by the United States Circuit Court for the Southern District of Ohio

“ The power to hear and determine a cause is jurisdiction. It is coram judice whenever a case is presented which brings this power into action. * * * * If the law confers the power to render a judgment or decree, then the court has jurisdiction. * * * * But on a proceeding to sell the real estate of an indebted estate there are no adversary parties. ”

“ Whatever occurs, then, in regard to the constitution of the grand jury, is really a matter of very little importance to the defendant. It is fairly to be supposed that if one grand jury, made up in good faith, has found an indictment, another grand jury, upon the same testimony, would find another indictment ”

“ There is no saving as to after-born children, and we cannot recognize their right to interfere, as they are seeking to do in this case, without interpolating into the statute what it does not contain. If the result be not as we have suggested, cases may be readily imagined where there might be successive births through many years, and each child when born would have a right to renew the litigation touching the validity of the decree annulling a will. ”

“ The condition in a bond given by a clerk of a United States Court, that he would faithfully account for ail moneys coming into his possession as such clerk, did not enlarge the obligation of the bond required by statute. The accounting for moneys in his hands as clerk was one of the duties for the faithful performance of which he was requirod by statute to give bond, and the specification of one of the details covered by the general obligation does not affect the validity of the bond he was required to execute. ”

“ That if any person interested shall, within two years after probate had, appear, and, by bill in chancery, contest the validity of the will, an issue shall be made up, whether the writing produced be the last will of the testator or testatrix or not, which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases ”

“ Upon full consideration of the subject I feel bound to hold that this provision of this act of congress was not directory, as I was inclined to think at first; and I think no sound view of the subject will warrant any other conclusion than that that provision is mandatory, and I think it is the duty of every court of the United States to regard it and carry it out. ”

“ The proceeding is in rem—the administrator represents the land; they are analogous to proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing—the subject-matter before them—without regard to the persons who may have an interest in it. All the world are parties. In the orphans’ court, and in all courts who have the power to sell the estates of intestates, their action operates on the estate, not on the heirs of the intestate, The purchaser claims, not their title, but one paramount. ”

“ But our attention has been called by several of the eounsel for the defendants to another ground of objection to the bill, upon which we prefer mainly to rest our decision. It is that the decree setting the will aside, cannot be attacked collaterally, and that if it be assailed the assault must be made in a proceeding had directly for that purpose. Adjudications of the supreme court of the United States are numerous and strong upon the subject. We will advert briefly to a few of them. ”

“ I think that any irregularity arising from motives other than those of an evil character—any slight irregularity, such as may arise in any case in spite of the greatest care and caution—is not fatal to the indictment. ”

“ It is a general rule that no one need be made a party against whom there can be no decree. Barb. on Parties, 457. The law never requires a vain thing.
Looking at the face of the will we are satisfied that the executors were intended to hold and did hold their title virtute officii. ”

“ On the other hand, the authorities are equally numerous, and perhaps equally weighty, as to the sources from whence they come, to the effect that if there is a defective grand jury, and the indictment is found by such grand jury, all inquiry is shut out, and the party must go to trial, if the indictment itself be properly framed. ”

“ It alleges further that, upon the death of the testator, his children ignored the will and the rights of the grandchildren under it, and proceeded to appropriate to themselves all the lands in question by a proceeding in partition in the court of common pleas of Ross county. The prayer of the bill is that the defendants be required to account for the rents and profits of the lands; that it be decreed they hold their respective titles in trust for the grand and great grandchildren of the testator, according to the provisions of the will ”

“ All of said grand jury, so drawn as aforesaid, were not served by the marshal or his deputy, as prescribed by law. (8.) The return of the marshal indorsed upon said venire, that personal service had been made on ail of the “within-named grand jurors,” (meaning the names entered in the body of said venire,) is not true. (9.) William C. Stevenson, one of the grand jurors so returned by the marshal as “personally served,” had deceased before the issuing of said venire. (10.) The said grand jurors were not returned so as to be most favorable to an impartial trial, as required by law. ”

“ The careful hand that drew the will used words of inheritance in defining the estate of the executors. The estate was no larger than the purposes of the trust required. The controlling idea was to prevent the devolution of the title and its vesting in the devisees until they received it by the execution of the deeds of partition at the appointed time. If one of the grandchildren died before that time, though over 21 years of age, he could not devise his interest in the real estate ”

“ It involves the welfare of society, and rests on a solid foundation of reason and justice. If it were otherwise the long delay attending the settlement of rights of property in such cases would always be attended with inconvenience, and, not unfrequently, would bring in its train ruinous consequences. ”

“ St., provides that “every person who makes or causes to be made, or presents or causes to be presented, for payment or approval,” etc., any claim against the government, knowing it to be false, etc., shall be guilty, etc. ”

“ Demurrer sustained.
↑ Prepared by Messrs. Florien Giauque and J. C. Harper, of Cincinnati, O.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”