310

nDEBAL REPORTER,

voL 50.

tition, and was doubtlese'orie of the 'most importantt'actors in making Lolt Angeles a terminal'point!. Not only does, the evidenee show that such W'atel' competition exists; but it shows that the shipments by water ar& ,and a numbel' of the witnesses testify that, in the event the all.raill'ates should be Increased froIn what they are now, it would result in much larger shipments by water, both in quantity and kind. For the;reasons stated'ram of the opinioIithat the circumstances and attending the 'transportation of the commodities in question to Los Angeles and San Bernardino are essentially dissimilar, and therefore that the long and short haul clause of the interstate commerce act does not apply to the case. As has been said, it is not claimed that the rates to San Bernardino are otherwise unjust or unreasonable. If they are, other provisions of the act will afford relief. It results from these views that petitioner is not entitled to the relief it seeks in th'is court. It is accordingly ordered that the petition be dismissed. aUts coat.

WARE tI. WISNER.

(CCrcUU

D. Iowa. O. D. Februa1'7, 1888.) by the law of tb6

1 Wru.-,-lbu..

I.

The vAlidity, of a ,wlll conveying real estate is to be place whlilre the land Hell. , By:the'laW of Iowa, a will 1rI

EeTATIIl-LBXRlIlliSlT....

B.A.MIIl-RIIlVOOATION-BmTtl: 011 HlIllR. ' B4ME-Pxo)l.A.TB-EnIllOT OP.

by the birth of an heir after itl exeoutlon.

8.

The probate of a will, while it settles the question 01 due exeoution, does not establish Validity, or determine ita force and e1!ect upon titles to real estate claimed un· der it. , Under Revlslov lowa18/lO, S 249lJ, 'an allen nov-resident could not take landal1ing in,tbe state either by descent or devlae. A non-resident alien WOl11aJl, who marries I/o citizen of the United States 1rI capable' of inheriting in 'Iowl!., 'since she thereby becomes a citizen of the United ,,-nder Rev. St.U. B. § 1994, Persons born 1n I/o foreign country, of American parentsJ,.who resided there, bu' who never renounced tbe1l' citizenship; are citizens of the united States.
BORN 011. AMERIOANS IN FORIIlIGN CoUNTRY. TO CXTIZ,N. .

4. ALIIilNS-CAP,I,CXTY TO T.A.X1Il BY DESCENT OR DEVlsE.

5.

6.

This is a:bill in equity, brought to quiet title to 1,288 acres of land located in Franklin county, Said land was entered by Asabel Gage,who was a non-resident alien residing in Canada. Patents were issued to him; and he held title until his death,which occurred July 1, 1861. He left him eleven children, two of whom have since died. At the time of his death, it'is conceded that two of his children, JohnM. Gage And.JamesD. Gage, resided in Iowa, and were citizens of the United Stll,tes. ,Itia also conceded thatall the remaining l:bUllren,

WARE .,. WISNllll&o

811

e;xcept two, were at the time of the death ofsaid Asahe1 Gage, arid still are, non-resident aliens. The two childrena.bout whom the question is made. are two daughters, Sarah and Elizabeth, who married two brothers, named Cummings, whose parents are native-born citizens of the United States, who had emigrated to Canada, hut who had never formally renounced their allegiance to this government. The sons were born in Canada, but never formally renounced their allegiance to this government. Both the father and the sons, however, engaged in business in Canada, and several times voted there upon their property qualifications, as provided by law. The father always refused to take the oath of allegiance to the government of Great Britain. The complainant, Ware, is the owner by purchase of all the interest ofJohn M. and James D. Gage in the real estate in controversy. Respondent is the owner by purchase of the interest of five oftbe remaining heirs, including the said Sarah Cummings and Elizabeth Cummings. In 1854, Asahel Gage made a will, in which he directed the sale of a farm owned by him in Canada, and also directed that" the balance or residue of my estate, both real and personal, after being.sold as before mentioned, the money arising therefrom, together with the cash on hand, notes, bonds, etc" that shall be collected by my executors, shall be divided, 88 near as can be, share and share alike, to my children, that is, John, James, Asahel, Rufus, Mary Ann, Sarah, Elizabet,b, Lorintha, Martha, and Keziah,» etc. After the making of this will, and before the death of the said to-wit, 1899, another child, May, was born to him. McKenzie & Hemingway, for complainant. John Porter and William Phillips, for respondent. . McCRARv, Circuit Judge. My conclusions in this case are as follows: 1. The of the will under which the respondent claims title must be determined according to the laws of Iowa. where the land is situated. 1 Redf. Wills, p. 398; Lynch v. Miller, 54 Iowa, 516, 6 N. W. Rep. 740. 2. By the law of Iowa, 88 interpreted by the supreme court of the state, the will was revoked by the birth of an heir after it W88 executed. McCullum v.McKenzie, 26 Iowa, 510; Neg'U8 v. NegtUJ, 46 Iowa, 487; Fallon "I. Chidester, Id. 588; Carey v. Baughn, 36 Iowa, 540. 3. The probate of the will in Iowa, while it settles the question of its due execution, does Dot conclusively establish its validity, or determine its force and 'effect, when title to real estate is claimed under it. Fa:llmt v. Chide8t6r, 8ttpTa, and authorities cited. 4. I am furthermore of the opiniou (1) that .tbe will does not cover the land in controversy, and (2) that by a fair construction of section 2493, Revision 1860, an alien non-resident could take nothing by will uuless such alien, subsequently to. the making of the bequest, became a l'e$ident. Krogan v. Kinnev, 15 Iowa, 242. 5. It foll9WS that as to the land in co,ntroversy there is no valid will, arid. the Bard-e is· to be dispoSed of according to the Iowa law of deiC8llt.

312

FEDERAL REPORTER, vol. 50.

6. ·ltisthe settled law of Iowa that non-resident aliens could not inherit under the statute in force at the time of the death of Asahel Gage. Kroganv. Kinney, f!Upra; Rhe:i.m v. Robbina, 20 Iowa,45; Brown v.Pearson, 41 Iowa, 481; King v. Ware, 53 Iowa, 97, 4 N. W. Rep. 858. 7. I find that Sarah Cummings and Elizabeth L. Cummings, daughters of said Asahel Cummings, were capable of inheriting by reason of the citizenship of their husbands, which determines their own. Rev. 496; Bish. Mar. Worn. § 505. St. U. S;1 § 1994; Kelly v. Owen, 7 It appears that the husbands were both born of parents who were citizens of the United States. They were therefore citizens of the United States by birth. Rev. St. U. S. § 2172. It does not appear that they ever renounced their citizenship, within the rule laid down in Talbot v. Janson, 3 Dall. 133. Neither the father nor the sons ever ceased to be citizeusof the United States, within the doctrine of expatriation as laid down in that case. 8. It follows from the foregoing concluSions that the title to the land in controversy at the death of Asahel Gage vested in John M. Gage. James and Elizabeth L. Cummings, each being enD. Gage, Sarah titled to the undivided one-fourth thereof. 9. As complainant, Ware, is the owner by purchase and conveyance of the interests of John M. and James D; Gage, he is entitled to a decree eonfirming and qnieting his title to the undivided one-half of said land; and as:therespdndent, Wisner,is the owner, by purchase and conveyance, ofthe interest of the said Sarah Cummings and Elizabeth L. Cummings, he is entitled to a decree confirming and quieting his title to the remaining undivic{ed one-half thereof. 10. The decree will be to quiet the title to one undivided half of the land in complainant, Ware, and to the other undivided half thereof in respondent, Wisner, and the costs will be equally divided between them.

BOUND .". SOUTH CAROLINA Ry. Co. et. al., (QUINTARD, Intervener.)
, (C(reuit Court, D. South CaroUna.

April 26, 1892.)

NAVIGATIONCOMPANIES-FoRllOLOSURIl OF MORTGAGE-RIIOEIVERB-PRIORITT OF CLAIMS.

The getteral freight and passenger. agent of a navigation company which has passed into the hands of a relJeivel' has a valid claim for the arrears of his salary, but hall 0.0 equity to be paid in priority to the mortgage creditors. li'oBdltck v. SChall, 99 U. S. 235, distinguished.

In Equity. Suit by Frederick W. Bound against the South Carolina. Railway Oompany, the New York &,'Charleston Warehouse & Steam Navigation Company, and others. fqrfdreclosure of a mortgage. Heara upon the claim. cif James W. Quintard for preference in payment of his salary. D. B. Gilliland and FitzsimQTl8 « Maffett, for intervener.