Opinion of the Court. to erect public buildings" no vote of the people was necessary, is based in part upon the fact that the board of supervisors has sole power to pass upon claims against the county. This, it is said, is in direct conflict with the recent decision of the Supreme Court of Michigan in Board of Supervisors of Dickinson County v. Warren, 98 Michigan, 144. In passing, we observe that the petitioner's statement of our own opinion is rather broader than our language warrants, but if it be restricted to the proposition that, in the exercise of the authority conferred by the act of 1875 upon the board of supervisors to issue the new bonds, it was by necessary implication empowered to determine the validity of the refunded debt, we accept it as correct. In We have attentively examined the late decision of the Supreme Court of Michigan above referred to, but are quite unable to find in it the alleged conflict with our own. that case the court was asked to compel by mandamus the chairman of the board of supervisors to issue bonds to the amount of $30,000, to raise money for the support of the poor of the county, which bonds had been voted by the board without a popular vote. The object for which the money was to be raised on the bonds was one involved in and covered by the current expenses of the county. There was not, as here, any special act of the legislature authorizing such action of the board as had been taken, and the question of its authority depended upon the construction of the general statute which confers its powers. Judge McGrath, delivering the opinion of the court, after analyzing the subdivisions of the section of the statute which authorize the expenditure of county funds by the board for various purposes, and prescribe the means by which such funds may be raised, whether by borrowing or by taxation, points out that by subdivision 10, section 483, of Howell's Annotated Statutes of Michigan, provision is expressly made for the raising of money for the current and contingent expenses of the county, and it was held that, as this subdivision had no meaning or effect, unless it was construed as contemplating the raising of money for that particular class of expenses by tax only, it must be construed as Opinion of the Court. having that effect, and to exclude the power to raise money for current expenses by borrowing, which for other purposes. was conferred by other provisions in the section, and the mandamus was therefore denied. No question of the kind involved in this ground for a rehearing was involved in or decided in that case. To the further suggestion that it would follow from the decision delivered by this court that the board of supervisors might audit fraudulent claims and issue bonds for them and the county be remediless it may be answered that responsibility of this kind must be devolved upon somebody, and it would seem that the interests of the county would be as likely to be safely guarded by its own representatives as by any other protection. Lastly. It is claimed that the court made a mistake in remitting to the Circuit Court the question whether the suit was collusively brought, and it is alleged that our action is in conflict with the decisions of the Supreme Court of the United States, and the same cases in the reports of that court are cited in support of this contention as were discussed in the brief and argument upon the former hearing. We have carefully considered them, and do not think it probable that any new light would be afforded by further discussion. It may be proper to add a few words to what we said upon this subject. We indicated our opinion to be that the duty of passing upon a question of this sort was devolved by the statute in the first instance upon the trial court, but that nevertheless the appellate court in a clear case would take notice of the fact, and would remand the case with directions to dismiss it. But the court would deal with such a question as it does on writ of error with any other question of fact; that is to say, proof of the fact must be clear and unequivocal in order to justify the court upon a writ of error in assuming the fact to be so. Such was the case in every instance which has been brought to our attention. It either appeared from the record itself or was conclusively shown by the proof brought up in the bill of exceptions. In this case, as is implied from our opinion, we did not think the proof so clear as to justify such action in the appellate court. The court below, when the question was before Syllabus. it upon the trial, failed to pass upon it expressly. As we were constrained to order a new trial upon the merits, and the question would be in its former position, where it could be dealt with in the court where questions of fact which are fairly controvertible are properly to be determined, we remitted the whole case to be tried and determined de novo. Upon reflection we are satisfied that this was correct. We think the petition for a rehearing should be Denied. HANNA'S EXECUTOR v. RAYNOLDS (2). RAYNOLDS v. HANNA'S EXECUTOR (2). APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DIVISION OF THE NORTHERN DISTRICT OF OHIO. - No. 110. Submitted December 4, 1893. — Decided February 5, 1894. The rulings of this court in Hanna's Executor v. Raynolds (1) and Raynolds v. Hanna's Executor (1), ante, p. 679, adhered to, and an application for a rehearing denied, this court in denying such application holding as follows: (1) That section 5464 of the Revised Statutes of Ohio has no application to a trust created by a will where the beneficiary has no right to demand any distributive part of the income, and under which the trustee is to apply and personally expend the income for the maintenance and support of a cestui que trust, who is a debtor, as one of a family collectively to be maintained; (2) that said statute is not to be construed as relating to or dealing with the substantive laws of property, and is to be regarded as extending the remedy of creditors to property and property interests not subject to seizure or execution at common law on account of the narrowness of the common-law writ; (3) that the interest which C., the cestui que trust, had in the trust under the will of H. is not one which can be reached and subjected by a creditor of C., either at law or in equity; (4) that a fair and rational interpretation of item 8 of the will of H., so far as it refers to the duty of investment by the executor, when construed in the light of the purpose of H., as manifested by surrounding circumstances, and in the light of the whole scope of the will, particularly item 2 of the codicil, was to make the investment of surplus income a matter of discretion not to be controlled by the court; and (5) that under the will the income that remained at the end of each year un Opinion of the Court. expended was not required to be invested for the benefit of C., and that such surplus is not the property of C. and is not subject to his creditors. In the Circuit Court of Appeals for the Sixth Circuit a rehearing will be denied as of course, unless a judge who concurred in the judgment desires it and the majority of the court so determines, as provided by Rule 29 of the rules of this court, and when such reargument is desired by the court it will be ordered without waiting for the application of counsel. Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge. On petition for a rehearing of Hanna's Executor v. Raynolds (1) and Raynolds v. Hanna's Executor (1), reported ante, p. 679. The grounds of the petition for a rehearing are fully set forth in the opinion of this court. Mr. Francis J. Wing and Mr. J. William Ball for petitioner, Raynolds. LURTON, Circuit Judge, delivered the opinion of the court. A petition for rehearing has been presented and fully considered. The points made are four in number: The first calls attention to section 5464 of the Revised Statutes of Ohio, and insists that under that section any interest of Cassius Hanna in the trust created by his father's will, though such an interest be nothing more than a support and maintenance, is subject to the demands of his creditors. That section is in these words: "When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in any banking, turnpike, bridge, or other joint stock company, or in any money contract, claim, or chose in action, due or to become due to him, or in any judgment or order, or any money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action." Revised Statutes of Ohio (1890), sec. 5464. Opinion of the Court. This statute was not deemed to have any application to a trust where the beneficiary had no right to demand any distributive part of the income, and under which the trustee was to apply and personally expend the income in the maintenance and support of the debtor as one of a family collectively to be maintained. The trustee in his discretion might pay over the income in whole or in part. That discretion could not be controlled. The trust, as we construed it, gave the trustee the right to refuse to Cassius a separate support, and it gave him the absolute and uncontrolled right to refuse to pay over a dollar of the income in money. If we were right in the construction we placed upon this trust, it is within the principle of Godden v. Crowhurst, 10 Sim. 648, 656; Holmes v. Penney, 3 K. & J. 90; Hill v. McRae, 27 Alabama, 175; Hall v. Williams, 120 Mass. 344; and Nichols, Assignee, v. Eaton, 91 U. S. 716. In Godden v. Crowhurst, supra, the Vice-Chancellor said, concerning a trust in this respect like the one under consideration: "Now there is nothing, in point of law, to invalidate such a gift, that I am aware of. It does not follow that anything was, of necessity, to be paid; but the property was to be applied; and there might have been a maintenance of the son, and of the wife and of the children, without their receiving any money at all. For instance, the trustees might take a house for their lodging, and they might give directions to tradesmen to supply the son and the wife and the children with all that was necessary for maintenance; and, therefore, my opinion is that I am not at liberty to take this as a mere gift for the benefit of the son, simply; but it is a gift for his benefit in the shape of maintenance and support of himself jointly with his wife and children. And, if that is the true construction of the gift in question, the result is that the assignees are not entitled to anything." The right to acquire and receive a support in kind, as one of a household or family, is not an interest which is capable of severance or valuation, and is not such an equitable estate or interest in property as can be subjected to the payment of a judgment. In no view of the Ohio statute can a creditor be benefited. But this Ohio statute ought not to be con |