#### JULIA A. L. BURNELL ET AL. v. THE UNITED STATES.

[No. 20004.

Decided June 10, 1909.]

*On the Proofs.*

A testator gives certain designated bonds of Georgetown, D. C., to bis sister “ *to he -used hy her during her natural Ufe, and at her death to ,revert to my nearest surviving*relative.” Tbe Government assumes tbe payment of tbe bonds and pays tbe money to tbe testator’s sister. Tbe *“nearest surviving relative*” now sues.

I.Tbe fundamental and controlling rules for tbe construction of wills set forth and the cases relating to life estates reviewed.

II.Where a testator gave a designated portion of his personal estate to bis sister “ *to he used hy her during her natural life, and at her death to revert- to my nearest surviving relative,”*tbe sister took only a life estate.

III. It is well settled that where Congress directs a fund to be placed in the Treasury for tbe payment of specific obligations the relation of tbe Government to tbe beneficiaries of tbe fund is that of trustee, and as trustee tbe Government is bound at its peril to see to tbe proper application of a trust fund as an individual trustee is bound.

IV. Where tbe Treasury makes payment out of a fund which it bolds in trust, through a mistake in law, to a party who is not legally entitled to receive tbe same, the Government continues responsible to tbe rightful owner.

*536V. The approval and passing of an executor’s account in a probate court is not an adjudication of the rights of parties under a will and does not render the claim of a legatee *res judicata.*

*The Reporters'*statement of the case:

The following are the facts as found by the court:

I. Samuel I. Little, late a citizen of the United States and resident of the District of Columbia, died in said District in June, 1855.

II. At the time of his death he was the owner of four certificates of the 6 per cent interest-bearing general stock of the late corporation of Georgetown, in said District, numbered as follows: 50 for $1,000; 76 for $1,062; 32 for $450; 364 for $1,500, aggregating $4,012, each of which certificates was issued in his name and was a part of his estate at the time of his death, and passed into the possession of his administrator *eum testamento anneono,*who, it appears, subsequently delivered said certificates or bonds to Eliza A. Little, to whom the same were bequeathed by said Samuel I. Little under the following provision of his will: “ To be used by her during her natural life and at her death to revert to my nearest surviving relative.” It appears that said Eliza A. Little collected the same from the Treasurer of the United States, assigning each of said bonds in the following language : “ I hereby assign the within certificate to the Treasurer of the United States for redemption on account of Eliza A. Ricketts, late Little, legatee under the will of Samuel I. Little, deceased,” her signatures to said assignments being duly witnessed. Each of said bonds was duly signed and sealed by H. Addison, mayor of Georgetown, and George Mountz, clerk.

III. In 1871 provisions were made by the first legislative assembly of the District of Columbia for the payment of the indebtedness of the cities of Washington and Georgetown by an act passed August 19,1871. (Acts of the First Legislative Assembly, chap. 52.) Section 1 of this act created the office of commissioners of the sinking fund, and section 2 provided for the payment of said commissioners from certain revenues of the District of Columbia, of the stocks, bonds, and certificates of indebtedness of the cities of Wash*537ington and Georgetown and of the District of Columbia. June 11, 1878, Congress passed an act to provide a permanent, form of government for the District of Columbia (20 Stat. L., 102), which act abolished the sinking-fund commissioners and transferred their duties to the Treasurer of the United States. On June 10, 1879 (21 Stat. L., 9), Congress passed an act authorizing the Commissioners' of the District of Columbia to execute and deposit with the Secretary of the Treasury bonds of the District of Columbia to an amount not to exceed $1,200,000, the proceeds to be used only for the funded indebtedness of said District or of the late municipal corporations of Washington and Georgetown, which became due January 1 and March 1, 1879, of those then existing or payable at pleasure for the redemption of Avhich the sinking fund of the District may not provide. This act also provides that the bonds shall be sold by the Secretary of the Treasury to the highest bidder, and that the money realized from such sale shall be paid out only for the purposes named in said act. On July 3, 1879, the Treasurer of the United States gave notice that the stocks known as the Georgetown registered stocks would be paid at the Treasury of the United States on and after July 15, 1879, and. that interest on said stocks would cease on that day.

IV. Said Samuel 1. Little left a last will and testament, duly executed, which was admitted to probate and record as such, a correct copy whereof is set out in the amended petition of claimant.

Y. Said Eliza A. Little intermarried with one Eobert Eicketts, and died in November, 1891. At the time of the death of said Eliza A. Little Eicketts, the claimant, Julia A. L. Burnell, was the nearest surviving relative of Samuel I. Little, and had been such since the death of her brother, John O. Little, in 1874, prior to which time she and her said brother were the nearest surviving relatives of said Samuel I. Little. What property she left at the time of her death does not appear.

VI. Samuel I. Little appointed no executor by his said will, and John O. Little, claimant’s brother, was appointed *538and duly qualified as administrator *cum testamento annexe*of said Samuel I. Little.

VII. Said certificates of the stock of the corporation of Georgetown were duly returned by said John O. Little as administrator of said Samuel I. Little in the inventory of his estate and by the final account of said administrator were approved and passed by the orphans’ court of said District and were distributed in accord with the terms of the will of said testator. The title of said certificates of stock was never transferred by said Samuel I. Little nor by his administrator, John O. Little. In the settlement of the accounts of the administrator he is not charged with having receded any interest from said certificates of stock, and the record does not show to whom said interest ivas paid other than for the period from October 1, 1818, to and including July 15, 1879, which was paid to Eliza A. Bicketts, formerly Eliza A. Little.

VIII. Said John O. Little, administrator of said Samuel I. Little, died in 1876, and it does not appear that any letters of administration were ever taken out on his estate, nor does it appear that any other person ivas ever appointed •administrator of the estate of the said Samuel I. Little.

IX. On or about the 3d day of July, 1879, the United States had received from the District of Columbia funds in the sum of $4,021.23, sufficient for the payment of said certificates of stock for the corporation of Georgetown, amounting to $4,012 with interest thereon to July 15, 1879, amounting to $9.23, upon the specific trust to pay said certificates of stock, and that said certificates of stock were never in the possession of claimant and were never seen by her.

X. The fund for the payment of said stock was never paid over to the claimant by the United States, but that the entire fund, amounting to $4,021.23, was paid by the Treasurer of the United States on August 7, 1879, to Eliza A. liicketts, as legatee under the will of Samuel I. Little.

XL On September 20, 1894, payment of said certificates was demanded by the claimant, through counsel, at the Treasury Department, but was refused.

*539*Mr. William G. Johnson*for the claimant.

*Mr. William W. Scott*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants:

1. Had it been testator’s intention to limit his sister to the use of the interest he could have, and no doubt would have, so provided in the will and bequeathed to her the income only. This he did not do, but oil the contrary he bequeathed to her specifically the certificates of stock standing in his name on the books of the corporation of Georgetown to be used by her during her natural life. If it became necessary in July, 1879,. when they ceased to bear interest for her to convert the certificates of stock into cash and use the cash for her welfare and comfort, it was in accordance with the terms of the will; otherwise said certificates of stock could not be used by her in accordance witlrthe terms of the will. In other words, the provisions of the will itself transferred the certificates of stock to Eliza A. Little (Ricketts) and she was entitled to use~’said certificates without any transfer by or on the part of the administrator.

2. The orphans’ court of the District of Columbia having passed upon and approved the eighth and final account of said administrator and directed him to distribute the assets in hand, the settlement of the estate was closed. The administrator was not directed to retain the Georgetown stock certificates, collect the interest, and pay it to the sister of the testator. And his accounts do not show that he ever at any time collected any of the interest. There was only one way he could obey the order of the court and make the distribution in accordance with the terms of the will, and that was by delivering to Eliza A. Little (Ricketts) the said four certificates of stock, to be used by her as provided in the will. No objection was made at the time to the- order of the court making this distribution, which resulted in the delivery of the certificates of stock, and no objection has been made in that court to this day.

3. The order of the orphans’ court making the final settlement and directing the distribution of the testator’s estate is final, and its results should not be interfered with by proceedings in this or any other court. (Amer. & Eng. Encyclopedia, *540Vol. XI, p. 810; see also the case of *Gerhard Paullissen and Lambert Paullissen*v. *Wilhelmina*Loock, 38 Ill., 510.)

In a Washington case, where the judgment or order of a probate court remained undisturbed and unappealed from for a period of ten years, it was held that other courts are es-topped to construe the will of the deceased. *(Mary E. Webster*v. *The Seattle Trust Co., 1*Wash.,p. 642.)

Before the supreme court of Wisconsin the question was raised just how far the order of a probate court was binding upon the heirs or legatees, and it was held that an order of a probate court was binding on all those who 'had notice of the proceeding. *(Bresse*v. *Stiles et*al., 22 Wis., 120.)

Claimant at no time took any steps in the orphans’ court protesting against the order of the court making the distribution or in an effort to appeal from the decision of that court. If she had any rights whatever at the time the order was entered she has lost them bjr sleeping on them during all these long years, as was held in a Maine case:

“A person may, by his acts or omissions to act, waive a right which he might otherwise have under the Constitution of the United States, as well as under a statute.” *(Pierce*v. *The Somerset*Railway, 171 U. S., 641-648.)

This was also later quoted with approval in the case of *Leonard*v. *Vicksburg, etc., R. R. Co.*(198 U. S., 416-422).

4. At the time the order was entered by the orphans’ court directing the distribution of the assets in the hands of the administrator this claimant, if she was not satisfied with the distribution of the assets or the delivery of the four certificates of stock to the life legatee, should have protested to, or appealed from, that court. If she did not care to do that, another remedy still remained for her in this, that she could have, under certain circumstances, required of the life legatee security for the face value of the stocks. This she did not do, raised no objection at any time to the order of the court, but acquiesced therein. It is too late now for her to complain in that court even, and certainly contrary to the decisions of all courts to come into this court and seek a recovery by virtually alleging error in another court having jurisdiction thereof which resulted in *541paying the money to the wrong'party. That a legatee in remainder could require security from the life legatee when there is danger of waste or abuse is well established by decisions of many courts. If there is no probability of waste or abuse, the legatee in remainder could have required of the life legatee that a receipt be given for the certificates of stock. This she did not do. *(Covenhoven*v. *Shuler et al.)*

5. It only requires a reading of, the will of the testator to ascertain that it was the intention of Samuel I. Little to bequeath to his *“*dearly beloved sister ” specifically all the stocks standing in his name on the books of the corporation of Georgetown to be used by her during her natural life. From the inventory of his estate (pp. 42, 43, 44) it seems that Samuel I.-Little died possessed of considerable property, valued in the neighborhood of $43,000, and that at that time two heirs, a son and daughter, survived him. In his will he made no mention of any property other than the Georgetown stock certificates, which he bequeathed to his sister. For the purpose of specially leaving these four certificates to his sister he made his will. His two children were cared for by the law of inheritance, and it was not necessary to provide for them in the will. Testator’s only purpose in drawing the will was to care for his sister. This being his intention, the will should be construed first for the benefit of the person for whom it was drawn. As long as the certificates of stock bore interest they were of some use and benefit to the testator’s sister. When they ceased to bear interest, she could make no use of them. She therefore must resort to some other means of making use of them in order that they be profitable., The will must certainly be construed in this light. Had he not particularly wanted to provide for his sister he would not have made the will.

“ If it can be gathered from the will that the testator intended that the legatee for life should enjoy the property in' its then condition, the bequest is specific and the legatee is, entitled to the possession and enjoyment of the property thus specificially bequeathed, although the bequest be made in general terms and without any particular designation of the property.” ■ (Amer. and Eng*. Encyclopedia, Yol. XX, p. !)52, and cases there cited.)

In the case at bar the property was specifically designated.

*542Again it is said in the same book that—

“A specific bequest for life of the chattels whose use consists in their consumption, carries the absolute property therein and the remainder over is of necessity void. (Vol. XXIV, Amer. and Eng. Encyclopedia, pp. 439 and 440, and cases there cited; *Asylum*v. *The Corporation of Washington,*7 D. C. Reports. 259; *Evans et al.*v. *Richard, Iglehart,*jr., *et*al., 6 Gill & Johnson, 171; *Golder, County Judge,*v. *Littlejohn,*30 Wis., 344.)

6. If it was error for the orphans’ court of the District of Columbia to order the distribution as hereinbefore stated, said order should have been attacked in that court or an appeal taken from that court’s order. An order of that court can not be attacked by a collateral proceeding in this court, which this proceeding would amount to if the claimant should recover.

That an order, judgment, or decree of one court can not be attacked collaterally is established by decisions of many courts. On this question the Supreme Court of the United States says:

“ When the orphans’ court in Pennsylvania has jurisdiction of a subject-matter, its orders, judgments, and decrees therein can not be impeached collaterally.” *(Herron*v. *Dater,*120 U. S., 465; see also *Veach*v. Rice, 131 U. S., 293; *Loyd*v. *Waller et*al., 74 Fed. Rep., 601; *Simpson*v. *Cook,*24 Minn., 181; *Eslin*v. *The District of Columbia,*22 C. Cls. R., 160.)

Atkinson, J.,

delivered the opinion of the court:

During the months of December, 1853, and January, 1854, the corporation of Georgetown issued to Samuel I. Little four certificates of 6 per cent stock aggregating $4,012, the interest on said stock being payable quarterly. Tn 1855 Samuel I. Little executed a will in which he bequeathed these certificates of stock to his sister, Eliza A. Little, “ to be used by her during her natural life and at her death to revert'to-my nearest surviving relative.” Said Samuel I. Little left surviving him two children, a son, John O. Little, who died unmarried in 1874, and a daughter, Julia A. L. Burnell, the claimant herein. Said sister, Eliza A. Little, in November, 1891, married one Robert Ricketts. At her death the claim*543ant was the sole surviving descendant of said Samuel I. Little.

In 1871 provision was made by the first legislative assembly of the District of Columbia for tlie payment of the indebtedness of the cities of Washington and Georgetown by an act passed August 19, 1871 (Acts of the First Legislative Assembly, chap. 52). Section 1 of this act created the offices of commissioners of the sinking fund and section 2 provided for. the payment by said commissioners from certain revenues óf the District of Columbia, of the stocks, bonds, and certificates of indebtedness of the cities of Washington and Georgetown and of the District of Columbia.

By an act dated June 11, 1878 (20 Stat. L., 102), Congress provided a permanent form of government for the District of Columbia, abolished the sinking-fund commissioners, and transferred their duties to the Treasurer of the United' States. By an act of June 10, 1879 (21 Stat. L., 9), Congress authorized the Commissioners of the District of Co-luinbia to execute and deposit with the Secretary of the Treasury bonds of ,the District of Columbia to an amount not *to*exceed $1,200,000, the proceeds to be used only for the funded indebtedness of said District or of the late municipal corporations of Washington and Georgetown, which became due January 1 and March 1, 1879, of those now existing or payable at pleasure for the redemption of which the sinking fund of the District may not provide. This act also provides that said bonds shall be sold by the Secretary of the Treasury to the highest bidder and that the money realized from such sale be paid out by the Secretary of the Treasury only for the purposes named in this act. On the 3d of July, 1879, the Treasurer of the United States gave notice that the stocks known as the registered stocks of the late corporations of Washington and Georgetown would be paid at the Treasury of the United States on and after July 15,1879, and that interest on said stocks would cease on that date.

The four certificates of stock issued to Samuel Í. Little were presented to the Treasurer, and their aggregate amount of $4,012 was paid to the order of Eliza A. Little Ricketts, together with the sum of $9.23, which was the accrued unpaid interest thereon. In November, 1891, said Eliza A. *544Little Ricketts, the legatee of the said stock, died, and on September 20, 1894, the plaintiff, as remainderman under the will of Samuel I. Little, demanded payment for the stock, which was refused. Thereafter, on April 29, 1896, this action was begun by the filing of the petition herein.

Was the payment made by the Treasurer of the United States to Eliza A. Little Ricketts, the legatee of her brother, Samuel I. Little, of the stock or bonds held by him and known as bonds issued by Georgetown City, D. C., aggregating the sum of $4,012, a valid discharge of the liability of the United States to the plaintiff, the remainderman? The answer to the question necessarily involves the construction of the will under which said bonds were devised to the said Eliza A. Little. It is in the following language:

> “ WASHINGTON COUNTY,

> “ *June 26,1855.*

> “ I hereby give and bequeath to my dearly beloved sister, Eliza A. Little, of Washington County, D. C., all the stocks standing in my name on the books of the corporation of Georgetown, D. C.,to be used by her during her natural life, and at her death to revert to my nearest surviving relative.

> “ S. I. Little.

> “ Witnesses:

> “ G. M. Dove.

> “Abel G. Davis.”

The findings show, and it is not disputed, that this will was duly probated in the Orphans’ Court of the county of Washington, D. C.; that John O. Little, a son of the testator, was on the 7th day of July, 1855, appointed by said court administrator *cum testamento annexo*of the said Samuel I. Little, deceased; that said administrator died intestate on August 31, 1876, and since his death there has been no other administrator of said estate appointed.

The findings further show that said administrator never parted with the title to said certificates or bonds, nor assigned the same to any person, and that the same remained at all times a part of the estate of Samuel I. Little, subject to the terms of his said will, until November 24,1891, when said Eliza A. Little died, and ívhen the plaintiff herein, being the nearest of kin to said Samuel I. Little, deceased, asserted her claim as remainderman, to bo entitled to recover from the United *545States the said certificates or bonds, or the value thereof, which amount had been illegally paid, as she avers, to the said Eliza A. Little in her lifetime by the Treasurer of the United States contrary to the' provisions of said will.

It is not questioned, as the findings show, that the certificates or bonds were the property of the testator, Samuel I. Little; that the inventory of said Little’s estate filed in the Orphans’ Court showed him1 to be the owner of said certificates or bonds; that by tile last account of said Little’s administrator they were shown as an asset still on hand and undisposed of under the provisions of the will; that the certificates or bonds bear no indorsement or transfer by the testator or his administrator or other person legally representing him or his estate; that the only assignment was that of Eliza A. Little Iticketts as legatee under the will of her deceased brother, Samuel I. Little; hence it is claimed by plaintiff that the stock certificates never having been assigned or transferred by the administrator (who died in 1876), and no one having been appointed in his stead, could only have been transferred by the joint act of the legatee for a life estate and the remainderman, who is the plaintiff in this cause.

The defendants insist that the testator'did not intend to limit his sister to the use only of the income of the stock certificates, they being redeemable at the pleasure of the Georgetown corporation, and if he had thus intended, he would have so provided in the will. They also further contend that this construction was placed upon the will by the orphans’ court when it directed the distribution of the property of the estate and in which distribution Eliza A. Little received the four shares of stock herein in controversy, and accordingly the case should be considered *res adjudicata.*A lengthy and able argument is, presented, with many cases cited, to sustain these contentions.

The fundamental and controlling rules for the construction of wills are: (1) Technical import of words is not to prevail over the obvious inttent of the testator; (2) when technical words are used by the testator they are to have their technical import, unless it is apparent that they were not intended to be used in that sense — the particular intent-will always be sacrificed to the general intent; (3) the in*546tent of the testator is to be determined from the whole will — the entire scheme of the will; (4) every word shall-have effect if it can be given without defeating the general purpose of the will, which is to be carried into effect in every reasonable mode.

In *Smith*v. *Bell*(6 Pet., 68) the testator gave all of his personal estate, after certain payments, to his wife “ to and for her own use and benefit and disposal absolutely,” with a provision that the remainder after her decease should go to his son. The court held that the latter clause qualified the former and showed that the wife only took a life estate. In construing the language of the devise Chief Justice Marshall, after observing that the operation of the words “ to and for her own use and benefit and disposal absolutely ” annexed to the bequest, standing alone, could not be questioned, said: “ But suppose the testator had added the words ‘ during her life.’ These words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given by the prior words, to the use and benefit and to a disposal for the life of the wife. (13 Ves., 444.) The words, then, are susceptible of such limitation. It may be imposed on them by other words. Even the words ‘ disposal absolutely ’ may have their absolute character qualified by restraining words connected with and explaining them to mean such absolute disposal as a tenant for life may make.”

The. Chief Justice then proceeded to -show that other equivalent words might be used equally manifesting the intent of the testator to restrain the estate of the wife to her life, and that the words devising the remainder to the son were thus equivalent.

The will in the case at bar in plain terms says, “ I hereby give and bequeath to my sister * * * *to be used by her during her natural life*” certain certificates or bonds. Taken alone, this clause would imply that the testator did not intend to limit the legatee simply to the use of the income of said stock; but when it is read in connection with the clause which immediately follows, to wit, “ *and at her death to revert to my nearest surviving*relative,” it as clearly expresses the testator’s intention that upon the death of the *547legatee his nearest surviving relative should have the stock. Therefore, to sustain the. contention of the defendants the latter clause would have to be entirely stricken from the will, which the court is not authorized or empowered to do.

The case of *Thorpe*v. *Shillington*(15 Grant’s Chancery Reports, 85) involved the construction of a will in which the testator gave all his personal estate and all his other-property, after certain.payments, to his wife “to have and to hold the same for her sole use and benefit during the term of her -natural life.” The court held that “ where money, mortgages, and promissory notes were bequeathed to a legatee for life she would not be entitled to the possession and disposition of the same, but to the income only.” The coui't further said: “A bequest of government stock for life would clearly not entitle a legatee for life to a transfer of the stock into her own name; and a bequest' of mortgages, notes, and money must .be in a like position. A legatee for life is entitled to the possession of things bequeathed specifically where there is no other way of her having the use of them; but the use of public stock, mortgages, notes, money, and the like for life consists in having the income which they produce.”

In the case of *Payne*v. *Robinson*(26 App. Cases, D. C., 283), the coiirt, through Chief Justice Shepard, said: “Where there is a bequest of money to a tenant for life, with remainder over, the principal should not be paid to the tenant for life unless the- language of the will shows with reasonable certainty that the testator intended it should be delivered into his possession. It is the duty of the executor to invest the money and pay the interest only to the life tenant, preserving the principal for the remainder-man.” This doctrine is also clearly set forth by Chancellor Kent in his Commentaries,' volume 2, page 354.

In *Steiff et al.*v. *Seibert et al.*(128 Iowa, 746), in which Seibert devised and bequeathed to his wife all of his estate, both real and personal, to be hers during her lifetime and to be disposed of by her as she might deem fit and to execute conveyances thereof with remainder to several other parties in the will mentioned in case his said wife had not disposed of the property at the time of her death, the court *548held that “ a life estate will not be enlarged into a fee by an additional power of disposal, however brought, where the will contemplates a remainder and provides for its distribution, but such portion of the estate as shall be undisposed of at the termination of the life estate will invest in the remainder-men. The will in the instant case is construed and held to create only a life estate with power of disposal.”

It is well settled that where Congress directs a fund to be placed in the United States Treasury for the payment of specific obligations the relation of the Government to the beneficiaries of the fund is not merely that of debtor and creditor, but the Government becomes, as to such fund of such beneficiaries, a trustee. *(United States*v. Taylor, 104 U. S. R., 216; *United States*v. Cooper, 120 U. S. R., 124; and *United States*v. Wardwell, 172 U. S. R., 48.) Hence the general rule that a trustee is bound, at his peril, to see to the proper application of the trust fund applies to the Government as .well as to an individual trustee. *(Borcherlin’s ease,*35 C. Cls. R., 312, which was affirmed by the Sujireme Court, 185 U. S. R., 223.) It must therefore be apparent that if the Treasury Department in the case at bar made payment out of a fund which it held in trust, through a mistake of law, to the' party in law not entitled to receive the same, it transcended its authority and is responsible therefor to the rightful owner of the funds.

■ We do not agree with the defendants’ claim that the action taken by the Orphans’ Court of the District of Columbia rendered the case *res adjudicaba.*The approval and passing of an account of an executor or an administrator is not an adjudication of parties under a will, nor could the delivery of the stock to the legatee by the administrator change the terms and conditions qf the will.

In *Reynolds*v. *Stockton*(140 U. S. R., 254) it was decided that a- judgment is not *res adjudicaba,*even between the parties, unless the matter adjudged was upon an issue within the pleadings. And in *Thormann*v. *Frame*(176 U. S. R., 350) it was likewise held that an adjudication by a probate court is not conclusive on a question of domicile, because that question was not in issue in the case.

*549The findings herein do not show that any proceedings were ever instituted to have the will judicially construed. There was only the *ex parte*proceeding by the administrator as to the settlement of his accounts, and the court passed no ¡order and rendered no decree as to the legal rights of any legatee. The order made by the court is as follows:

“Also the 8th and final account of John Little, as administrator, w. a., of Samuel J. Little, deceased, and the same were all respectively approved and passed by the court; and upon the said eighth and final account it is ordered that a balance and distribution of the assets in hand be made in accordance with the provisions of the will of the deceased.”

Thus it is shown that the court did not undertake to define the provisions of the will or define the rights of the legatee. Nor does it appear that any instructions were asked or given. It only appears that the stock certificates were delivered to the legatee “ in accordance with the provisions of the will,” and when delivered to the wrong party in interest the rightful owner of the bonds or stocks so delivered can maintain an action against the trustee therefor. *(Telegraph Go.*v. Davenport, 97 U. S. 17., 369, 372.)

Judgment is awarded for plaintiff against the United States in the sum of $4,021.23.

Howry, J., on account of illness, took no part in the trial and decision of this case.