*1 499 aside, complaint and its will be United dis- of the desire unavailable was the purpose. missed. another use it for States to right, has the course Government of The and remanded. Reversed for prefers, the location if it to reserve reason use, for that being cannot other reject but it FAHY, Judge, dissents, Circuit physically available Crozier’s Mrs. was the Court of view that the District her to receive entitled site and still be apply in the authorized circumstances to bequest. cy pres lapse time the doctrine. of The litigation, however, would neces- due to far short falls record We hold the of sitate consideration of an extension changed through showing that, condi of time. beyond of the United tions the control impossible States, or im has it become me practicable Crozier the construct to building and selected

morial on the site by have specified we testatrix. As the only said, appears Post Plan it that the approved Point, the ners at who West 1958, 1948, preferred in in another

site although specified in the will the location being true, TUCKER, That of still was available. Administratrix Addie Mae Tucker, Henry Allen applying justification for the Estate of was no there Deceased, Appellant cy permitting pres the and the doctrine depart v. trust to of a charitable trustee merely be direction Joseph al., Appellees. from the settlor’s DUKE et C. do convenience to it suits its own cause No. 15334. Court erred therefore The District so. Appeals of Court United States approving than that des a site other in Circuit. of Columbia District ignated in the will. 25, Argued Jan. 1960. College’s counter Connecticut 10, 1960. March Decided correctly dismissed because claim was finally rejected has United not the States Conceivably, bequest. the Mrs. Crozier’s yet seasonably may and lit Government erally comply prescribed the condi with will meet Government the

tions. The testamentary if it “will au conditions build,” will be built and at a thorize to «8300,000, separate less a of not than cost building purpose for and the

memorial speci the upon and within time the site in will. Whether the United the

fied or do remains to will can so be States compliance seen, for with as time the yet expired, not has no conditions the express calculated. how it is We

matter five-year period opinion as when the to no terminate, nor as to whether con will completed merely be must or struction begun time. within that summary judgment

Upon remand, the the States will set United be favor of

500 87, 1845, 98, 98, 87, 3 How. 44 U.S. 11 506; Cooper O’Connor, 1938,

L.Ed. v. App.D.C. 100, 102, 135, 137, 69 99 F.2d appointment 118 A.L.R. 1440. The of police requires officers the exercise of 1957, Mahoney, discretion. Stiebitz v. 443, Wray 71, 74; 144 Conn. 134 A.2d Washington, Ralph Berlow, D. Mr. F. McMahon, 1938, v. 592, 182 Misc. 182 C., appellant. for generally, Harper So. 99. See 2 & Atty. Kaplan, Mr. M. Asst. U. S. Louis James, (1956); Davis, Torts 1632-46 3 argument, at Messrs. time of with whom (1958). Administrative Law 27§ Gasch, Atty., W. Oliver Carl U. S. and Atty., Belcher, on the were Asst. S.U.

brief, appellee. for Before Wilbur K. Miller, Bazelon Judges.

and Bastían, Circuit

PER CURIAM. administratrix, appellant whose The Gregory by and killed

decedent was shot Capitol policeman, sued Coss, M. La a Harry ABRAMS, individually, L. and as employer, States, him and his the United Administrator of the Estate of Edith Abrams, $150,- deceased, Appellant, damages in sum to recover the of joined defendants, their 000. She as in v. Duke, Joseph capacities, individual C. GORDON, Appellee. Doctor Everett J. Sergeant States of the United at Arms No. 15398. Sergeant Senate, Johnson, Jr., W. Zeake at of Arms of the United States House Appeals United States Court of Stewart, George Representatives, and District of J. Columbia Circuit. comprised Capitol, Architect the of who Argued 19, Feb. 1960. theory Capitol the Board. Her Police 10, Decided March 1960. they negligently employed an in- was had competent policeman person- and were Rehearing for Petition En Banc Denied’ alleged ally liable for his tort. April 6,1960.

A motion to dismiss the action as to

them, by Duke, filed Johnson Stew- and granted by art, court, was the trial with appropriate

an certificate under Rule 54 (b) of the Rules Federal Civil Proce- of dure, 28 U.S.C.A. The administratrix

appeals. no We find error.

Affirmed. Judge

BAZELON, (concur- Circuit

ring). public vicariously

A is not officer liable

for the acts his of subordinate even though may the subordinate be liable. Sichel, 1888, 507, v.

Robertson 127 U.S. 1286,

8 32 L.Ed. 203. S.Ct. Nor is a negli- public officer liable for his own

gence discretionary if is the act a one Stokes,

and not ministerial. Kendall v.