HEWITT V. PHELPS, 105 U. S. 393 (1881)

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U.S. Supreme Court

Hewitt v. Phelps, 105 U.S. 393 (1881)

Hewitt v. Phelps

105 U.S. 393


1. From the decree of a state court rendered in 1874, an appeal was in 1876 taken to the supreme court, where, in 1877, the decree was reversed and the cause remanded

"with leave to both parties to amend pleadings as they may be advised, and to take testimony, and for an account to be taken in accordance with the views contained in the opinion"

of the court. On the day after the mandate was received in the court of original jurisdiction, the defendant filed his petition, praying that, by reason of the citizenship of the parties, the cause be removed to the proper circuit court of the United States. Held that neither the date when nor the stage of the cause at which the petition was filed precluded the removal under the Act of March 3, 1875, c. 137. Jifkins v. Sweetzer, 10l U.S. 177, distinguished.

2. A. and B., his wife, conveyed her separate property to a trustee upon trust for her use during her life, and in remainder in fee for the use of her children living at the time of her death. The deed reserves to her the power to sell and exchange the property, and declares

"that the trustee is to permit A. as agent for the trustee, and as agent and trustee for said B. during her life, and as agent and trustee for her children after her death, to superintend, possess, manage, and control the property for the benefit of all concerned."

The trustee was not to be responsible for the acts or conduct of A. The latter was, however, for the purposes of the deed, to be a co-trustee, but neither had power to charge the property for any future liability beyond the support of A. during his life. A. survived B. and died insolvent. A bill was filed against the trustee and the child of B., alleging that upon A.'s order the complainant had advanced moneys and furnished supplies which were used for the benefit of the trust estate, and praying that it be subjected to the payment of the claim. Held that the bill was properly dismissed.

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