Appeal from the Circuit Court of the United States for the Western Division of the Western District of Washington.

Suit by Harriet F. Speckart against Leopold F. Schmidt and others for an accounting. From a decree directing dismissal on terms, plaintiff appeals.

On February 15, 1893, Adolph Speckart died in Montana, leaving a will by which he devised and 'bequeathed to his wife, Henriette Speckart, and to his daughter, Hattie Francis Speckart, and to his son, Joseph Robert Speck-art. each an undivided one-third of all his property. It was provided in the will that all the revenues arising from the property so devised and bequeathed should go to the widow until the children should reach the age of majority as provided by the laws of Montana, “after which my said children shall have their said proportions absolutely, and I desire that my said wife shall take and receive all the revenues of the property of both my children here-inbefore bequeathed to them and each of them, and that my said wife shah-use and employ said revenues for the support and education of my said children before named.” The widow was appointed the executrix of the will with authority to sell and dispose of any or all of the property at such price and upon such terms as she might think for the best interests of herself and the children “with the advice and consent of Leopold Schmidt, who I desire shall advise and assist my wife in all matters pertaining to my estate.” The will gave to the executrix also power to lease, convey, or agree to convey any or all of the property, and to have absolute and complete control and disposition thereof, “with the advice and consent of said Leopold Schmidt, and shall convert the same into money and the proceeds thereof shall he given as hereinbefore set forlli t.o my said wife and children in equal proportions except that the revenues of said money or property belonging to my children shall he used by my said wife for the support and education of my children prior to their majority.” The will was admitted to probate in the district court of the Second judicial district of Montana, for Silver Bow county, and the property was appraised at $55,800. The executrix thereafter disposed of the estate, realizing therefrom about $1.10,000. In May, 1890, she went to Germany, taking her two children. There she remained with them until November 1, .1901, when slie and they returned to the United States. Sise bought, a home in San Diego, Cal., where she and her children lived until about May, 1906. Harriet F. Speckart, the appellant herein, came of pge on February 22, 1901. On September 28, 1907, she filed a MU in the Circuit Court of the United Stales for the Western District of Washington, Western Division, against the same parties who are the appellees herein, demanding an accounting, and the payment and delivery to her of her one-third share in the property of the Speckart esta1.fi, not waiving a verification to the answer. To that hill TIenrtette Speckart presented her verified answer, wherein was set forth her statement of the account between her and the ap-pellee.

Thereupon that suit was dismissed, and on February 4, 1908, the appellant filed a second bill, which was the beginning of the present suit, in which an answer under oath was waived, and, in substance, the following averments were presented: After setting forth the death of Adolph Speckart, the terms of his will, the probate thereof, and the disposition of the property, it was alleged that for many years prior to the death of said Adolph Speckart Leo polcl Schmidt, his associate in business and his brother-in-law, was upon the most intimate business and friendly relations with him, and that while on Ms deathbed said Speckart requested Schmidt to assist and advise Mrs. Speckart in tne management and settlement of the estate, and that Schmidt, promised that he would carry out said wishes and requests, and that he voluntarily accepted said trust; that thereby, as well as by virtue of the will, the control and management of the estate was vested in Schmidt and Hen-rietie Speckart. with all the duties and disqualifications Incident thereto; that in 1895 and 1896 the executrix filed accounts of her trust, but thereafter filed no accounts; that from July, 1898, until the latter part of the year 1901. she and the appellant resided in Germany; that while in Germany she disposed of the last item of the property of the estate, namely, Centennial Brewing Company stock, for $100.000; that the money so received by her from the estate she used and invested on her own account; that all the investments still stand in her name, and. none of them show or indicate that they are the investments of a trust fund or held in any fiduciary character. The bill specifies the stocks and property and notes so held, and proceeds to allege that Schmidt induced Mrs. Speckart to enter into an arrangement whereby the former was to use the funds of the estate in his business of managing brewing companies, and obtaining control over such companies, and thereby, in the use of said funds in such investments, he has gained large profits, the amount of which is unknown to the appellant, and one-tMrd of which she is entitled to receive upon an accounting. The appellant further averred that it was not until May, 1906, more than five years after she reached majority, that blie was Informed tliat ber father had left a will with some provisions in her behalf, that she then sought information from' her mother, and requested an accounting, which was refused. Mrs. Speckart in her answer denied these last-mentioned' allegations, and alleged that the appellant knew of her rights under the will prior to the date mentioned, but she admitted that the appellant had requested of her an accounting of the property of the estate belonging to her, and the payment of her share to her. Mrs. gpeclt-art did not allege that she had ever offered to account or had presented a statement of account of the estate, but she denied that she had refused to make such accounting or to deliver to the appellant her share in the property. Mrs. Speckart in her answer admitted that she had certain property, shades of stock, and money in her possession belonging to the appellant. Upon that admission, the appellant’s counsel on July 20, 1909. obtained an order of the court requiring that Mrs. Speckart deposit in the registry of the court all moneys and other property capable of delivery, which she admitted to belong to the appellant. She thereupon surrendered to the clerk of the court certain shares of stock, and paid into the registry of the court $67,535.74, but in the memorandum of deposit she denied that the appellant was entitled to receive the whole of said money, or more thereof than $46,574.94 as of February 22, 1901, together with such sums as had been actually earned by investment, thereafter to be discovered and ascertained, and she claimed the right upon the final decree to have returned to her from the deposit so made such sum as should be found to he in excess t>f the amount payable to the appellant. On September 13, 1909, on the stipulation of the solicitors for the respective ixarties that the appellant was entitled to receive $50,000 of said fund, that sum was paid to her, and thereafter the further sum of $6,000 was paid to her upon a similar stipulation.

Upon the issues and the testimony, the court below made no specific findings of fact, but in an opinion on the merits held that the harsh accusations of the bill were not only not sustained by the evidence, but that the contrary was established affirmatively, and observed: “From the evidence it appears that the complainant is not heartless, nor avaricious, and that her unnatural conduct in prosecuting this suit is actuated by the baneful influence of a meddlesome person who dominates her by the exertion of a mysterious psychological power. The complainant is not the real litigant in this case, but is a mere tool of one who has no rights as against any of the defendants, and for that reason the court finds that there is no equity in the bill. Part of the funds belonging to the estate have been deposited in the registry of the court, and it will be necessary to retain jurisdiction of the case until proper disposition thereof can be made. After subsidiary questions shall have been disposed of, a final decree will be entered dismissing the suit, at the complainant’s costs.”