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

Suit in equity by William C. Osborne, Eliza A. Elza, Louis D. Osborne, Louis B. Osborne, Charles E. Osborne, Clarence Osborne, Hester E. Hoag, Mary E. Davenport, Alfred W. Doty, Horace O. Doty, Susie Osborne, Mrs. Henry Burtis, Mrs. James Webb, Rufus E. Osborne, S. Wallace Osborne, William E. Osborne, Elida B. Rundle, Theodore S. Osborne, by his conservator, S. Wallace Osborne, Edith Bailey, Ella A. Hanford, Emma C. Osborne, Maggie I. Sparks, Robert E. Osborne, Minnie E. Heggeman, George I. Osborne, Mrs. Louis D. King, Anna E. Doty, Laura A. Doty, Frank L. Doty, and Howard W. Doty, against Claude C. Ramsay, Eben S. Osborne, and Charles E. Munday, as executors and trustees of the estate of James Osborne, deceased, and the City of Seattle. Decree for defendants, and complainants appeal.

This is the second appeal. When the case was first here, the decision of the court was against the appellants. 167 Fed. 894, 93 C. C. A. 294. But, upon their petition praying leave to file a bill of review on the ground of newly discovered evidence, a dismissal was ordered without prejudice. The bill of complaint in the present case is practically the same as in the first, the only material change consisting of an additional allegation contained In the seventh paragraph, to the effect that the first wife of the father of James Osborne died about 1824 to 1820, that the father subsequently married one Euphemia Rockwell, of Ridgefield,.Conn., and that said James Osborne was the offspring of the union. Upon stipulation of counsel, the testimony of the former case was introduced in this in toto. and other testimony was taken. Briefly, the proofs, so far as they have material bearing, are in effect as follows:

Abraham P. Osborne, sometimes spoken of as Abram, but generally as Abraham. dropping the initial P., left four sons, namely, Lewis K., Solomon E., Clark II., and Horace, and one daughter, Caroline, who married Walter Doty. These children were the offspring of a marriage with Electa Uiekock. The sons, after ihe death of Abraham's wife, went to live with’ their uncle, Northrop Osborne, a brother of 'Abraham, in North Salem, N. Y., which is 40 to 50 miles distant from Morrisania, in the same state. They continued to reside with their uncle until of age. All of them learned the mason’s trade. The daughter lived with her aunt in New York City. Lewis K. Osborne resided at Tremont, N. Y., from 1849 to 1859, for 12 years at Danbury, Conn., for a time at Pelham. N. Y., and died at Tremont in 1890, at the age of 84 years. Solomon E. lived in East Norwalk, Conn., and died in 1901, at the age of 87 .years. Horace died in North Salem, Westchester county. N. Y. Clark II. was born in 1819, lived in East Norwalk, Conn., and died there in 1895. Caroline died in East Norwalk also, 35 or 40 years prior to 1900.

S. Wallace Osborne, a son of Solomon E., says, from having heard his father and uncle Lewis talk, that he thinks the reason the hoys went to live with their uncle Northrop was that his grandfather got married again: that the offspring of the marriage was a boy named James; that he (witness) was probably 10 or 15 years of age when he heard these declarations. Witness being of the age of 53 when his testimony was taken would put the time of Ms hearing the declarations in about the years 1863 to 1868. Witness also heard ids father and uncle speak of the boy going to sea; they did not know of their own knowledge that he went to sea, but that was their belief.

Emma C. Osborne, a daughter of Clark II., testifies that she remembers hearing her father tell of his dying mother lifting him up on her bed and saying, “Clarlde, I wish I could take you with me”; that her father told her that his stepmother sent for him when dying, lmt lie would not go; that her father was very young at that time, it being before he was married; and that she never heard her father speak of James Osborne in any way.

Annie Doty, aged 71. the daughter-in-law of Caroline, residing at Mast Nor-walk, Conn., testifies that Caroline Doty and her husband lived with her and her husband about four years, and that in conversation with Caroline she always understood Caroline’s father was married again, and laid a family, but that she never heard her say of what the family consisted: that Caroline had very little respect for her father; and that after the death of her mother she never lived with her father any more, but lived with her aunt in New York City.

Mrs. Miranda AI. Osborne, wife of witness S. Wallace Osborne, testifies that she heard conversations between her husband's father, Solomon M. Osborne, his uncle Lewis K., and William O. Osborne, a son of Lewis K., from which she gathered the information or impression that her husband’s grandfather was married a second time and that a son was born of the marriage; that he disagreed with his father, and ran away and went to sera; and that his father was ‘‘wild, intemperate, and all that was evil.” None of the persons engaging in the conversations alluded to by witness were speaking from any personal knowledge, but only from' hearsay; the witness saying, in effect., that they simply talked and believed what they said, hut did not pretend to know themselves personally. Witness further was of the impression that Lewis K. was the only son that saw his father after they went to their uncle Northrop's to live, and she did not know whether Lewis K. ever saw the stepmother or the child of the second marriage.

Mrs. Henry T. Burtis, residing at West Norwalk, Conn., the great-granddaughter of Abraham, testified that she had always heard, through members of the family that Abraham married again after the death of her father’s grandmother, that there was a boy born to the marriage, and that his name was James.

Mrs. Elbert Brinckerhoff testifies that her mother married James H. Osborne, a grandson of Abraham; that she has heard her mother and Rosalinda Osborne, the wife of Northrop, converse concerning Abraham, and heard Rosalinda say that there was another child, and she, speaking confidentially to her mother’s mother, wanted to know how he was situated; she had heard that he went west, and, if witness’ mother knew where he was, she would like to know whether he was doing well.

Mrs. Dena Osborne, the wife of Wm. B. Osborne, a son of Solomon E., living at Brooklyn, N. Y., testifies that she has heard conversations between Solomon E. and Lewis K. Osborne, in which Father Osborne said that his father was married a second time, that , there was a son of the marriage, and that his name was James.

William E. Osborne, son of Solomon E., testifies that he has heard his father say that the latter’s father married again; that he has heard his uncle Lewis discuss the matter; that he (witness) was a small boy going to school at the time; that he further heard them talk of a boy that was born, whose name was James; and that witness’ father at one. time told about the boyhood of James, how the boys used to tease him, until finally he went away, being about 16 or 17 years old; and that nothing was heard from him.

Horace O. Doty, a son of Caroline, relates that he never heard his mother mention her father’s name.

James R. Gray, aged 69, testifies: That he formerly lived at Morrisania, now known as Tremont, N. X. That he knew Lewis K. Osborne, and once lived in his house. Both were members of the Methodist Church. That, if his memory serves him right, Lewis *K. had a brother residing in Morrisania between the years 1850 and 1860, by the name of James Osborne. That Lewis K. said he was much annoyed by his brother’s actions — that the latter did not care for church, that he would usually go from one beer saloon to another, and that one could almost always find him in a saloon or a cigar store. That James Osborne left Tremont, and went off on a voyage, and that witness has never seen him since that time. On cross-examination, when asked if he had ever seen the boy, he answered that he might have seen him, but, not having been introduced to him, he would hardly know him if he saw him. And, as to his going to sea, witness only knows what he was told — a sort of general impression that he went a number of times to sea. Witness knew his brother, with whom he was very intimate, and it was through him that he heard of the boy James.

William caul dwell, aged 77, testifies: That he lived in Morrisania from 1849 to 1891. That he knew Lewis K. Osborne, who resided in Tremont, adjoining Morrisania, and that a relative of his lived right at the back door of witness’ father’s property, but that he could not tell who the relative was. That he knew another relative of his, a James Osborne, who he thought was a half-brother, but that they were not good friends. That along about 1852 the brother went away from Morrisania for the purpose, as Lewis K. told him, of pursuing a seafaring life. That he returned in about 1857, and came over and congratulated him (witness) on being elected supervisor of the town. That he told witness he was going away again; he thought he would go to California; that he was not on good terms with Ms half-brother; and it was unpleasant for him to be around. That witness got a letter from him in 1859, in which he said he was expecting to go north, with some cronies, to Puget Sound, to some such a place as Gamble; the name, being peculiar, impressed itself upon the mind of witness, The letter was written from Sacramento or San Francisco. On cross-examination, he relates that he did not know where James came from, that he did not know his father or mother, but that there was an Osborne living opposite to where witness lived, who, he presumed, was his father, because the boys Lewis and James were around there; that he thought James lived there because he saw him about 1 hero more frequently than Lewis; that witness never talked with James Osborne much, only that he would just come over and say, “How do you do?” and then go on.

Harry Neggesmith, a detective, relates that he.is acquainted with the older inhabitants of Morrisania ; that he had been doing some professional work for the complainants, and visited 200 or .300 who had lived in Morrisania for years; that from 350 to 200 old-timers wore yet living in the immediate vicinity who were living there between 3850 and 3800; that lie found two men who recollected James Osborne, namely, Gray and Cauldwcll, and a few others recalled that Lewis K. Osborne had a brother, and heard him speak of his brother; and that those old people were very misty about their recollection of the Osbornes. The only other thing he found that would seem to identify James Osborne was that the custom house record showed that a man by that name had shipped for a voyage.

Lyman B. Andrews, residence Seattle, Wash., testifies that ho was acquainted with James Osborne, first meeting him in 1863 or 1864; that he conversed with Osborne, who told him he resided, before coming west, near the city of New York, in Westchester county, in the locality of the Bronx, but whether he stated he lived at the Bronx witness could not say; that Osborne said his mother had died when he was quite a lad, well along in the teens, and that his father was then living; that he (Osborne) did not do well in getting ahead, and went to sea, going to Havre, France; that he was away three or four years, perhaps longer, and when he returned he found his father dead; that he did not remain long at his old home, perhaps three or four months, and then left for a trip around Cape Horn, landing in .San Francisco, and afterwards coming on to Puget Sound; that he came directly to Port Gamble, which was in about 1859; that he resided at Port Gamble four or five years, and then came on tf> Seattle; that according to witness’ recollection Osborne said he had some half-brothers, but did not say much about them, only that his relationship with his half-brothers was not very pleasant.

Winfield S. Jameson, of Seattle, thinks he heard Osborne say ho came from Westchester county, the iown of Morrisania ; that he spoke of having gone to sea on a voyage, to Havre, France, and having returned from France; that he conveyed the impression that he had no use for his relativos; that he came around the Horn to San Francisco, then to Puget Sound, in a sailing vessel.

A letter was introduced in evidence, dated at Mobile, August 8, 1835, which bears the indorsement, “Copy of a letter written to my father residing in St. Louis, Missouri.'’ It is signed. “Lewis K. _Osborne.” The letter is set out in the former opinion rendered in this cause, with the omission of a porl ion deemed unimportant.

This is the evidence given at the former trial. The following is a brief rñsumé of that adduced in addition at the second trial:

The name Abraham P. Osborne, shoemaker, at Market and Water streets, appears in the New York City Directory (Longworth’s), 1820, 1821, 3822-23, and Abraham Osborne, cord-wainer, Eldridge street, New York, 1826-27 and 3.827-28. Tho name Lewis K. Osborne, mason, 172 Orchard, appears also in the same directory, running in date in 1836-37 to 1842-43, and in a directory published by John Doggett from the latter date down to 1850 -51. In a book entitled “Simon Lobdell, 1646, of Milford, Connecticut, and his descendants'’ is found this entry: “A. 21. III. Abigail Frances, b. 5 Jan. 1820, I). 20 Sept. 1887, at Norwalk, Conn., m. 20 Nov. 3841, North Salem, Clark ILickock Osborn, b. 8 March 1819, In New York City, d. 2 Jan. 1895, at Nor-walk. Was son of Abram Purdy Osborn and Electa Ilickock, his wife. The family were all Episcopalians.”

In another book entitled “A Genealogy of the Families of John Rockwell, of Stamford, Conn., 1611, and Ralph Keeler, of Hartford, Conn., 1639,” is found this entry:

•‘Thomas Rockwell, born South Salem Nov. 23, 1774; married July 20, 3 795, Deborah Townsend. They lived in South Saleta. They had one daughter, Permelia, who was a teacher in Brooklyn, but could not be found. He died at South Salem about 1834-5.”

Charles W. Tarbox, aged 60, residence New York City, 1877 Washington avenue, a real estate expert; testifies that he was acquainted with one Lewis K. Osborne from 1851 or 1S52 to 1860, who lived in Morrisania or Tremont, or one of the local names included in the Bronx; that he lived on what is now Tremont avenue: that witness knew him from the time he (witness) was about the age of four, because he was a frequent visitor at witness’ father’s house; that he was a builder; and that witness knew of no other person by that name in that vicinity; but that he knew a William Osborne, who had a family, and who was no relation to Lewis K. ;■ also, a John Osborne, who lives in Tremont now.

Angeline A.. Brown, aged 59, East Norwalk. Conn., testifies: That her mother’s name was Besty Ann Hickock, who was a niece of Electa Hickock. That Electa married Abraham P. Osborne. This she heard her mother say, also her two aunts. That she had heard them talk about it a good many times. That her grandaunt Electa is dead, and that she heard her mother say that Abraham married again after the death of her grandaunt. That she also heard this discussed by her aunts; they being Miss Sarah Penning, of Danbury, and Mrs. Warren, of Norwalk. That Abraham married Euphemia Rockwell. That witness’ mother always said her name was Euphemia, but that they called.her Phemy for short, and that witness could not recall where Phemy Rockwell was from. That Abraham was a shoemaker, but that she did not know where he lived. Witness further testifies that she thinks her aunts knew Abraham personally, and that she has heard her mother say that she knew him, which was at Ridgebury or Ridgefield. Witness has no recollection of hearing Euphemia Rockwell’s relationship discussed in any way.

Matilda A. Warren, 41 Van Zandt street, East Norwalk, aged 68, testifies: That her maiden name was Hickock: that she is a sister of Mrs. Brown, and that Electa Hickock was her father’s sister, but that witness never saw her. That, from conversation with her father’s family, she learned that Electa married Abraham P. Osborne. That her father, mother, and aunts have always talked about that. Prom the same source she learned that Electa is dead, having died before the witness was born. That from the same source she heard that Abraham married again, but not right away, and that he married Phemy Rockwell, of Ridgebury, Conn.; Thomas Rockwell being her father. That witness’ father, mother, and aunts personally knew of the second marriage. That Abraham was a shoemaker, and that her father was in business with him for about five years in New York. That Phemy Rockwell lived in Ridgebury until Abraham came and took her down to New York to work for him. That this was before the death of his first wife, and Phemy worked for and took care of his first wife while she was sick. That at that time fitness’ father was in business with Abraham. That it was when 'her oldest sister was five years old they dissolved, and her sister is now 89, which would make it in 1825. That Abraham was a very hard drinker. That he knocked witness’ father down once, and that broke the partnership, and that Abraham was always rather a dissolute character. That after the partnership was dissolved Abraham lived in New York about two years, then went away, and nobody ever heard of him afterwards. That she was told he went west. That neither witness’ father nor her aunts were at the wedding, nor did they claim to have had personal knowledge from having witnessed it. That her aunts all knew Euphemia in Ridgebury. That Euphemia took care of Abraham’s wife for a year before she died. That Euphemia did not return from New York, but remained at the house of Abraham after his wife’s death, and that there was quite a scandal about it. It was then that the children were taken by Northrop Osborne to North Salem.

L. B. Andrews, recalled, further testified that James Osborne once said to him that his (Osborne’s) father was a shoemaker.