whole." A clear and distinct devise or bequest cannot be affected*** by any other words not equally clear, and distinct, or by inference or argument from other parts of the will." "The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained:" Civil Code, Sections 1,317-18, 1,321-2, 1,324. It seems to me, that, under these rules, it is impossible to hold it to have been the intention of the testator, himself, to give, absolutely, any portion of his estate to be held in trust for complainant. The language is plain, and readily understood, taking the words in their ordinary and grammatical sense. The testator, manifestly, appreciated the difference, which every one must recognize, between words of absolute devise, or bequest, and mere words of recommendation or request. To construe these latter words of recommendation and request as meaning precisely the same thing, as words of absolute bequest, would be to give them a meaning entirely different from the sense in which they are, ordinarily, used, and, ordinarily, understood. The "clear, and distinct," prior absolute "devise, and bequest," to the defendant of all his estate, in language which it is impossible to misunderstand, would be materially affected" by converting an indefinite and unascertainable part of the absolute estate given to defendant into a trust, by "words not equally clear and distinct," by "inference, or argument from other parts of the will," contrary to the rule expressly laid down by the code. Had the testator intended to give any part of his estate, absolutely, in trust for the complainant, he would, certainly, have so stated, and would have declared what part, or how much money, he intended to set apart for her. He would have made the extent of his bequest clear and distinct,"-as clear and distinct as the devise to the defendant-and not left it to the sole judgment of the defendant, to determine the amount, or character, or value, of the bequest or the extent of his bounty.

The language of the will cited seems to be plain and intelligible. It is not the language of gift, or devise, or the language of command.

It is, clearly, language of recommendation and request, leaving the matter to the discretion and judgment of his surviving wife to carry out his suggestion, or not, or to such extent, as seems to her best, according to the dictates of her own discretion and judgment. Such is the plain import of the words, as they would, ordinarily, be understood, when taken by themselves, and considered by the great mass of English speaking people, without reference to strained, artificial or technical rules of construction. They are, as it seems to me, so plain to the common mind as not to need interpretation. But when we come to call in other elements recognized by the rules of construction heretofore adopted by the courts, for the purpose of aiding in converting the recommendation and request into a command or gift, we still find that all these elements except one-the certainty as to the objects are wanting. The testator, manifestly, understood the

force of language. He knew well what language to use to express his intention to make a devise or bequest. There is no uncertain sound in "I give and bequeath to my wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized or possessed." If he had intended to make a gift, bequest or devise to his mother and sister, he, certainly, knew in what language to express that intent, and he would have said so, and how much. He has expressed, in specific language, no intention to give to them directly, or to any one, in trust, for them, any portion of his estate; or if any portion what particular portion, or how much. He has simply used words of recommendation, and request, to his sole devisee and legatee, and left the whole matter, in express terms, to her judgment. This is the plain natural meaning of his language, when taken by itself, or when considered in connection with all the other language of the will. When we consider the concise, clear and specific lauguage of this brief will, in all its other parts, it seems impossible that the testator should have used words of mere recommendation, and request to his wife, committing the whole matter, as to the gifts and provisions for them, in express terms, to her judgment; that he should have requested her to make the gift, when he intended to make a gift, legacy or devise to them himself-when he intended to command.

It is urged on the part of the claimant, that in this class of cases, a wish expressed, or a simple request, to the devoted and obedient wife, is equivalent to a command. This when, voluntarily, recognized as an obligation by the wife, in the affairs of married life, may be a very proper and salutary principle and practice in marital polity and domestic etiquette; but it is too romantic, too largely deficient in the sanctions of the obligations of positive law,-too loose and uncertain, to be adopted by the courts, as a rule of law, by which large estates are to be distributed in opposition to the plain, ordinary, actual matter of fact sense of the words of a will. As to myself, I fully concur with vice-chancellor Hart, in his observations in Sale v. Moore, 1 Sim. 540, "that the first case that construed words of recommendation into a command, made a will for the testator; for every one knows the distinction between them." He further adds; that "the current authorities of late years has been against converting the legatee into a trustee :" See 44 Am. Dec., 378, note. In my judgment, to hold, that the precatory words, and words of recommendation, found in the will of the late General Colton, creates an indefinite trust in an unascertained and uncertain quantum of the estate of the deceased in the hands of Mrs. Colton, for the benefit of the mother and sister of the testator, would be to make a will for the deceased; and not to execute the will made by him.

An argument is sought to be derived in favor of a construction creating a trust, from the last two clauses in the will, relating to coexecutors. In case the executrix should desire assistance in the execution of the will, the testator, provisionally, appoints two other gentlemen as executors, and authorizes the executrix to associate.

No. 40-2.

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either one, or both, as co-executor, or co-executors; "and in case she shall so unite either, or both with her, the same provisions are hereby made applicable to them, as I have before made for her, in reference to bonds and duties and powers." It is argued, that under this provision, the recommendation and request, as to care and provision for the testator's mother and sister, would impose the same trust on them, as is imposed upon Mrs. Colton; and, that certainly, as to them the request is equivalent to a command, and being so as to them, they must have the same construction with respect to Mrs. Colton. But the character of Mrs. Colton, as executrix, and as devisee and legatee, are wholly different, and distinct. These words of recommendation and request, were addressed to her as the wife of the testator, and his devisee and legatee, and not as the executrix of his will,—as owner, and not administratrix of his estate. She has performed all her trusts as executrix; the estate has been settled, and distributed to her, as devisee and legatee; and she has been discharged from her trust as executrix. So it appears from the bill.

This suit is brougt against her to enforce a trust vested in her as legatee, for the benefit of complainant, and not against her in her representative character of executrix. So the closing passage of the will, making the same provision applicable to her co-executor, or coexecutors, in the contingency provided for, as I have before made for her in reference to bonds, and duties and powers," has sole reference to the bonds waived, and to the "duties and powers," conferred on her as executrix. It confers no rights, or powers, or duties upon these co-executors in the character of devisees or legatees; and no argument can be derived from this passage to support the creation by the court of a trust.

Upon the views thus taken upon the construction of the will, it is unnecessary to notice the other points argued under the demurrer. The demurrer is sustained, and as the whole case depends upon the construction of the will, no amendment can be made to the bill that will obviate the objection taken by the demurrer. The bill must, therefore, be dismissed. And it is so ordered.

MARTHA COLTON v. ELLEN M. COLTON. :

September 22, 1884.

Bill dismissed on authority of Colton v. Colton, ante.

WV. W. & H. S. Foote and Grove L. Johnson, for the complainant. Crittenden Thornton and Stanly, Stoney & Hayes, for the defendant.

SAWYER, CIRCUIT JUDGE. This is a bill in equity, seeking a decree declaring and enforcing a trust in favor of the sister of the late

David D. Colton, deceased, claimed to arise out of the same clause of the will, considered in the preceding case of Abigail R. Colton v. Ellen M. Colton. The same construction must, of course, be given to the clause in this case as was adopted in the other. For reasons in that case stated, the demurrer to the bill must be sustained, and the bill dismissed, and it is so ordered.

THE CASE OF THE UNUSED TAG.

[IN RE AH KEE, ON HABEAS CORPUS.]
September 22, 1884.

CHINESE RESTRICTION ACTS CONSTRUED-CERTIFICATE OF COLLECTOR ESSENTIAL-CUSTOM HOUSE TAG.-A Chinese laborer, who left the United States after the restriction act of May 6, 1882, went into operation, without obtaining the certificate provided for in such act, can not be permitted to re-enter after the amendatory act of 1884 went into operation, upon the presentation of a tag given to him by the custom house officials, prior to his departure, authorizing the issue of such certificate to him.

THE SAME-NOTHING ELSE TAKEN AS A SUBSTITUTE FOR CERTIFICATE. The provision of the amendatory act of 1884, that such "certificate shall be the only evidence permissible to establish" the right of re-entry, is as applicable to the certificate issued under the act of 1882, as to that issue under the act of 1884. No evidence can be taken as an equivalent or substitute for the certificate.

THE SAME REMOVAL OF CHINESE UNLAWFULLY IN UNITED STATES.-Parties unlawfully bringing Chinese persons to the United States, who are prohibited by such acts from landing, must take them back to the country from which they are brought, or at least beyond the jurisdiction of the United States. A steamship company which brings such persons cannot escape from this duty by the departure of the vessel on which they are brought, or by any change in its officers or management.

HABEAS CORPUS-CUSTODY OF COURT.-Where a return is made to a writ of habeas corpus, accompanied by a production of the petitioner, the court, pending the proceedings on the writ, may, if deemed proper, continue him in the custody of the party detaining him, commit him to the custody of the marshal, or admit him to bail.-SAWYER, J.

RESTRICTION ACT-CUSTODY OF COURT.-Where a party, detained on board a steamship, and not permitted to land, under the provisions of the Chinese restriction act, has been produced in court, on habeas corpus, and admitted to bail, pending the proceedings, he is in the custody of the law, and in contemplation of law he has not been landed.--SAWYER, J.

REMANDING PRISONERS.-In such case, if, pending the proceeding, the steamship on which he came departs, he may be remanded to the custody of the master, when she returns to port, whether the master be the same one who produced him, or another; and a refusal to receive the party so remanded, would, in law, constitute a permitting, or aiding and abetting an unlawful landing, within the meaning of the restriction act.-SAWYER, J.

APPLICATION for a writ of habeas corpus.

Before FIELD, Circuit Justice, SAWYER, Circuit Judge, and HoffMAN and SABIN, District Judges.

T. D. Riordan and L. I. Mowry, for the petitioner.

S. G. Hilborn and Carroll Cook, for the United States.

FIELD, Circuit Justice. The petitioner is a Chinese laborer and a subject of the Empire of China. He resided in the United States on the seventeenth of November, 1880, and until September 3, 1883. He then went back to China without the certificate required under the restriction act of 1882, which would have enabled him to return to this country. Previous to his departure he applied to the collector of customs at the port of San Francisco for such certificate,

and, as he alleges, the provisions of the law for the registration of a description of his occupation, residence and age, and of the physical marks and peculiarities necessary to his identification, were complied with by the collector, and from him the petitioner received a white tag, which entitled him to the desired certificate.

The act of congress appears to contemplate the presence of the collector in person or by deputy on board of a vessel cleared, or about to sail to a foreign port with Chinese laborers, and his making while on the vessel a list of them, with the particulars mentioned of each one for his identification, such particulars to be entered in proper books to be kept for that purpose. To carry out these provisions on board of the vessel was found to be impracticable. Passengers are not generally expected or even allowed to be on board of a vessel many hours before its departure, and the time consumed in the examination of each laborer, if such examination were had on board, would necessarily greatly limit the number to whom a certificate could be furnished-a small portion of those who would desire to depart by each vessel of the line of steamers now plying between this port and China. To obviate the delays which would otherwise arise, the officers of customs at San Francisco have prescribed rules requiring Chinese laborers intending to leave, and yet desirous of returning to the United States, to attend at the custom house in advance of the departure of the vessel and undergo the preparatory examination. That being satisfactory, a white tag is given to the laborer, in exchange for which a certificate is issued to him on board of the steamer. These regulations are designed to facilitate the departure of laborers without unnecessary delay on board of the vessel, and being reasonable, may properly be insisted upon. The essential requirement of the law is the registry of the particulars respecting each laborer, so as to identify him. The place where the examination is had is not an indispensable part of the require

ment.

The petitioner having, as he alleges, secured his white tag, went aboard of the steamer City of Peking at San Francisco, when about to depart for China, expecting there to receive in exchange for it a certificate entitling him to return, and was informed that the officer charged to deliver such certificate had already been aboard of the vessel and left. The petitioner accordingly went among his countrymen on the vessel, without further enquiry for the officer and left without his certificate. In August, 1884, he returned to the port of San Francisco in the steamship City of New York, and sought to land by virtue of his tag, which he presented to the collector. Upon examination of the records in the collector's office, it appears that the certificate intended for him had been presented by another person, who had arrived on a previous steamer, and by virtue of it had been allowed to land. The certificate was, upon such landing, canceled. The petitioner was accordingly not allowed by the collector to land, and he now seeks to secure a right to land from the Court.