Page:Federal Reporter, 1st Series, Volume 8.djvu/656

643 FIIDJEBAIi BKPOByBE., �semi-annually. This is distincjly alleged in the bill, and as distinctly admitted in the answer.; -Œt/iB trae that;tiie answer contains an aver- ment that, by, the , ternis of ,tiie will, after the lapge successively of the life estates of complainant and Caroline M., his wife, in the trust property, Buchiipropertyiwilldes.cend to respondent and.his'heirs iri fee-simple forever, discharged of the trust; but this allegation is immaterial, since we are now asked to dcal yfitla the income of the trust fund only during the natural life of the complainant. Nor does the fact that there is a general deniai of the allegations of the answer by complainant's replication deprive him of. the benefits of the admissions cdhtiained in the answer. �The purpose of the general replic'iation is to put in issue any new matter set forth in the answer, It does not nullify the effect of an admission in the answer of an allegation of the bill. While it would have been proper for complainant to have produced the will in evi- dence, and we think it would have been better if he had done so, we are constrained to hold that respondent is bound by the-admissions of his answer, and that they are broad enough to relieve complainant fjrom the neoessity of producing the will itself. �2. We are of the opinion that the proof sufficiently shows that re- spondent John S. Cavender, as executor of the will of John Cavender deceased, stood charged, in his ofScial capacity, in the sum of |17,- 169.40, which sum^ on- the twenty-third of April, 1879, he turned over to himself as trustee for the complainant under said will, and executed a receipt therefor from himself as trustee to himself as ex- ecutor; that upon filing said receipt in the probate court of the city of St. Louis, and upon giving bond and security approved by said court for the faithful administration of said. trust fund, he was by the said probate court, onthe thirtieth day of April; 1879, discharged as executor, and stood charged for that amount as trustee. Ail these facts appear in the certified transcript of proceedings of said probate court, including a certified copy of the said receipt, bond, and dis- charge, and by the deposition of; McEntire, the deputy clerk. of said court, who testified that said papers are true copies of the originals on file and of entries made upon the record of said probate court. �There is ho' testimony tending to show that the said final receipt and bond were not in fact executed by respondent, nor that the tran- script is not a true copy of the original record and of the papers filed in the course of the proceedings in the probate court. �The proof before us, if not oonclusive, is certainly pnnia /acie evi- dence of the facts relied upon by the complainant. ��� �