NOTES OF DECISIONS.
349
Mortgage-Fraudulent Preference. In 1'e B. F. ALLEN. This case was decided by the supreme court of the United States at the October term, 1881. Mr. Justice Woods delivered the opinion of the court, affirming the decree of the circuit court. Except as forbidden by the.bankrupt law, a debtor has the right to prefer one creditor over another, and the vigilant creditor is entitled to the advantages secured by his watchfulness and attention to his own interests. Neither can it be denied that the mere failure to' record a mortgage is not a ground for setting it aside for the benefit of subsequent creditors, who have acquired no specific lien on the property described in the mortgage. But where a mortgagee, knowing that his mortgagor is insolvent, for the purpose of giving him a fictitiQUS credit, actively conceals the mortgage, which covers the mortgagor's entire estate, and withholds it from the record, and while so concealing it represents the mortgagor as having a large estate and unlimited credit, and by these means others are induced to give credit to the mortgagor, who fails and is unable to pay the debts thus contracted, the mortgage will be declared fraudulent and void at common law, Whether the motive of the mortgagee be gain to ·himself or advantage to his mortgagor. It is not enough, in order to support a settlement against {lreditors, that it be made for a valuable consideration. It must be also bona fide. If it be made with intent to hinder, delay, or defraud creditors, it is void alii against them, although there may be in the strictest sense a valuable, or even an adequate, consideration. A. P. Hyde and Coles, Morris & Nourse, for appellants. Bisbee & Ahrens and J. S. Polk, for appellee. The cases cited in the opinion were: That a preference may be void although there be a valuable or even adequate consideration. Twyne's Case, 3 Coke, SI; Holmes v. Penney, 3 Kay & J. 99; Gragg v. Martin, 12 Allen, 498; Brady v. Briscoe. J. J. Marsh. 212; Bosman v. Draug-hn, 3 Stew. 343; Farmers' Bank v. Douglass, 11 Smedes & M. 469; Root v. Heynolds, 32 Vt. 139; Kempner v. Churchill, 8 Wall. 362. A deed may become fraudulent by concealment; Hungerford v. 'Earle, 2 Vern. 260; Hildreth v. Sands, 2 Johns. Oh.· 35; Scrivener v. Scrivener, 7 B. Mon. 374; Bank of U. S. v. Hineman, 6 Paige, 526; as by Withholding deed from record; Coates v. Geriach, 44 Pa. St. 43; Hilliard v. Cagle, 46 Miss. 309; Gill v. Griffith, 2 Md. Ch. 270; Hafner v. Irwin, 1 Ired. 490; Hildeburn v. Brown, 17B. Mon. 779; Neslin v. Wells, 25 Alb. Law J. 249; Wotseley v. De Mattos,.l Burr. 467; Tarback v. Marbury, 2 Vern. 510. Administration of Trust Funds. INTERNATIONAL IMPROVEMENT FUND OF FLORIDA V. GREENOL"GH. Appeal from the circuit court of the United States for the northern district of Florida. The question in this case is one of costs, expenses. and allowances awarded to the complainant below out of a trust fund· under control of the court. The case was decided in the United States supreme court in April, ISS2. Mr.·Justice Bmdley delivered the opinion of the court atlirming the decree of the circuit court. Mr. Justice Miller dissenting.
850
FEDERAL REPORTER.
An appeal lies from an order directing costs to be paid out of funds in the bands or under the control of the court. The proceedings before the master may be regarded as so far independent as to make the decision substantially a final decree for the purposes of an appeal. It is a general Principle that a trust estate must bear the expenses of its administration, and where one of many parties having a common interest in the trust fund at his own expense takes out proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself or by proportional contribution from those Who accept the benefits of his efforts. In the vast amount of litigation which has arisen in this country upon railroad mortgages, where various parties have intervened for the protection of their rights, and the fund has been sulJjected to the control of the court and placed in the hands of receivers or trustees, it has been the common practice, as well in the courts of the United States as in those of the states, to make fair and just allowances for expenses and counsel fees to the trustees or other parties promoting the litigation and securing the due application of the property to the trusts and charges to which it was subject; but an. allowance for private and personal expenses is illegal. Cases cited in the opinion: Angell v. Davis, 4 Mylne & C. 360; Taylor Y. Dowlan, L. R. 4 Ch. App. 697; Atty. Gen. v. Brewers' Co.l Peere Wms. 376; Atty. Gen. v. Kerr, 4 Beay. 297; Atty. Gen. v. Old South Society, 13 Allen, 474; In re Paschal, 10 Wall. 483; Stanton v. Hatfield, 1 Keen, 388; Thompson Y. Cooper, 2 Collyer, 87; Tootal v. Spicer, 4 Sim. 510; Larkin v. Paxton, 2 Mylne & K. 320; Barber v. Wardle, Id. 818; Sutton v. Doggett, 3 Beav.9; Worrall v. Harford, 8 Ves. Jr. 4; In re Williams, 2 Bank Reg. 28; In re O'Hara, 8 Law Reg. (N. S.) 113; Ex parte Plitt, 2 Wall. Jr. 453; Cowdrey v. Galveston R. Co. 93 U. S. 352; Robinson v. Pett, 2 White & T. Lead. Cas. in Eg.238. Estate upon Condition. GILES 'V. LITTLE. In error to the circuit court of the United States for the district of Nebraska. This was an action brought for the recovery of a lot of land in the city of Lincoln. The contention of the plaintiff in error is that the wife of deceased took an estate for life, SUbject to be determined in case she contracted another marriage. with remainder to heirs of deceased, and that the power of disposal conferred on her by will was co-extensive with the estate she took; that is, that power was granted to her to dispose of her life estate, and consequently the estate conferred by her determined upon her marriage. The case was determined in the United States supreme court, at the October term, 1881; Mr. Justice Woods delivering the opinion of the court reversing the judgment of the circuit court, and remanding the cause with directions to proceed in conformity with the opinion. Where a testator devises and bequeaths all the property of which he should die seized to his wife, with full power to dispose of the same so long as she shall remain a widow, upon the express condition" that if she shall marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike;" held,