202 U.S.

Argument for Appellees.

subsequent demand by an executor appointed by the court in the jurisdiction in which the property was situated. Doolittle v. Lewis, 7 Johns. Ch. 45; Williams v. Storrs, 6 Johns. Ch. 353; Parsons v. Lyman, 20 N. Y. 103; Bank v. Sharp, 53 Maryland, 521; Wilkins v. Ellitt, 9 Wall. 740; Rand v. Hubbard, 4 Met. 252; Hutchins v. Bank, 12 Met. 421; Stevens v. Gaylord, 11 Massachusetts, 256; Trecothick v. Austin, 4 Mason, 6, 33; Mackey v. Coxe, 18 How. 104.

Mr. William G. Johnson for appellees:

The payment by Tracy to Turner was not a discharge, because a payment to anyone other than the party entitled or to his agent is no payment in law. Agency can only arise by contract or operation of law. The appellees made no such contract and could make none, because they were all minors and he had never been appointed their guardian, and his only relation to them was the natural one of father. The fact that Thomas M. Turner was the father of the complainants is immaterial. Payment to him was no better than to a stranger. Dagley v. Tolferry, 1 P. Wms. 285; Cooper v. Thornton, 3 Brown's Ch. Cas. 96; Miles v. Kaigler, 10 Yerg. 10; Perry v. Carmichael, 95 Illinois, 519. See also Tripp v. Gifford, 155 Massachusetts, 111; P. C. C. & St. L. Ry. v. Haley, 170 Illinois,

610.

Thomas Turner had no power under Louisiana laws to receive payment.

He was not a "natural tutor," as he describes himself in signing the receipt. At that time his wife, the mother of the children, was living and the parents were not divorced. During the marriage there cannot be a "natural tutor." State v. Parish Judge of Orleans, 6 La. Rep. 363.

Turner never complied with requirements of Louisiana law made a condition precedent to the right of possession. It is not, therefore, in the character of "tutor" that he could acquire any rights to the estate of his minor children, but this right is claimed for him as "usufructuary." Arts. 223, 224,

540, 557-560, La. Code. See also art. 3350 added by the act of 1869; Succession of Arland, 42 La. Ann. 548.

Louisiana laws have no application to property without the State. If Louisiana's laws of permission can have greater force in this District than in Louisiana, then, indubitably, her laws of prohibition upon those attempting to exercise authorities under them must have at least an equal force here with that which they possess in Louisiana.

According to the decisions of the highest court of that State, construing its own statutes, Thomas Turner, had he complied with all the prerequisites of the laws of Louisiana, would have been without power, under its laws, to receive property situated out of the State. Moise v. Life Association, 45 La. Ann. 737.

The laws of Virginia, the domicil of the testator, control and exclude the laws of Louisiana. Harrison v. Nixon, 9 Pet. 483. The common law of England is in force in Virginia. Va. Code, 1887, § 2. See also Cooper v. Thornton, 3 Brown's Ch. Cas. 96.

The right of usufructuary claimed for Thomas Turner, under the laws of Louisiana, in this case, is not an official character in which he is representative of the Louisiana legatees and claims the legacy in their behalf, but is a beneficial interest in himself, in right of his parentage, a part of the Louisiana law of domestic relations, applying to persons and property within the State, and can clearly have no application to property never in the State. Texas and Pacific Ry. Co. v. Humble, 181 U. S. 57.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

As no reference was made to the subject in the opinions below and as we construe the argument at bar as not seriously pressing such question, we assume, for the purposes of the case, the right of the complainants to maintain under the averments of their bill a direct action or suit to recover the fund in con

troversy. To come to the substantial merits we summarily dispose of certain preliminary contentions. First. We are of opinion that upon the pleadings and proof the Court of Appeals did not err in holding that such fiduciary relation existed between Silas H. Turner and Philip A. Tracy as made a court of equity the proper forum to seek relief. Second. We also think that under the circumstances of the case the contention that the bill should be dismissed because of the variance between the allegations and the proof is untenable.

In proper sequence the questions for decision are threefold: First. Was the transfer of the property of the estate of Silas H. Turner made as shown on the receipt given to Tracy by Thomas M. Turner as the representative of his minor children lawful and binding upon such minors? Second. If the payment referred to was binding did the receipt and the paper contemporaneously executed by Tracy, in connection with the proof, establish that he or his estate was liable for the value of the investment in real estate shown by the receipt and the paper in question to have been retained in the control of Tracy? Third. Did the receipt, if binding, and the paper in connection with it, embrace all the property held by Tracy as the trustee of Silas H. Turner, or, in other words, did Tracy at the time the receipt was given honestly account for the property in his hands, or did he fraudulently retain for his own benefit a large amount of property of the estate which should have been paid over and for which Tracy or his estate is therefor liable?

Whilst in logical order the questions for decision are as stated, we shall consider them inversely. In other words, we shall first dispose of the alleged fraudulent retention by Tracy of a large portion of the trust fund at the time he made the payment and transfer of property to Thomas M. Turner as the representative of his minor children. We do this because the charge of conspiracy and fraud as pressed, not only in the argument at bar, but in the opinions below, was treated as affecting the question of the binding nature of the transfer made by Tracy to Turner; and by first disposing of that branch of the case

we shall in a great measure disentangle the question of the binding efficacy of the transfer and payment to Thomas M. Turner from the alleged fraud.

It will be useful, before particularly considering the facts upon which the alleged fraud on the part of Tracy immediately depends, to state the antecedents of Tracy and of the two Turners, the dealings between them and the results which followed therefrom, so far as they are uncontroverted.

Philip A. Tracy was born in Fauquier County, Virginia, in 1835. He was living in Washington soon after the close of the Civil War, was a bookkeeper in a mercantile house, and later became an employé of the Post Office Department, and so continued, if not to, at least up to a short time prior to, his death. He never married. As far as it may be inferred from the testimony in the record, taking no present concern of the charges of fraud made in the bill, the conviction is irresistibly conveyed to our minds that Tracy was a reasonably intelligent, moral, industrious and circumspect person, of a religious tendency of mind, careful in money matters, particular as to details and of a kindly, though somewhat eccentric, nature.

Silas H. Turner was also a native of Virginia, and whilst little is shown by the record of his antecedents and character, it is established that he was also a man of thrift and of some business capacity, having been at one time a railroad agent, a dealer in merchandise and cattle, a clerk and an accountant, accustomed to the settlement of estates. Between Tracy and Turner there existed an association and friendship, taking its origin, if not in a boyhood acquaintance, at least one that related back to many years before the death of Turner. As a result of this friendship Turner, trusting in the capacity and integrity of Tracy, began in 1871 to confide his savings to the latter for investment. Tracy, loaning money upon the security of real estate, was first in the habit, when a loan was made, of sending the notes of the borrowers to Turner, who, as the interest payments were about to fall due, would send the notes to Tracy to have payments of interest credited thereon. After

a time this practice of sending and returning the notes became irksome, and Turner sent the notes to Tracy, who thereafter kept them in his custody. As money came into the hands of Tracy, either from the payments of principal or of interest upon the notes, he reinvested the money in other notes, sending Turner a memorandum of the new investments as made. There is nothing produced either from the papers of Tracy or of Turner showing that formal accounts were ever exchanged between the parties. Certain it is, that on April 30, 1898, Turner was in Washington and in personal communication with Tracy. At the desk of Tracy in the Post Office Department, at the request of Turner, the will probated as mentioned in the statement of facts was written by Tracy for Turner, and by the latter executed. How long Turner remained in Washington at this time the record does not disclose, nor does it accurately show his movements or exhibit any letters passing between Tracy and Turner from the time of the making of the will up to the death of Turner.

Some time during the summer of 1888 Turner—an ill man, suffering with Bright's disease-went to the residence of Mrs. Rust, a niece, living in Fauquier County, Virginia, near Warrenton, where he remained until his death on September 21, 1888. At his death Turner left surviving him a maiden sister, who lived in Frederick, Maryland, Miss Henrietta Turner; a brother Thomas M. Turner, living in Minden, Louisiana, and various nephews and nieces, children of deceased brothers and sisters.

Between Thomas M. Turner, the brother living in Louisiana, and Silas H. Turner, it would seem, there had been little or no intercourse for more than thirty years, Thomas having left Virginia when quite a young man. Notified of the serious illness of his brother, Thomas M. Turner, about a month and a half before the death of Silas, came to the house of Mrs. Rust and there remained until the death. Thomas M. Turner had had at that time quite a varied experience of men and affairs. Leaving Virginia as a youth he went to Memphis, Tennessee,