47 P. 341 | Or. | 1896
Opinion by
This proceeding was instituted in the County Court of Multnomah County by the next of kin of James John, deceased, for the purpose of having revoked an order or decree of said court, made and entered July 29, 1886, admitting to probate in common form what purports to be his last will and testament. The following is a copy of the will, omitting formal parts and attestation:
“First — I do hereby give, bequeath, and devise all money, property, and estate, real and personal, of every kind and nature, of which I may die seized or possessed, or be entitled to at the time of my death, and wheresoever situate or being, to my executors hereinafter named, to and for the following uses and trusts, that is to say: (1) To sell and convert all my personal property into cash, at private or public sale, as to them shall seem best. (2) To lease all my real estate, except that certain block hereinafter mentioned, upon such terms and for such times and in such parcels as they may deem to the best interest of*497 my estate, but all leases shall terminate fifteen years after the date of my death. (3) After the payment of my funeral expenses, and the expenses of administration upon my estate, to expend all other moneys which shall come to their hands upon my death, from the sales of personal property, or from rents of real estate, in the erection of buildings for school purposes upon block No. 29, in the town of St. Johns, Multnomah County, State of Oregon, and employing teachers to teach the common school branches. (4) To sell all real estate fifteen years after the date of my death, and not before, excepting said block 29, and such other lots and blocks as they may deem necessary for school buildings and grounds, at public or private sale, with or without an order of court, and upon such terms as they may deem advisable, and the proceeds arising from such sales to be delivered to trustees to be appointed as hereinafter provided. If such sales shall not be for cash, then the notes and securities shall be turned over to such trustees. (5) It is my intention that all taxes, claims, charges, and expenses shall be paid out of money coming into the hands of my executors from other sources than from sales of real estate, and th^t only the remainder shall be used by them in erecting school buildings and supporting schools. (6) The sales of real estate hereinbefore mentioned to be made by my executors shall be made within eighteen years after my death, and not until fifteen years after my death. (7) It is my desire that my estate shall be used in establishing and maintaining free schools or school in the town of St. Johns; and that such schools shall be public, and at all times open to children of the school district, which shall embrace the town of St. Johns; and, if my executors shall consider it to the best interests of the children of said town and district, they may act in concert with the directors of said school district in erecting schoolhouses and*498 maintaining schools, but any and all buildings erected with money belonging to my estate shall belong to my estate, and not to the district, and all moneys expended in maintaining schools shall be expended under the supervision of my executors as long as they shall continue to act, and until the trustees hereinafter mentioned and provided for shall be appointed and qualify.
“Second — I do hereby nominate and appoint my friends, Philip T. Smith, of St. Johns, C. W. Burrage and P. A. Marquam, of Portland, executors of this my last will and testament, and in case either of them shall fail to accept the trust, I do hereby suggest my friend, John Catlin, to act as executor in the place of the one failing to accept.
“Third — It is my will that fifteen years after my death three trustees be appointed, as follows: One by the judge of the Circuit Court of the State of Oregon, in whose judicial district the town of St. Johns may be in; one by the person who shall be district judge of the United States in whose judicial district the town of St. Johns may be in; and the third shall be appointed by the two persons acting as such judges; and the three persons appointed as such trustees shall be and constitute a board of trustees, and such board shall have the possession, management, and control of all moneys and property by them received from my executors, for the purpose of promoting educational interests in the town of St. Johns, and to that end shall use such money and property so as to establish a permanent fund, the interest only to be used in educational purposes, or so much thereof as shall be necessary. The principal to be loaned only upon real estate security. A portion of the principal, which shall be in excess of fifty thousand dollars, in the discretion of such trustees, may be used in erecting buildings for educational purposes, and in employing teachers.
*499 “Fourth — The persons acting as judges aforesaid, may from time to time make rules and regulations for the government of the board of trustees, which rules and regulations’shall be binding upon such board, and they may fix the qualifications of such trustees, and determine whether or not they shall give security for the faithful performance of their trusts, and to whom such security shall be given.
“Fifth — It is not my intention to direct the particular branches of education which shall be taught, nor in any way limit the use of the money in promoting certain kinds of education, only I desire that it shall never be used to inculcate the doctrines of any religious sect or denomination, one more than the other.
“Sixth — It is my intention and desire to establish a permanent and perpetual educational fund, to be forever used in promoting education.
“Seventh — Whenever a vacancy shall occur in the board of trustees hereinbefore mentioned, such vacancy shall be filled by appointment to be made by the persons occupying the positions of judges as aforesaid. Said board to be always kept, full, and to consist of three persons, a majority of whom may transact business.”
The petition for the revocation of the order of probate is based upon two grounds: First, the want of testamentary capacity of the testator; and, second, the insufficiency of the attempted devise to charitable purposes, as it respects the objects and beneficiaries of the charity and the trustees in whom the power of administering the charity is reposed. The first ground of contest was abandoned at the trial, and the case is here for determination upon the latter ground only. It is contended by the executor that, the will having been properly executed, and provision made therein for the appointment of executors and the payment of debts, it was properly admitted to probate, and that this proceeding is without merit, even if
The ordinary functions of a court of probate, acting upon a proceeding for the probate of a will, seems to determine two things only, viz.: the testamentary capacity of the testator, acting without restraint, and the sufficiency of the formalities observed in the execution of the instrument propounded as his last will and testament; in other words, whether the instrument propounded is the testator’s spontaneous act expressing his last will in the form prescribed by law: Woerner’s American Law of Administration, § 222; Hegarty’s Appeal, 75 Pa. St. 516. Mr. Schouler says: “To construe a will duly probated, and define the rights of parties in interest, remains for other tribunals; they must interpret the charter by which the estate should be settled in case of controversy; while the probate court, by right purely of probate or ecclesiastical functions, establishes and confirms that charter”: Schouler’s Executors and Administrators, § 85; Hawes v. Humphrey, 9 Pick. 350 (20 Am. Dec. 481). No doubt exists
But our probate courts are not entirely without authority or jurisdiction to construe wills, and more especially as it respects the disposition of personal property. By statute (Hill’s Code, § 895, subds. 1, 2, 3, 4, and 3), the County Court is invested with exclusive jurisdiction, in the first instance, pertaining to a court of probate, in the following particulars: “1. To take proof of wills; 2. To grant and revoke letters testamentary of administration and of guardianship; 3. To direct and control the conduct and settle the accounts of executors, administrators, and guardians; 4. To direct the payment of debts and legacies, and the distribution of the estates of intestates;
There is a rule of equity which inhibits the assumption of equitable jurisdiction for the sole purpose of construing a will, and the jurisdiction will not be exercised unless there exists some special reason for seeking its interposition other than a mere desire to obtain the opinion of the court touching the proper interpretation of such, an instrument; Edgar v. Edgar, 26 Or. 65 (37 Pac. 73); Siddall v. Harrison, 73 Cal. 560 (15 Pac. 130); and Crosby v. Mason, 32 Conn. 482. “The reason,” as stated by Lord, C. J., in Edgar v. Edgar, “is that the decision of such questions is purely legal, and equity will not assume jurisdiction to declare legal titles, unless it has ^acquired jurisdiction of the case for some other purpose.” See Bowers v. Smith, 10 Paige, Ch. 193. Probate jurisdiction being in its nature equitable, by analogy of this rule the probate court should not entertain a proceeding instituted for the mere purpose of obtaining the opinion of the court touching the construction of a will, even in those matters wherein it has jurisdiction to interpret. There should be some special purpose to be attained, and the interpretation should come as a means of granting the relief sought. Such questions ought to find solution only as they are involved in litigation touching actual dispute, as it is difficult and often impossible to construe any instrument gen
We come now to the purpose of the present proceeding. It is primarily to obtain the revocation of the order of the County Court admitting to probate the will of the late James John, or as to such bequests or devises thereunder as were incompetent for the testator to make in the manner adopted by him. It does not go to his personal incapacity, as this branch of the contest was abandoned on the trial, but challenges the sufficiency of the act done; in other words, the adequacy of the instrument to accomplish the alleged purpose in hand. The defect, if any exists, is patent and inherent, and the test of its adequacy is purely a matter of construction. The proceeding casts upon the proponent the burden of reprobating the will by original proof in the same manner as if no probate had been had: Hubbard v. Hubbard, 7 Or. 42. The proof offered is ample, and the will is undoubtedly entitled to probate; it was made by a person possessing testamentary capacity, is sufficient in form, appoints executors, and directs the payment of funeral expenses and expenses of administration.
But should its probate here comprehend the approval or disapproval of the attempted disposition of the estate to the purposes of charity? There is some doubt whether the occasion has arisen for the exercise of the court’s jurisdiction to construe this will. Certainly not as it may affect the disposition of real property, as no conditions exist whereby a court of probate is called upon to act concerning it. But, as. it affects the personal property, may not the proceeding be considered in the light of a prayer for the direction of the executor in the administration
The purpose of the testator was to establish and maintain a school or schools within the town of St. Johns, which should.be free and public, and at all times open to the children of the school district which shall embrace such town. That a bounty in support of such a school or schools would be a public charity needs no argument or authority to demonstrate or establish. It conies within the letter and spirit of all definitions of a legal charity: Pennoyer v. Wadhams, 20 Or. 274 (11 L. R. A. 210, 25 Pac. 720). The object is definite, and the beneficiaries as certain as the rules governing charitable trusts require.
Nor is it any the less a charity because, as contended by counsel, the State has for all practical purposes provided for the maintenance of free public schools for all children of school age within the same territory: Green v. Blackwell, 35 Atl. 375. The bounty of the State for the support and maintenance of common schools is a creature of governmental policy, and subject to the will of the people. They may change, modify, or even abrogate the policy, subject to the provisions of the fundamental law respecting it, and the constitution itself may in time be
We come, now, to a construction of the will for the purpose of ascertaining the effect of its provisions touching the disposition of the personal property of the testator. As we have seen, the bequest was for a charitable purpose, but the question with which we have to deal is whether the method which was adopted by the testator is sufficient in law to effectuate the purpose. The bequest is direct to executors named, to and for certain uses and trusts, viz.: To convert into cash; to lease the real property for fifteen years; to expend all moneys which shall come into their hands, together with the proceeds of sales of personal property and rents of real estate, after payment of taxes and charges of administration, in the erection of buildings for school purposes upon block 29; to sell all real estate, except block 29, and such other lots and blocks as they may deem necessary for school buildings and grounds, between fifteen and eighteen years after the testator’s death; and to deliver the proceeds, whether in cash or notes with sureties, to other trustees, to be appointed fifteen years after the testator’s death, in manner following: One by the judge of the Circuit Court of the State of Oregon in whose judicial district .the town of St. Johns may be, one by the person who shall be district judge of the United States in whose judicial district the town of St. Johns may be, and a third by the two persons acting as such judges; such persons so appointed shall constitute a board of trustees who shall have the possession, management and control of all moneys and property by them received from the executors. The persons acting as judges aforesaid may from time to time make rules and regulations for the government of the board which shall
It is contended by the objectors to the will that the property has not been given to a person sufficiently certain having capacity to execute the„tnist imposed. It is somewhat difficult to determine from the books what is required in this respect. The bequest is directly to the executors named, and thus far there is undoubtedly sufficient certainty as it regards the appointment of trustees. It is admitted by appellants that if this were all the will contained it would be sufficient in that respect. But it is urged that there is a scheme connected with the execution of the trust whereby the testator has attempted to create a trustee, an entity, and to devise the manner of its perpetuation, all which is unknown to the law; that the entity is not a person, either real or artificial, and that the mode of its perpetuation is a thing which the law does not recognize; and that, taken as a whole, he has failed in his appointment of a trustee sufficiently certain and capable of recognition with capacity to execute the trust. It is said that the rule against perpetuities has no application to charitable trusts. It is, indeed, a striking charac
In Chamberlayne v. Brockett, 8 Ch. App. 206, a testatrix bequeathed her estate, consisting entirely of personalty, to trustees, upon trust to invest it in consols, and to make out of the dividends certain fixed annual payments for charitable purposes. Among other things, she directed that when and as soon as land should at any time be given for the purpose as thereinafter mentioned, almshouses should be built in three specified places, and that the surplus remaining after their completion should be appropriated in the way of allowances to the inmates. The bequest was held valid as an absolute immediate gift to charity, the mode of execution only being made dependent upon future events. In Henshaw v. Atkinson, 3 Madd. 306, money was bequeathed to erect a blue-coat school and an asylum for the blind, with directions that lands should not be purchased, but with the expression of an expectation that lands would be given for the. charities. It was argued that the bequest could not operate because, as it was said, it was the testator’s intention that the charities were not to take effect until lands were supplied by others, and the money might be locked up for an indefinite length of time; but the court was of opinion that the point was not well taken, in view of the rulings in Attorney General v. Lady Downing, Amb. 550; and Attorney General v. Bishop of Chester, 1 Brown Ch. 389. The state of facts in the Downing College case was that a testator devised lands to trustees, with directions to purchase with the rents and profits
In a later case in the same court (Ould v. Washington Hospital, 95 U. S. 303), it appears that a devise of certain lots was to two persons “and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor,” but in trust to hold the same “as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of congress as and for such hospital, and, upon such incorporation, upon further trust to grant and convey the said lots of ground and trust estate to the corporation or institution so incorporated, * * * which conveyance shall be absolute and in fee.” The corporation was to meet the approval of the trustees, but, if not so approved, then they were to hold upon the further trust until such a corporation as they would approve was created by act of congress. The possible remoteness of the incorporation of such a society by
We will now consider the nature and capacity of the trustee which the testator has attempted to create and clothe with perpetuity or longevity co-equal in point of existence with the charity he has endeavored to establish. We can best reach a satisfactory result by a review of the authorities, and then apply the deductions to the facts of the case. There is a class of cases of which Inglis v. Sailors’ Snag Harbour is perhaps the leading one, the facts for an understanding of which have been heretofore sufficiently stated. It seems to have been intimated by the justice who wrote the prevailing opinion that if the devise had been to the officers named in the will in their official capacity, and their successors, to execute the trust, without the contingent provision for the creation of the incorporation, the case would have fallen within the principle of Philadelphia Baptist Association v. Hart’s Executors, 17 U. S. (4 Wheat.) 1. Whether this was a method of passing the point simply, and resting the case upon a more satisfactory basis, or whether the Baptist Association case was taken as decisive of the question, it is difficult to tell from the opinion. At any i&te, it was finally determined that the will could be sustained as an executory devise to a
Another class of cases, of which Vidal v. Girard’s Ex., 43 U. S. (2 How.) 126, is the leading authority, establishes the doctrine that where a municipal corporation has capacity under its charter to take and hold such property as is made the subject of the trust, it may take and hold the same upon trust in the same manner and to the same extent as a private person may do. However,,if the trust be repugnant to or inconsistent with the proper purposes for which the corporation was created, it would not be compelled to execute it; but this condition will furnish no ground to declare the trust itself void, if otherwise unexceptionable. In such case, the trust having fastened itself upon the property, a court of equity will appoint a new trustee to enforce it: See also Perin v. Cary, 65 U. S. (24 How.) 494; McDonogh’s Executors v. Murdoch, 56 U. S. (15 How.) 367; Chambers v. City of St. Louis, 29 Mo. 543; Board of Commissioners of Rush Co. v. Dinwiddie, 139 Ind. 128 (37 N. E. 795); Skinner v. Harrison Township, 116 Ind. 139 (2 L. R. A. 137, 13 N. E. 529); Dailey v. City of New Haven, 60 Conn. 314 (14 L. R. A. 69, 22 Atl. 945).
There is another class of cases of which the Baptist Association v. Hart’s Executors, 17 U. S. (4 Wheat.) 1, is a type, among which the views expressed are not uniform. This class involves bequests or devises to voluntary unincorporated societies. As we have seen, it was held in the Baptist Association case that such a devise was void for want of capacity to take as a trustee. The holding has not escaped criticism in later adjudications, and it may be said to be distinguishable by *the fact that the supposed trust arose under the laws of 'Virginia, which, as measured by the adjudications there, recognize no distinction between charitable and other trusts: Russell v. Allen, 107 U. S. 163 (2 Sup. Ct. 327); Kain v. Gibbonev, 101 U. S. 362;
We come now to a class of cases wherein the testator has appointed trustees and has attempted to devise the manner of their perpetuation as a board. In Treat’s Appeal from Probate, 30 Conn. 113, the bequest was to sundry persons named, and to their successors forever, “who shall as a board of trustees add to and perpetuate their number, so long as in their opinion the objects of this bequest shall require the existence of the same.” It was argued that the trustees were not a body corporate, and, having no legal successors, except so far as they might be appointed from time to time by themselves, the trust might fail for want of persons to uphold the title. The court held to the contrary upon the authority of the American Bible Society v. Wetmore, 17 Conn. 181, which was a devise to an unincorporated religious society, saying “a trust never fails for the want of a trustee.” It appears to have been assumed that so long as the board was kept full by the appointment of their successors, no question could arise respecting their power and authority to administer the charity. Somewhat analogous to the case is Heuser v. Harris, 42 Ill. 425. A devise was made of lands to be sold, one-half the proceeds to go to a certain school district, and to be used for school purposes only, to be under the control of a trustee to be elected by the “people” for a term of four years. It was held that the school district had the capacity to take, and that in case the people should fail to elect a trustee, chancery would supply one, and the trust would not fail for the want of one. Seda v. Hulle, 75 Iowa, 429, 9 Am. St. Rep. 495, is a case where a bequest was made to two persons, naming them, with directions that they and their successors should invest the fund for the benefit of a church. The trustees named were presumably some officers of an unincorporated voluntary society. The
There are yet other cases which go further toward supporting, upholding, and maintaining the charity than any of these. In Hunt v. Fowler, 121 Ill. 269 (12 N. E. 331), the testatrix’s codicil contained this clause: “All the rest and residue of my estate, including that which may lapse from any cause, I direct to be invested or loaned upon the best terms possible, so as to produce the largest income, and said income to be distributed annually among the worthy poor of the City of La Salle, in such manner as the court of chancery may direct.” No trustee was appointed, but, as the distribution of the fund was expressly referred to a court of chancery, and it was held that the power of distribution carried with it the power to select the individuals to whom the distribution should be made,
The citation of these authorities from those states, such as Oregon, which recognize the distinction between charitable and ordinary trusts, is sufficient to demonstrate beyond cavil that it is the policy of the law to uphold and give effect to donations to charity whenever it can be done under any reasonable construction of the instrument by which the charity is attempted to be established. Charity is still, as under the English chancery practice, a favorite of equity, and, while in this country there has been much modification of the rules governing charitable donations, and perhaps a radical narrowing of the jurisdiction (see 2 Perry on Trusts, §§ 729, 731), the conscience of the court is always exercised to see that the charity is administered, if it can be done within the rules of the established law of the forum. The general rule everywhere is, whether speaking with reference to ordinary or charitable trusts, that a valid trust will never be permitted to fail for want of a trustee. This, of course, implies the existence, in the first instance, of a valid trust. But where there is an appointment of a trustee competent to take, and the other conditions of the trust are commensurate to give it validity, there can be no doubt that the property itself becomes impressed with the trust, and a subsequent failure of a trustee will not relieve it of this condition. So, if a donation to charity is immediate and absolute, and a trustee is appointed competent to take, the other conditions being sufficient, a trust arises at once, the property becomes impressed with it, and passes beyond the reach of the heirs or residuary legatees or devisees. The title is effectually diverted from its natural channel of devolution,
Now, to the purposes of this case: The executors appointed are trustees charged with the duty of executing in part the scheme adopted by the testator for the administration of the charity intended to be established. After the administration of the estate, they are to use the remainder of the money coming into their hands at the death of the testator, together with the rents of the real property, which they are charged with leasing, in the erection of buildings for school purposes, on block 29, loaning the funds, etc. A direct and explicit execution of the trust is given into their charge — not to carry out the scheme in its utmost detail, but to carry it forward for the space of some eighteen years, until it should go into the hands of other trustees, designed to be a permanent board for the perpetual administration of the trust. Now, can there be any question but what there was here an immediate and absolute donation to charity, with the appointment of trustees perfectly competent to take? Certainly not. The estate passed from the testator to the trustees direct. It never vested in the heirs, and the trust does not depend for its validity or establishment upon the-performance of any condition or the happening of any event. The donation was in praesenti, and the estate vested at once in the trustees. The trust became fastened upon the property when the will took effect. But it is claimed that the scheme for administering the-trust is impracticable, as the board of trustees which it was intended should succeed to the trust may never be-established, inasmuch as the judges named are not compellable to appoint the members thereof, and even if appointed they would not constitute such a body known to law as having perpetual succession, and therefore could not administer the charity. We quite agree with the coun
To reinforce the point, we cite by way of illustration Fontain v. Ravenel, 58 U. S. (17 How.) 369. There “the executors, or the survivors of them, after the decease of testator’s wife, were to dispose of the property for the use of such charitable institutions in Pennsylvania and South Carolina as they or he may deem most beneficial' to mankind.” The executors died before the testator’s wife. It was held that, the testator having delegated this power of appointing the particular charity to the executors, and the conditions upon which they were authorized to exercise their discretion having failed, the court was without jurisdiction to appoint others to exercise a discretion which was personal to those named by the testator. The question there involved a selection of the objects of charity, which the testator had failed to do; here it involves the manner of its execution, with the object definitely designated and pointed out. The failure of the judges designated to exercise the power delegated to. them would simply result in a failure of trustees, in which event a court of equity would certainly not allow the trust to fail. In Heuser v. Harris, 42 Ill. 425, the donation was, as we have seen, to a school district, to be used for school purposes, and to be under the absolute control of a trustee to be elected by the people; and it was held that a court would appoint after the failure of the people to elect. The power to appoint by the people was a delegated power, and so it is here; the power of appointment of trustees by the judges under the will is delegated, and the failure to-appoint in the present case could be no worse for the charity than the failure of the people to elect in the former. The citation of another case will suffice. In Dailey v. City of
It is objected to the validity of the trust that the Circuit Court of the State of Oregon for Multnomah County, in which jurisdiction St. Johns is situated, now has four judges instead of one. Who shall appoint? Counsel say, “Manifestly neither of them, because neither of them is the judge. Each one of them is a judge, or one of the judges, but not the judge.” It is probable, however, that an appointment by either of these judges would suffice. Surely an appointment by either would fulfill the conditions of the particular manner of executing the trust. But, should the fact of a multitude of judges prevent the appointment entirely, we have seen that the trust should not fail. The condition that the judges should appoint was not a condition precedent to vesting the right.
Again, it is urged that the trust must fail as it affects block 29, because no provision appears to have been made for its conveyance by the executors to the board of trustees provided for. It is not clear but that there may have been an oversight in providing the manner by which this particular piece of property should pass to the board. It was the evident intention of the testator that this block should pass to the succeeding trustees; but, if it be admitted that the manner of its devolution has not been specially provided for, it would pass either to the heirs of the executors or result to the heirs of the testator, but in either event it would he charged with the trust, and equity would place it in the proper channel of administration. It is said in the Sailors’ Snug Harbour case: “The will looks therefore to three alternatives: 1. That the officers named in the will as trustees should take the estate and exercise the trust. 2. If that could not legally be done, then he directs his trustees to procure an act of incorporation, and vests the estate in it for the purpose of executing the trust. 3. If both these should fail, his heirs, or whosoever should possess and enjoy the property, are charged with the trust. * * * Whoever, therefore, takes the land takes it charged with these uses and trusts which are to be executed in the manner above mentioned.” What the testator has said in his will to the effect that the buildings should belong to his estate, was evidently for the purpose of making it clear that he did not intend a donation to the
Much has been said concerning the cy pres doctrine, but it is not apparent how it can affect this case at the present time. We have seen that the appointment of the objects of charity is a matter not personal with the judges designated to nominate the board of trustees, and much less is it personal to the executors or trustees themselves. There has been no failure of the object for which the donation was made; there is no unexpected undisposed-of surplus; no increase of funds beyond that which is needed for the purposes designed; no change in the law rendering the object unlawful; nor have there been any intervening circumstances by reason of which it has become apparent that the trust cannot be executed strictly. There may come a time when this doctrine may be invoked, but with what effect it is not now within our province to decide. The decree of the court below will be affirmed.
Affirmed.
On Motion to Correct Decree.
This is an application by Eli Morrill for the recall of the mandate issued in this cause with a view of procuring a modification of the decree of this court entered against him on December 31, 1896, as surety upon the appellant’s undertaking which it is alleged was by mistake entered for an amount in éxcess of his liability. The proceeding was commenced in the County Court for Multnomah County, and after a decree there in favor of respondent was appealed to the Circuit Court, and Eli Mor
The question presented is whether Morrill was liable upon his undertaking for the costs and disbursements incurred on appeal from the Circuit Court. We think not. Morrill’s undertaking is decisive of the-question. He was bound to the observance of two conditions: First, that appellants should pay all costs and disbursements awarded against them on said appeal, that is to say, upon the appeal from the County to the Circuit Court. This condition is not broad enough to comprehend costs and disbursements incurred in the appeal from the Circuit to the Supreme Court, so that Morrill is not liable for the costs of the Supreme Court under this condition. Second, that appellants will satisfy said judgment so far as affirmed. What judgment? The judgment or decree of the County Court, and this included the costs incurred in that court, as they were comprehended by that decree, and none other. The decree of the County Court was affirmed here; so was also the decree of the Circuit Court which includes the costs on appeal from the County to the Circuit Court. For all this, Morrill is liable under the two conditions of his under
Decree Modified.