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where the defendant has an interest in the property saved, which interest has been saved by the fact that the property is brought into a position of security. The jurisdiction which the court exercises in salvage cases is of a peculiarly equitable character. The right to salvage may arise out of an actual contract, but it does not necessarily do so. It is a legal liability arising out of the fact that property has been saved; that the owner of the property, who has had the benefit of it, shall make remuneration to those who have conferred the benefit upon him, notwithstanding that he has not entered into any contract on the subject. I think that proposition equally applies to the man who has had the benefit arising out of the saving of the property.” This last sentence is particularly applicable to this case.

In the subsequent case of The Port Victor, 9 Asp. M. L. C. . 163, the same court decided that where Government stores were being carried at the risk of charterers, these charterers were liable to pay salvage in a personam action apart from the liability of the stores in rem. The case was decided largely upon the authority of The Five Steel Barges and Duncan v. Dundee, &c., Shipping Company, in the Court of Sessions in Scotland, 4th Series, vol. 5, p. 742, and was affirmed by the Court of Appeals in an opinion by Lord Alverstone, 9 Asp. Mar. Cases, 182, in which great deference was shown to the decision of Sir James Hannen. See also Carver on Carriage by Sea, $ 324a.

Although courts of admiralty have no general equity jurisdiction and cannot afford equitable relief in a direct proceeding for that purpose, they may apply equitable principles to subjects within their jurisdiction, and in the distribution of proceeds in their possession or under their control may give effect to equitable claims. 2 Parsons on Shipping, 344. Bearing in mind that the duties in this case had been actually collected, were in the hands of the Government and had been saved to it by the exertion of the salvors, who had been awarded salvage for saving the sugars upon which the duties had been

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collected, a strong case is presented for the allowance of salvage, which should not be lost sight of in determining the principles applicable to the situation.

The case is clearly not one arising under the revenue laws as they are defined in Nichols v. United States, 7 Wall. 122, since the sections of the Revised Statutes above quoted are only incidentally involved. The decree of the Circuit Court of Appeals is, therefore,






No. 196.

Argued March 6, 7, 1906.-Decided May 14, 1906.

Although the auditor and both courts below found that plaintiff in error's

testator had been guilty of fraud and that his estate was liable, and under the general rule this court will not disregard a particular state of facts found by both courts below, still it can and will do so, when it is constrained to the conclusion that the premise upon which those courts acted is without any support in the evidence and rests upon a mere mistaken assumption; and so held in this case where the finding of fraud rested on the uncorroborated testimony of an interested witness who had been so discredited by uncontroverted evidence in regard to his own acts of omission and commission as to render it impossible to accept his

testimony as establishing the alleged fraud of the deceased. Where by the law of their domicil, as is the case in Louisiana, minors are

represented by their father as administrator, with full power under that law to receipt for, and administer for their account, property bequeathed to them by a testator domiciled and dying in Virginia, a transfer of such property to the father as the administrator or representative of his minor children by a person having possession thereof in the District of Colum

bia, is valid and binding. Under the circumstances of this case decedent's liability for an amount

invested having been fixed with accuracy as to time and amount, and it

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being impossible from the record to ascertain the ultimate fate of the investment, and whether it was so lost as to relieve decedent from responsibility, the court will hold the estate liable therefor with legal interest but subject to adjustment for admitted overpayments to one of the complainants.

In June, 1898, Philip A. Tracy died in the city of Washington, where he was domiciled. His will, executed in Washington on March 2, 1894, was duly probated in August, 1898. The will directed the executors to build a family monument, to cause to be inscribed thereon the names and the dates of the birth and death of the deceased, of his father and mother and of a brother and sister, in accordance with minute directions contained in a memorandum accompanying the will. A bequest of one thousand dollars was made to the Oak Hill Cemetery Company to perpetually care for the lot and the monument. In addition, after making several minor bequests, one of which was a gift of one hundred dollars to the Home for Incurables, two thousand dollars was given for a Sunday School building for the Trinity Episcopal Church in the city of Washington, The residue of the estate was bequeathed “to the trustees of the Epiphany Church Home in this city, to pay for the enlargement of the building now used as the home, or for the erection of another building for the same use and purpose.” George W. Gray and J. J. Darlington, the executors named in the will, qualified.

Within one year, and before receiving notice of the claim which is the subject of this suit, the executors of Tracy had paid the debts, had discharged the minor legacies above referred to, and had in hand to be applied to the other provisions of the will forty-seven thousand dollars in money and securities and two unimproved lots in the city of Washington of small value. The further execution of the will was prevented by a demand to pay the claim which forms the basis of this suit, and upon refusal to do so on June 10, 1899, this bill in equity was filed to establish and enforce the claim. The complainants were Erle H. Turner and Wilmer Turner, and Ashby

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and Lunette Turner; the last two, being minors, were represented by Wilmer Turner as their next friend.

It was in substance averred in the bill that Silas H. Turner, a paternal uncle of the complainants, died in Fauquier County, Virginia, on September 21, 1888, leaving a will by which he bequeathed equally to complainants, who were the children of Thomas M. Turner, all the property of which the testator died possessed, the will being as follows:

'WASHINGTON, D. C., April 30, 1888. "I hereby give and bequeath to the four children of my brother Thomas M. Turner of Minden, Louisiana, all property real and personal, owned by me, or in which I have any interest at the time of my death, and appoint Philip A. Tracy to distribute the proceeds of the said property equally between them.



It was also alleged that this will was admitted to probate in Fauquier County, Virginia, on or about November 28, 1888. It was then alleged that Philip A. Tracy was the confidential agent and trustee of Turner, deceased, and in that capacity had in his possession money which, as agent and trustee, Tracy had invested for the benefit of said Turner. It was charged that shortly before the death of Turner, Tracy had given Turner a memorandum or list, entirely in the handwriting of Tracy, stating the dates and amounts of the promissory notes held by Tracy, belonging to said Turner, and the names of the makers thereof, and that the said notes aggregated $28,972.10. This memorandum or list, alleged to be wholly in the handwriting of Tracy, was copied in the bill, and it was averred that after the ath of Turner, Tracy had admitted the accuracy of said list and his possession of the notes which it embraced. It was then averred that the land records of the District of Columbia

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disclosed that all the notes mentioned in the alleged memorandum or list and the accrued interest had been paid after the death of Silas H. Turner. It was averred that, with the exception of a sum of about fourteen hundred dollars, alleged to have been paid by Tracy to Erle H. Turner, no account had been rendered or distribution made by Tracy of the aforesaid property or of the proceeds thereof, and that, excluding the payment alleged to have been made, as above stated, to Erle H. Turner, “the entire trust fund, principal and interest and profits, had come into the possession of the defendants as executors of Tracy.”

The paragraph of the bill immediately preceding the prayer was as follows:

“21. That the domicil and citizenship of the parents of complainants have always been since the birth of these complainants either in the State of Louisiana, which was their domicil, until about the - day of August, 1889, or in the State of Texas, which has been since and is now the domicil of said parents and of all complainants, except complainant Erle H. Turner, whose domicil is now Philadelphia, Pennsylvania. Complainants are informed and believe and therefore aver that by the laws of Louisiana and of Texas the parents of minor children are not of right guardians of the estate of such minors, and no person is authorized to receive or demand the estate of any minor domiciled in either of said States, except such persons as shall be duly appointed by a court of the States having competent jurisdiction; and that neither the father nor the mother of any of these complainants nor any other person has ever been appointed by any court guardian of either the person or estate of any one of these complainants, and no one of these complainants has now or has ever had a legal guardian of the person or estate, and at no time has there been any person in being competent in law to demand or receive, in their behalf, any estate for any of these complainants, until, by reason of reaching their majority, two of these complainants have become sui juris."

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