Page:Federal Reporter, 1st Series, Volume 2.djvu/22

 BAILEY V. NEW YORK 8AVINGS BANK. 15 �person or persons, whether husband or wife, or otlierwîse, claiming the same fund, who are net parties to the action, the court in which such action is pending may, on the peti- tion of such savings bank, and upon eight days' notice to the plaintiff and such claimants, make an order amending the proceedings in said action by making such claimants parties defendant thereto; and the said court shall thereupon pro- ceed to hear and determine the rights and interests of the several parties to said action in and to said funds. The said funds or deposits which are the subject of the said action may remain with such savings bank, upon the same interest as other deposits of like amount, to the credit of the action, until final judgment therein, and the same shall be paid by such sa rings bank in accordance with the order of the court, or the deposit in oontroversy may be paid into court, to await the final determination of the action; and, when so paid into court, the corporation shall be stricken out as a party to such action, and its liability for such deposits shall cease. " �On a petition of the bank made under said statute, and on: due notice to the plaintiff and to Lewis H. Bailey, the state court made an order, on the tenth of November, 1879, order-' ing that "Lewis H. Bailey, as executer of the last will and testament of Benjamin Bailey, deceased," be made a party. defendant to the action, and that the pleadings and proeeed-. ings be amended accordingly, and giving leave to Lewis H.. Bailey, "as such executor," to answer the complaint, and ordering "that the court will thereupon proeeed to hear and determine the rights of the several parties to this action in and to the said fund or deposit." The order states that "Lewis H. Bailey appeared in court, on the application, by attorney," and "requested to be made a party defendant in this action," and that the counsel for the bank and the coun- sel for Lewis H. Bailey were heard in favor of the application,, and the counsel for the plaintiff in opposition to it. �It appears by the petition that Benjamin Bailey left a wiU appointing bis brother, Lewis H. Bailey, hia sole executor; that proceedings for its probate were pending; that Lewis H, Bailey was one of the residuary legatees under it; that lettexs ����