erative and efficient for the purposes for which it was passed. But, independently of this special act, section 9 of its charter provides that the council of the city of Winchester, in addition to many other powers, some of which would seem sufficiently broad to include the taking and administration of this trust, "shall have all such other powers as are or may be conferred on the councils of cities and towns having a population of five thousand, by the constitution and general laws of the state." Chapter 65 of the Virginia Code confers upon any "board of education, or any other corporation, or any county, or natural person," the power to take a gift, grant, devise, or bequest for literary or educational purposes. Further reference might be made to the constitutional and legislative provisions for the establishment and maintenance of free schools, which in some respects require and make use of the agency of the municipal corporations of the state in the administration of the free-school system. It is not necessary, however, to set out and consider in detail the legislation of Virginia, bearing on this subject. Sufficient has been said to indicate the ground of our opinion that under the laws of Virginia the city of Winchester was competent to take the bequest, and administer the trust set out in the residuary clause of the will before us.

The only remaining contention of appellants requiring serious consideration is that the subject-matter of the residuary clause is rendered uncertain, because of the effect upon it of item ninth of the will, which includes Schedule A. Item ninth of the will, referred to, is as follows:

"Item. I also give and bequeath the following sums of money to each of the persons named in Schedule A, which schedule is hereby made a part of this my will, the same as if the name of each person was named herein. And I direct my executors to pay the said several bequests to each person, if living at the time of my demise, or when such bequest shall fall due, within two years from the day of my death."

A paper marked "Schedule A" was found and probated with the will. It was never completed, and is a blank, except as to the caption, which reads as follows:

"Schedule 'A.' List of persons to whom bequests in the following amount, and made and intended for Schedule A, mentioned in my last will, dated the 29th day of December, A. D. 1890."

The substance of the argument of appellants in this contention is that the testator, by referring to a schedule which was to contain the names of legatees, and the amounts severally bequeathed to each, showed that he had in mind, when he drew his will, certain legacies which, in addition to those already specifically named, were to be subtracted from his estate before the "rest and residue" of the residuary clause could be computed and made available as a residuary bequest; that, in other words, this was a particular, and not a general, residuary bequest, and, as there was and could be no ascertainment of what was in his mind as to the amounts to be given under Schedule A, there could be no ascertainment of the particular residuum. It is well settled that where, after specific legacies of named amounts, a testator makes a particular residuary bequest, the failure of one or more of such specific legacies by reason of lapse, or for any reason, does not carry the amount of such bad legacy to the residuary legatee, but to,

the next of kin. And this should be so, because it is evident that the testator, when he carved out of his personalty these legacies, made his residuary bequest with reference to them, and intended a particular residuum remaining after the deduction of the sums certain, as indicated by him. In the case before us, however, whatever may have been in the mind of the testator at the time he drew his will, he left Schedule A blank when he executed it. If he had intended to make the list of legatees and legacies alluded to in item ninth, he must afterwards have changed his mind, and, with only the specific legacies named to be taken from the corpus of his estate, gave the rest and residue as appears in the will. It is not the case of a named amount which the testator referred to in making a gift of the balance, and which therefore could not be incorporated in such balance, but a failure to name any amount in this paper, by which the residuum was to be diminished. Not only did the testator execute his will, leaving blank this paper called "Schedule A," but three years and a half after its execution he executed a codicil thereto, in which he changed one of the executors of his will, but in all other respects expressly confirmed the same. As the will stands, he has never said that he intended to take from the corpus of his estate any sum or sums, other than the specific bequests to named legatees, and for named amounts. Neither by reason nor by authority is the contention of the appellants in this regard sustained. "Plainly," in the language of the learned judge of the court below, "no effect whatever is to be given to this unfilled and unsigned separate sheet of paper, designated 'Schedule A.'" Taking the view that there was a general equitable conversion of all the testator's real estate into personalty, for the purposes of the will, and therefore that the validity of the residuary clause of the will must be determined by the law of Pennsylvania, it will not be necessary to extend this opinion by an examination of the question, whether this gift of the residuum is valid by the law of Virginia. It suffices to say that, after a careful consideration of the decisions of the Virginia courts, and the legislation of the state bearing upon the ques tion, and the argument of counsel thereon, we have no doubt of the validity of the bequest when considered with reference to the law of either state.

Finally, as to the objection that the disposition of the mineral and timber lands in items 14 to 18, inclusive, as well as the disposition of the residuum, is in violation of the rule as to perpetuities, we have only to say that the whole beneficial interest in the lands, before and after the sale, is given directly to the city of Winchester. It is only the enjoyment of the fund arising from the sale of the corpus of the gift that is postponed for 20 years. There is no intermediate beneficial interest or estate, and after the vesting of a charitable use the rule as to perpetuities does not apply. We agree with the court below in saying that "we are not able to see that there is anything in the will of John Handley in unlawful restraint of alienation, or any trust for forbidden accumulations," and that "with these questions, however, the heirs and next of kin have no concern." The decree of the court below is affirmed.

ENOS v. NEW YORK & O. R. CO.

(Circuit Court, S. D. New York. July 2, 1900.)

RECEIVERS-APPOINTMENT-EXHAUSTING LEGAL REMEDIES.

Decree appointing receiver will not be set aside on motion of a creditor because the creditor applying for the appointment had not had an execution issued and returned unsatisfied, no objection on this account having been made by the corporation to the application.

Motion by a judgment creditor, whose judgment was entered subsequent to the appointment of a receiver, to be allowed to intervene and set aside the decree appointing the receiver.

Frank E. Smith, for the motion.

Arthur H. Masten, R. Burnham Moffat, and Henry L. Stemson, opposed.

LACOMBE, Circuit Judge. This application must be denied. The decree of the court is in entire accord with the practice laid down by the supreme court in Hollins v. Iron Co., 150 U. S. 380, 14 Sup. Ct. 127, 37 L. Ed. 1113. That case holds distinctly that the defense and objection to an application for the appointment of a receiver that execution upon a judgment in favor of the creditor has not been issued and returned unsatisfied is one which must be made in limine, and which may be waived by the defendant corporation. When it is waived, and it is apparent to the court that the corporation is insolvent, and that, to save the property from wreck and secure equality of distribution of the assets among the creditors, it is necessary to appoint a receiver, such a decree may be entered upon the application of a creditor whose claim is in judgment, and even, as it would seem from the opinion in the Hollins Case, upon the application of a simplecontract creditor, without express lien. In that cause plaintiffs were simple-contract creditors, whose claims had not been reduced to judg ment, and who had no express liens by mortgage, trust deeds, or otherwise. The court says:

"Suppose the corporation and other defendants had made no defense, and, without expressly consenting, had made no objection to the appointment of a receiver under subsequent distribution of the assets of the corporation among its creditors; it cannot be doubted that a final decree providing for a settlement of the affairs of the corporation and a distribution among creditors could not have been challenged on the ground of a want of jurisdiction in the court, and that notwithstanding it appeared upon the face of the bill that the plaintiffs were simple-contract creditors. The course of the administration of the assets of an insolvent corporation is within the function of a court of equity, and, the parties being before the court, it has power to proceed with such administration. If there was a defense existing to the bill as framed, and objection to the right of these plaintiffs to proceed on the ground that their legal remedies had not been exhausted, it was a defense and objection which must be made in limine, and does not of itself oust the court of jurisdiction."

Of course, if the defense of a failure to exhaust the legal remedies were interposed by the corporation to the application of the creditor, the situation would be different; but no such objection was made in the case at bar, and the decree was one which the court was entirely competent to enter. The application is denied.

CREW-LEVICK CO. v. BRITISH & FOREIGN MARINE INS. CO.,
LIMITED, OF LIVERPOOL.

(Circuit Court of Appeals, Third Circuit. June 19, 1900.)

No. 20.

INSURANCE-CONSTRUCTION OF POLICY-GOODS IN TRANSIT.

A policy of insurance which was in form a marine policy contained a printed provision in which it was stated that the insurance should "continue and endure until said goods and merchandise shall be safely landed at as aforesaid." None of the blanks in said provision intended to show the name of the vessel and the ports of shipment and destination were filled. The policy had stamped thereon a statement that the special terms and conditions governing the insurance were set forth in a rider attached, the contents of which should supersede anything to the contrary in the printed body of the policy, and the rider stated the insurance to be upon "oil in tank cars in transit." Held, that the printed provision set out was intended, when properly filled out, to be applicable only to sea carriage, and was no part of the contract made by the policy in question, and that when a tank car of oil, covered by the policy, had been delivered by the railroad which transported it to the insured, by being placed by its direction upon its private siding alongside its warehouse, the oil was no longer "in transit," within the terms of the policy.

Acheson, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Theodore F. Jenkins, for plaintiff in error.

Henry N. Paul, Jr., for defendant in error.

Before ACHESON and GRAY, Circuit Judges, and BRADFORD, District Judge.

GRAY, Circuit Judge. This was an action on a policy of insurance, to recover the value of oil destroyed by fire on December 10, 1895, while in tank cars on a siding alongside of the plaintiff's warehouse. The action was brought in the court of common pleas No. 4 of Philadelphia county, and on the application of the defendant was transferred to the circuit court of the United States for the Eastern district of Pennsylvania. The tank cars containing this oil had been transported (five of them by the Pennsylvania Railroad, and one of them by the Baltimore & Ohio Railroad) from the Pennsylvania oil regions, under six separate bills of lading or contracts of carriage, in each one of which the oil was stated to be consigned to "Crew-Levick Company, Swanson and Jackson streets, Philadelphia." In detail, the facts, which are wholly undisputed, are these: At the corner of Swanson and Jackson streets, Philadelphia, the Crew-Levick Company at this time had an oil warehouse, surrounded by quite a yard, inclosed by a fence, containing, besides the warehouse, a cooper shop and some sheds and stables, all belonging to the Crew-Levick Company. On one side of this yard or inclosed area was Swanson street, along which ran the track of the Pennsylvania Railroad Company, and on the opposite side of the yard ran Meadow street, along which ran the track of the Balti more & Ohio Railroad, so that the inclosed yard of the plaintiff company was situated directly between the tracks of these two railroad companies. The private siding of the Crew-Levick Company was situ ated within this yard, alongside of the oil warehouse. It connected, through gates in the fence on either side, with both railroads,—on the Swanson street side with the Pennsylvania Railroad, and on the

Meadow street side with the Baltimore & Ohio Railroad. In the regular course of business the Pennsylvania Railroad Company, from its Washington Avenue Station, which is not far from the corner of Swanson and Jackson streets, makes its delivery of car loads of merchandise consigned to its regular customers, who have their own private sidings, by placing the cars containing the merchandise on the customer's private siding, and leaving them there for their customer to unload at his convenience; the railroad company making no charge for the use of the car, unless detained over 48 hours. In the regular course of business, car loads of merchandise arriving at the Washington Avenue Station of the Pennsylvania Railroad, and consigned to any of the customers of the railroad having their private siding, are kept by the railroad company while notice of their arrival is sent by a messenger to the consignee. The consignee, at his convenience, notifies the railroad company when he desires to have what is called "a shift"; that is, when he desires the railroad company to send an engine to remove from the customer's private siding any unloaded cars, and to substitute in their place loaded cars, of the arrival of which notice has been given. Some time on December 9, 1895, the day before the fire, two of the six car loads of oil which were destroyed by the fire had been placed upon the private siding of the Crew-Levick Company at Swanson and Jackson streets, alongside its warehouse; one having been placed there by the Pennsylvania Railroad, and one having been placed there by the Baltimore & Ohio Railroad. The next day, December 10th, at about noon, the two cars just mentioned being still unloaded, the Crew-Levick Company sent word to the Washington Avenue Station of the Pennsylvania Railroad that it wished a shift that afternoon, and gave directions to have four more loaded cars placed upon its siding. As a consequence of these orders, between 4 and 6:15 o'clock of that afternoon the remaining four of the six loaded oil cars were placed on plaintiff's private siding and left there. About 9 o'clock in the evening a fire occurred, which destroyed the warehouse, and with it six of the loaded tank cars, two of which had been left there the day before, and four that afternoon. Of the four others which were on the siding, two were hauled off at the Baltimore & Ohio end, and two at the Pennsylvania Railroad end (including the one which had projected through the gate), and were not burned.

The policy on which the suit is brought is irregular, in that it is a printed marine policy form, with many of the blanks unfilled, and to whch is attached a so-called "paster," which contains the substance of the real contract of insurance. A policy framed throughout to express the meaning and intention of the parties would have avoided the difficulties out of which this litigation sprang. The transaction was an unbusinesslike and careless one, and has brought to the parties unnecessary trouble and expense. To arrive at the agreement be tween the parties to this contract, we are referred to a long printed form, containing a number of blanks, and evidently intended to be used in the writing of marine insurance alone; the defendant being a marine insurance company. This printed policy is, in its ordinary form, and as we have said, was meant to cover exclusively a marine risk, as a perusal will make obvious. It begins as follows:

103 F.-4