted the payment .of these amounts, ,but was compelled by the result of the suit to pay tbem. There was another fee of $1,000 paid to Hopkins & Glenn, which was voluntarily paiq. by Huggins for services in the over the probate of the will.. !The special master has reported in favor of all these expenses being al!O\ved the administrator, and there is no evidence whatever to show that they were not paid in good faith to carry out what was believed to be the expressed wish of Riley Garrett as to the disposi;. tion of his estate,prClpoupders' vieW's having since been sustained by the courts. I am not prepared to say, while somewhat doubtful about it,
I

STEVENS V ·. FERRY.

7

that these items should not.. be allowed as part of the necessary of the administration. As to the other excepti9ns, the court believes the findings and report of the specialmaster to be correct; and, consequently, all the exceptions are overrulep"and the report of the special master confirmed.

STEVENS 'D. FERRyet

01.

9G, 1891.)

(Ofrcuf,t Oourt, D. Washington, N. D. October

L COURTS-J'URISDICTION IN FORECLOSURE-LANDS OUTSIDE DISTRICT. Civil Prac. Act Wash. 'r. § 48, providing that actions for the foreclosure of mort-

gagl3s,among others, "shall be commenced in the count\V or district in which the subject 'of the action is situated," gives to a mortgagee whose mortgage covel'll several disconnected tracts of land in different counties and districts the right to foreclose as to all of them by a single suit in any county where one tract 1& situated.

t:. FOREOLOsriRE

Where lands are said oli foreclosure 'of a mortgage, and the mortgagor does not redeemwitbin the time allowed, hEl cannot. afterwards recover them from lobe pUrChaser, or hiB grantee, 011 the ground that DO Valid deed was ever made by the

OF MORTGAGE-RIGHTS OF MORTGAGOR -DEFECTIVE SHERIFF'S DEED.

.

In Equi,ty. ThiEds a suit to settle a controversy as to the title to certain lands situatednear Anacortes, in this state, arising out following facts: 111 the yea.r the complainant, being then the ofthe lands, as security (or aloano{82,OOO, gave a prorqissory note and a mortgage coveripgsaiq lands, which ,were then within the wunty of Whatcom,. and/are now in the county of Skagit. Said mortgage also included real estate situated in1'hurston county. As the courts of the territory "'ere organized' at the times herein referred to, Thurston county was in the 009ond judicial diatrict, and terms oBhe territorial district court were held at Olympia for a subdistrict embracing Thurston, Lewis, Chehalis, and Mason counties. WhatcoUl:.· county. was in. the third j udicinl district, and terms of the district court were held at Port Townsend for a subdistrict embracing Wht\tcom and other counties. In October, 1874, a suit waS commenced by the: owner and holder ofthe note and mortgage against the complainant, in the district court at Olympia, to recover a judgment upon the note, and· for a decree of foreclosure and order of sale of all the lots and tracts of land included iu said mortgage. The complainant, Stevens, voluntarily appeared and submitted to the jurisdiction of: the court in: said cause, and a jUdgment and decree as prayed for were rendere.d against him December 17, 1874. In pursuance of said decree thelltnd in controversy was sold by the sheriff of Whatcom county in July,1875i and the sale was confinned by an order of the district court .at qlympia, December 8, 1875, by whioh the sheriff of Whatcom county was directed to execute. ,& deed 'to the purchaser at the expiration of six months from the date thereof, unless the land should be withig