peachment of waste, and, in case he should leave any issue male, then to such issue male and his heirs, forever, with a limitation over in default of such issue; and the court held the testator intended the word 'issue' should be designatio personæ, and not a word of limitation, 'because he added a further limitation to the issue, viz. and to the heirs of such issue forever.' The principle deduced from this case is thus stated in 6 Cruise, Dig. (3d Am. Ed.) p. 259: 'Where an estate is devised to a person for life, with remainder to his issue, with words of limitation added, the word "issue" will in that case be construed to be a word of purchase.'"

The court, in Shreve v. Shreve, took notice of the fact that the case of Luddington v. Kime has been doubted, particularly by Powell in his learned work on Devises, but the Maryland court adds:

"But these views [of Powell] do not appear to have been adopted by the most recent English decisions, for in Golden v. Cropp, 5 Jur. (N. S.) 562, where a testator devised property to his daughter for life, and after her death to the issue of her body lawfully begotten, to hold to them and their heirs, forever, as tenants in common, and, in default of such issue, then over, it was held that the daughter took but a life estate. That case was decided by Sir J. Romilly, M. R.; and his opinion is thus briefly and emphatically expressed: 'I have always considered that where an estate is given to the ancestor, and there is a direction that it is afterwards to go to the issue of his body, and the mode in which the issue are to take is specified, with words added giving them the absolute interest, there the ancestor takes an estate for life, and not an estate tail, although there is a devise over in the event of the ancestor not having any issue. No one can doubt that the word "issue" is here used as equivalent to "children." I am of opinion the daughter takes an estate for life, and that her issue take as purchasers an estate in fee simple, as tenants in common.'

"So, in the still more recent case of Bradley v. Cortwright, L. R. 2 C. P. 511, it was held that where an estate is given for life, and the remainder to the issue is accompanied by words of distribution, and by words which would convey an estate in fee or in tail to the issue, the estate of the first taker is limited to an estate for life; and that, whether the estate is given in fee to the issue by the usual technical words, 'heirs of the body,' or by implication.

"It may be, as stated by Mr. Powell, that subsequent decisions in England have in effect overruled Luddington v. Kime, and that at the present time the will before us would receive a different construction in the English courts; but we have been referred to no decision in this country, nor are we aware of any, in which that case has

been overruled or its authority questioned. It is, with others, cited by Chancellor Kent as authority for the position that where the testator superadds words of explanation or fresh words of limitation, and a new inheritance is grafted upon the heirs to whom he gives the estate, the case will be withdrawn from the operation of the rule. 4 Kent, Comm. 221. It meets an approving reference in the very able opinion of Yeates, J., in Findlay v. Riddle, 3 Bin. 156, where there was a devise to A. for life, and, if he died leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns, and the court held that A. took only an estate for life with a contingent remainder to his heirs.

"But what is more important to the de, cision of this case is the fact that the doctrine of Luddington v. Kime and other similar cases has been repeatedly recognized and approved by the courts of this state. Thus, in Horne v. Lyeth, 4 Har. & J. 435, a case which Chancellor Kent cites as containing a learned and accurate exposition of the rule under all its modifications and exceptions, we find an exception to its operation thus stated: 'So, where the persons to take cannot take as heirs by the description by reason of a distributive direction incompatible with a course of descent, as where gavelkind lands were devised to A. and the heirs of her body, lawfully to be begotten, as well males and females, and to their heirs and assigns forever, to be equally divided between them, share and share alike, as tenants in common and not as joint tenants; in this case it was held that the words "heirs of the body" did not operate as words of limitation, because they were corrected or explained by the words which followed, and were irreconcilable with the notion of descent, and also because there were words of fee ingrafted on the words of limitation, which showed that the estates given to the children, and not the estate of A., were to be the groundwork of succession of heirs, or, in other words, that the children of A. were to be the termini for the succession to take its course from.'

"Again, in Lyles v. Diggs, 6 Har. & J. 373, we find approval of Backhouse v. Wells, 1 Eq. Cas. Abr. 184, pl. 27 (another case that Mr. Powell insists has been overruled in England), in reference to which the court say: "The devise was to one for life, and after his decease to the issue male of his body, and to the heirs male of the bodies of such issue, and the first taker was held to have only an estate for life, the word "issue" not being ex vi termini a word 01 limitation, and the words of limitation graft ed upon it, as in this case, showing that it was used as a word of purchase, and as descriptive of the person who was to take the estate tail.'

"In Chilton v. Henderson, 9 Gill, 432, the testator devised land to his son for life, and

if he should have lawful issue of his body, then such issue, after the son's death, to have the land in fee tail, and, if the son died without such issue, then over; and it was held that the son took but a life estate. In the opinion prepared by Judge Magruder in that case (which is reported in a note to Simpers v. Simpers, 15 Md. 191), he says: 'In the case now to be decided, there are words superadded to the word "issue" quite sufficient to give them the inheritance, and the law is that where an estate is devised to a person for life, with remainder to his issue, with words of limitation superadded, the word "issue" will in that case be construed to be a word of purchase, which is the doctrine of Luddington v. Kime, cited from Cruise's Digest.'

"After this repeated and recent recognition by our predecessors of this rule of construction derived from Luddington v. Kime, and other like cases in the earlier English reports, we are constrained to hold that it applies to and governs that part of that clause of this will which we have thus far considered, even though we may be of opinion a different construction would be given to it by the courts of England. Having thus determined the word 'issue' is here used as a word of purchase, it is clear it must bear the same construction when used in the immediately following sentence, ‘and, if any of said children shall die without issue lawfully begotten, I give, devise, and bequeath his or her portion to the surviving child or children and their issue, and to the heirs of said issue, forever.' In other words, the portion given to each child for life goes, in case he dies without leaving children, in the same way as the original share; that is, to the surviving children for life, and upon their death to their issue in fee."

We have extracted such large portions of the opinion in this case of Shreve v. Shreve because it plainly shows that the will before us in the present case would have been construed by the supreme court of the state of Maryland as creating a life estate only in Martha Ann Mitchell, and an estate in fee in the heirs of her body begotten. It is true that the words in Shreve v. Shreve were "issue lawfully begotten," but the case of Horne v. Lythe, 4 Har. & J. 435, is approved, where the words "the heirs of her body lawfully to be begotten" were similarly construed.

In Clark v. Smith, 49 Md. 117, the court, by Alvey, J., stated the rule as follows:

"It is a well-settled rule of construction that technical words of limitation used in a devise, such as 'heirs' generally, or 'heirs of the body,' shall be allowed their legal effect, unless, from subsequent inconsistent words, it is made perfectly plain that the testator meant otherwise. Or, to use the language of Lord Eldon, in Wright v. Jessor, 2 Bligh, 1, the words 'heirs of the body' will, indeed, yield to a particular intent that the estate

shall be only for life, and that may be from the effect of superadded words, or any expression showing the particular intent of the testator, but they must be clearly intelligible and unequivocal."

Though these decisions were made since the lands in question in this case became part of the District of Columbia, yet their reasoning is based upon the history of the law in Maryland ever since that state became independent; and we are therefore warranted in the conclusion that the law as laid down in the cited cases was the law when the state of Maryland ceded to the United States the territory now embraced in the city of Washington and District of Columbia.

It is not claimed that there has been any legislation by the congress of the United States which has modified or changed the law in this particular as it was when the lands in question were subject to the law of Maryland.

Nor do we find that there has been any attempt by the courts of the District to lay down a different rule. What is the law of those courts we learn from the opinion of the court of appeals filed in this case, reported in 3 App. Cas. D. C. 50, where the doctrine was thus stated:

"It is certainly a well-settled principle in the law of real property, indeed as well settled as the rule in Shelley's Case itself, that where an estate is expressly devised to a person for life, with remainder to the heirs of his body, and there are words of explanation annexed to such word 'heirs,' from whence it may be collected that the testator meant to qualify the meaning of the words 'heirs,' and not to use it in a technical sense, but as descriptive of the person or persons to whom he intended to give his estate, after the death of the first devisee, the word 'heirs' will in such case operate as word of purchase."

As this opinion was delivered by a judge who was but recently the chief justice of the court of appeals of Maryland, it may not be out of place to quote what he says respecting the law of that state:

"In the courts of Maryland, where the law of real property is supposed to be the same as that which prevails in this District, except as it may have been changed by positive legislation since the cession by that state, the same principle of construction has been fully recognized and applied in numerous cases. This will clearly appear upon examination of the cases of Horne v. Lyeth, 4 Har. & J. 435; Chelton v. Henderson, 9 Gill, 432; Shreve v. Shreve, 43 Md. 382; Fallon v. Harman, 44 Md. 263; and Clark v. Smith, 49 Md. 117."

The case of Daniel v. Whartenby, 17 Wall. 639, was cited by the court below, and is discussed in the briefs of the respective counsel. The syllabus of the case is as follows:

"A testator gave his estate, both real and personal, to his son R. T. 'during his natural life, and after his death to his issue, by him lawfully begotten of his body, to such issue, their heirs and assigns, forever.' In case R.

*576

T. should die without lawful issue, then, in that case, he devised the estate to his own widow and two sisters 'during the natural life of each of them, and to the survivor of them,' and, after the death of all of them, to I. W., his heirs and assigns, forever, with some provisions in case of the death of I. W. during the lifetime of the widow and sisters. Held, that the rule in Shelley's Case did not apply, and that the estate in R. T., the first taker, was not a fee tail, but was an estate for life, with remainder in fee to the issue of his body, contingent upon the birth of such issue, and, In default of such issue, remainder for life to his widow and sisters, with remainder over in fee, after their death, to I. W."

This case came up on a writ of error to the circuit court of the United States for the district of Delaware, and it is noticeable that the reasoning of this court did not proceed upon the law as expounded by the courts of that state, but rather upon a general view of the English and American cases. Still, as the judgment of the circuit court was affirmed, we may well suppose that the conclusion reached in this court was in conformity with the law as applied in the state of Delaware.

The rule extracted from the cases was thus stated by Mr. Justice Swayne:

"In considering the rule in Shelley's Case with reference to the present case, a few cardinal principles, as well settled as the rule itself, must be kept in view. In construing wills, where the question of its application arises, the intention of the testator must be fully carried out, so far as it can be done consistently with the rules of law, but no further. The meaning of this is that if the testator has used technical language, which brings the case within the rule, a declaration, however positive, that the rule shall not apply, or that the estate of the ancestor shall not continue beyond the primary express limitation, or that his heirs shall take by purchase, and not by descent, will be unavailing to exclude the rule, and cannot affect the result. But if there are explanatory and qualifying expressions, from which it appears that the import of the technical language is contrary to the clear and plain intent of the testator, the former must yield, and the latter will prevail." And, after examining the language used, the conclusion was thus expressed:

"We entertain no doubt that the testator intended to give a life estate only to Richard, and a fee simple to his issue, and that they should be the springhead of a new and independent stream of descent. We find nothing in the law of the case which prevents our giving effect to that intent."

We agree with the court below that the reasoning of the case of Daniel v. Whartenby, if applicable to the present case, would sustain the construction put upon the will of Samuel De Vaughn by the supreme court of the District.

But, even if that case be regarded as declaratory only of the law of Delaware, its 17 S.C.-30

principles were followed and applied in the subsequent case of Green v. Green, 23 Wall. 486, involving the construction of a conveyance of lands situated in the District of Columbia, and where the cases of Daniel v. Whartenby, supra, and Ware v. Richardson, 3 Md. 505, were both approved.

We therefore think it clear that, under the law as declared in the courts of Maryland and of the District of Columbia, Martha Ann Mitchell took a life estate only, and that her children took an estate in fee.

In the view that we have taken of the case, we are not called upon to re-inforce the reasoning of the cases cited, but we shall add a single observation, in application of Chancellor Kent's statement of an exception to the rule. 4 Kent, Comm. (6th Ed.) 221. The word "heirs," in order to be a word of limitation, must include all the persons in all generations belonging to the class designated by the law as "heirs." But the devise here was to Martha Ann for life, and at her decease to her heirs begotten of her body, and to their heirs and assigns,-a restricted class of heirs, and this limitation shows that it was the intention of the testator that Martha Ann's children should become the root of a new succession, and take as purchasers, and not as heirs. The decree of the court below is affirmed.

(165 U. S. 606) PAULY v. STATE LOAN & TRUST CO. (March 1, 1897.) No. 201. NATIONAL BANKS-INSOLVENCY AND ASSESSMENTS -SHAREHOLders-"PledGEE" OF SHARES.

1. One who appears on the official list of the names and residences of the shareholders of a national bank only as "pledgee" of a given number of shares of the capital stock of such bank, nothing else appearing, is not a shareholder, within the meaning of Rev. St. § 5151, and is not subject to the liability imposed by that section upon shareholders of national banks. 7 C. C. A. 422, 58 Fed. 666, affirmed.

2. Rules as to the liability of shareholders of national banks stated.

In Error to the Circuit Court of Appeals for the Ninth Circuit.

Edward Winslow Paige, for plaintiff in error W. P. Gardiner, for defendant in er

ror.

"Mr. Justice HARLAN delivered the opinion of the court.

This was an action to recover the amount of an assessment made on the shareholders of a national banking association in the hands of a receiver.

Is the defendant in error, the State Loan & Trust Company, a "shareholder" of the California National Bank of San Diego, within the meaning of the statute relating to national banking associations? That is the sole question presented by the pleadings.

By the Revised Statutes of the United States it is provided:

"Sec. 5139. The capital stock of each asso

The receiver gave due notice of the assessment, in writing, to the State Loan & Trust Company, which is a corporation of California, having its principal place of business at the city of Los Angeles, in that state, and

"Sec. 5151. The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.

"5152. Persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such funds would be, if living and competent to act and hold the stock in his own name."

"Sec. 5210. The president and cashier of every national banking association shall cause to be kept at all times a full and correct list of the names and residences of all the shareholders in the association, and the number of shares held by each, in the office where its business is transacted. Such list shall be subject to the inspection of all the shareholders and creditors of the association, and the officers authorized to assess taxes under state authority, during business hours of each day in which business may be legally transacted. A copy of such list, on the first Monday of July of each year,*verified by the oath of such president or cashier, shall be transmitted to the comptroller of the currency."

The comptroller of the currency appointed the plaintiff in error receiver of the California National Bank of San Diego, Cal. Rev. St. § 5234. He gave bond as required by law, and thereafter entered upon the discharge of the duties of his trust.

In virtue of the authority conferred upon him by law, the comptroller made an assessment on the shareholders of the bank for $500,000, to be paid by them on or before the 18th day of June, 1892. The assessment was equally and ratably upon shareholders to the amount of 100 per centum of the par value of the shares of the capital stock of the bank held and owned by them respectively at the time of its failure or suspension, and the receiver was required by an order of the comptroller to institute suits to enforce against each shareholder his personal liability to that extent.

pany did not pay the same, or any part thereof.

The facts upon which the claim against the defendant company is based are these: S. G. Havermale and J. W. Collins, owners and holders respectively of certificates numbered 286 and 297, issued to them for 100 shares, each, of the capital stock of the California National Bank of San Diego, were indebted to the State Loan & Trust Company upon their promissory note for $12,500, besides interest. These certificates, having been indorsed by the respective holders by writing their names across the back thereof, were transferred and delivered to the State Loan & Trust Company as collateral security for the payment of the above note, and, so indorsed, were, in ordinary course of mail, transmitted and surrendered to the California National Bank of San Diego. New certificates, numbered 308 and 309, respectively, were thereupon issued to the State Loan & Trust Company of Los Angeles as "pledgee," in lieu of certificates 286 and 297.

Each of the new certificates showed upon its face that it was issued to the "State Loan & Trust Company of Los Angeles, Pledgee," and each purported to be for 100 shares of the capital stock of the California National Bank of San Diego.

The defendant, after receiving certificates 308 and 309, held them "as pledgee, and as collateral security for the payment of said note, and for the unpaid balance of the debt thereby represented."

Otherwise than as just stated, the State Loan & Trust Company of Los Angeles never had, owned, or held any shares of the capital stock of the California National Bank of San Diego, and never was entitled to hold the usual stock certificate as such shareholder to the amount of 200 shares, or to any other amount.

Except as pledgee of the stock represented by certificates 308 and 309, respectively, the name of the State Loan & Trust Company never appeared upon or in the stock or other corporate books of the California National Bank of San Diego as a shareholder. entries in the books of the bank showed that the new certificates were issued to the State Loan & Trust Company as pledgee, and not otherwise.

The

A jury having been waived by the parties in writing, the case was tried in the circuit court, and judgment was rendered for the defendant. 56 Fed. 430. Upon appeal to the circuit court of appeals that judgment was affirmed. 15 U. S. App. 259, 7 C. C. A. 422. and 58 Fed. 666.

Is one who does not appear upon the official list of the names and residences of the

shareholders of a national banking association otherwise than as "pledgee" of a given number of shares of the capital stock of such association-nothing else appearing-liable as a "shareholder" of such association, under section 5151 of the Revised Statutes of the United States, declaring that "the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares"?

As both sides contend that their respective positions are in harmony with decisions heretofore rendered in this court, it will be necessary to refer to some of the cases cited by counsel.

In Pullman v. Upton, 96 U. S. 328, 330, which was an action by the assignee in bankruptcy of an insurance company to compel a holder of shares of its stock to pay the balance due thereon, the court said: "The only question remaining is whether an assignee of corporate stock, who has caused it to be transferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company, after it has become bankrupt. That the original holders and the transferees of the stock are thus liable we held in Upton v. Tribilcock, 91 U. S. 45, Sanger v. Upton, Id. 56, and Webster v. Upton, Id. 65; and the reasons that controlled our judgment in those cases are of equal force in the present. The creditors of the bankrupt company are entitled to the whole capital of the bankrupt, as a fund for the payment of the debts due them. This they cannot have if the transferee of the shares is not responsible for whatever remains unpaid upon his shares, for by the transfer on the books of the corporation the former owner is discharged. It makes no difference that the legal owner-that is, the one in whose name the stock stands on the books of the corporation-is in fact only, as between himself and his debtor, a holder for security of the debt, or even that he has no beneficial interest therein."

In Bank v. Case, 99 U. S. 628, 631, 632,which was an action to make the Germania National Bank of New Orleans liable as a shareholder of another national bank that had become insolvent,-it appeared that Phelps, McCullough & Co. borrowed money from the defendant bank, and to secure the payment of the loan, evidenced by note, pledged 100 shares of the stock of the Crescent City National Bank, with power, on nonpayment of the sum borrowed, to dispose of the stock for cash without recourse to legal proceedings, and to that end to make transfers on the books of the latter corporation. The note not having been paid, the stock was transferred on the books of the Crescent City Na

tional Bank to the Germania National Bank. The latter subsequently caused the stock to be transferred on the books of the former to one of its clerks, who acquired no beneficial interest in it, and between whom and the officers of his bank it was understood that he would retransfer the stock at their request. This court, observing that, notwithstanding the transfer to the clerk, the stock remained subject to the bank's control, and that the transfer to him was made to evade the liability of the true owners, said: "It is thor oughly established that one to whom stock has been transferred in pledge or as collateral security for money loaned, and who appears on the books of the corporation as the owner of the stock, is liable as a stockholder for the benefit of creditors. We so held in Pullman v. Upton, 96 U. S. 328; and like decisions abound in the English courts, and in numerous American cases, to some of which we refer: Adderly v. Storm, 6 Hill, 624; Roosevelt v. Brown, 11 N. Y. 148; Bank v. Burnham, 11 Cush. 183; Magruder v. Colsston, 44 Md. 349; Crease v. Babcock, 10 Metc. (Mass.) 525; Wheelock v. Kost, 77 Ill. 296; In re Empire City Bank, 18 N. Y. 199; Hale v. Walker, 31 Iowa, 344. For this several reasons are given. One is that he is estopped from denying his liability by voluntarily holding himself out to the public as the owner of the stock, and his denial of ownership is inconsistent with the representations he has made. Another is that by taking the legal title he has released the former owner. And a third is that, after having taken the apparent ownership, and thus become entitled to receive dividends, vote at elections, and enjoy all the privileges of ownership, it would be inequitable to allow him to refuse the responsibilities of a stockholder. When, therefore, the stock was transferred to the Germania Bank, though it continued to be held merely as a collateral security, the bank became subject to the liabilities of a stockholder, and the liability accrued the instant the transfer was made." After referring to some of the English cases, the court proceeds: "The American doctrine is even more stringent. Mr. Thompson states it thus (and he is supported by the adjudicated cases): 'A transfer of shares in a failing corporation, made by the transferror with the purpose of escaping his liability as a shareholder, to a person who, from any cause, is incapable of responding in respect of such liability, is void as to the creditors of the company and as to other shareholders, although, as between the transferror and the transferee, it was out and out.' Nathan v. Whitlock, 9 Paige, 152; McClaren v. Franciscus, 43 Mo. 452; Marcy v. Clark, 17 Mass. 329; Johnson v. Laflin, 6 Cent. Law J. 131, 5 Dill. 65, and Fed. Cas. No. 7,393. The case in hand does not need the application of so rigorous a doctrine. While the evidence establishes that the Crescent City was in a failing condition when the transfer to