amended petition sets forth a copy of the paper writing, which is in words and figures as follows: "I hereby certify to have received of Mr. Dan Deiss, as a loan for three months, $500. "EMILLIE ORLOPP, "OSCAR ORLOPP. "COLUMBUS, OHIO, August 12, 1872." On January 9, 1902, order of attachment and garnishment was served upon Charles W. Haldy, administrator of the estate of Odo Orlopp, deceased, by handing him personally a certified copy of same. Publication of the proceedings was made as provided by law. On March 14, 1902, the plaintiff in error filed a motion asking that said attachment be discharged for the several reasons set forth in said motion, appearing for the purpose only of making said motion, and without any intention of entering his appearance for any other purpose, or submitting to the jurisdiction of said court over his person. This motion was overruled, to which an exception was taken by plaintiff in error, to which action of the court, in overruling said motion, plaintiff prosecutes error to this court. A bill of exceptions was taken, bringing upon the record all of the testimony produced upon the hearing of said motion. The garnishee made answer in the case March 18, 1902, and it shows that there will be in his hands about the sum of $1,500 coming to plaintiff on his legacy. Whilst the motion sets forth several grounds and the same grounds in several different forms, there are but three insisted upon by plaintiff in error, in his brief. Counsel for plaintiff contends first, that the affidavit is insufficient in law to maintain an attachment because of the difference between the date of the instrument sued upon, as set forth in the original and amended petitions, and therefore a different date from which to compute interest; in other words, the attachment being issued upon the affidavit filed with the original petition setting forth a different date from that appearing in the amended petition, and a different date from which interest should be computed, the nature of the claim was not set forth in the affidavit. The statute requiring the nature of the claim Orlopp v. Schueller, Administrator. [Vol. IV, N. S. to be set forth in the affidavit is for the purpose of determining whether it is of such a character as entitles the party to an attachment. In an action upon a promissory note, a party may have an attachment if any of the statutory grounds upon which it may be issued exists. The date of the instrument does not determine its character. The instrument set forth in the amended petition is substantially in form the same as referred to in the original petition. It is evidently the same debt, and in form and substance it is a joint and several promissory note, and upon which either a joint or several action may be maintained. The affidavit, therefore, we think good. Second. Counsel for plaintiff in error contend that a legacy, the amount of which has not been fully determined by a final account of an executor or administrator, can not be attached. Under this contention he claims that no legacy can be attached and the executor or administrator garnisheed. In support of this claim he cites a number of authorities. We are of the opinion that under Section 5531, Revised Statutes, an undetermined legacy in the hands of an administrator or executor may be garnisheed; that administrators and executors are included under the designation of "other" officers in the above section. When referred to in a number of authorities they are designated as officers of court. We refer specially to the case of Byers v. McAuley, 149 U. S., 608, 615, quoting: "An administrator appointed by a state court is an officer of that court; his possession of the decedent's property is a possession taken in obedience to the orders of that court; i' is in the possession of the court." Were it not for the section above referred to we would not be prepared to say that a legacy could be attached, especially if the amount of the legacy was undetermined. The answer of the garnishee shows that he will have, upon final settlement of the estate, about $1,500 to be applied to the legacy of plaintiff in error. We hold it is subject to attachment, citing in support of this holding, Stratton v. Ham, 8 Ind., 84, 85, and also Byers v. McAuley, supra, from which we quote "all reme dies to which parties may be entitled against officers, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court they may pursue." The process given parties by Section 5531, Revised Statutes, does not withdraw the property from the custody of the officer or the jurisdiction of the court, or in any wise interfere with the proceedings of the probate court in the settlement of an estate, but is a remedy providing what a creditor may have to subject to the payment of a claim against a debtor who, upon a final settlement of an estate, may be entitled to receive money or property as a legacy. Upon the remaining question, that the court lost jurisdiction over the property because upon the answer of the garnishee it made no order as provided by Section 5550, Revised Statutes, we are of the opinion that the above section does not apply, where property is garnisheed in the hands of any one of the officers designated in Section 5531, Revised Statutes. The service of process of garnishment upon an officer binds from date of service only such interest in the funds in his hands as may be determined as belonging to the debtor, by the court, under whose orders the officer holds such funds. The court issuing the order of attachment, has no power to order the funds taken from the custody of the court holding it. The order is limited to the amount that may be found coming to the legatee on distribution upon final settlement of the estate. Such order binds only such interest in the funds as may ultimately be found belonging to the debtor. The money being already in the custody of an officer who has given bond, the undertaking required by Section 5550, Revised Statutes, has no application. The court issuing the order of attachment is without authority to require any part of the property or money, held by an officer under process of the court whose officer he is, paid into court issuing the order of attachment until a final adjudication by the court having custody of the funds. No bond could be required of such officer because the extent of the debtor's interest can not be known until a final adjudication by the court having custody of the funds. The court below acquired no Trust Co. v. Savings Bank Co. et al. [Vol. IV, N. S. jurisdiction over the person of the plaintiff, but did acquire jurisdiction over a thing and did not lose it. We find no error of record prejudicial to plaintiff in error and the judgment is affirmed at costs of plaintiff in error. A. H. Johnson and Henry Elliston, for plaintiff in error. THE POWER TO MORTGAGE AND THE POWER TO SELL. [Circuit Court of Lucas County.] THE SECURITY TRUST CO. V. THE MERCHANTS & CLERKS' Decided, June 11, 1904. Securities Placed in Trust-For the Support and Education of Chil dren-Right to Sell Includes the Right to Mortgage-Trustees and Trust Estates-Guardians. K placed certain stock in trust for the support and education of his children, with the proviso that if the income therefrom should be insufficient the trustee should have the power to convert a few shares from time to time into money for the purposes designated in the trust. Held: That the power to sell included in this case the power to mortgage, and that it was incompetent, in a suit for recovery of the pledged stock from the bank making the loan, to introduce testimony tending to show that the contingency provided for under the trust had arisen, and that the bank acted prudently and in good faith and without collusion in making the loan, and that the trustee used his own good judgment honestly and fairly to meet the expenses of educating the children; and these facts having been established, a succeeding trustee can not recover the security from the bank except by tendering the amount due on the note. HAYNES, J.; HULL, J., and PARKER, J., concur. This case comes into this court by appeal, and has been heard upon the evidence. The case presents some questions of importance, although the amount in controversy is not very large. It has been very fully and ably urged by counsel on either side, and a very large number of authorities cited. In the opinion which we shall deliver in the case we shall be very brief in disposing of the questions, not attempting to discuss all questions raised in the case, but briefly to announce our conclusions. It appears that about the year 1892 George Dennison Keeler, a resident of this city, had been divorced from his wife. He had three children, two boys and one girl. The possession and custody of the girl had been delivered to the mother; the boys seemed to have fallen to the lot of the father. George D. Keeler was the son of Salmon H. Keeler, who had long resided in this county, and upon whose death a considerable estate had fallen to his children, George D. Keeler being entitled to and possessing his share. His financial circumstances, however, became such that he seems to have had some little doubt about his future, financially, and he on the 12th of May, 1892, executed a deed of trust to his brother, Arthur B. Keeler. George was possessed at that time of 150 shares of $100 each of stock of the Holcomb National Bank of the city of Toledo, and these he transferred to his brother in trust for the benefit of his three children, according to the terms of the instrument, which was quite lengthy and quite elaborate and full, 50 shares to be held for each child. It provided that the shares should be held until the youngest child became of age, and that the income of them should be applied for the education and support of the children, if necessary. So long as the daughter resided with the mother, the whole income went to the support of the two boys. It provides that the stock should not be sold, except under certain circumstances. The whole scope and purpose of the trust was to set aside this property to the children, and preserve it as far as possible for them until the youngest should become of age. Among other things it provided: "Should my own financial circumstances be such as to prevent me from furnishing any maintenance or support or education to my children before they become twenty-one years of age, or the income or dividends from said stock fail to give to my sons the necessary support and education, then and in such |