527 (107 U. S. 626) WESTERN PAO. R. Co. and another v. UNITED States. (May 7, 1883.) MINERAL LANDS-GRANTS TO UNION PACIFIC, CENTRAL PACIFIC, AND WESTERN OF AUTHORIZATION OF SUIT BY ATTORNEY GEN- Appeal from the Circuit Court of the United States for the District of California. Henry Beard, for appellants. Asst. Atty. Gen. Maury, for appellee. * MILLER, J. John M. Coghlan, district attorney of the United States for the district of California, on behalf of the United States, brought the bill in this case in the circuit court of that district against the Western Pacific Railway Company and Charles McLaughlin to set aside a patent of the United States conveying to the railroad company the N. E. of section 29, township one (1) N., range one (1) E. of Mount Diabolo meridian. This patent was made under the acts of congress granting land to the Union Pacific, Central Pacific, and Western Pacific Railroad Companies to aid in building a road from the Missouri river to the Pacific ocean. The acts of congress granted to each company the alternate sections within certain limits on each side of its road, and authorized the issue of patents for the same when the work was done and the sections ascertained. But they excepted out of this grant, among others, such sections or parts of sections as were mineral lands. The bill in this case alleges, as the reason for vacating and setting aside the patent, that the quarter section in question is mineral land; that it was so at the time of the grant, and was known to be so when the patent issued, which was so issued without authority of law by inadvertence and mistake. The patent itself is not in the record as an exhibit, or as part of the evidence. The Western Pacific Railroad Company, to whom it was issued, though made defendant in the bill, was not served with the subpoena and did not appear. McLaughlin, the only defendant who did appear, defends as purchaser two degrees removed from the company. Instead of a general replication to McLaughlin's answer, the reply is an amendment to the original bill. The whole record is sc imperfect, and the case so obscurely presented, that we feel tempted to dismiss it. Waiving, however, these objections, there is enough to enable us to consider the two principal errors assigned by appellant. The first of these is that there is no sufficient evidence that the suit was instituted under the authority of the attorney general, according to the principle established in the case of U. S. v. Throckmorton, 98 U. S. 61. To this it may be answered that the objection was not raised in this case in the court below as it was in that; that the case is argued in this court on behalf of the government by the assistant attorney general, who files in the court a certified copy of the order of the attorney general directing the district attorney to bring the suit in the circuit court, as requested by the secretary of the interior. We think the decree of that court, under these circumstances, can hardly be reversed now, on this ground, taken here for the first time. The other objection to the decree in favor of the United States is that the evidence does not establish as a fact that the land in controversy was mineral land when the patent issued. An examination of the evidence on this subject convinces us that the circuit judge was right in holding that it was. It is satisfactorily proven, as we think, that cinnabar, the mineral which carries quicksilver, was found there as early as 1863; that a man named Powell resided on the land and mined this cinnabar at that time, and in 1866 established some form of reduction works there; that these were on the ground when application for the patent was made by defendant McLaughlin as agent of the Western Pacific Railroad Company, and that these facts were known to him. He is not, therefore, an innocent purchaser. Concurring as we do with the circuit court in the result arising from the evidence, we do not deem it necessary to give in this opinion a detailed examination of it. This being the first case of the kind in this court, a class of cases which may possibly be indefinitely multiplied, it is to be regretted that it was not more fully presented in the circuit court. Many interesting questions might arise in this class of cases not proper to be considered in this case. For instance, the nature and extent of mineral found in the land granted or patented which will bring it within the designation of mineral land in the various acts of congress, in which it is excepted out of grants to railroad companies and forbidden to be sold or pre-empted as ordinary or agricultural lands are. Suppose that when such land has been conveyed by the government it is afterwards discovered that it contains valuable deposits of the precious metals, unknown to the patentee or to the officers of the government at the time of the conveyance, will such subsequent dis covery enable the government to sustain a suit to set aside the patent or the grant? If so, what are the rights of innocent purchasers from the grantee, and what limitations exist upon the exercise of the government's right? We can answer none of these questions here, and can only order that the decree below be affirmed. (108 U. S. 422) HAWKINS and another, as Assignees, etc., and others, as Trustees, etc., v. BLAKE and others. (May 7, 1883.) WILL CONSTRUED AS AN APPOINTMENT-ADMITTING PARTY TO SUIT-ENTERING The decree of the circuit court rendered in pursuance of the mandate of this court, upon the reversal of the decree on the former appeal, upon examination appearing to have been entered in accordance with the judgment of this court and the subsequent agreement of the parties to the suit, is affirmed. Blake v. Hawkins, 98 U. S. 315, explained. Appeal from the Circuit Court of the United States for the Eastern District of North Carolina. A. S. Merrimon and Thos. C. Fuller, for appellants. *MATTHEWS, J. A former appeal in this cause was disposed of by this court by a decision reported in Blake v. Hawkins, 98 U. S. 315, to which reference is made for a full statement of the case as then presented. The final decree of the circuit court, there reviewed, was reversed, and the cause was remanded with directions to take further proceedings and enter a decree in accordance with the opinion of the court as then declared. The subsequent proceedings and decree, upon the mandate of this court, are now brought here for review, on the ground that they do not, in several particulars, conform to that mandate. A brief statement of the case will suffice to explain and adjust the remaining controversy. The complainants below were the appellants from the first decree, and are now appellees. They are, of the next of kin of Frances Devereux, entitled to a share of the residue of her personal estate undisposed of by her will. The object of the bill was to obtain an account of that estate from Thomas P. Devereux, as executor de son tort, in cluding a fund, being part of a sum of $50,000 originally charged upon real estate conveyed to Thomas P. Devereux by Frances Devereux, in case she should appoint the same by will or otherwise, and which, it is claimed by the complainants, she had appointed by her will to her executors. The estate of Thomas P. Devereux passed, by his bankruptcy, to assignees and trustees, including the lands on which the fund in question, alleged to have been the subject of the appointment, had been charged. These assignees and trustees were defendants below, and are now appellants. The charge upon the lands conveyed to Thomas P. Devereux included an annuity, during the life of Frances Devereux, payable to herself, of $3,000, being 6 per cent. on the principal sum; and as to the principal sum, the language of the deed was "that the said Thomas P. Devereux, his heirs or assigns, shall invest for, or pay to, the said Frances, at such times, in such proportions, and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed, or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000; but if the said sum of money, or any part thereof, shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed or will or writing in nature thereof, or by some other act, give, grant, dispose, or direct any payment, investment, or application of the same, then the said sum of money, or so much thereof as shall remain not paid, given, granted, disposed, or directed to be invested, paid, or applied, shall be considered as lapsing and the charge thereof as extinguished for the benefit of the said Thomas." In her will, among other bequests, was one of $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified. There was no residuary clause. Thomas P. Devereux, though named as executor in his mother's will, did not qualify as such; but, after her death, paid off the legacies mentioned and took possession of a large part of her personal estate, so as to become chargeable therefor as executor de son tort. The estate of Frances Devereux is represented by an administrator de bonis non with the will annexed. The decree of the circuit court in 1874, which was the subject of the former appeal, declared, among other things: (1) That Frances Devereux did not by her last will appoint the fund of $50,000, charged upon the land, "to be part of her general personal estate in the hands of her executors; nor appoint the said funds at all, except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her personal assets, after payment of her debts and general expenses and the costs of administering her estate." (2) That the complainants were not entitled to any account of the fund of $50,000, except for the purpose of determining the amount in arrears of the annuity of $3,000 during the life-time of Thomas Devereux, uncxpended, of which unexpended balance, and of the remainder of her personal estate which came to the hands of Thomas P. Devereux, they are entitled to an account. (3) That in taking that account, the assignees in bankruptcy are entitled to be credited with the amounts which Thomas P. Devereux expended in purchasing the pecuniary legacies bequeathed by Frances Devereux. A statement of that account was agreed upon, which showed that, at the date of his bankruptcy, May 31, 1868, Thomas P. Devereux was chargeable with $41,633 of the general personal assets of his mother's estate, after payment of debts, funeral expenses, and costs of administration, including interest to that date; and that he was entitled to credit for $39,466.58, which included interest to the same date, for the amount expended by him in payment or purchase of the pecuniary legacies under the will, leaving a balance due from him of $2,166.42, of which the complainants were entitled to one-third, or $722.14, for which, accordingly, a decree was entered in their favor. In reversing this decree, this court said, (98 U. S. 328:) "Whether, if the fund which remained in the hands of Thomas P. Devereux at the death of the testatrix had exceeded the sum required to pay the legacies given by her will-that is to say, the sum of $28,500-the will would have been a complete execution of the power, covering the whole fund, or only a partial appointment of so much as was needed to pay those legacies, it is unnecessary for us now to decide. In the view which we take of the other questions involved in the case, that fund had been reduced so far that there was not more than enough remaining subject to the power to pay the sums bequeathed by the will. The execution was therefore complete, and it appointed the whole fund to the executors of this will, who took it under the appointment as part of the personal estate of the appointor. There was, therefore, error in the decree of the circuit court, so far as it adjudged that the testatrix, Frances Devereux, did not appoint to her executors the fund over which she had the power of appointment, "except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general assets after |