defendant is a firm; as in No. 7, if the defendant is a corpora tion; as in No. 34, if the defendant is an alien; or as may be, according to the character of the defendant].

(1) See notes to No. 16.

[Caption.]

No. 19.

Against an Administrator.

[In a suit against an administrator, proceed to the words "complains of the defendant" as in No. 2, if the plaintiff is an individual; as in No. 5, if the plaintiff is a firm; as in No. 7, if the plaintiff is a corporation; as in No. 33, if the plaintiff is an alien, and then continue as follows]: complains of the defendant, C. D., as administrator of the estate of L. H., deceased, who is a citizen (1) of the state of in said state, and an inhabitant of the district of

(2) aforesaid, and says: That on or about the

residing at division of the

day of, 19-, L. H. died intes

day of

19-,

tate, and that thereafter, to-wit, on the the defendant was, by an order of the probate court for the county of in the state of —, duly and regularly appointed as his administrator and that thereafter he duly qualified as such and is now the duly appointed, qualified and acting administrator of said estate.

A. B., plaintiff in this suit, who is a citizen (1) of the state of residing at in said state, suing as executor under the last will and testament of L. H., deceased, for M. H., and her children, J. H. and C. H., says that L. H., before then a citizen and resident of the county of in the state of —, departed -, 19-, having before then

this life about the

day of

made his last will and testament, which was afterwards, on the day of, 19—, duly admitted to probate in the probate

county, of the state of

court of and remains of record there, and that the plaintiff is now the duly appointed, qualified and acting executor under the said will, and as such executor complains of the defendant [continue from this point as in No. 2, if the defendant is an individual; as in No. 4, if the defendant is a firm; as in No. 7, if the defendant is a corporation; as in No. 34, if the defendant is an alien; or as may be, according to the character of the defendant].

[In a suit against an executor, proceed to the words "complains of the defendant" as in No. 2, if the plaintiff is an individual; as in No. 5, if the plaintiff is a firm; as in No. 7, if the plaintiff is a corporation; as in No. 33, if the plaintiff is an alien, and then continue as follows]: complains of the defendant, C. D., in his own right and as executor of the estate of L. H., deceased, who is a citizen (1) of the state of ——, residing at in said state, and an inhabitant of the

(2) aforesaid, and says:

division of the

That L. H., before then a citizen and resident of

of the state of -, departed this life about the

district of

county, day of

19, having before then made his last will and testament,

which was afterwards on the

day of -, 19, duly

admitted to probate in the probate court of county, in the state of, and remains of record there, and that said C. D. is now the duly appointed, qualified and acting executor under said will.

A. B., who is a citizen (1) of the state of, residing at in said state, as trustee for The O. S. Co., a corporation duly

organized and existing under and by virtue of the laws of the state of plaintiff in this suit, complains of the defendant [continue from this point as in No. 2, if the defendant is an individual; as in No. 4, if the defendant is a firm; as in No. 7, if the defendant is a corporation; as in No. 34, if the defendant is an alien; or as may be, according to the character of the defendant].

(1) In suits brought by or against a trustee, the citizenship of the trustee, and not that of the cestui que trust, determines the jurisdiction of the district court founded on diversity of citizenship. Knapp v. Railroad Co., 20 Wall. 117, 22 L. Ed. 328; Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Gardner v. Brown, 21 Wall. 36, 22 L. Ed. 527; Dodge v. Tulleys, 144 U. S. 451, 36 L. Ed. 501; Mexican, etc. R. Co. v. Eckman, 187 U. S. 429, 47 L. Ed. 245; Thomas v. Board of Trustees, 195 U. S. 207, 218, 49 L. Ed. 160; Morris v. Lindauer (6th Cir.), 54 Fed. 23, 4 C. C. A. 162; Shipp v. Williams (6th Cir.), 62 Fed. 4, 10 C. C. A. 247; Rust v. Brittle Silver Co. (8th Cir.), 58 Fed. 611, 7 C. C. A. 389; Griswold v. Bacheller, 75 Fed. 470; Wade v. Sewell, 56 Fed. 129; Allen-West Commission Co. v. Brashear, 176 Fed. 199; Mason v. Dullagham, 27 C. C. A. 296, note on page 298.

The citizenship of the beneficiaries is immaterial. Dodge v. Tulleys, 144 U. S. 451, 36 L. Ed. 501; Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Shipp v. Williams (6th Cir.), 62 Fed. 4, 10 C. C. A. 247; Griswold v. Bacheller, 75 Fed. 471; Glenn v. Walker, 27 Fed. 577; Morris v. Lindauer (6th Cir.), 54 Fed. 23, 4 C. C. A. 162; Bonnafee v. Williams, 3 How. 574, 11 L. Ed. 732; Reinach v. Atlantic, etc. R. Co., 58 Fed. 33.

For jurisdictional purposes, the trustee is a citizen of the state of his domicile, even when appointed in another state in which the trust property is situated. Shirk v. LaFayette, 52 Fed. 857; Glenn v. Walker, 27 Fed. 577. See also Rice v. Houston, 13 Wall. 66, 20 L. Ed. 484.

Where a trustee is a mere title holder without power to direct or control litigation, it is the citizenship of the real parties to the controversy and not that of the trustee that determines jurisdiction. Sharpe v. Bonham, 224 U. S. 241, 56 L. Ed. 747; Helm v. Zarecor, 222 U. S. 32, 56 L. Ed. 77; Walden v. Skinner, 101 U. S. 577, 589, 25 L. Ed. 963; Browne v. Strode, 5 Cranch, 303, 3 L. Ed. 108 and McNutt v. Bland, 2 How. 9, 11 L. Ed. 159, as explained in Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Einstein v. Georgia Southern, etc. Ry. Co., 120 Fed. 1008.

The citizenship of such trustees will not defeat jurisdiction over a controversy between the real litigants, having the requisite diversity of citizenship. Walden v. Skinner, 101 U. S. 577, 588-9, 25 L. Ed. 963; Browne v. Strode, 5 Cranch, 303, 3 L. Ed. 108 and McNutt v. Bland, 2 How. 9, 11 L. Ed. 159, as explained in Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179.

Trustees are governed by the general rule that if there are several co-plaintiffs each plaintiff must be competent to sue, and if there are several co-defendants each defendant must be liable to be sued. Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179.

Trustees are regularly aligned on the side with the beneficiaries. Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. Ed. 932; Blacklock v. Small, 127 U. S. 96, 32 L. Ed. 70; Shipp v. Williams (6th Cir.), 62 Fed. 4, 10 C. C. A. 247; Farmers Loan & T. Co. v. Lake St. Elevated R. Co. (7th Cir.), 122 Fed. 914, 59 C. C. A. 140; Reinach v. Atlantic, etc., R. Co., 58 Fed. 33; Bowdoin College v. Merritt, 63 Fed. 213; AllenWest Commission Co. v. Brashear, 176 Fed. 119; Caylor v. Cooper, 165 Fed. 757.

Mere refusal on the part of a trustee to act or bring suit is not sufficient to change this rule. Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. Ed. 932; Shipp v. Williams (6th Cir.), 62 Fed. 4, 10 C. C. A. 247; Farmers Loan & T. Co. v. Lake St. Elevated R. Co. (7th Cir.), 122 Fed. 914, 59 C. C. A. 140; Barry v. Missouri, etc. R. Co., 27 Fed. 1; Arapahoe Co. v. Kansas Pacific Ry. Co., No. 502 Fed. Cas., 4 Dill. 277; Allen-West Commission Co. v. Brashear, 176 Fed. 119. But see Einstein v. Georgia Southern Ry. Co., 120 Fed. 1008; Bowdoin College v. Merritt, 63 Fed. 213.

A trustee may be aligned as party defendant where he is antagonistic or adverse to the beneficiaries suing. First Nat. Bank v. Radford Trust Co. (6th Cir.), 80 Fed. 569, 26 C. C. A. 1; Robinson v. Alabama & Ga. Mfg. Co., 48 Fed. 12; Rust v. Brittle Silver Co. (8th Cir.), 58 Fed. 611, 7 C. C. A. 389; Kildare Lumber Co. v. National Bank of Commerce (5th Cir.), 69 Fed. 2, 16 C. C. A. 107; Redfield v. Baltimore & O. R. Co., 124 Fed. 929; Board of Trustees v. Blair, 70 Fed. 414.

Also where he is a mere title-holder and the dispute is between claimants to the trust property, and to align him with the plaintiff would virtually decide the merits in their favor. Sharpe v. Bonham, 224 U. S. 241, 56 L. Ed. 747; Helm v. Zarecor, 222 U. S. 32, 56 L. Ed. 77.

No. 23.

By a Corporation as Trustee under a Mortgage, Deed of Trust, etc.

[Caption.]

The A. B. Company, a corporation organized and existing under the laws of the state of —, having its principal place of business at in said state, as trustee as hereinafter set forth, plaintiff in this suit, complains of the defendant [continue from this point as in No. 2, if the defendant is an individual; as in

No. 4, if the defendant is a firm; as in No. 7, if the defendant is a corporation; as in No. 34, if the defendant is an alien; or as may be, according to the character of the defendant].

The plaintiff, The A. B. Company, at all the times hereinafter mentioned was, and still is, a corporation created and existing under and by virtue of the laws of the state of bearing the corporate name of "THE A. B. TRUST COMPANY"; and that at all times hereinafter mentioned it was, and now is, duly authorized and empowered, under the terms of its charter, to take and hold in trust the property transferred and conveyed to it upon the trust hereinafter stated, and to execute and perform the trust upon it imposed under and by virtue of the terms and provisions of the mortgage [or, deed of trust, or as may be] hereinafter mentioned.

See notes to No. 22.

[Caption.]

No. 24.

By a Trustee in Bankruptcy.

district of

A. B., as trustee in bankruptcy of H. G., plaintiff in this suit, says that on the day of, 19—, a petition in bankruptcy was filed against H. G., in the district court of the United States for the division of the -; that thereafter on the day of 19, the said H. G. was duly adjudicated bankrupt and that thereafter plaintiff was duly elected trustee of the estate of said bankrupt and has duly qualified as such. trustee and is now so acting; and that the said H. G., bankrupt, is a citizen (1) of the state of residing at in said state.

The plaintiff, as such trustee in bankruptcy, complains of the defendant [continue from this point as in No. 2, if the defendant is an individual; as in No. 4, if the defendant is a firm; as in No. 7, if the defendant is a corporation; as in No. 34, if the defendant is an alien; or as may be, according to the character of the defendant].

(1) The jurisdiction conferred upon the circuit court in Section 23a of the Bankrupt Act is transferred to the district court by Section 291 of the Judicial Code. Loveland on Bankruptcy, Sec. 70.