Evans v. Stettnisch, 149 U.S. 605 (1893)

An answer was filed on August 20, 1887, and a reply on the p. 60622d of September. On the 4th day of November appears an entry of a trial, with a verdict for the defendants, and judgment thereon. This entry opens with this recital: “Now come the parties herein, by their attorneys; and also come the following-named persons as jurors, to wit.” On November 12 the plaintiff filed a motion to set aside the judgment, and for a new trial, on the ground that after the case had been continued the order of continuance had been vacated in the absence of his counsel, and without notice; and because he had no notice or information that the cause stood for trial at that term, and had thus been prevented from presenting his evidence to the jury. In support of this motion the affidavit of one of plaintiff’s counsel was filed, which, after stating the fact of the continuance, and the order setting it aside, continued as follows:

James Mc Auley , who died on the 9th day of January, 1871, by his will, dated November 26, 1870, made large bequests to p. 609his sisters Margaret and Mary, and also devised to them a house and lot on Duquesne Way, in the city of Pittsburgh. Margaret died intestate in 1871, a few months after her brother, and her interest passed to her sister Mary, who died January 6, 1886, seized of said real estate, and leaving also a large personal estate. As respects the latter, she died intestate, but she left an instrument in writing signed by her, the body thereof being also in her handwriting, of which the following is a copy:

°me for the Friendless, appellee in No. 124, and Mr. George p. 612C. Burgwin, for the Home for Aged Protestant Women appellee, in No. 124, submitted on their respective briefs.

Indeed, the decree as a whole cannot be sustained, unless I upon the theory that the Federal court had the power on the I filing of this bill to take bodily the administration of the estate I out of the hands of the state court, and transfer it to its own I I forum. It was not a judgment against the estate, but a decree, I binding personally the administrator, and compelling him, I I subject to the penalties of disobedience of a decree of a court I I of chancery, to administer the estate according to the or ers I I of the Federal rather than those of the state court which a I 1 appointed him. If we look back of the decree to the procee , I p. 613ings which were had in the Circuit Court, intermediate the filing of the bill and the decree, it will be perceived that that court proceeded as though the entire administration of the estate had been transferred to it from the state court. Thus, on December 3, 1887, the administrator filed in the Circuit Court a petition, commencing as follows: “ The petition of A. M. Byers, administrator of all and singular the goods and chattels of Mary McAuley, late of the county of Allegheny, deceased, respectfully shows: That this honorable court has taken jurisdiction of your petitioner as administrator and of the assets of the decedent, which your petitioner has in his hands,” setting forth the ownership of 250 shares of railway stock, and praying for an order as to its disposal. Upon the filing of such petition the court directed that notice be given to all counsel of record, and on December 10, made an order for the disposition of the stock. So, on December 24, 1888, the administrator having filed a petition for leave to sell the real estate, the Circuit Court made an order directing the sale, “ report of such sale to be made to this court for confirmation, and the proceeds to be held subject to the decree of this court.” It is true that the administrator presented like applications to the state court, and obtained like orders, except that in the order for the sale of the real estate there was in terms no command to report the sale for confirmation and hold the proceeds subject to the decree of that court. Evidently the administrator did not know which court had the power to control in these matters the actual administration of the estate; and so, for prudential reasons, applied to and obtained similar orders from both. So both by the terms of the final decree, and by the proceedings in the Circuit Court preliminary thereto, it is clear that the question is fairly presented to us as to the power of the Circuit Court of the United States to interfere with the administration of an estate in a state court. Such a question is of importance. No officer appointed by any court should be placed under the stress which rested upon is administrator, and compelled for his own protection to

In order to pave the way to a clear understanding of this question, it may be well to state some general propositions which have become fully settled by the decisions of this court; and, first, it is a rule of general application, that where property is in the actual possession of one court of competent jurisdiction, such possession cannot be disturbed by process out of another court. The doctrine has been affirmed again and again by this court. Hagan v. Lucas, 10 Pet. 400; Ta/ylor v. Carry!, 20 How. 583; Peck v. Jenness, T How. 612, 625; Freeman v. Howe, 24 How. 450; Ellis v. Davis, 109 U. S. 485, 498; Krippendorf v. Hyde, 110 U. S. 276; Covell v. Heyman, 111 U. S. 176; Borer v. Chapman, 119 U. S. 587, 600. In Covell v. Heyman, supra, the matter was fully discussed, and in the opinion by Mr. Justice Matthews, on p. 179, the rule is stated at length : “ The point of the decision in Freeman v. Howe, supra, is that, when property is taken and held under process, mesne or final, of a court of the United States, it is in the custody of the law, and within the exclusive jurisdiction of the court from which the process has issued, for the purposes of the writ; that the possession of the officer cannot be disturbed by process from any state court, because to disturb that possession would be to invade the jurisdiction of the court by whose command it is held, and to violate the law which that jurisdiction is appointed to administer; that any person, not a party to the suit or judgment, whose property has been wrongfully, but under color of process, taken and withheld, may prosecute, by ancillary proceedings, in the court whence the process issued, his remedy for restitution of the property or its proceeds while remaining in the control of that court, but that all other remedies to which he may be entitled, against officers or parties, not involving the withdrawal of the property or its proceeds, from the custody of the officer and the jurisdiction of the court, he may pursue in any tribunal, state or federal^ having jurisdiction over the parties and the subject matter. And vice versa, the same principle protects the possession of the property wm thus held, by process issuing from state courts, against any disturbance under process of the courts of the United States; p. 615excepting, of course, those cases wherein the latter exercise jurisdiction for the purpose of enforcing the supremacy of the Constitution and laws of the United States.”

There is nothing in any decision of this court, controverting the proposition thus stated, that the administrator is the officer of the state court appointing him, and that property placed in his possession by order of that court is in the custody of the court. One of the cases specially relied on by counsel for appellees is Payne v. Hook, 7 Wall. 425. The opinion in that case was written by Mr. Justice Davis, who wrote the opinion in the case last quoted from, and in the latter opinion he said that there was nothing in Payne v. Hook to conflict with the views therein expressed; and, indeed, there was not. Pa/yM v. Hook was the case of a bill filed by one of the distributees of an estate against the administrator and the sureties on his official bond, to obtain her distributive share in the estate of the decedent. Plaintiff was a citizen of Virginia, and the defendant a citizen of Missouri, and an administrator appointed by the probate court of one of its counties. Suit was brought in the Circuit Court of the United States for the District of Missouri. The charge in the bill was gross misconduct on the part of the administrator, and false settlement with the probate court; and that he had, by fraudulent misrepresentations, p. 617obtained a settlement with plaintiff for a sum less than she was entitled to. A demurrer to the bill was sustained in the court below, but this court held that the bill was sufficient, and that the demurrer was improperly sustained. In other words, the ruling was that plaintiff, a citizen of another State, could apply to the Federal courts to enforce her claim against an administrator arising out of his wrongful administration of the estate. To the objection that the other distributees were not made parties, the court replied that it was unnecessary, that it was a proceeding alone against the administrator and his sureties. In the opinion, on p. 431, it is said: “ The bill under review .has this object, and nothing more. It seeks to compel the defendant, Hook, to account and pay over to Mrs. Payne her rightful share in the estate of her .brother; and in case he should not do it, to fix the liability of the sureties on his bond.” There was no suggestion in the bill that the Federal court take possession of the estate and remove it from the custody of the administrator appointed by the state court; no attempt to settle the claims of citizens of the State, as between themselves; no attempt to take the administration of the estate, but simply to establish and enforce, in behalf of a citizen of another State, her claim to a share of the estate. That this is the true interpretation of that case is also evident from these quotations from subsequent opinions. Thus in Ellis v. Da/vis, 109 U. S. 485, 498, it was said: “ In Payne v. Rook, 7 Wall. 425, it was decided that the jurisdiction of the Circuit Court of the United States, in a case for equitable relief, was not excluded because, by the laws of the State, the matter was within the exclusive jurisdiction of its probate courts; but, as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res, which is the subject of the litigation, is entitled to administer it. Williams v- Benedict, 8 How. 107; Bank of Tennessee v. Horn, 17 How. 157; Yonley v. Lavender, 21 Wall. 276 ; Taylor v. Carrylf 20 How. 583 ; Freeman v. Howe, 24 How. 150.” And in Borer v. Chapman, 119 U. S. 587, 600, after a quotation from ^e opinion in Payne n . Hook, it is added: “ The only p. 618qualification in the application of this principle is, that the courts of the United States, in the exercise of their jurisdiction over the parties, cannot seize or control property while in the custody of a court of the State.” The distinction between that case and this is like that which exists between the cases of Freeman n . Howe, 24 How. 450, and Buck v. CoTbath, 3 Wall. 334. In the former of these cases this court held that when property was in the custody of a United States marshal, under process from a Federal court, it could not be taken from him by any process out of a state court; that the possession of the marshal was the possession of the court, and no other court could disturb it; while, in the latter case, it held that an action of trespass could be maintained in a state court against a marshal of the. Federal court for goods improperly taken possession of, because such an action in no way interfered with the custody of property by the Federal court. So, here, Payne v. Hook established that a citizen of another State could recover from an administrator the share of an estate wrongfully-withheld by him, and enforce that recovery by a decree over against the sureties of the administrator’s bond; while the opinion of the court below, in the present case, gives to the Federal court power to take possession of property in the hands of an administrator appointed by the state court, and thus dispossess that court of its custody.

It is true that when the Federal court takes property into its custody, as it does sometimes by a receiver, it may entertain jurisdiction of claims against that property in favor of citizens p. 619of the same State as the receiver, or either of the parties. But that is an ancillary jurisdiction ; it is in aid of that which it has acquired by virtue of the seizure of the property, and in order, it having possession, that it may make final disposition of the property. Possession of the res draws to the court having possession all controversies concerning the res. If original jurisdiction of the administration of the estates of deceased persons were in the Federal court, it might by instituting such an administration and taking possession of the estate, through an administrator appointed by it, draw to itself all controversies affecting that estate, irrespective of the citizenship of the respective parties. But it has no original jurisdiction in respect to the administration of a deceased person. It did not in this case assume to take possession of the estate in the first instance, and it cannot, by entertaining jurisdiction of a suit against the administrator, draw to itself the full possession of the estate, or the power of determining all claims against or to it.

Under the present law of Congress, a receiver appointed by a Federal court and in possession of property may be subjected to suits in the courts of the State without leave obtained in the first instance from the Federal court. 25 Stat. 436, c. 866. Would it be tolerated for a moment that the commencement of such a suit in the state court against a receiver enabled the state court to draw to itself the entire administration of the receivership, and oust the Federal court from the possession and custody of the property? The mere statement of the question carries its own answer. While the validity of a claim against the receiver may be established in the state court, the administration of the property in the hands of the receiver remains with the Federal court whose officer he is, and the amount the claimant will receive from the proceeds of the property in the hands of the receiver is not settled by the state court, which only determines the validity and extent of the demand, but rests upon the result of the administration, as ordered by the Federal court. The fact that the Federal court entertaining the suit of one claimant against an estate ^ay entertain a different view of the law controlling the p. 620rights of that claimant, from that entertained by the court of the State in a suit brought by a claimant, citizen of the State, holding a like character of claim, is no ground for enlarging the jurisdiction of the Federal court beyond that given to it by the Constitution of the United States.

Our conclusion, therefore, is, that the Federal court erred in taking any action or making any decree looking to the mere administration of the estate, or in attempting to adjudicate the rights of citizens of the State, as between themselves. The state court had proceeded so far as the administration of the estate carries it forward to the time when distribution may be had. In other words, the debts of the estate had been paid, and the estate was ready for distribution, but no adjudication had been made as to the distributees, and in that exigency the Circuit Court might entertain jurisdiction in favor of all citizens of other States, to determine and award their shares in the estate. Further than that, it was not at liberty to go. In that determination it made two rulings, in respect to both of which we think the court was correct. First, in holding that the distributees had no interest in the real estate specially described in the first paragraph of the decree. Indeed, the ruling of the court in this respect is not seriously challenged. It is true that there is an assignment of error, in the first appeal, to the action of the court below in treating the provision in the will of Mary McAuley, that the proceeds of sale p. 621of the real estate on Duquesne Way should be divided between the “ Home for the Friendless ” and the “ Home for Aged Protestant Women,” as a valid declaration of a trust, and in decreeing accordingly. But this assignment seems to have been abandoned, or, at all events, is not -contended for in the appellants’ brief. We content ourselves, therefore, with saying that we see no error in the judgment of the court below in that particular. It needs no argument to show that a written instrument, though inefficacious as a will, from a want of compliance with statutory requisitions, may yet operate as a declaration of a trust. 1 Perry on Trusts, § 91.

The decree of the Circuit Court must he reversed, and the case remanded with instructions to enter a decree infwvor of those citizens of other States than Pennsylvania, who p. 622have petitioned the Circuit Court for relief and who are first cousins of the decedent^ for their shares of the estate other tha/n the real estate described in the declaration of trust, the amount of such shares being determined by thefact thatfirst cousins only inherit; and an order that they recover from the administrator such sums thusfound to be due. No decree will be entered infavor of the two corporations named in the first paragraph, a/nd none in favor of thepa/rties to the suit who are citizens of the State of Pennsylvania.

In this view of the case, citizens of States other than that having possession and control of the estate through its officer p. 623must, like the home residents, assert their claims in the state court; and if their claims have a Federal character, and if the state courts should disregard that feature of their rights, the remedy would he found in an ultimate appeal to the Supreme Court of the United States.

There is force and logical consistency in the position the settlement of a decedent’s estate is not a suit at law or i p. 625equity, but that such an estate constitutes a res, as to which the jurisdiction of the probate court, when it once attaches, is exclusive.

I submit that the error in the reasoning of the. majority opinion is found in the latent assumption that the citizens Pennsylvania have no rights in the Federal courts in Pennsy vania. The latter are treated as if they were courts ony p. 627intended for the advantage of citizens of other States. Yet we know that, admittedly, citizens of Pennsylvania have the right to resort, as parties complainant, to the Federal courts to enforce important rights and interests — such as arise, for instance, out of the patent laws. So, too, as I understand it, when citizens of Pennsylvania have been brought into the Circuit Court of the United States, as parties defendant to a suit by citizens of another State, they have a right and interest in the decree of the court in their favor. The right of the foreign citizens is not to have the Federal court decide in their favor, but merely to have the controversy heard and determined by the Federal tribunal. The citizens of Pennsylvania who have been brought into the Federal court have a right and interest in the decision, which, as it would have been conclusive if against them, so it must be conclusive if in their favor. The “ Home for the Friendless ” and the “ Home for Aged Protestant Women” should not, after a decision has been made in their favor, in a suit where all concerned were parties, be turned out of the Federal court to wage, in another tribunal, with the same parties, the same question. Nor should the second cousins, resident in Pennsylvania, after having consented to submit their claims to adjudication in the Circuit Court, be permitted, as against the same parties, to try a second fall in the state court.

10 Conclude: either the plea of the administrator, setting P cne jurisdiction of the orphans’ court, as having already p. 628attached, and as being, therefore, exclusive, ought to have been sustained, or the course of the court below, in dealing with the subjects and parties before it, by a final decree, not to be interfered with or thwarted, as between the same parties, by any other court, should be affirmed.

On June 30, 1868, the Southern Railroad Association, an unincorporated association, was organized by certain parties p. 630for the purpose of leasing and operating the Mississippi Central Railroad, of which Henry S. McComb had previously obtained a lease for himself and his associates. The capital of this association was $1,500,000, of which Henry S. McComb subscribed $415,000 personally, and also $60,000 as trustee; Josiah Bardwell, $100,000; the balance being taken by ten associates. On January 14, 1869, this association became incorporated, under a special act of the legislature of Tennessee, and to this corporation the voluntary association, on January 22, 1869, transferred its property. On January 21, 1869, such action was taken by this incorporated company that the capital stock named in its charter, to wit, $2,000,000, was issued to the subscribers of the original unincorporated association in proportion to the amounts of their subscriptions. In this way the subscription in the name of Henry S. McComb, trustee, was enlarged from $60,000 to $80,000, and represented 800 shares of stock, for which eight certificates of one hundred shares each, and numbered from 157 to 164, inclusive, were formally issued by the incorporated company on October 6, 1870, to Henry S. McComb, trustee, and so remained on the books of the company at the time of his death, December 30, 1881. It is undisputed that the subscription was taken originally by McComb as trustee for Josiah Bardwell. In the fall of 1869 this correspondence took place between Bardwell and McComb:

IV. McComb, even if a trustee for the complainants’ decedent, committed no act, and neglected no duty to his cestui que trust in respect to the shares of stock in suit, such as makes p. 633his estate liable for their original cost, with interest, or for any other sum of money. The Circuit Court, in holding that the amount of the recovery is to be governed by the alleged cost of the stock instead of by what it was worth, violated a thoroughly well established and reasonable principle. Galigher v. Jones, 129 U. S. 193; Smith n . Boltes, 132 U. S. 125.

That some kind of a trust was created by this declaration of McComb appears on the face of the paper itself, and from its language, taken in connection with the correspondence which induced and accompanied it, it is also clear that it was an absolute, unqualified, unconditional trust which was declared by McComb. Whatever of doubt might from the mere language of the declaration arise as to whether this trust was limited or qualified by some arrangement with Josiah Bardwell, and whatever suggestiveness there might be in such language, of a foundation for the claim now put forward, that this subscription and stock was by arrangement with Bardwell held primarily as security for advances made or to be made by McComb to him, and for the benefit of Snyder, as cestui gw trust only thereafter, and subject to this primary burden, is clearly displaced by the two letters which called for and accompanied the declaration. Bardwell’s letter to McComb is a request that he acknowledge the holding to be in trust for Snyder, and because Snyder had paid therefor its cost and interest. That clearly is a request for an absolute and unqualified declaration of trust, and because the property had been fully paid for by Snyder to the original cestui que trust. That McComb intended and supposed by this declaration that e was giving the absolute declaration of trust requested is evident from the letter which he wrote accompanying it, for to that he says “ if it is not in conformity with your wishes ln any manner, please return it to me with such instructions p. 634to be carried out as you shall be disposed to make.” In other words, the transaction is this: Bardwell writes asking for an absolute declaration of trust in behalf of Snyder; McComb sends this declaration, accompanying it with a letter saying that if this does not comply with your wishes, send it back with such changes as you desire. Evidently the reference to an arrangement in the declaration was for the purpose of identifying the stock and subscription; and that there might not arise any pretence that any part of the subscription and stock standing in his own name was held in trust for Snyder. He simply meant to identify the trust property as that which all along had stood in his name as trustee, and to guard against the assertion of a trust in some other portion of the stock. If we go outside of the papers themselves, the testimony tends strongly to uphold the claim of plaintiffs that this was an absolute and unconditional trust. Bardwell did get from Snyder $45,000, as shown in this way: On April 22, 1869, Bardwell drew three drafts on Strang & Snyder, in favor of McComb, for $15,000 each. On the same day this receipt was given by McComb:

“ The three drafts mentioned in the foregoing receipt were paid by Strang & Snyder, and by them charged to my on their books after the transaction in Chicago an o. Island Railroad Company’s stock was closed. The w 0 no part of the money or interest was returned to me, p. 635$42,000 was applied to the subscription to stock in the Southern Railroad Association, for which amount I hold H. S. McComb’s receipt, as trustee, dated November 23, 1869.

And this is the first intimation that the trust was not wholly for the benefit of Snyder. In addition, there is the testimony of Charles Marsh, that in the year 1873 he was in the office of the Southern Railroad Association, in the city of New York, at a day on which there was to be a meeting of the directors, and that while there McComb came in, and after ^ying good morning and passing the time of day, said: “Now, gentlemen, to-day I am prepared to offer you cost and interest of your stock. I had to guarantee Mr. Snyder that before he would take his at all; but this isn’t anything you want to sell, this stock.” And again, the testimony of 1 vancis C. Cross that in June, 1874, he was present at a conversation between Snyder and McComb, which was substantially as follows: .. Mr. Snyder asked Mr. McComb to perform his agreement ln reSard to the Southern Railroad Association stock. Mr. p. 638McComb replied to Mr. Snyder that he had better keep it and do as the other gentlemen were about to do, put in some more money; that it was a good thing and was worth two for one. Mr. Snyder told him that he wished the money, as he desired to foster other interests that were pressing him. Mr. McComb said that he had no money, but he would let him have some notes to the extent of $30,000, and Mr. Snyder replied that he would. If the notes were good he would use them and would carry the balance for a time. No time was stated, however. Mr. McComb told Mr. Snyder to come down to a meeting that was to be held — as to the time of the meeting I have no recollection—if he would come there he would fix it up with him.”

Again, it is insisted that the matters in dispute between the parties have been once determined by a court of competent jurisdiction, and the principle of res judicata is invoked as a defence to this action. It appears that, after the voluntary dismissal of the action in the New York court, Snyder, in October, 1875, commenced a like action at law in the Supreme Judicial Court of Massachusetts, which was tried without a jury, and resulted in a judgment in favor of the defendant, on December 23, 1878. The original declaration was in five counts. To this the defendant filed an answer denying “ each and every allegation in each and every count of the plaintiff’s declaration,” and specifically denying any indebtedness ; and, for a further defence, he demurred to the first four counts. Thereafter, by leave of the court, these first four counts were stricken out, and two substituted in their place. To this amended declaration the defendant filed an answer denying the allegations in the first two counts — the new portions of the declaration; and also, as a further defence, a demurrer to the third count — that being the fifth count in the original declaration. This amended declaration, in substance, alleged that the defendant, on July 16, 1869, had in his possession $45,000 belonging to the plaintiff; that in consideration of plaintiff permitting such sum to remain in his (defendant’s) hand, he would purchase for plaintiff stock in the Southern ^Hroad Association; and, further, that he would, if p. 640requested, take the said shares of stock from plaintiff and pay him $45,000, with interest; that, relying upon such promise and agreement, the plaintiff left the sum of $45,000 with defendant, but that he failed to purchase stock in the association ; and that he, plaintiff, thereupon demanded payment of the sum of $45,000 and interest, which was refused. The second count was “ for money had and received,” the bill of particulars attached being as follows :

The record of the proceedings in the Supreme Court of Massachusetts fails to show any ruling of the court on the demurrer to this third count, and one of the counsel for the plaintiff in that action testified that by mutual consent this third count was abandoned, testimony which seems to be supported by an extract from the brief of the defendants counsel, in which it is stated “the count in tort has been abandoned.” On the trial of that case the plaintiff made application to amend his declaration into a bill in equity, a bi founded upon this trust, but such application was denied y the court, such denial being, within the statutes of Massac u setts as well as the general practice, a matter of discretion. p. 641So that the case, as finally determined, was simply one at law for breach of a contract to invest in the stock of the Southern Railroad Association.

The final question is as to the measure of damages. The court charged the defendant with the amount invested by plaintiff, and recognized by the declaration of trust, to wit, $42,000, and interest. Both parties challenge the question of correctness of this amount. The plaintiffs insist that McComb sold his own stock for $125 a share, and that, therefore, in the accounting he should be charged for the 800 shares held by him in trust for Snyder at that price per share, for which sum, together with interest to date, a decree should be passed. The defendant claims that McComb never did anything with this trust stock, other than in the fair discharge of his duties as trustee; that, owing to causes over which he had no contro, and for which he was not responsible, the stock finally cease to be of any value, and, therefore, that his estate should not be called upon to account for anything. It becomes necessary p. 643to see exactly what McComb did with this stock. The Southern Railroad Association was the lessee of the Mississippi Central Railroad Company, and was incorporated for the purpose of taking a lease of and operating said road. This road extended from Jackson, Tennessee, to Canton, Mississippi ; there it connected with the New Orleans, Jackson and Great Northern railroad, running from that place to New Orleans, Louisiana. McComb was a large holder of stock in that company. On November 8, 1871, he made an arrangement by which he sold to the Pennsylvania Company 14,000 shares in the New Orleans, Jackson and Great Northern Railroad Company, at $50 per share, and 5000 shares in the Southern Railroad Association at $125 a share. At the same time he transferred to the Pennsylvania Company an additional 14,000 shares in the New Orleans, Jackson and Great Northern railroad, and 5000 shares in the Southern Railroad Association. Included in this last 5000 shares was the 800 shares standing in the name of McComb as trustee, which were transferred by an endorsement on the certificates, vesting apparently an absolute title in the Pennsylvania Company.

k was subject to an obligation to repurchase at the end of p. 644two years, at the same price and thirty per cent advance, less dividends received by the company. This condition may well be deemed to have entered largely into the fixing of the price, and prevents that price from being a fair test of the value. Neither should one or two extravagant statements made by McComb, apparently to quiet any fears on the part of Snyder as to his investment and to continue his confidence therein, be considered sufficient to justify placing any such valuation on the stock. On the other hand, it is quite clear that the stock was worth at least what it had cost at the time of the trust declaration. Indeed, we do not think this is seriously* questioned by the defendant. Little need be said with respect to the contention of defendant, that McComb did no more with this stock than a trustee might rightfully do, and that he used it simply to induce the Pennsylvania Company to take hold of this association, and manage it for the best interests of all the stockholders. On the contrary, it is more correct to say that he used this stock to induce the Pennsylvania Company to buy his own, or at least to increase the price at which it bought. Evidently the Pennsylvania Company wanted the control, and for that end a majority of the shares. It might not have been willing to pay $125 a share if it had been compelled to buy the 10,000 shares; but would naturally be willing to pay a larger price for half if the other half could be placed in its hands without cost, and thus the control obtained. Very likely the cestui que trust would have preferred $125 m cash to the promise of even the Pennsylvania Company to manage the interests of the association for the benefit of a stockholders.