`4 FEDERAL Rsronrim.
, state of New York, and that the controversy as to the right to the es-
tate in question is wholly between themselves and those who claim it
in behalf of some charity in the city of Chicago; and the record was
brought to this court, where it_was Bled, with leave to the relator to
move to remand.
The motion to remand is urged on two grounds: (1) That this is
a suit by the state of Illinois, and therefore not removable, under the
statute; (2) that Enos Johnson, one of the defendants, who had pos-
session at the commencement of the suit of the personal property be-
longing to the fund in question, is a citizen of the state of Illinois, I
and is a necessary and indispensable party t0_ the suit.
The frame and scope of this information or bill in equity seems to me
to be an assertion of the right of the sovereignty of the state to inter-
pose for the protection of this alleged charitable fund. It is, in ef-
fect, a suit by the state for a public purpose; that is, for the recov-
ery and protection of a fund which it is claimed has been dedicated
to a charitable use within its jurisdiction. The fund, if recovered,
may not belong to the state   a corporate entity, and the state may
have no control or disposing power over it, but, for lack of any per-
son who can or will take steps in the premises, the state, by its proper
officer, comes into court, and asks that this fund be protected. I do
not say that a case is made under which the court can give the re-
lief prayed for, as the merits of the case cannot be considered on this
motion ; but the theory of the suit is that an odicer of the state has the
right to institute this proceeding in the name of the state, for the
benefit of whom it may concern, and that it is properly a suit by
the state.
- This is not a case where the state allows a person to use its preroga-
tive writ for the purpose of enforcing the performance of a duty by a
public ofncer, or protecting a private right, as in proceedings by writs
of mcndamus or habeas corpus, but the state comes into court by its
authorized officer, to ask that this fund be protected and properly
applied; and as such, it seems to me, it must be considered a suit by
the state, brought in one of its own courts, and not within the pro-
visions of any of the laws for the removal of cases from the state to
the federal courts. Stone v. South Carolina, 117 U. S. 430; S. C.
6 Sup. Gt. Rep. 799.
But, if I am wrong on this point, it seems to me that the second
point is well taken. The information charges that defendant Enos
Johnson has possession of the personal property belonging to the fund
in question, and this allegation is admitted by the answer of Johnson
on file in the case. If the relator is entitled to a decree in this case,
it is because the will of Julia Rose Newberry impressed upon so much
of her estate as remained in the hands of her mother at the time of
the mother’s death the character of a trust fund for a charitable use,
to which a court of equity can give direction in default of directions
by Mrs. Newberry, and the person in possession of this fund became `