At the time of his arrest and confinement at Ft. Oglethorpe, Banning was residing in the city of Pittsburgh, Pa. He is a bachelor, but he had rooms there and was staying there at the time, and had been for some time in that city.

[1] It appears that Banning, while working in New York City, in 1884, filed his declaration of intention to become a naturalized citizen of the United States. After that he went to Pittsburgh, where he worked for a firm called Naylor & Co., and in 1899 he and another employé of the firm of Naylor & Co., S. G. Cooper, formed a limited partnership under the name of Banning, Cooper & Co., Limited, and engaged in some kind of a brokerage business. In 1903 he applied to a state court in Pittsburgh, the court of common pleas, for naturalization, and was naturalized and received a certificate. The respondent here does not question at all the fact that he applied for naturalization, went through the form of naturalization, and received a certificate; but the act of Congress on the subject of naturalization (Rev. St. § 2165) provided that

An applicant for naturalization "shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty; and, particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject."

The United States attorney, in his brief which I have before me, says:

"I assume, therefore, that the court will give no consideration to any question or suggestion whatever except this: Is Mr. Banning an American citizen or an alien enemy within the classes named in R. S. 4067?"

I agree thoroughly with the United States attorney in his suggestion about this; that the only thing for the court to consider in this case is whether or not Mr. Banning, at the time of his arrest and internment, was an alien enemy or a citizen of the United States. If he was regularly naturalized and has not expatriated himself, then he is not an alien enemy, but a citizen, although a naturalized citizen, only.

Mr. Banning, in his naturalization, as shown by the records of the same, renounced all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty, and particularly to the Emperor of Germany. The United States attorney contends that this renouncing of his allegiance to the Emperor of Germany is not sufficient, that he should give the name of the sovereign of the country of which he was a subject, or the name of the sovereign whose subject he was, to state it more correctly.

I have thought about this question considerably and have examined. it pretty thoroughly and carefully, and my own reasoning and the authorities which impress me as the most important satisfy me that the act of Banning in renouncing allegiance to the German Emperor, as he did, is substantially sufficient. In renouncing his allegiance to the German Emperor, he clearly indicates the country with which he was severing his relations and leaving in order to take citizenship in

this country. It seems to me that the purpose and requirements of the act are very clearly complied with in a way which ought to be sufficient.

I have a case before me on this subject, Ex parte Smith, an Alien, 8 Blackf. (Ind.) 395, which is a decision by the Supreme Court of Indiana and is very brief. It is this:

"The declaration is objected to, because the party, in declaring his intention to renounce his allegiance to the queen of Great Britain and Ireland, does not give the name of the queen, viz., Victoria. We do not think the objection should prevail. The meaning of the declaration is the same as if the name of the queen had been inserted. The party by declaring his intention to renounce all allegiance and fidelity to every foreign prince, potentate, state, and sovereignty whatever, and particularly to the queen of Great Britain and Ireland, has complied substantially with the act of Congress on the subject."

This is the view, I take of the matter here. It is, at least, a substantial compliance with the act and should be deemed sufficient. See, also, In re Denny (D. C.) 240 Fed. 845; In re Markowitz (D. C.) 233 Fed. 715; and United States v. Salomon, 231 Fed. 928, 146 C. C. A. 124.

[2, 3] The United States attorney also insists that, even if Banning was properly naturalized, he afterwards expatriated himself by his conduct in going to Germany and residing there some time, in Berlin. The authorities all are (and it would be useless to refer specifically to them) that a man who has become a naturalized citizen of one country, and goes back to the country of his origin, may stay there indefinitely, if his purpose is, all the time, in his mind, to retain his citizenship in the country of his adoption and to return there some time in the future. It is a question more of intention than anything else. That is the law as contained in all the decisions and the state papers read by counsel in this argument. Of course, various questions arise as to how his intention can be shown and in what way it can be shown. I do not think there is anything in this case to show clearly that Mr. Banning ever intended not returning to the United States. On the contrary, every part of the evidence, which I will not undertake. to go into in detail, and some of it very strongly, indicates that his intention was to retain his home in the country of his adoption. The evidence very clearly shows that Banning had an old father in Germany to whom he was devoted and whom he desired frequently to visit, and this seems to have been very largely the motive which actuated him in going over there, while from his own evidence it is clear that he enjoyed the life of Berlin and had rooms, as if expecting to remain there a while.

Believing that he was regularly naturalized, the evidence that he intended to take up a permanent residence in Germany should be reasonably clear. It is not so here. There are some things in the evidence, to which the United States attorney has referred, which give ground for argument that his purpose was otherwise; but I do not see how, taking all the evidence together, any conclusion can be reached which would show expatriation on his part. His using Berlin as his place of residence at other times, under other circumstances, is rather against his contention; but it is a circumstance which is readily.

255 F.-11

explained by his using that during the time he was over in Germany as "an address" more than anything else.

[4] The United States attorney stated several times in argument that if the evidence showed that Mr. Banning was a citizen at the time of his arrest and confinement at Ft. Oglethorpe, and not within the classes named in section 4067 of the Revised Statutes, he ought to be discharged. He is clearly correct in that, and I being of the opinion that he was a naturalized citizen at the time of his arrest, then he is entitled to an order on this writ of habeas corpus for his discharge, and an order may be taken to that effect.

ATWOOD et al. v. RHODE ISLAND HOSPITAL TRUST CO.
(District Court, D. Rhode Island. January 13, 1919.)

1. WILLS

No. 96.

267-SUIT TO SET ASIDE WILL-INDISPENSABLE PARTIES.

To a suit against the trustee of a fund to be eventually distributed between beneficiaries to set aside a provision of the will of the creator of the trust which devised his residuary estate to the trustee to be added to the trust fund, the beneficiaries of the trust are proper, but not indispensable, parties.

2. WILLS 267-SUIT TO SET ASIDE WILL-PARTIES.

A museum to which a testator bequeathed objects of art, on condition that his residuary estate proved sufficient to increase a trust fund to a certain sum, is not an indispensable party to a suit by heirs against the trustee to set aside the residuary clause of the will, although an adverse decision would indirectly deprive it of the bequest.

In Equity. Suit by Kate Atwood, individually and as administratrix, and Theodore Davis Boal, administrator, against the Rhode Island Hospital Trust Company, administrator and trustee. On motion to dismiss bill and plea to jurisdiction. Motion denied and plea overruled.

Sheffield & Harvey, of Newport, R. I., for complainants.
Tillinghast & Collins, of Providence, R. I., for respondents.

BROWN, District Judge. By motion to dismiss the bill, and by plea to the jurisdiction embodied in its answer, the Rhode Island Hospital Trust Company, which is sued both as administrator with the will annexed of the estate not already administered of the late Theodore M. Davis, of Newport, R. I., and as trustee under a certain deed of trust executed by said Davis in his lifetime, makes the objection that indispensable parties are omitted.

[1] The bill relates to the residuary estate and to the provisions of the will contained in its ninth clause. The plaintiffs allege that this is void, and in consequence the residuary estate is intestate property to which the plaintiffs are entitled.

If the plaintiffs should prevail, the defendant as trustee under the deed of trust would be deprived of the residuary estate, which, by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the ninth clause of his will, the testator had provided should be converted into cash and the proceeds paid over to the defendant, trustee, as a part of the principal held by it in trust, and as though said proceeds had been deposited by the testator as a part of the trust es

tate.

The deed of trust provides that upon the termination of certain lives the principal shall be divided into equal shares and distributed among certain named beneficiaries. These shares, if the plaintiffs prevail, will be diminished in value, and the loss of the residuary estate will thus fall upon these beneficiaries under the deed of trust.

By the seventh clause of the will, a bequest is made, to the Metropolitan Museum of Art of New York, of works of art and an Egyptian collection, but subject to the condition that, if the principal of the trust estate held by the defendant as trustee shall not be sufficient to make each share equal at least to $50,000, sufficient of said works of art to realize a net amount equal to the deficiency in the trust estate are bequeathed to the defendant as trustee, so that the principal shall be increased to an amount sufficient to make each distributive share at least $50,000.

That the testator in this way has insured these beneficiaries against depreciation of the amount of their shares does not, as plaintiffs suggest, make it a matter of indifference to the beneficiaries what the result of this suit may be. The plaintiffs can derive no rights from the fact that the beneficiaries may be thus preferred to the Metropolitan Art Museum. Their shares are not limited to the sum of $50,000, and they are entitled to their full shares, whether greater or less than that sum, and have the right to relieve the art museum from the condition.

That the beneficiaries would be indifferent to the fulfillment of the testator's primary intention to devote his works of art and his Egyptian collection to the art museum is a suggestion that is both inadmissible and irrelevant to any question before us. The beneficiaries as cestuis have a direct interest in the subject-matter of the suit, and the joinder of those defendants who are resident in this district does not appear to be impracticable because of their number. On the contrary, even if we may dispense with those parties whose joinder would oust this court of jurisdiction of a bill based on diversity of citizenship, it is yet desirable that we should have before us representatives of the class of beneficiaries who are to share in the final distribution, as well as the trustee. Equity Rule 38 (see Hopkins' Fed. Eq. Rules [2d Ed.] p. 203, 198 Fed. xxix, 115 C. C. A. xxix); Hartford Life Ins. Co. v. Ibs, 237 U. S. 666, 672, 35 Sup. Ct. 692, 59 L. Ed. 1165, L. R. A. 1916A, 765; Wallace v. Adams, 204 U. S. 415, 425, 27 Sup. Ct. 363, 51 L. Ed. 547; McClelland v. Rose, 247 Fed. 721, 723, 724, 159 C. C. A. 579, Ann. Cas. 1918C, 341; Merchants' & Mfrs.' Traffic Ass'n v. U. S. (D. C.) 231 Fed. 292, 295.

[2] The Metropolitan Art Museum is not a beneficiary of the trust, and therefore is not entitled to share in the residuary estate. Its bequest, however, is subject to deduction in case the trust fund is insufficient to make each distributive share equal to $50,000. It may there

fore be said that it has an interest that the principal of the trust fund, from whatever source derived, shall be sufficient in amount to make each distributive share equal to $50,000, and that it shall in no way be reduced below such amount. It hardly can be contended, however, that this general interest makes it a necessary party to all suits in which the trustee may be charged with the duty of defending claims against the trust estate, or with the duty of recovering assets which may form part of the trust estate, and in which may be involved an amount whose loss or nonrecovery will cause a deficiency in the principal, and thus in distributive shares.

Whatever the cause of the deficiency-shrinkage of values, adverse judgments in suits for or against trust funds, or other cause the existence of such deficiency as matter of fact makes operative the condition of the seventh clause of the will.

To a suit by the trustee against the art museum it would seem to be no answer to say that a judgment, whereby the principal was in fact. made insufficient, was in law an erroneous judgment, if it was binding on the trustee and unimpeachable for fraud or collusion. The question would be the actual amount of principal available for distribution; not whether, according to the opinion of some other court, it would have been more had the law been otherwise interpreted.

The question whether funds in the hands of the administrator c. t. a. d. b. n. shall be paid to the complainants, or to the trustee under the deed of trust, is said by defendant to make this a suit for the administration of a trust. It is not a suit for the administration of the trust created by the deed of trust, but rather a suit to defeat the right of the trustee of that trust to the residuary estate of the testator, and to defeat the testamentary trust for conversion into cash and payment to the trustee under the deed of trust.

Its purpose is to have the will "annulled with respect to the residuary clause." Sutton v. English, 246 U. S. 199, 207, 38 Sup. Ct. 254, 257 (62 L. Ed. 664). It is an attempt to overthrow a testamentary trust rather than a suit for administration of a trust.

The defendant urges that the art museum is not represented by the defendant in either capacity, because of antagonistic interests, and that as it will be the duty of the trustee to see that the museum performs the condition, if it be necessary, this is an adversary position. But this confuses the issues raised by the present bill, in which the interests of these defendants, of the beneficiaries, and of the art museum are identical, with questions that do not affect the present case, and that can arise only in case the defendants fail to defeat the plaintiffs' claim.

Upon the question of intestacy the defendant, in both capacities, seems to represent and to be under the duty to defend all interests. Vetterlein v. Barnes, 124 U. S. 169, 8 Sup. Ct. 441, 31 L. Ed. 400; Kerrison, Assignee, v. Stewart et al., 93 U. S. 155, 23 L. Ed. 843; McArthur v. Scott, 113 U. S. 392, 5 Sup. Ct. 652, 28 L. Ed. 1015. This question is one of common interest to the present defendants, the beneficiaries under the deed of trust, and also to the Metropolitan Art Museum, so far as it may be said to have an interest, because it