in the nature of repairs. It was additional work to complete the building, beyond that which the electors had authorized by the adoption of the plans and specifications. Comp. St. c. 79, subd. 2, § 10, gives to the electors the power to build, hire, or purchase a school house. Section 12 gives them the power to determine the number of mills on assessed valuation which shall be expended for such building. Section 13 provides that the tax collected shall be expended under the direction of the district, made at the annual meeting, or, in the absence of such direction, as the district board shall direct. Here the electors had directed. It is clear that the policy of the law was to permit the electors to determine whether a school house should be constructed, the amount to be expended, and to permit them, also, if they chose, to designate the kind of a house which should be built. If they do so, the board is powerless to increase the expenditure by changing the

Action by James L. Randolph against school district No. 35 of Sherman county. Judgment for plaintiff,. Defendant brings error. Reversed.

Wall & Burrowes, for plaintiff in error. R. J. Nightingale and T. S. Nightingale, for defendant in error.

IRVINE, C. School district No. 35 of Sherman county undertook to erect a school house. Plans and specifications were adopted at a district meeting, and the contract for erecting the house was let to Randolph. He built the house according to contract. It was accepted, and he received the contract price. It was, however, discovered that the designs failed to provide for certain work on the foundations, for certain braces, for window shutters, and for a platform, and steps at the door as means of ingress. Randolph, at the request of the district board, supplied these deficiencies, and brought this suit, not on a quantum meruit, but on the special contract with the board, to recover for the extra work. The district court gave him judgment for the price of the shutters, platform, and steps, and the district asks a reversal.

However meritorious the claim may be as a moral obligation upon the district, we are satisfied it cannot be sustained, at least through a suit on the special contract with the district board. In support of the claim the defendant in error invokes Comp. St. c. 79, subd. 5, § 9, as follows: "The said board shall have the care and custody of the school house and other property of the district, except so far as the same shall be confided to the custody of the director." Conceding that this provision confers upon the board authority to contract for ordinary repairs, to maintain the house in good condition, it cannot be given the effect of authorizing new construction, without a conflict with other provisions of the law. The work here in controversy was not 77 N.W.-68

electors have not seen fit to provide for. Gehling v. School Dist., 10 Neb. 239, 4 N. W. 1023, was a case like this, and the law construed as above indicated. Mizera v. Au

ten, 45 Neb. 239, 63 N. W. 399, presented a somewhat different question, but the same construction was indicated. Reversed and remanded.

FIRST NAT. BANK OF CRETE v. SMITH. (Supreme Court of Nebraska. Jan. 19, 1899.)

APPEAL-REVIEW.

Where the conclusion reached by the jury was the only one permissible under the evidence, the judgment rendered on the verdict will be affirmed.

(Syllabus by the Court.)

Error to district court, Saline county; Hastings, Judge.

Action by Benjamin A. Smith against the First National Bank of Crete. Judgment for plaintiff. Defendant brings error. Affirmed.

F. I. Foss and W. R. Matson, for plaintiff in error. E. S. Abbott, for defendant in error.

SULLIVAN, J. This action was brought by Benjamin A. Smith in the district court of Saline county to recover of the plaintiff in error the penalty imposed by the federal statute upon national banks for charging and receiving for the loan of money interest in excess of the authorized contract rate. The law of the case was settled in a former opinion reversing a judgment in favor of the bank. Smith v. Bank, 42 Neb. 687, 60 N. W. 866. On a second trial of the cause the jury found specially that the plaintiff had paid the defendant illegal interest in the sum of $486.64, and returned a verdict for double that amount. A motion for a new trial was overruled, and judgment rendered

in favor of Smith for $973.28. We will not specifically notice the several errors upon which a reversal is claimed. That the special finding of the jury is correct, and that the usurious transactions in question occurred within two years before the commencement of the action, are shown by the undisputed testimony of Mr. Denison, the cashier of the bank. No other conclusion than the one reached by the jury was, under the evidence, permissible. The judgment is affirmed.

NAGLE et al. v. FIRST NAT. BANK OF OMAHA et al. (Supreme Court of Nebraska. Jan. 19, 1899.) RES JUDICATA-ATTACHMENT-MORTGAGE PENDING SUIT.

1. One who by voluntary transfer acquires rights in personal property after a writ of attachment has been levied thereon is bound by an adjudication in the attachment case of the validity of such attachment.

2. An attachment was levied on the goods of A. Subsequently A. made mortgages on such goods to other creditors. Thereafter the petition in the attachment case was amended so as to state a different cause of action. On motion to discharge in the attachment case, the attachment was held good. Held, that the mortgagees could not, in an independent action, be heard to attack the attachment.

(Syllabus by the Court.)

Error to district court, Douglas county; Duffie, Judge.

Action by the First National Bank of Omaha and others against Nagle & Brecher. Judgment for plaintiffs. Defendants bring error. Reversed.

Charles Ogden, Joel W. West, and J. M. Macfarland, for plaintiffs in error. Montgomery & Hall, for defendants in error.

IRVINE, C. Prior to March 15, 1892, R. R. Grotte was engaged in the liquor business in Omaha. He became indebted to the firm of Nagle & Brecher, who on the date mentioned instituted an action against him aided by proceedings in attachment. The proceedings were begun under telegraphic instructions from Nagle & Brecher to attorneys in Omaha, and the petition filed was for goods sold and delivered. As a matter of fact, the claim was for money lent; and, some time after the institution of the proceedings and the levying of the writ of attachment upon Grotte's stock, the petition was amended so as to count upon money lent, instead of goods sold and delivered. A motion was made to dissolve the attachment. This motion was overruled. Grotte brought the case to this court, where the judgment of the district court was affirmed. Grotte v. Nagle, 50 Neb. 363, 69 N. W. 973. The day the attachment was levied, Grotte had agreed with Montgomery, Charlton & Hall, attorneys representing a number of other creditors, to execute in their favor mortgages upon his stock.

Three or four of these mortgages had been drawn and signed by Grotte by 5 o'clock on that day, but none were then recorded. It was, however, agreed that the creditors should be put in possession; but, before this was accomplished, the Nagle & Brecher attachment had been levied. Grotte, however, proceeded to execute the mortgages, which were filed for record the following morning. A few days thereafter the present action was begun by the mortgagees to foreclose their mortgages. They alleged the attachment proceedings, and a contest with regard to the different claims; and a receiver was appointed, who, pursuant to the orders of the court, sold the stock. The controversy became one between Nagle & Brecher, claiming under the attachment, on the one side, and the mortgagees, on the other, as to the right to the fund resulting from the sale. The decree of the district court was in favor of the mortgagees, and Nagle & Brecher bring the case here for review.

Counsel have saved us a detailed examination of quite a large record by agreeing substantially as to the facts of the case and as to the question presented, which is whether the abandonment by Nagle & Brecher of their first petition, and the amendment already referred to, operate so far to discharge the original attachment as to postpone the rights of Nagle & Brecher to those mortgagees whose rights accrued subsequent to the original levy, but before the amendment.

Counsel for the mortgagees present a large number of authorities to establish two propositions: First, that the amendment of the petition from one for goods sold and delivered to one for money lent operated as a change of the cause of action; secondly, that an amendment which does substantially change the cause of action in an attachment case discharges the attachment, as to rights accruing between the original levy and the time of amendment. Without deciding it, we assume that the first proposition is sound, but we think the second is subject to certain qualifications which prevent its operation in favor of the mortgagees in this case. It will undoubtedly be conceded that the judgment of the district court on the motion to discharge the attachment, affirmed by this court in Grotte v. Nagle, operated as an adjudication, as between the parties to that case, of the regularity and continued effect of the attachment, notwithstanding the amendment made. The mortgagees are not in the position of subsequent attaching creditors or others claiming rights independent of the parties to the attachment case. Their claim is under voluntary transfers from Grotte, the defendant in that case; and those transfers were not made (that is, they did not become effective) until after the levy of the attachment and the service of summons. Section 85 of the Code of Civil Procedure provides: "When the summons has been served or publication made, the action is pending so as

to charge third persons with notice of pendency, and while pending, no interest can be acquired by third persons in the subsequent matter thereof, as against the plaintiff's title." The remainder of the section contains special provisions with reference to actions concerning real estate. What has been quoted is merely a declaration of the common law. In a suit very similar to the present, the supreme court of the United States held that the propriety of the amendment affected only the regularity of the proceedings in the attachment case, and did not reach the validity of the attachment, or expose it to collateral attack by purchasers whose rights accrued after the levy and before the amendment. It was there said, "The law is that he who intermeddles with property in litigation does it at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party to it at the outset." Tilton v. Cofield, 93 U. S. 163. We are entirely satisfied with the conclusion reached in the case cited, and think it applicable to the law of this state. Whatever collateral attacks might be open to creditors claiming liens of independent derivation, a mortgagee who claims by voluntary transfer subsequent to the levy attacks as a purchaser pendente lite. It is probable that these mortgagees might have been heard in the attachment to defend their right. But, in any event, as their rights accrued subsequent, and therefore subject, to the attachment, they were bound by the result of that case.

The briefs are so copious in their citation of authorities that we shall not attempt a detailed review thereof.. We think that all the cases are reconcilable with the principle upon which we base the decision. Thus, Heidel v. Benedict (Minn.) 63 N. W. 490, was a contest between an attaching creditor and the assignee under a general assignment for creditors; and the decision was based on the ground that the assignee represented creditors, and could assert their rights, rather than those of the transferee from the debtor. In this state the assignee represents the debtor, except as otherwise expressly authorized (Bank v. Gillilan, 49 Neb. 165, 68 N. W. 352); so that, if the case were otherwise in point, it would not be applicable to the law of this state. And even to reach the result there reached the court found it necessary to hold that the decision of a motion to discharge an attachment was not an adjudication which protected the attachment from collateral attack,-a ruling certainly contrary to the law of this state. Freeman v. Creech, 112 Mass. 180, while on its face an authority in favor of the mortgagees, is founded on an express statute protecting purchasers from attachments where such amendments have been made, unless they have been given notice of the application to amend. Other cases, well represented by Whitney v. Brunette, 15 Wis. 67, are cases where an attach

ment was absolutely void until after the amendment. Such, of course, do not bind even the defendant, prior to the amendment. To this class of cases belongs Bauer v. Deane, 33 Neb. 487, 50 N. W. 431, where it was held that, where no cause of action was stated against the defendant whose property was attached, a subsequent amendment would not cause the attachment to relate back to the time of levy. In Farwell v. Wright, 38 Neb. 445, 56 N. W. 984, no cause of action existed when the attachment was issued, and it was held that the attachment could not be aided by a subsequent acquisition of a cause of action. These were proceedings between the original parties. If in point at all, they would militate against the correctness of the decision in the attachment case, but they do not indicate that that decision can be disregarded. On the contrary, Rudolf v. McDonald, 6 Neb. 163, holds that, when property has been seized under an order of attachment, no question of ownership raised, or fraud or collusion alleged, final judgment concludes all inquiry by third persons concerning the regularity of the proceedings, no matter how erroneous they may have been; and the same conclusion is reached in Horkey v. Kendall, 53 Neb. 522, 73 N. W. 953. We conclude, therefore, that the judgment of the district court giving the mortgagees priority over Nagle & Brecher was erroneous. Reversed and remanded.

WELLER v. NOFFSINGER et al. (Supreme Court of Nebraska. Jan. 19, 1899.) WILLS-ELECTION-TITLE ACQUIRED CONDITION AGAINST ALIENATION.

1. If the rights given by a will are inconsistent with those conferred by the law, the acceptance of the former is, by necessary implication, an abandonment of the latter.

2. A devise, subject to a condition that the executor shall hold the property in trust for a number of years, and collect rents, pay taxes, charges, and expenses incident to the proper care of the estate, and account annually to the beneficiary for the balance, vests the legal title to the property in the executor.

3. In such case a condition that the devised property shall not be aliened or incumbered by the beneficiary, or liable for his debts, during the existence of the trust estate, is valid and enforceable.

(Syllabus by the Court.)

Error to district court, Richardson county; Stull, Judge.

Action by Jacob J. Weller against Peter Noffsinger and Robert Williamson. Judgment for defendants, and plaintiff brings erAffirmed.

ror.

E. W. Thomas and Reavis & Reavis, for plaintiff in error. F. Martin and C. Gillespie, for defendants in error.

SULLIVAN, J. This was an action of ejectment by Jacob J. Weller against Peter Noffsinger and Robert Williamson. Both

parties claim under the will of Calista Blakeney, deceased, which was admitted to probate in the county court of Richardson county in 1891. The plaintiff relies on a title derived from an execution sale of the interest of Daniel H. Blakeney and Frank L. Blakeney in the property in controversy. The defendant Williamson claims to hold the title to the property in trust, and the other defendant is his tenant in possession. The rights of the litigants depend upon a construction of the will, by which, in the first clause, the testatrix devised and bequeathed to her husband, Daniel H. Blakeney, and to her son, Frank L. Blakeney, all her real and personal property, subject to the following conditions: "I wish all my just debts and taxes to be paid. I wish and it is my will that Robert Williamson, of said Nemaha precinct, hold said property in trust, and as trustee for my said husband and my said son, until my son, the said Frank L. Blakeney, shall arrive at the age of thirty (30) years. And then the said property, all the real and personal property belonging to my said estate, shall be divided equally between my said husband, Daniel Blakeney, and my said son, Frank L. Blakeney, each to share equally and alike in the division of the same, and the same to be theirs, their heirs' and assigns' forever. In the interval of time intervening between my death and the date when my said son, Frank L Blakeney, shall reach the age of thirty (30) years, as above, it is my will that the said trustee shall collect the rents, issue, and profits of my said estate, and divide the sum remaining after paying all taxes, charges, and expenses incident to the proper care of said estate, equally between my said husband, Daniel Blakeney, and my said son, Frank L. Blakeney. But neither my husband nor son shall be permitted or allowed to further incumber said estate, or put any charge or lien upon the said estate, during said interval of time that shall intervene between my death and the period when my son, Frank, shall reach the age of thirty (30) years, as aforesaid. Nor shall said estate be subject to any debts contracted by either my said husband or son, other than the said balance in the hands of said trustee after paying said charges and expenses, taxes," etc. The will also declares that the testatrix intended thereby "to put said property in trust as above" until her son should reach the age of 30 years, at which time it is provided the entire estate "shall be and vest" in the husband and son, and be divided equally between them.

The first proposition for which plaintiff contends is that, as purchaser at the execution sale, he acquired the title of Daniel Blakeney, as tenant by the curtesy, of the property in dispute. We do not think he did. By a written indorsement on the will, Daniel H. Blakeney consented to its provislons; and, by his subsequent conduct, he very clearly renounced the rights secured to

him by the statute. In McBride's Estate, 81 Pa. St. 305, it is held that the husband's right of curtesy is lost by joining in, or consenting to, a will made by his wife. And in Tobias v. Ketchum, 32 N. Y. 324, it was decided that, if the rights given by the will are inconsistent with those conferred by the law, the acceptance of one is, by necessary implication, an abandonment of the other. While the provisions of the will in favor of Mr. Blakeney are not expressly declared to be in lieu of curtesy, yet there is such manifest repugnance between his testamentary and his statutory rights that both cannot possibly coexist. By accepting the benefits of the will, he elected to surrender his rights under the statute. To hold otherwise would defeat the obvious purpose of the testatrix in disposing of her property. The trust in favor of Williamson and an estate by curtesy in Blakeney could not stand together. To the claim that Blakeney could not release his estate by curtesy, to the prejudice of creditors, it is only necessary to remark that the record before us does not disclose that he had any creditors at the time the release became effective.

The next contention, and the one upon which plaintiff mainly relies for a reversal of the judgment against him, is that the Blakeneys, the execution defendants, were invested with the legal title to the land in question, and that Williamson, as trustee, took nothing more than a right to collect the rents, pay taxes, make repairs, and account annually for any surplus remaining in his hands. To this proposition we cannot assent. It is true, Mrs. Blakeney did not, in express terms, grant the legal title to Williamson, but her intention that he should possess it is shown in the most unmistakable manner. No rule of law is better settled, or more in accord with good sense, than that which requires the intention of the testator to be ascertained from a liberal interpretation and comprehensive view of all the provisions of the will. No particular words, no conventional forms of expression, are necessary to enable one to make an effective testamentary disposition of his property. The court, without much regard to canons of construction, will place itself in the position of the testator, ascertain his will, and, if lawful, enforce it. The devise to the husband and son is declared to be subject to the condition that Williamson shall "hold said property in trust and as trustee" until Frank shall reach the age of 30 years. The trustee is to collect the rents, pay the taxes, charges, and expenses incident to the proper care of the estate, and account for the balance. The trust is to continue until 1901, and then "vest absolutely." The declaration that the property is to vest absolutely at a fixed date denotes with moral certainty the intention of the testatrix that it should not so vest before that time, and is alone sufficient to warrant us in holding that the execution defend

ants never possessed the legal title to the land in controversy. But there is another imperative reason for the conclusion, and that is that Williamson could not effectively discharge the duties imposed on him by the will without being invested with the legal title. In Tobias v. Ketchum, supra, it is said: "The authority to rent and lease, to repair and to insure, by necessary implication, vests the trustees with the legal title. They must not only execute leases, but enforce them; put in tenants and dispossess them, the proper performance of which requires the title of the estate. So, to repair, there must be such a right of entry and control in the trustees as to give them complete dominion; and to insure involves the necessity of ownership, for the policy must be taken in the name of the trustees." Speaking of cases in which the whole estate is apparently given to the beneficiary, and there is no direct devise to the executors, Mr. Pomeroy, in his work on Equity Jurisprudence, says: "The doctrine is settled that In dispositions of such a nature, although there is no devise in terms to them, the authority conferred by the will upon the executors to lease, rent, repair, insure, pay taxes, assessments, and interest, and otherwise manage the trust property, and to pay over the net income to the devisees or legatees, necessarily carries the legal title to the executors, and creates an express active trust in them. It is a familiar doctrine that where land is conveyed or devised to trustees, and they have active duties to perform, they take the legal estate. The converse is also generally true,-that where active duties are prescribed for executors, which could not be performed unless the legal estate is vested in them, they are in fact made trustees, and necessarily take the legal estate for the purposes of the trust." 2 Pom. Eq. Jur. § 1011. See, also, Brewster v. Striker, 2 N. Y. 19; Leggett v. Perkins, Id. 297; Meek v. Briggs, 87 Iowa, 610, 54 N. W. 456.

But it is strenuously insisted in the brief filed for the plaintiff that, if the legal title vested in Williamson, the purpose of the devise, and of the inhibitions against alienation, being to keep creditors at bay, contravenes public policy, and is absolutely null. Again, we feel constrained to differ with the learned counsel. It has long been the settled doctrine of the English courts that one to whom real estate has been devised cannot enjoy its beneficial use freed from the claims of his creditors. But it is also a well-established rule of the same courts that a devise of land in trust, with a condition that the estate of the beneficiary shall be devested by an attempt to convey it, or an attempt by creditors to seize it for the satisfaction of their claims, is valid, and will be enforced. The doctrine is grounded upon the idea that the right of alienation is a necessary incident of a freehold estate, and that public policy for

bids that one should enjoy even the fruits of a benefaction to the exclusion of his creditors. "A disposition to a man until he shall become a bankrupt," says Lord Eldon, "and after his bankruptcy over, is quite different from an attempt to give to him for his life, with a proviso that he shall not sell or alien it." Brandon v. Robinson, 18 Ves. *433. It is accordingly held in England that the beneficial interest of the cestui que trust is liable for the payment of his debts, and that testamentary restrictions intended to secure to him the enjoyment of an estate with immunity from his creditors are ineffective. To this rule a considerable number of the American state courts are committed, and it is supported by a dictum of Mr. Justice Swayne in the case of Nichols v. Levy, 5 Wall. 433. It is clear, however, that the current of modern decisions in this country does not follow the English rule. The right of alienation is no longer regarded as an inseparable incident of a life estate, and the distinction pointed out by Lord Eldon is deemed a mere refinement, which forbids by direct means the accomplishment of a purpose which is permitted by circuity and indirection. In Pennsylvania, Missouri, and Tennessee the rule has been distinctly repudiated, notwithstanding it had been either adopted or countenanced by earlier decisions in those states. And in the case of Nichols v. Eaton, 91 U. S. 716, Mr. Justice Miller, delivering the opinion of the court, said: "But the doctrine that the owner of the property, in the free exercise of his will in disposing of it, cannot so dispose of it, but that the object of his bounty, who parts with nothing in return, must hold it subject to the debts due creditors, though that may soon deprive him of all the benefits sought to be conferred by the testator's affection or generosity, is one which we are not prepared to announce as the uoctrine of this court. Nor do we see any reason,

in the recognized nature and tenure of property and its transfer by will, why a testator who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of continued use, of uninterrupted benefit of the gift during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence or incapacity for self-protetction, should not be permitted to do so, is not readily perceived." In Shankland's Appeal, 47 Pa. St. 113, it was held that a trust to collect rents, and pay over the same to the son of the testatrix during the term of his life, without being subject to his debts, was an active trust; that the legal estate was vested in the trustee; and that no act of the cestui que trust or of his creditors could deprive him of the income. Other decisions affirming the validity of trusts like the one here in question are Hyde v. Woods,