Opinion of the Court. any such bonds is referred to the council. The old bonds, on the facts found by the Circuit Court, were at least colorable obligations. The council determined to issue new bonds to take up the old ones. It seems to me that under these circumstances it did not devolve upon the purchaser of the new bonds to look into the validity of the old bonds which had been refunded." Citing Town of Coloma v. Eaves, 92 U. S. 484, Hackett v. Ottawa, 99 U. S. 86, and Chaffee County v. Potter, 142 U. S. 355. In the present case the force of these suggestions is augmented by the fact that by an express provision of the constitution of Michigan boards of supervisors are empowered to adjust all claims against their respective counties, and from their decision there is no appeal. This jurisdiction is not exclusive, but, as against the county, any one having demands against it could obtain from the board a conclusive determination upon them. To require a purchaser of refunding bonds to scrutinize the successive issues in which the debt has been refunded to its root would seriously impair the market value of the bonds and thus work injuriously to the interests of the municipality issuing them. It is further objected that the act of 1885 did not authorize the issue of bonds negotiable in form, the contention being that that requires express authority, whereas this statute authorizes the issue of bonds, without more, and the cases of Merrill v. Monticello, 138 U. S. 673, and Brenham v. German American Bank, 144 U. S. 173, are cited, in which it was held that a statute authorizing a municipality to borrow money did not by implication carry with that authority the power to issue negotiable bonds. In the present case the power is given to issue bonds running for a long period of time and bearing interest, and it appears on the face of the act that the bonds might be put upon the market and sold. We cannot doubt that negotiable bonds were intended. The same question was made in the Cadillac case above referred to, and it was held by this court, upon a statute of like kind, though not quite so clear in its implication, that the power to issue bonds must be taken to authorize bonds in the usual form of such well-known com Opinion of the Court. mercial obligations, and that the doctrine of Brenham v. German American Bank did not apply. The act of 1885 is also attacked upon the ground that it is unconstitutional in that it attempts to confer special powers upon the board of supervisors of a single county, and also because it authorizes it to borrow more than $1000 in a year for constructing public buildings without a vote of the people. As to the first ground of objection, we find nothing in the constitution of the State which clearly, or by any necessary implication, limits the power of the legislature in the manner supposed; therefore, by a familiar rule on this subject, we cannot upon that ground hold the act invalid. The cases in Wisconsin, State ex rel. Peck v. Riordan, 24 Wisconsin, 484, and State ex rel. Keenan v. Supervisors of Milwaukee County, 25 Wisconsin, 339, were decided upon the special provision of the constitution of that State requiring a uniform system of local government, and have no application. And in regard to the second, the bonds were issued to refund a debt, and not to raise money to erect public buildings. The purchaser, as we have already held, was not bound, in the face of the recitals borne by the bonds, to go back and trace the indebtedness refunded. We do not find it necessary to decide whether the judg ments upon some of the first issue of bonds rendered by the Circuit Court of the United States created an estoppel against the county of Presque Isle, precluding it from denying the validity of the other bonds of that issue, nor is it necessary to express any opinion upon the contention of counsel for defendant that the plaintiff, having taken the bonds and coupons in suit after their maturity, is, notwithstanding the fact that he derived them through one who was a bona fide holder for value and without notice, exposed to the assertion of any equities which the county had in reference to the bonds, for we conclude that it had none to assert. There are a number of assignments of error relating to the admission and rejection of testimony, but as they are not likely to arise upon a new trial we think it best to pass them. Another matter requiring attention is presented by the evi Opinion of the Court. dence recited in the bill of exceptions which was introduced by the parties upon the subject of the bona fides of the transfer of the bonds in suit as affecting the jurisdiction of the court. No issue of any sort was framed in the court below on the subject, but a question arose for the action of the court under section 5 of the judiciary act of March 3, 1875, 18 Stat. 470, 472, c. 137, which requires the court on its own motion to dismiss the action if it shall appear at any time that it has been collusively brought. The Circuit Court declined to make any express decision of the question, but it must be deemed in legal effect to have negatived the suggestion of collusion, otherwise it could not properly have gone on in the exercise of the jurisdiction to the taking of the verdict and the rendition of the judgment. It is clear that such a question is an independent one and cannot properly be confused with the issue on the merits; otherwise it could not be determined from the verdict whether it was founded on a question of jurisdiction or of the cause of action. It was not a question for the jury as the pleadings stood, but was one which the court was bound to decide before submitting the case upon its merits. On the face of the record the court had jurisdiction, and the question may not arise upon another trial. It would seem that, in a case of fair doubt, the question was one for the trial court, though undoubtedly the Court of Appeals could and would deal with it, if the fault clearly appeared. In the present case upon reversing the judgment we shall direct the Circuit Court to permit, in its discretion, an amendment of the pleading of the defendant by appending to the plea a plea in abatement, in accordance with the rules of practice of the circuit courts of the State, of the matter touching the jurisdiction, whereon a separate verdict can be taken, or, if it should be deemed best, to leave the question for its own disposition under the act of 1875. The judgment must be Reversed and the case remanded to the court below, with directions to award a new trial, and for further proceedings in conformity with this opinion. Syllabus. HANNA'S EXECUTOR v. RAYNOLDS (1). RAYNOLDS v. HANNA'S EXECUTOR (1). APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DIVISION OF THE NORTHERN DISTRICT OF OHIO. No. 110. Argued June 19, 1893. - Decided December 24, 1893. For the purpose of ascertaining the intention of a testator the interpreter of his will may place himself in the position occupied by the testator when he made the will, and from that standpoint discover what was his intention, taking into consideration the attending circumstances which may have influenced the testator in making the will. A trust for the maintenance of a number of persons as a family is valid, and no one of the beneficiaries has a separable interest. . H. by his will after certain other provisions made a devise to his executor in trust, providing among other things as follows: "Item 8. . . . I desire the remainder of the yearly income or increase of my estate, that shall be collected or received, to be divided into two equal parts; one part to be expended by my said executor for the benefit of my son, C., and his family, so long as he, C., shall live; or, in case my said executor deem it proper and best, but in no event otherwise, he may pay the whole or any part of such portion of the yearly net income of my estate . . to my son, C., in cash; and in the expenditure of income for the benefit of my son, C., and his family, as well as for the children of my daughter, A., I desire my executor to have in view the maintenance and education of my grandchildren on a scale comporting with their condition and rank in life, and if, in the judgment of my said executor, the net annual income of my estate, as above described, cannot all be properly and judiciously expended or advanced to C. and his family, and to the children of A., as hereinbefore described, I authorize and direct my executor to invest such surplus as may remain, after what he deems a reasonable expenditure has been made for the benefit of the child or grandchild who would be entitled to it under the foregoing plan of distribution." By item 9 of the will the executor was directed to continue to control and manage the estate and distribute the income as before directed until the youngest child of A. then living should come of age, when he was directed to divide and distribute the whole of the estate among the grandchildren of the testator, share and share alike, with power to the executor to postpone this division if, in his opinion, the welfare of his son, C., or of his grandchildren, should be thereby promoted, until such time as he should think prudent, but in no event until then. A provision in a codicil to the will was as follows: "In order to Syllabus. 6 settle definitely and make forever free from dispute that portion of item eight (8) of my said last will, which relates to the division and distribution of the annual net income of my estate, I hereby declare it to be [my] wish and will, and I do hereby accordingly direct that the one-half of said yearly net income which is to be expended for the benefit of my son, C., and his family, is to be so expended for his benefit only until the time arrives for the final distribution of my estate which shall be made under the provisions of said will, and to this extent are the words in said will directing said portion of income to be expended for his benefit, so long as he, C., shall live,' to be modified and controlled; also that the one-half of the said annual income which is to be expended for the benefit of C., as aforesaid, shall, until expended or otherwise disposed of, as provided in said item, be held and kept by my said executor in his possession in trust, to the end that the same may be applied as my said executor shall deem best, and not otherwise for the benefit of my son, C., and his family. Also, that any portion of said share of income which may be invested for the benefit of C., shall likewise be held and kept in his own possession in trust by my said executor, the same to be expended for C.'s benefit or paid to him at such time and in such amounts as he, my said executor, may deem best, and not otherwise." A judgment creditor of C. sought to subject the interest of C. under the will to the payment of his judgment. Held, (1) That C. had no interest in the corpus of the estate; (2) that whatever interest C. had in the estate of H. was limited to one-half of the income of the fund devised to the executor; (3) that the bequest was not a bequest to C. for the benefit of his family, or to him as a parent for the purpose of educating and maintaining his children; (4) that C. and his family were distinctly made the beneficiaries as to one-half of the income of H.'s estate under the will, and that the family of C. were express objects of the testator's bounty and had the same interest in the income that C. had; (5) that in view of the fact that the will provided that the income was not to be paid into the hands of C., save in the absolute discretion of the trustee, but was to be expended by the trustee, and was not to be expended on C., or for his exclusive benefit, but for the benefit of C. and his family, coupled with the consideration that the children of the family should be educated and maintained on a scale comporting with their condition and rank in life," and taking into consideration the circumstances under which the will was made, H. meant, by the requirement that the income should be expended for the benefit of C. and the family of C, that the expenditure should be for the support and maintenance of that family as a family, and the support and maintenance of C. as a member of that family; (6) that under the will the executor could use his reasonable discretion as to whether the whole of the income should be annually expended; (7) that, if the executor did not deem it judicious to expend the whole of the income, he might retain in trust such surplus as unexpended income to be used afterward by him as income for the maintenance and support of C. and his family; (8) that in his discretion the executor might invest |