
    MARY W. KIDDER, EXECUTRIX, v. THE UNITED STATES.
    [No. 14250.
    Decided May 26, 1884.]
    
      On the Facts.
    
    Realty is sold in South Carolina for direct taxes. A surplus is paid into the Treasury. Subsequently the owner dies, bequeathing any moneys which may be received from the government in trust. The estate is still unsettled, and the question is whether a suit for the surplus shall be brought by the executor or by the trustee.
    I. Where a will provides, “ Should arty property he returned hy United States government or remuneration be made therefor, I direct $3,700 of the same be invested by my son as trustee of the same for the benefit of my daughter,” the estate being still unsettled, the executor and not the trustee is the proper party to bring an action for a surplus in the Treasury under the Direet-tax Acts 1861, 1862 (12 Stat. L., pp. 304, 422).
    
      II. The equities which an executor of an unsettled estate and a trustee under the will may have in moneys in the Treasury derived from a tax sale must be adjusted after judgment here in a jurisdiction having control of the subject-matter of the controversy.
    
      The Reporters’ statement of the case:
    This action the claimant brought by the voluntary filing of her petition. An extract of the will is given on which the righ fcs. of the trustee depended. The remaining facts will be found in the opinion of the court.
    “I direct that my house and lots in the town of Beaufort be sold, and four thousand dollars of the proceeds be invested by my son Stuart, as trustee of the same, for the benefit of my daughter May, she to receive the interest or dividends of the same during her life, and at her death to become the property of such of my descendants as she may by will drect; and if she die intestate, leaving issue, to become the property of said issue; but if she die leaving no issue, then the said four thousand dollars I direct be equally divided between my son Stuart and my daughter Anne. After the above sum has been disposed of as directed, I leave six thousand dollars to my son Stuart, who gave me this sum when I was in pecuniary difficulties, and I now return it to him. After the above bequests have been paid, should any property be returned by U. S. Government, or remuneration be made therefor, I direct from such property returned, or moneyreceived, three thousand seven hundred dollars of the same be invested by my son Stuart, as trustee of the same, for the benefit of my daughter Anne, she to receive the interests or dividends of the same during her life.”
    
      Mr. James Lowndes for the claimant.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This is a claim to recover $1,393.26, under the provisions of the act approved August 5, 1861, entitled “An act to provide increased revenue from imports to pay interest on the public debt, and for other purposes,” and the act entitled “An act for the collection of direct taxes in insurrectionary districts within the United States, and for other purposes,” approved July 7, 1862.

The findings show that the fee-simple of lot C, block 90, in the town of Beaufort, S. C., on the 13th of March, 1863, was in William H. Cuthbert in trust for Mary W. Rhett for her life, with power in her to appoint the same by will to and among the issue of her marriage with Edmund Rhett.

On said day the said land was sold for direct taxes, and bid off by the United States for the sum of $1,500. The proceeds of said sale over and above the tax due thereon and all charges were $1,393.26. No part of said money has ever been paid to any person. Cuthbert, the trustee, and Mary W. Rhett died in 1873.

Mary W. Rhett left a will, which was duly probated, in which it is provided, after certain bequests are paid, that—

“Should any property be returned by the United States Government or remuneration made therefor, ‘ I direct * * * the same be invested by my son Stuart as trustee for the benefit of my daughter Anne/

The claimant and said Stuart were appointed to execute the will, .but the latter refused to enter upon the execution of the trust. The estate is not settled, and but one-half of the legacy has been paid to Stuart Rhett. A suit is pending in this court by Stuart Rhett as trustee of Anne S. Elliott to enforce against the defendants the right of his cestui que trust.

The only contention is as to who shall recover, the defendants insisting that the claimant as executrix is the party entitled to the surplus of the sale.

We hold that the legal cause of action is in the claimant; and whatever equities there may be between the parties, they must be adjusted in a jurisdiction having control of the subject-matter of the controversy incident to the rights of the parties under the will of Mary W. Rhett.

It is therefore adjudged that the claimant recover from the defendants the sum of $1,393.26.  