v. Holderbaum, 44 Fed. 229, holding will conferred power coupled with an interest; Reeves v. Tappan, 21 S. C. 10, sustaining sale by executor's executrix under power in first testator's will, coupled with a trust.

Wills. Power of sale in will, without declaration of person by whom it shall be made, is vested in the executor by necessary implication, p. 268.

Cited in Pulliam v. Pulliam, 10 Fed. 40, F. C. 11,463a, holding power of sale belonged to executor by implication. See also note to 5 Am. St. Rep. 143.

Wills. In carrying out a testator's wishes, courts are much inclined, especially in equity, to vest all the power or interest in executors, necessary to effectuate those wishes, p. 265.

Cited in Ames v. Holderbaum, 44 Fed. 229, construing will so as to accomplish testator's purposes.

Equity. To avoid an escheat, and carry out testator's wishes, equity will, if necessary, consider land as money, where testator, who was a trustee, has directed the land to be sold, and will direct the proceeds to be paid to the cestui que trust, p. 269.

Cited and principle applied in Cropley v. Cooper, 19 Wall. 174, 22 L. 113, collecting cases, where equity court regarded sale of realty directed by will as made.

Trusts. Where testator, holding lands in trust, directed his executors to sell them, and appointed residuary legatees, he must be considered as devising the trust as well as the lands to such legatees, who thus become, themselves, trustees for the original cestui que trusts, pp. 270, 272.

No citations.

Escheat. Lands cast by decedent on an alien, escheat without any office found, but an alien can always hold lands taken by devise or purchase till office found, p. 270.

Cited in Jones v. Minogue, 29 Ark. 645, holding lands devised to alien do not escheat until office found.

Wills. Whether executor had a power to sell, coupled with a trust, or a power coupled with an interest, the residuary legatees took by devise and not by descent, although they were supposed to be also the cestui que trusts, p. 270.

Trusts. As a general rule a court of chancery will not raise a use "by implication" in an alien, but will, rather, pass a title to the executors in trust, p. 270.

See note to 51 Am. Dec. 754.

Executor validly selling certain trust property is accountable to the beneficiaries in the State where he resides though the will was not proved there, and he cannot set that up as a defense, p. 271

5 How. 233-278

Notes on U. S. Reports.

564

Executor selling lands held by his testator in trust, under a power in the will, is accountable to the beneficiaries for the proceeds thereof, with interest; and receipts of additional sum, by them, from purchasers, with reservation of right to sue executor, does not avoid the sale by executor or relieve him from liability, pp. 272, 273, 274.

Cited and principle applied in McKee v. Lamon, 159 U. S. 322, 40 L. 167, 16 S. Ct. 13, collecting cases, holding reception of money for others' benefit with notice created duty to devote it to purposes intended; Colonial, etc., Mortg. Co. v. Hutchinson Mortg. Co., 44 Fed. 221, holding company which misapplied complainant's funds liable therefor as trustee. Cited also in Pulliam v. Pulliam, 10 Fed. 64, F. C. 11,463a, holding executor accountable for interest only on money actually received.

Powers.- Sale by one of several executors, vested with a power of sale, coupled with a trust, is not such informality as to relieve such executor from liability for the proceeds to the beneficiaries, not so much strictness being necessary as in case of a naked power of sale, p. 272.

See note to 9 Am. Dec. 318.

A power to executors to sell, coupled with a trust, survives, and if all but one decline the trust, he is authorized to sell alone; but not so a naked power to sell, which must be executed by all or none, pp. 272, 273, 667.

Cited and applied in Parsons v. Boyd, 20 Ala. 118, and Hannah v. Carrington, 18 Ark. 104, where power of sale coupled with trust, given to two, execution by survivor sustained; Clinefelter v. Ayres, 16 Ill. 333, collecting cases, holding naked power to sell would not survive; Gray v. Lynch, 8 Gill, 423, Smith v. Winn, 27 S. C. 598, 4 S. E. 242, and Dick v. Harby, 48 S. C. 530, 26 S. E. 905, sustaining authority of surviving executor or executors to sell under power in the will, coupled with a trust. See also note to 2 Am. Dec. 291;

note to 7 Am. Dec. 525.

Powers

Recording laws.- Where not required by local statute, sale under power, in a will, is not vitiated by failure to record the will, p. 273.

Cited in Lucas v. Tucker, 17 Ind. 45, holding local statute determined necessity for recording will.

An executor selling testator's lands under a power in the will, is liable to the cestuis for the amount received, with interest; but not for failure to realize more for the property, except in case of supreme negligence or willful default, pp. 474, 475.

Cited and principle followed in Jewett v. Cunard, 3 Wood. & M. 300, 301, F. C. 7,310, holding trustee accountable for moneys received and losses occasioned by supreme neglect; Pulliam v. Pul

liam, 10 Fed. 46, F. C. 11,463a, collecting cases, holding executor under will directing sale of lands liable for assets which he could have realized thereby; Ellig v. Naglee, 9 Cal. 695, holding trustees prima facie liable for omission to sue in time; Gray v. Lynch, 8 Gill, 431, applying principle, holding executors not liable under the circumstances; Brown v. Harshman, 9 Ohio C. C. 4, holding executors not liable for debt due to estate from one of them who is insolvent; Touchstone v. Whittington, 2 Baxt. 72, holding trustee not accountable for loss not occasioned by his wrong; Mickle v. Brown, 4 Baxt. 475, holding executors not liable for loss occasioned by delaying sale until a determination of title to property; Rockhold v. Blevins, 6 Baxt. 128, collecting cases, holding executor not liable to legatees who were alien enemies, for money paid to government agent; Davis v. Havman, 21 Gratt. 200, 201, reviewing cases, holding commissioner not liable for loss occasioned by fund retained by him pending litigation, perishing on his hands; Elliott's Admr. v. Howell, 78 Va. 307, holding guardian not liable for loss occasioned without negligence on his part. See also note to 7 Am. Dec: 513, collecting cases; note to 31 Am. Dec. 256.

Executors and administrators.- Where claim that amount received by executor for sale of trust property was insufficient to cover expenses, was not urged by the executor, it has no weight when urged first by his representative, unaccompanied by any exhibit or account, pp. 275, 276.

Statute of limitations does not begin to run in favor of trustee, in respect to money actually received by him, until a demand and refusal, p. 276.

Cited in Hunt v. Danforth, 12 Fed. Cas. 913, holding statute had not run in favor of express trustee who had never disclaimed trust; Pulliam v. Pulliam, 10 Fed. 26, F. C. 11,463a, holding legatees' and devisees' remedy against executor not barred by statute; Prince v. Towns, 33 Fed. 163, holding liability of administrator who had never acted towards trust as terminated not barred. Cited also in Bechtold v. Read, 49 N. J. Eq. 115, 22 Atl. 1087, refusing to apply doctrine of laches to cestui que trust residing in a foreign country.

Equity practice.- Where bill made no distinction between two characters in which executor acted, viz.: as executor proper, and as executor having power coupled with trust, in absence of objection taken therefor, in court below, amendment was not imperatively necessary, p. 277.

Cited in Bunnel v. Stoddard, 4 Fed. Cas. 682, collecting cases, holding alleged variance between allegation and proof immaterial. Miscellaneous. Cited in Pulliam v. Pulliam, 10 Fed. 45, F. C. 11,463a, holding will is the executor's law in Federal court, and if he accepts the trust he must perform all the directions of the will;

5 How. 278–294

Notes on U. S. Reports.

566

Carey v. Richardson, 35 La. Ann. 510, holding parol proof admissible of new agreement subsequent to and regarding a part of old written contract. Erroneously cited and distinguished in Albion Lead Works v. Williamsburg, etc., Ins. Co., 2 Fed. 486, holding certain statements were not continuing warranties.

5 How. 278-294, 12 L. 152, PHILLIPS v. PRESTON.

Trial.— Although the court refused to receive specially pleaded peremptory exceptions, yet, where the party had the benefit of them on motion, in arrest of judgment, and on bill of exceptions, the refusal was not ground for reversal, p. 288.

Louisiana statute adopted by Federal court rule, requiring courts to have testimony taken down in all cases where appeal lies to Supreme Court, includes only cases of technical appeal and not writ of error, pp. 289, 290.

Cited and rule applied in Arthurs v. Hart, 17 How. 12, 15 L. 32, holding omission of evidence from record or bill of exceptions no objection on writ of error; Barreda v. Silsbee, 21 How. 167, 16 L. 93, collecting cases, refusing to review questions of fact. Cited also in United States v. King, 7 How. 866, 12 L. 948, dissenting opinion, majority considering the testimony upon the facts.

Trial.— Where laws permit waiver of trial by jury, it is too late to raise an objection that the waiver was not made matter of record, after the case has proceeded to a hearing, p. 290.

Cited in Kearney v. Case, 12 Wall. 282, 284, 20 L. 396, 397, and Gilman v. Illinois, etc., Tel. Co., 91 U. S. 614, 23 L. 409, holding jury waived where no objection to trial by court made, though record does not show waiver.

Federal courts Bills and notes. In suit by first indorser of promissory notes against second indorser, upon alleged contract between them that latter would bear half of any loss, it is no objection to Federal jurisdiction that second indorsee and defendant were citizens of the same State, pp. 290, 291.

Evidence.- Contract between two indorsers of promissory notes to divide the loss between them, being a collateral agreement by parol, parol evidence can be given to prove it. Testimony of the payee and notary, and the “act of sale,” were all admissible, pp. 291, 292, 293, 294.

Cited and principle followed in Clarke v. Manufacturers' Ins. Co., 8 How. 246, 12 L. 1065, holding parol testimony competent to identify an application expressly referred to in insurance policy; Welz v. Rhodius, 87 Ind. 8, 44 Am. Rep. 753, collecting cases, admitting parol evidence to prove collateral parol agreement made in consideration of execution of written lease; Smith v. Morrill, 54 Me. 50, 54, reviewing cases, Weston v. Chamberlain, 7 Cush. 406, Clapp

v. Rice, 13 Gray, 406, 74 Am. Dec. 641, Farwell v. Ensign, 66 Mich. 604, 33 N. W. 736, reviewing authorities, Paul v. Rider, 58 N. H. 121, collecting cases, Easterly v. Babker, 66 N. Y. 437, collecting cases, and Kiel v. Choate, 92 Wis. 520, 53 Am. St. Rep. 937, 67 N. W. 432, all sustaining parol contract between indorsers for contribution and admitting parol evidence to prove it; Mansfield v. Edwards, 136 Mass. 18, 49 Am. Rep. 3, collecting cases, admitting parol evidence to prove collateral agreement between maker and parties signing as sureties, that they were joint makers; Montgomery v. Page, 29 Or. 324, 44 Pac. 690, reviewing cases, holding parol evidence of verbal agreement between surety and guarantor, to become co-sureties, admissible in action for contribution. See also note to 30 Am. Dec. 142.

Denied in Johnson v. Ramsey, 43 N. J. L. 285, 287, holding parol agreement for contribution between indorsers at time of signing, inadmissible. See also note to 39 Am. Rep. 121, 122.

Bills and notes.- Contract between two indorsers, to divide the loss between them, is a good contract founded on sufficient consideration, p. 291.

Cited and principle followed in Smith v. Morrill, 54 Me. 50, 54, reviewing cases, Weston v. Chamberlain, 7 Cush. 406, Clapp v. Rice, 13 Gray, 406, 74 Am. Dec. 641, Farwell v. Ensign, 66 Mich. 604, reviewing authorities, Paul v. Rider, 58 N. H. 121, collecting cases, Easterly v. Barber, 66 N. Y. 437, and Kiel v. Choate, 92 Wis. 520, 53 Am. St. Rep. 937, 67 N. W. 432, all sustaining parol contract between indorsers for contribution. See also 39 Am. Rep. 121, 122, note.

Distinguished in Harrah v. Doherty, 111 Mich. 177, 179, 69 N. W. 243, 244, reviewing cases, holding agreement for contribution between successive indorsers, after maturity, ineffectual, for want of consideration, to charge subsequent indorser. Denied in Johnson v. Ramsey, 43 N. J. L. 285, 287, holding agreement for contribution between indorsers cannot be set up.

Evidence.- Parol is inadmissible to contradict promissory notes, p. 291.

Referred to in Martin v. Cole, 104 U. S. 38, 26 L. 650, as citing 6 Pet. 51, 8 L. 316, as authority that parol evidence is inadmissible to vary written contract; Clark v. Manufacturers, etc., Ins. Co., 2 Wood. & M. 480, F. C. 2,829, reversed in S. C., 8 How. 246, 12 L. 1065, collecting cases on the same point. See also note to 39 Am. Rep. 118.

Bills and notes.- Prior indorser, who has paid a note, has no claim for contribution from subsequent indorser, if they were not joint sureties, p. 292.

Cited in Gillespie v. Campbell, 39 Fed. 725, 726, 5 L. R. A. 700,