Page:Federal Reporter, 1st Series, Volume 2.djvu/23

 16 FEDERAL REPORTEn. �testamentary had not been issued to Mm ; and he claimed, as executer, and as belonging to Baid estate, the same moneys which plaintifï claimed. The bank put in an answer, in the state court, to the complaint, on the eleventh of December, 1879, setting up that they could not ascertain which of the two claimants was entitled to the moneys, and averring its readiness to pay them to the person lawfully entitled to them, and asking for a stay of proceedings in the action until a legal representative of the estate of Benjamin Bailey shall be appointed and be made a party to the action; and that when ail the parties necessary to render the judgment of the court a protection to the bank should have been brought in, such parties might interplead and settle their rights araong them- selves, and the bank might pay the moneys into court to await the final determination of the action, and be stricken out as parties to the action, and the liability for the said moneys thereupon cease. �On the nineteenth of December, 1879, the state court, on the application of Lewis H. Bailey, and on notice to the plaintiff and against her opposition, made an order that the complaint be amended by inserting this allegation: "The plaintiff alleges, upon information and belief, that the de- fendant Lewis H. Bailey claims the several sums of money aforesaid, deposited with the said defendant, the New York Savings Bank, with the interest due thereon, as the executor of the last will and testament of Benjamin Bailey, deceased, and claims that said sums were the individual property of Baid Benjamin Bailey, deceased, in his life-time, and now, together with the interest due thereon, form and are a part of his Personal estate." The answer of the bank was to stand as its answer to the complaint as amended. Lewis H. Bailey put in an answer on the nineteenth of December, 1879, setting forth that the probate of the will was opposed ; that the moneys in the bank belonged to the estate ; and that, until the will should be admitted to probate, he, "as the exec- uter named thereîn, is chargedwith the duty of coUecting and proteoting the said deposits, anà preventiug any misap-/ plication theyeof." ����