818
FEDERAL REPORTER.
its views wCluldbeconclusiv8; but every argnmentby it, with respect to a succession tax, applies witb-equal, if not .greater, force to a legacy tax. Take the case at bar for illustration. An alien non-resident bequeathed in 1870 her estate, situate mostly in Ireland, to her mother and sister for life, with remainder to several others, some of whom were alien non-residents, and only two citizens and residents of the United States. A very small portion of her estate was situate in this country, where ancillary administratioJl was had. None of the remainder-men, alien or resident, could come into possession or enjoyment of the estate until theJife estates disappeared. What the vahie of the estate would then be could not be previously ascertained, nor were the taxes.tl1ereon, in any event, due and paya, until the life,el'tates ceased. The legatees were citizens and aliens, and the execut9l' hl;l1'8 was, ordered to. distribute the personal to said and aliens acoordingly. Was he to pay a legacy or succession tax on the distributive shares going to non-resident aliens? It should be taken for gvanted, that, .as to the share of Robert, who was a resident citiz.en of this country, it could not escape tax, although bought by his alien kinsmen, if the same were taxable in 1877. The various provisions of the· revenue acts incline me to the opinion that the interests derived by the American legatees, as remainder-men; 'fnder the facts stated, were not subject to a legacy tax. But, whether that be so or not, I must hol.;1 that the repealing act of 1870 exempted the defendal;lt, and the: property in his hands, in 1877, from the legacy tax imposed by the, various ,acts prior to 1870. The demurrer is sustained.
LrCHTENAU;ER,
Assignee,v.
CHENEY
and others.
(Circuit Court, D. Minnesota. 1.
September, 1881.)
BANKRuPTCY-EQUITY PRACTICE-AMENDMENTS UNDER EQUITY J:{ULE
29. Amendments, regularly made under equity rule 29, cannot be avoided by a motion to strike from the record, or set aside, the order allowing them.
2.
EQUITY PLEADING,
Semble that a bill to set aside a conveyance by the bankrupt, on the ground of fraud, is demurrable in the absence of any allegation that the fraud was discovered within the time prescribed by the statute.
W. P. Warner and Himm F. Stevens, for complainant. J. B. <t W. H. Sanborn, for defendant bank.
LICHTEliA:UER
v.
OHElmY.
NELSON, D. J. On June 13,1881, an order was obtained, on motion, giving the complainant leave to am:endhis bill on file in certain respects; among others, so. as to make, the, Exchange Bank of Canada a party defendant. The order was granted under equity rule thefl.rst paragraph of which reads.: "After an answer, pIe!!!, or de'murr;r is put in, and before. replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill of. complaint on' or before theriext ruleday,",etc. ' ' within the The bill was regularly amended by the time specified"and theainendmentsserved as the orBer: provided. A motion is now made by the solicittirs, who appear: 'for the' Exchange Bank of Canada, to strike from the record the ordet,oi' set it aside, so as to :get rid 'of the amendments.: The\bill, beihg properly atnended, according to the eq1lity practioe must stand, and the' defendants; a.re required to answer, file a plea, orde'mur thereto. !tis not; possible to get rid of the amendments regularly made by a motion to have the order under rule 29 set aside. The complailiant is entitled under this rule to thus amend his bill of oODiplaint; and the motion: inustbe denied. ' . This deoision does'not meet the is urged upon th'e court by thedefendarit's solioitor, viz.: that suit, against the bank is barred by ithe limitation in the last clause of section 5057, Ray.' St., (section 2, bankrupt act.) . " If a demurrer is 'interposed, the bill as now frameda;gairist bank .would be dismissed for the reason that conceding evel'y statement in the amendment true with reference to a secret fraud of the Exchange Bank of Canada, there is allegation that it wais discoyered within the time allowed by the statute of limitations to avoid the bar. . . The solicitors for the compla.inant urge that the allegation that the bank "nowclaim.s some interest," etc., is sufficient, the amendment being allowed June 13, 1881; but non constat that the c.omplainant only discovered the alleged fraud at that time. If the complainant amends his bill in this respect, and a demurrer is I will hear further argument, if desired, on the bat ot the statute.
no
8'18
rEDEBALBBPOBTER. '
SHAJNWALD,
Assignee,eto., v.
(District Oourt, D. Oaxifornia. llay 14, ISSi.) 1. RECEIVERB-REMOVAL.
The relationship Of8 receiver to the complainant is not a sufficient ground for his r-emoval, where the blIInkruptadmits that he was a party to a fraudulent transfer and concealment of his property. 2. SAME-COUNSEL.
In such a case the receiver may employ the complainant's solicitor.
Opinion on Motion to Vaoate Order Appointing Receiver. D. J., By the decree of this court the respondent was a.djudged to be indebted to the complainant, as assignee of the bankrupts, in a, large sum of money, being the value of assets of the bankl'uptfirm, of which he lut.d" obtained possession, and which he ' ha.d converted to his. own use by means of.a. fraudulent conspiracy of the most flagrant ch.,a.racter. Exeoution on this decree having been .unsatisfied, the present bill, in the nature of a creditor's bill; was filed. , It a.Ueged, insubsta.nce, that the respondent had made, and was about to make, fraudulent transfers 'of his propertYJo evade the paynumt of, the decree; that he. hM secreted andconceaJed theljame; that he WlIoS about to confess, illdgment on and fictitious to carry debts; tba,t,hewas about tQ)eavethe United with him the proceeds of his property; and that he had openly declared, that he had made such disposition. of -llis property as would ,prevent the complainl}n;tfromrealizing anything froIJl, his decree. On tllia bill a receiv;er,w'&sltppointed, and the respondent compelled to ,make a alilsignment' of ,his. property. The receiver has since ,l>eelil actively under the, advice and direction, of the complainant's solicitor, in endeavoring to discover and obtain poss6/lsion of, property of there8pondent,justly applicable to the payment of The receiver ,is the brother ,of ,the complainant, Who QreditQf.s .()f the bankrupts who have been. defrauded by the respondelltand hjs co-conspirators. A deIl).urrer t<;> the bill. having been interpQsed and overruled, the 'sol:iGitor of the respondent in open court declined. to plead to or. answer the bill, and it was thereupon decreed to be taken pro confesso. All the allegations contained in it in respect to the fraudulent transfers and concealment of his property by the respondent must be deemed to be true and undenied. HOFFt'lAN,
>ll'See former reports of this case, 6 FED,
REP.
753, 766.