to reverse the decree of the District Court rejecting the lien of that mortgage, and to remand the cause to the District Court with instructions to establish that lien, and to proceed further with the cause as law and justice may seem to require.

thing appearing to the contrary, to have acted | manded to the Circuit Court, with instructions under that jurisdiction when it granted the relief complained of. For this reason we held that the remedy of Wilt was by appeal to the Circuit Court, and not by petition for review under the supervisory_jurisdiction; and that the action of the Circuit Court was irregular and of no effect, because of a want of power to proceed in that way in such a case. As, however, what the court did do was under an assumed supervisory jurisdiction, we did not dismiss the appeal, but sent the case back, with instructions to the Circuit Court to dismiss the petition for 258] *review, for want of jurisdiction, and suggesting to the District Court the propriety of entertaining a bill of review in equity to correct the errors in the original decree, if any were found to exist.

NIMICK & CO. et al., Appts.,

V.

WILLIAM COLEMAN et al.

(See S. C., Reporter's ed., 266-268.)

Appeal in bankrupt cases.

proceed under its

Where the Circuit Court refused to take jurisdiction of an appeal from the District Court, and did supervisory jurisdiction under the Bankrupt Act alone, no appeal lies to this court from the action of the Circuit Court. [No. 951.]

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. The case is stated by the court.

That case seems to us to be decisive of this, which is clearly one of equitable jurisdiction. The parties expressly waived all errors of form, and asked the court to proceed to a final hearing of all the questions in which they were interest- Submitted Nov. 16, 1877. Decided Nov. 26, 1877. ed. The court did proceed, and did enter a decree, from which an appeal was allowed and taken to the Circuit Court. In the Circuit Court the parties again stipulated that the court might proceed as upon an appeal, with the understanding, however, that the appeal should be turned into a petition for review in case it appeared to be necessary. It is evident, therefore, that the case in the courts below was not only in substance a suit in equity, but that both the parties and the court treated it as such, and acted accordingly. The proceeding is full of irregularities; but these have all been waived, and both courts below were asked to hear and decide the case upon its merits, without regard to mere form.

We are clearly of the opinion that, under the practice as finally established in this court in furtherance of justice, the case was properly brought here by the appeal.

As to the second objection, it is sufficient to say that the appeal was allowed in open court during the term at which the decree was rendered. No citation was, therefore, necessary. Brockett v. Brockett, 2 How., 241. Milner alone appealed; but his appeal brings up so much of the case and such of the parties as are necessary for the determination of his rights.

The motion to dismiss the appeal is, therefore, denied, and we are brought to a consideration of the case upon its merits. This presents only questions of fact. It is unnecessary to recapitulate the testimony; but, after a careful examination of the whole record, we are satisfied that the conveyance executed by the bankrupt to Milner, November 17, 1870, was void as against creditors, but that the mortgage of the 19th of January, 1872, was executed for a good and valuable consideration, and without fraud, and that it constitutes a valid and subsisting lien upon the property mortgaged as of 259] the date of its record, to secure the payment of such an amount as may appear to be due upon the indebtedness and liability secured thereby.

Mr. Geo. Shiras, Jr., for the motion: The decree of the Circuit Court brought up by this appeal, was rendered by that court in the exercise of its supervisory jurisdiction under the bankrupt law, and is not reviewable here.

Morgan v. Thornhill, 11 Wall., 74, 20 L. ed., 62; Hall v. Allen, 12 Wall., 452, 20 L. ed., 458; Mead v. Thompson, 15 Wall., 638, 21 L. ed., 243; Marshall v. Knox, 16 Wall., 555, 21 L. ed., 483; Coit v. Robinson, 19 Wall., 278, 22 L. ed., 152; Sandusky v. Bk., 23 Wall., 289, 23 L. ed., 23; Wiswall v. Campbell, 93 U. S., 347, 23 L. ed., 923; Conro v. Crane (ante, 145).

Messrs. Hampton & Dalzell, Hill Burgwin and
J. F. Slagle, in opposition to the motion:
To quash the appeal in this case, we shall re-
ly upon the following propositions:

1. The District Court acted without jurisdiction. Three fourths in value of the creditors of Zug & Co., whose claims had been proved, having determined that the estate should be wound up in the manner prescribed by the 43d section of the Bankrupt Act, and their resolution having been confirmed by the District Court, there was no longer any power in that court to control the discretion of the committee, acting bona fide in the distribution of the bankrupt's estate.

2. Even if the District Court had jurisdiction it could not be exercised in a summary manner such as is only reviewable in the Circuit Court, under its supervisory power.

3. If the District Court acted without jurisdiction, or if having jurisdiction, it improperly sought to exercise it by summary process, an appeal lies to this court.

In re Jay Cooke, 11 Bk. Reg., 15-20; Lewis, Trustee, v. U. S., 92 U. S., 618, 23 L. ed., 513; Smith v. Mason, 14 Wall., 419, 20 L. ed., 748; Marshall v. Knox, 16 Wall., 555, 21 L. ed., 483; Stickney v. Wilt, 23 Wall., 150, 23 L. ed., 50.

Mr. Chief Justice Waite delivered the opin

The decree of the Circuit Court, in so far as
it affirms the decree of the District Court de-
claring the mortgage in favor of Milner fraudu-
lent and void, will be reversed and the cause re-ion of the court:

Zug & Co., a partnership firm composed of Christopher Zug and Charles H. Zug, were adjudicated bankrupts by the District Court of the United States for the Western District of Pennsylvania, March 13, 1876. The creditors determined that it was for the interest of the general body of the creditors that the estate should be settled and distributed by trustees under the inspection and direction of a committee, as provided by section 43 of the Bankrupt Act. R. S., sec. 5103. The District Court confirmed this action of the creditors; and accordingly the estate was conveyed to trustees, to be dealt with in the manner contemplated by that section. The trustees, having converted both the partnership property and that of the individual partners into money, filed their accounts with the committee for settlement, and an order for distribution. The committee approved the accounts, and declared what seemed to them to be a proper dividend of the assets among the partnership and individual creditors. The court granted the bankrupts their discharge October 14, 1876.

267] *Notice of the dividend declared having been served upon the creditors, William Coleman and others, individual creditors of Christopher Zug, filed their petition in the bankrupt court, January 5, 1877, excepting to the account as settled by the committee, and asking the court to resume jurisdiction of the bankruptcy proceedings, and order the trustees to file their accounts in court, to the end that the same might be duly audited and the estate of the bankrupts marshaled and distributed according to law. To this petition the trustees appeared and answered setting forth the action of the committee, and claiming that the court had no jurisdiction to control their proceedings. January 20, 1877, the creditors amended their petition so as to bring in the committee. This committee having answered, the court made an order, April 2. 1877, directing both the committee and the trustees to file in court "An account of the estate. joint and several, of the bankrupts, also setting forth the different properties of the bankrupts and the moneys derived therefrom, respectively, with the report of distribution."

supervisory jurisdiction of that court. September 22, the Circuit Court made an order dismissing the appeal, for the reason that the case was one for review and not appeal, *and [268 at the same time, under the petition for review, affirmed the order of the District Court complained of.

September 29, the partnership creditors took an appeal to this court from the order of the Circuit Court dismissing their appeal. The cause having been docketed upon this appeal, the individual creditors now move to dismiss, for the reason that the order appealed from is not reviewable in this court.

We think this motion must be granted. The record shows affirmatively that the Circuit Court refused to take jurisdiction upon the appeal, and did proceed under its supervisory jurisdiction alone. The case is thus brought directly within our decision in Stickney v. Wilt, 23 Wall.. 150, 23 L. ed., 50; and, as the order of the District Court has been affirmed, we are not called upon to determine whether we should set aside the action of the Circuit Court for want of jurisdiction, as we did in that case, because there was a reversal. If, as is claimed, the District Court acted without jurisdiction, or in a manner not to bind the parties, its decree as made was void; and the aggrieved partnership creditors may very properly consider whether they cannot proceed in equity to call the trustees to a proper accounting and distribution. Upon that question, however, we express no opinion. We are clear that no appeal lies to this court from the action of the Circuit Court in respect to what has been done; and the suit is, accordingly, dismissed.

GABRIELA SOBERANES de CAMBUSTON,
Exrx. of Henry Cambuston, Deceased, Appt.,

V.

UNITED STATES.

(See S. C., Reporter's ed., 285-288.) Appeal, when too late-decree, when suspendedorder for new trial.

1. Under the statute, that writs of error and appeals should only be brought to this court within five years of the passing or rendering the decree or judgment complained of, where a decree was rendered Nov. 12, 1859, and the appeal not taken until April 3, 1875, it was too late.

2. Where neither the petition for a rehearing nor

the motion for a new trial was filed during the term at which the decree was rendered, it does not suspend the operation of the decree.

3. No appeal lies from an order refusing a new trial. [No. 88.]

The trustees and committee thereupon filed a petition in the Circuit Court for a review of this order; and, May 23, that court affirmed the action of the District Court, except so far as it related to the committee, as to whom it was reversed and the petition dismissed. The direction to report distribution was also stricken out as premature. May 28, the trustees filed their accounts, with a statement of the action of the committee thereon. May 29, certain individual creditors of Christopher Zug, and also certain individual creditors of Charles H. Zug, filed exceptions to the account, upon the ground that Submitted Nov. 9, 1877. Decided Nov. 26, 1877. individual property had been, as they claimed, improperly included in the partnership assets. Testimony was taken in support of and in opposition to these exceptions; and, July 13, the exceptions were sustained and the accounts modified. From this order certain of the partnership creditors took an appeal to the Circuit Court, July 21, which the individual creditors moved in that court, August 4, to dismiss. Certain other of the partnership creditors filed in the Circuit Court, July 20, a petition for review under the

Appeal from the District Court of the United States for the District of California.

The case is stated by the court.

Mr. Edmond L. Goold, for appellant. Mr. S. F. Phillips, Solicitor-Gen., for appellees.

NOTE. What is final decree or judgment of state or other court from which appeal lies. See note to Gibbons v. Ogden, 5 L. ed. U. S., 302.

286] *Mr. Chief Justice Waite delivered the suspended the operation of a decree in equity opinion of the court:

v. Norton, 20 How., 448, 15 L. ed., 950; it follows that the motion to dismiss must be granted.

upon such incorporation, upon further trust to grant and convey the said lots of ground and trust estate to the corporation or institution so incorporated for said purpose of the erection of a hospital, which conveyance shall be absolute

ELIZABETH C. OULD et al., Plffs. in Err., and in fee: Provided, nevertheless, that such

corporation shall be approved by my said trustees, or the survivor of them, or their successors in the trust; and if not so approved, then upon further trust to hold the said lots and trust estate for the same purpose, until a corporation shall be so created by Act of Congress which shall meet the approval of the said trustees or

Charitable endowments-devise to charitable use the survivor or successors of them, to whom full

-conditional limitation.

1. The Statute of 43 Eliz., ch. 4, was never in force in Maryland. The validity of charitable endowments, and the jurisdiction of a court of equity in such cases, do not depend upon that statute.

2. A devise in fee, to two trustees and to the survivor of them, who were directed to convey the premises to an eleemosynary corporation for foundlings, whenever Congress should create one which the trustees approved, is a valid devise, and not void for uncertainty, nor as creating a perpetuity.

3. The provision in the will directing them to con

vey, is a conditional limitation of the estate vested in the trustees; their conveyance was made necessary to pass the title. The duty with which they were charged was an executory trust.

[No. 70.]

Argued Nov. 2, 1877. Decided Nov. 26, 1877.

In Error to the Supreme Court of the Dis

discretion is given in this behalf; and, upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and, until such conveyance, I direct the taxes, charges and assessments, and all necessary expenses of, for and upon said lots, and every one of them, time to time accrue and become due and payto be paid by my executors, as they shall from able, out of the residue of my estate."

The will was duly proved and admitted to probate in the proper court in the District of Columbia, on the 22d of June, 1864. On the 22d of April, 1870, Congress passed "An Act the City of Washington." 16 Stat. at L., 92. for Incorporating a Hospital for Foundlings in On the 4th of April, 1872, Shuster and Clagett, The plaintiffs in the court below, now plaint- the trustees, conveyed the property to the deiffs in error, brought ejectment to recover four-fendant in error, the Washington Hospital for teen lots in the City of Washington, claiming as Foundlings, so incorporated, pursuant to the diheirs at law of Joshua Pierce deceased. The rections of the will. defendants claimed under Pierce's will.

trict of Columbia.

The case is further stated by the court.
Messrs. O. D. Bartlett, B. F. Butler and
R. T. Merrick, for plaintiffs in error.
Messrs. Walter S. Cox and Hanna & John-
ston, for defendant in error.

Mr. Justice Swayne delivered the opinion of

the court:

This case was submitted to the court below, upon an agreed statement of facts.

The court found for the defendant, and gave judgment accordingly. The plaintiffs thereupon sued out this writ of error. The questions presented for our consideration are questions of law arising upon the will of Joshua Pierce, deceased. The will declares:

308] *"I give, devise and bequeath all those fourteen certain lots" (describing fully the premises in controversy) "to my friends, William M. Shuster and William H. Clagett, of the said City of Washington, and the survivor of them, and the heirs, executors administrators, and assigns of such survivor, in trust, nevertheless, and to and for and upon the uses, intents and purposes following, that is to say: In trust to hold the said fourteen lots of ground, with the appurtenances, as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society or institution that may hereafter be incorporated by an Act of Congress as and for such hospital, and

NOTE.-What is a charity; bequests valid for charitable purposes and those not-See note, 11 L. ed. U. S., 205.

Validity of gift to unincorporated charity-see note, 32 L. R. A. 625.

The Statute of Wills of Maryland of 1798, which is still in force in the District of Colum

bia, provides that "No will, testament, or codicil shall be effectual to create any interest or perpetuity, or make any limitation or appoint to any uses not now *permitted by the Con- [309 stitution or laws of the State." 2 Kilty L. Md., ch. 101.

Our attention has been called in this connection to nothing in the Constitution, and to nothing else in the laws of the State, as requiring consideration. No statute of mortmain or statute like that of 9 Geo. II., ch. 36, is an element in the case.

The statute of 43d Elizabeth, ch. 4, was never in force in Maryland. Dashiell v. Atty-Gen., 5 Har. & J., 392. It is not, therefore, operative in the District of Columbia.

The opinion prevailed extensively in this country for a considerable period that the validity of charitable endowments and the jurisdiction of courts of equity in such cases depended upon that statute. These views were assailed with very great learning and ability in 1833,, by Mr. Justice Baldwin, in Magill v. Brown, Bright., 347. An eminent counsel of New York was the pioneer of the Bar in 1835 in a like attack. His argument in Burr v. Smith, 7 Vt., 241, was elaborate and brilliant and, as the authorities then were, exhaustive. He was followed in support of the same view, in 1844, by another counsel no less eminent, in Vidal v. Girard, 2 How., 127. The publication, then recent, of the Reports of the British Records Commission enabled the latter gentleman to throw much additional and valuable light into the discussion. The argument was conclusive.