text:
    Robinson et al., appellants, v. Lessee of Adams, respondent.

      Construction of will.

    Testator devised as follows, “ Item, I give to my two sons, namely W. and E., all my land at, &c., to be equally divided between them and their heirs for ever: If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if T. should die before he comes to lawful age, I give his share of land, where W. now lives, to my daughter E., to her and the lawful begotten heirs of her body for ever ; provided, T. have heirs, before he comes to lawful age, then to him and his heirs for ever; and likewise, if W. should die, without heirs, to go to E., and if A. should die, without heirs, to go to V.; and if J. should die, before he comes to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter 0., to her, and her lawful begotten heirs of her body for ever:” held, that W. took an estate in fee-simple, subject to an executory devise to E.
    An action of trespass of ejectment was brought by the respondent against the appellants, in the common pleas of Sussex, for a tract of land situated in. that county. The action was removed into the supreme court, by certiorari ; and upon the trial there, the jury found a special verdict.
    The verdict states, “ that Thomas Bagwell was seised in his demesne as of fee, of a moiety of a tract of land, called Long Neck, of which the land in question is part, and, by Ms will, dated the 15th day of April 1690, devised the same in manner following : — ‘ I, Thomas Bagwell, &c., for my worldly estate that the Lord hath endowed me with, do give and bequeath as followeth : Item, I make my dear wife, the executrix. Item, I give to my two sons, namely, William and Francis, all my land at the HorékiM, in Sussex county, &c., to be equally divided between them, and their heirs for ever. Item, this plantation, where I now live, &c., I give to my son John, to him, his heirs for ever; that is, from a white oak, by the creek side, &e., to the head line. Item, I give to my son Thomas, the rest of my land here, to be equally divided, and he to have share in the orchard ; and likewise my part of the cedar island, I give to Thomas and John, to be equally divided between them, to them and their heirs for ever; only my two daughters, namely, Ann Bagwell and Yaliance Bagwell, to have an equal share of the said island, so long as they keep themselves unmarried, and no longer. Item, I give to my son Thomas, two hundred acres of land, adjoining William Burton’s branch, to him and his heirs for ever. Item, I give to my son John, one negro woman. *Item, I give to my daughters, Ann and Yaliance, two hun- p^.--dred twenty and five acres of land, adjoining John Abbot, Thomas Mills and Francis Wharton, to them and their heirs for ever. If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Tilney, to her, and the lawful begotten heirs of her body for ever ; provided Thomas have heirs, before he comes to lawful age, then to him, and his heirs, for ever : and likewise, if William should die, without heirs, to go to Francis ; and if Ann should die, without heirs, to go to Yaliance ; and if John should die, before he comes to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter Comfort Leatherberry, to her and her lawful begotten heirs of her body for ever. Item, I give to every one of my grandchildren a calf, to them and their heirs for ever; to my daughters Ann and Yaliance, a feather bed a-piece, to them and their heirs for ever; to my four sons, Thomas, William, Francis and John, a gun a-piece, to them and their heirs for ever; to my son Thomas, my pistols and holsters, for ever, &e. And all the rest of my personal estate, I give to my wife and my six aforesaid children, to be equally divided among them, to them and their heirs for ever ; to wit, Thomas, William, Francis, John, Ann and Yaliance. I set my boys at age at eighteen, and my girls at sixteen ; and their estate to be divided presently after my decease, by my friends William Curtis, William Burton and William Parker, which I leave overseers over my children, &c.’
    “ That the testator died seised as aforesaid; that Ms will was duly proved, the 16th of September 1690 ; that he left issue, all his sons and daughters before mentioned; that after Ms death, William, his eldest son, entered into the premises in the declaration of the plaintiff mentioned, and being thereof seised, died intestate, leaving issue William, his only son, by one venter, and Agnes, his only daughter, by another venter; that the said William and Agnes, after their father’s death, entered into the premises of which he died seised, and made partition, as by the records of the orphans’ court appeareth, and the lands in the declaration mentioned were allotted to the said William, the son, who died intestate, seised thereof, leaving two daughters, Patience and Elizabeth, and a widow, Ann; that the said Ann, as tenant in dower, and the said Patience and Elizabeth, as heirs of the said William, entered, and were seised, &c.; that the said Patience and Elizabeth died without issue; that their mother, Ann, married Benjamin Burton, and died, leaving issue by him, two daughters, Ann and Comfort, who entered, and were seised, &o.; that the said Ann married Thomas Robinson, and died, leaving issue, the appellants; that Comfort died without issue ; that Agnes, the daughter of William Bagwell, the first, married John Adams, by whom she had issue, several children, of whom John Adams, the lessor of the plaintiff, is the eldest son and heir-at-law ; that he entered and demised, &c., upon whom the defendants entered, &c. But, whether upon the whole matter, &e., the jurors doubt, and pray the opinion of the court, &c. And if, <fcc., they find for the plaintiff, and assess damages, to five shillings and six pence for costs, besides the costs expended : but if, &c., they find for the defendant.”
   Upon this verdict, the supreme court, in April 1'78'f, gave judgment for the plaintiff, from which judgment the defendants appealed. An habere facias possessionem was awarded to issue, for delivering possession to the plaintiff, upon security tendered, &c.

It is stated, by the counsel on both sides, that the only question in this cause is, whether William Bagwell, the son of Thomas Bagwell, took, under his father’s will, an estate in fee-simple, or an estate in fee-tail. If he took an estate in fee-simple, then, by our intestate acts, that estate is vested in the appellants. If he took an estate in fee-tail, the land in question descended to the lessor of the plaintiff, now respondent, the heir-in-tail.

It is time that this controversy should be finally decided, or, large as the contested property is, it may prove ruinous to all persons concerned. We are informed, that several suits have been brought for this estate ; verdicts given against one another; and contradictory opinions, of very eminent lawyers, in several parts of America, obtained. The present action has continued above fifteen years.

It is contended by the counsel for the appellants, that William Bagwell, the devisee, took an estate in fee-simple, subject to an executory devise to Francis Bagwell, contingent on William’s dying under age, and without issue. Their argument opened with an observation, that “ estates in fee-tail are no favorites of the law, and particularly ought not to be so, under republican forms of government, so that if there be any doubt in this case, the determination should incline rather towards the appellants, than the respondent.”

*“ The intention of the testators,” say the counsel for the appellants, “ ought to prevail in the construction of wills; that these are presumed to be made in extreme weakness, and without good advice; that, therefore, great indulgence has been shown to improprieties of expression ; and judges have frequently added, subtracted, changed and transposed words ; that, according to this rule, these words in the will, ‘ and likewise, if William should die without heirs, to go to Francis,’ should be read thus : ‘ and likewise, if William should die, before he comes to lawful age, without heirs of his body, his estate to go to Francis ;’ that this alteration is agreeable to the meaning of the testator, because, after having just before mentioned his children, and William amongst them, he says, ‘if any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors ;’ and then, immediately proceeds, binding this part and the following into one sentence, by these strongly connecting explanatory words, ‘ that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Tilney, to her and her lawful-begotten heirs of her body for ever ; provided, Thomas have heirs before he come to lawful age, then to him and his heirs forever ; and likewise, if William Bagwell should die, without heirs, to go to Francis, &e.;’ that this construction is consistent with the design of the testator, expressed in the foregoing part of his will, where he gives William an estate in fee-simple; that this estate, being given to the testator’s immediate heir-at-law, ought not to be diminished by the following words, unless they necessarily require it so to be ; that they do not thus require it to be diminished ; that all the different parts of the will are reconcilable ; that there was a fee-simple given to William, with an executory devise over to Francis, upon the contingency of William’s dying before he came to lawful age, and without heirs of his body ; that the contingency never happened; but William died seised of the fee-simple.” Many authorities have been read, and ably applied, in support of these principles.

By the counsel for the respondent, it is urged, “ that the construction contended for, on the other side, is arbitrary and inadmissible ; that there is plainly an estate in fee-tail given to William Bagwell, because it is p . impossible, as was conceded *by the counsel for the appellants, *■ that he could die ‘ without heirs,’ as long as his brother Francis, to whom the limitation over is made, was living ; and therefore, that limitation demonstrates, that by the words ‘ without heirs,’ was meant, ‘ without heirs of his body ;’ that there is no necessity for overthrowing the fee-tail, thus evidently limited; that the words, ‘if any one of my aforesaid children should die, before they come to lawful age,’ &c., were proper, if only some of them were under age ; that there is reason to believe, from the facts stated, of William’s being the eldest son, and of his living by himself ; and more especially, from the words made use of in the limitation over upon his death, in which there is no mention of his ‘ dying before lawful age,’ that he was of age, at the making of the will; that this construction is confirmed by the limitations over, upon the deaths of Thomas and John, whicli are expressly made to depend not only upon their dying without heirs,’ as with respect to William, but also upon their dying, before they come to lawful age ;’ that these words are omitted again, in the limitation over upon the death of Ann, and in all probability, for the same reason ; that the testator has in this manner, repeatedly varied his language, in conformity to his own views ; that these views, thus declared, ought not to be controlled by implications, and disappointed by additions, subtractions, changes or transpositions, supposed to be more agreeable to his mind ; that this would be to make wills, not to interpret them ; that the construction in favor of the respondent is more easy and natural than that in favor of the appellants, and is much recommended, by not offering such violence to the expression of the testator.”

The counsel for the respondent have insisted on this construction, with a great force of argument, drawn from reason and authorities. We have, therefore, thought fit to employ a considerable time in our deliberations upon this cause.

It is agreed, by the counsel for the appellants and for the respondent, that the intent of the testators - ought to govern in the construction of wills, except where a disposition is made contrary to law. As there is no such disposition now in question, the sole inquiry is, what was the intent of the testator ? This intent is to be collected from the entire will, and not from any disjointed parts. Technical terms are not necessary for conveying it; and if such are used, their legal acceptation may be controlled by other words, plainly declaring the meaning of the testator. (2 Bl. Com. 379; 2 Burr. 770; 1 Ves. 142; Doug. 309, 327; Cowp. 239, 659; Vin. tit. Devise, 181.) No words are to be rejected, that can possibly have any sense assigned to them, not incompatible with clearer expressions, or manifest genel-al intent. (Cases temp. Talbot 29; 6 Mod. 112.)

In the present instance, the testator, at first, certainly gives a *fee-*xvii 1 s^mP^e t0 son William : yet, if the devise over to Francis, “ if William should die without heirs,” is a substantive clause, independent of the next foregoing clause, that begins with the words, “ if any one of my aforesaid children should die, before they come to lawful age,” the fee-simple is turned into a fee-tail. On the other hand, if these two clauses are but parts of one continued sentence, through the whole of which, the testator’s disposing design holds on, uncompleted, until the conclusion, then the fee-simple remained in William, with an executory devise to Francis, dependent on the event of William’s “ dying without heirs ” of his body, and “before he came to lawful age.”

it has been strongly objected by the respondent’s counsel, that the construction urged for the appellants, breaks through the words of the will, to let in an estate by implication, under the notion of a power being vested in judges to determine the intention of the testator, by adding to, or taking from, his words ; a construction, so severe, that it may well be compared to the bed of Procrustes; if the expression is too short, rack it out; if too long, lop off part.” The power of judges would, indeed, be as exceptionable as it is represented to be, if as extensive as it is supposed to be, in the objection : but ths alteration of words, by judges, in considering wills, arc not made, strictly speaking, to discover the intention of testators, but onlj to express it properly when discovered. They do not introduce a supposed intention, but wait upon the true intention. .

It was observed, in answer to this objection, by the learned gentleman who replied for the appellants, “ that the respondent’s counsel themselves, make use of implications, in sustaining their own construction ; for in order to form the estate-tail, asserted by them to be limited to William Bagwell, they are obliged to this clause, ‘ and likewise, if William Bagwell should die without heirs,’ to add these words, ‘ of his body ;’ and again, to render their construction consistent with reason, they are compelled to allow that the limitation over to Francis gives him a fee-tail, according to the intention of the testator, though only an estate for life, according to the words of the will.” There is great weight in this observation. It proves the will to be so defective in expression, that, though the two parties are led into opposite deductions, yet each of them is under a necessity of being guided by implications. Nor is the use of implications, while bounded by legal limits, to be condemned ; because they are to be admitted only for effectuating the general intent of testators. (1 Burr. 50, 51.)

We must, therefore, still recur to the original question, what was the intention of the testator ? *The attempt of the respondent’s counsel r*xvpj to show, that William was of age at the making of the will, is in- *- genious. However, the fact is not found, and we cannot suppose it. Indeed, it appears to be contradicted by these words, All the rest of my personal estate I give unto my wife and my six aforesaid children, to be equally divided among them, to them and their heirs for ever, viz., Thomas, William, Francis, John, Ann and Valiance Bagwell. I set my boys at age at eighteen, and girls at sixteen, and their estate to be divided presently after my decease, by my friends, &c., whom I leave as overseers over my children, &c.” Here the word “ their ” plainly refers to his “ boys ” under eighteen, and the words “ estate to be divided presently, &c.,” refers to the foregoing words, to be equally divided among them, &c.and as William is named as one of the “ six aforesaid children,” among whom the residue of the personal estate was thus “ to be equally divided, &c.,” he and the other five children seem to be classed together, as being all under age.

It is true, that these words, “ if any one of my aforesaid children should die before they come to lawful age, their lands to go to the survivors,” do not prove, by their relation to what went before, that William was then underage, though he was one of the “aforesaidchildren:” for,as was observed by the respondent’s counsel, the words may well be satisfied, if only some of them were under age. But these words, taken in connection with those that precede, and with those that follow them, acquire a very different and a decisive force. The directions, at first, arc only general, relating-, without name, to “any one of the aforesaid children,” and without distinction, “to the survivors.” These general terms are immediately succeeded by this explanatory specification : “ that is, if Thomas should die, before he comes to lawful age, I give his share of land, where William now lives, to my daughter Elizabeth Tilney, to her and her lawful-begotten heirs of her body for ever; provided, Thomas have heirs, before he comes to lawful age, then to him and his heirs for ever ; and likewise, if William Bagwell should die, without heirs, to go to Francis; and if Ann should die, without heirs, to go to Valiance; and if John should die, before he come to lawful age, without heirs, then his share of land here, where I now live, I give to my daughter Comfort Leatherberry, to her and her lawfully-begotten heirs of her body, for ever.”

Construing these words, “ that is,” according to the common manner of speaking, and so they ought to be construed, it is plain, that the testator designed, in his subsequent words, to be more particular or exact than he had yet been, and as in these, he mentions William again, and makes a substitution in case of his dying, it is evident, that William was meant, by the testa*xix 1 tor’as *“ one ” aforesaid children,” whose lands, if they “ should die, before they came to lawful age,” should “go to the survivors.” It is remarkable, how much pains the testator employed, in this part of his will, to prevent his meaning from being mistaken. In the limitation over, if Thomas should die, he applies his former direction thus : “ that is, if Thomas should die, before he come to lawful age, I give his share of land to my daughter Elizabeth Tilney, &c.” And then, to guard against a misconstruction of these words, whereby Thomas’s issue might be disinherited, in case Thomas should die, before he came to lawful age, leaving issue, subjoins, “provided, Thomas have heirs, before he comes to lawful age, then to him and his heirs for ever,”

No point of law can be clearer, than that this devise gives a fee-simple to Thomas, with an executory devise to Elizabeth Tilney, if Thomas should die, without heirs of his body, and before he should come to lawful age. Why should not the like provision be extended to the case of William, when the testator, after this full exposition of his mind with regard to substitution, instantly adds, “ and likewise, if William Bagwell should die without heirs, to go to Francis.” The most obvious and natural construction of these words is, that William’s estate should be no otherwise affected by the limitation over to Francis, than Thomas’s was by the limitation over to Elizabeth; though, perhaps, the testator also meant, that Francis should take such an estate as Elizabeth would take on a similar contingency.

This construction is further recommended, by the consideration, that the limitation over to Francis is nonsense, it not being said, what is “ to go” to him, unless it refer to the preceding words. The very imperfection in this part of the will carries strong evidence in it, that the testator, at the instant of using this expression, united it, in his idea, to the antecedent part, especially, as he employs the same peculiarity of phrase for transferring the estate, in both places.

The beginning of this explanation states Thomas to be under age: the conclusion of it states John to be under age : between these are comprehended the provisions respecting William and Ann. From first to last, the words are all connected by the word “ and,” without the intervention of any stop. If, then, the two extremes relate to persons under age, and are confessedly explanatory of the general directions first mentioned, the intermediate parts must also refer to persons under age, and be explanatory of the same directions as to them, for there is no period at which the explanation rests, before the end of the. devise to Comfort Leatherberry.

We can easily account for inaccuracies in the testator’s expressions, from sickness, hurry, want of knowledge or assistance: but we cannot account * -i for such an inequality of distribution as Us required by the construc- ’■* tion in behalf of the respondent. The testator’s offspring appear to be alike objects of his parental affection and providing care. Yet, what a needless, useless and incumbering diversity of regulations is introduced, if Thomas took a fee-simple, with an executory devise to Elizabeth ; William, a fee-tail, with an estate for life, or fee-tail limited to Francis ; Ann, a fee-tail, with an estate for life, or a fee-tail limited to Yallance ; and John, a fee-simple, with an executory devise to Comfort ?

On the contrary, the construction in favor of the appellants, gives a sameness of arrangements, correspondent with the sentiments of the father towards his children. Each son took an unfettered estate, that is, a fee-simple, in the part devised to him ; of course, if any son “ came to lawful age,” he might dispose of his share as he pleased ; if any son died, “ before he came to lawful age,” leaving issue, the estate went to that issue ; but if any son died, before he came to lawful age, and without leaving issue, the estate went to the substitute. This, we believe, to have been the testator’s design ; and we think, he manifested in it great prudence, and a paternal impartiality.

It has been observed, by the respondent’s counsel, “ that this construction would carry the estate entirely from the descendants of the testator into a strange family, and the respondent’s lessor would suffer the peculiar hardship of being stripped of the inheritance, though he is heir of the testator and of the devisee.”

It is impossible to calculate hardships of this kind, amidst the mutabilities of human affairs. It is to be remembered, that William Bagwell, the devisee and heir of the testator, was succeeded by his son William, and this William by his two daughters. Thus, the construction of the counsel for the appellants, allows a fee-simple to the heirs of the testator and devisee for several generations. About fifty years ago, as appears from the records of the orphans’ court, the mother of the respondent’s lessor obtained a partition with her brother William, the second, of the lands devised by the testator to William, the first, their father, as of an estate in fee-simple, and the lands assigned to her for her share are held under that partition to this day. It would have been thought, at that time, extremely hard, if it had been insisted, that William, the grandfather of the respondent’s lessor, took in fee-tail the lands devised to him by this will, that, therefore, upon his death, the whole descended to his son William, and that his daughter Agnes was not entitled, under our intestate acts, to any part of so large an estate. Now, the complaint is directly reversed, and the construction that inured to the great benefit of the mother, is reprobated by the son, claiming under her title. Yet, if either of the daughters of William, the second, had issue surviving, the same interpretation of this will would now suit the pxxj respondent’s ^lessor, that heretofore was so advantageous to his L parent.

The true construction of a will is to be collected from the words ; and is not to be affected by collateral circumstances ; consequently, not by events subsequent, remote, uncertain, and utterly unconnected with the contingencies alluded to in the will. (3 P. Wms. 259 ; Salk. 232, 235 ; 3 Burr. 1581.) This rule cannot be departed from. The security of property, and the order of society, depend on an observance of the laws.

Our construction of this will, appears to us, to be strengthened by three considerations, which we shall now mention.

1st. It is very credible, that when a person undertakes to make a will, he means to dispose of all his property; and though we do not perceive any sufficient reasons why this well-founded presumption might not be generally adopted as a guide in the interpretation of wills, especially, in devises to children and other lineal descendants of the testator, where the gifts dictated by fatherly affection, as its last acts of kindness, may justly be deemed as designed to be the most beneficial to the objects of it, if no restriction is declared ; yet, it must be acknowledged,-that we do not recollect any case where it has been so adopted. Judges, however, have availed themselves of short and slight intimations in wills to this purport; have exerted themselves to render the disposition commensurate to the intention ; and have particularly relied on such words as are used in this will, “ for my worldly estate, &.c.,” to prove that the testator designed to devise all his interest in an estate. Ibbetson v. Beckwith, Cas. temp. Talb. 157; Tanner v. Morse, Ibid. 284; Tufnel v. Page, Barnard. 9; Cowp. 355; Grayson v. Atkinson, 1 Wils. 333; Frogmorton v. Holyday, 3 Burr. 1622-3. This inference appears to be peculiarly apposite, where a question arises from various terms of limitation, or expressions tantamount, whether a devisee takes in fee-simple, or in fee-tail.

The respondent’s counsel, though strenuous advocates for their client’s pretentions, have been too candid to assert, that the estate given to William, and according to their idea, contracted to an estate-tail, should, on failure of his issue, expand into a fee-simple in Francis. They say, “ Francis was to take the like estate that was limited to William, that is, an estate-tail.” Of course, a reversion would remain undisposed of by the testator, contrary to his design, manifested not only by the preamble of his will, but also by the ’’’xxii 1 conc^us^on °£ in which last he uses these words, *“ all the rest of ’■* my personal estate I give, &c.” This clause, we believe, never would have been restricted to “ his personal estate,” if he had not been fully persuaded, that he had before disposed of all his real estate. (Cowp. 307; 3 Burr. 1622, 1623.)

2d. If it had been the intention of the testator, to give an estate-tail to any of his sons, what reason can be assigned, why he did not use plain words for that purpose? He well knew even the technical terms for creating such an estate ; and repeatedly employed them, in limitations over to his daughters, Elizabeth and Comfort, that to each of them being “ to her and the lawfully-begotten heirs of her body for ever.” But such terms he never admitted in the devise to any of his sons, nor indeed to any of his unmarried daughters.

A case was quoted by the counsel for the respondent, from Pollexfen, to show, that where there is a variety of expression, there is a variety of intention. That case is very properly applicable here, for difference of language, not otherwise to be accounted for, must certainly proceed from difference of meaning. 2 Wilson 81.

3d. It is inconsistent with the testator’s intention, to construe the devise to his son William to be a fee-tail, because it is inconsistent with that meaning which he himself has affixed to the words of the devise. (2 Abr. Ca. in Eq. 298, 302.) It is observable, that the testator, in the latter part of his will, gives personal effects to the legatees “ and their heirs for ever.” Though these words in such eases are not necessary ; yet they incontestably show the donor’s opinion of their force, and demonstrate his determination to give the most absolute estate he could give. The same was his determination, as he used the same words, in the devise to his son William, and therefore, the son took a fee-simple.

The judgment of the supreme court reversed.

         It is greatly to be desired, that the persons appointed by our courts, for viewing and dividing lands among the children of intestates, would not suffer themselves so easily to be prevailed upon to report, that the lands will not bear a division. Thus, very often, an estate is adjudged, as incapable of division, to one of the children, that might well be divided into five nr six, if not more, farms, as large as many in the eastern states, upon which the industrious and prudent owners live very happily. By the usual way of proceeding among us, one of the children is involved in a heavy debt, that frequently proves ruinous to him; or, if the debt of valuation is paid to the other children, it is in a number of such trifling sums, and at such distances of time, one from another, that they are of very little use to those who receive them. This matter deserves very serious consideration. It is much to be wished, that every citizen could possess a freehold, though some of them might happen to be small. Such a disposition of property cherishes domestic happiness, endears a country to its inhabitants, and promotes the general welfare. But whatever influence such reflections might have upon us, on other occasions, they can have little, if any, on the present, for reasons that will hereafter appear.

         A remarkable distinction taken between a devise to a child, and a devise to a stranger, in Cro. Eliz., Fuller v. Fuller. In Modern Cases in Law and Equity, 132, it was held, that where a settlement is made by a lineal ancestor, in consideration of the marriage of his son, all the remainders to his posterity are within the consideration oí that settlement; but when it is made by a collateral ancestor, after the limitations to his own children, all the remainders to his collateral kindred are voluntary.


source: Caselaw Access Project

license: Public Domain

text:
    *APPEAL FROM NEW HAMPSHIRE.
    July 1760.
    Deering, appellant, v. Parker, respondent.,

      Tender. — Depreciation.
    A bond was given, payable 30 th July 1735, “in good public bills oí the Province of Massachusetts Bay, or current lawful money of New England, with interestmany partial payments had been made in a depreciated currency, and indorsed at their nominal amounts; in the year 1752, there had been a tender in bills of credit, current in New Hampshire; the province bills, contracted for, had been called in, and the currency of the country had gradually depreciated : Held, 1st. That the tender was not good, but that the partial payments ought to be allowed, according to the indorsements. 2d. That as to the balance due, the loss from the depreciated currency ought to be divided between the parties.
    This was an appeal from New Hampshire, heard before a Committee of the Privy Council (Lord Mansfield being one of them), on the 10th of July 1760. The facts were these: One Parker had given a bond to Deering, payable the 30th of July 1735, conditioned for the payment of 2460?., “in good public bills of the province of Massachusetts Bay, or current lawful money of New England, with interest.” There had been many payments made and indorsed. About the year 1752, the defendant tendered a large sum, in the bills of credit then current in New Hampshire, which the plaintiff refused, brought his action, and recovered judgment for the penalty in the bond, upon the verdict of a jury, in December 1758. After which, the cause .was heard in the Chancery of New Hampshire, and the court decreed for the sum of 354?. 65. 9d., in bills of credit of New Hampshire, new tenor, being the nominal sum due at the time of the tender, deducting the sums paid and indorsed. So that the court went upon the principle, that the plaintiff should take the hills as tendered, and that the debtor was not bound to make good their depreciation, nor to pay in silver, or real money.
    On the side of the appellant, or creditor,
    it was insisted, that the payment ought either to have been in bills of Massachusetts Bay (which, it seems, were all called in, and sunk, before the tender), or in silver money, agree-*xxiv.] able to queen Anne’s proclamation, *which, they insisted, was the true meaning of that clause or part of the condition, to wit, current lawful money of New England. It was also claimed by him to have all the sums indorsed, reduced in nominal sums down to the value of silver at the time oí giving the bond, to wit, 21s. per ounce.
    On the side of the respondent, or debtor,
    it was urged, that current money of New England then meant, and was understood to be, indifferently, the bills of credit of any or either of the New England colonies, received in that colony in payments. That, therefore, the tender was in the specie contracted for, and that the sums indorsed were not only, of course, upon that supposition, equal to the sums expressed; but that the creditor, by indorsing, had agreed to and accepted of so much as the same expressed, in real as well as nominal sums.

         This report is taken from a collection of manuscript cases, upon authority that appeared respectable when it was copied ; but the name of the reporter is forgotten

   The Lord President and Lord Mansfield expressed themselves fully in favor of the creditor’s construction of the words, “ current lawful money of New England to wit, that it did not mean bills of credit of any colony, but the words were put in contradistinction thereto. Lord Mansfield further added, that he was clear, on the one hand, that the sums indorsed ought to be allowed according to the nominal sums so indorsed, equal to the same sums of money mentioned in the bond, and that the plaintiff had no right to have the same any way reduced or altered. On the other hand, his lordship thought that the tender was not good in any respect ; for not only because it was made in a species of currency, different from that contracted for ; but also because it was out of time, being many years after the time of payment was lapsed, and also without notice. “What (said his lordship), shall a man meet his creditor in the street unawares, and tender ,a debt to him ? The chancery allows six months’ notice of time and place to be given. The law of the province enabling the court to turn itself into a court of equity, and to reduce the bond to the sum due by the auditem, was a very good thing ; and what Sir Thomas Moore, in his time, labored so hard to obtain an act of parliament for here. And because the judges (with whom he had several conferences about the matter) were for retaining the old artificial way, he declared, that he would always grant injunctions in such cases. In the present case (his lordship continued), he was at no loss to determine, that the judgment ought to be reversed : but he was at a loss what rule to go by, in determining the quantum, of the debt. Since the province bills contracted for were called in and gone ; with a desire to know the usage, he had inquired of Mr. I., a New England gentleman (who had practised the law), and was informed, that “ when old tenor had been contracted for, it had been allowed to be tendered, although depreciated in value, if the tender was *xxv 1 ma<^e season- That ^'towards the close of existence of old tenor, and after it had been called in and sunk, when judgment was given for real money, this matter (of how much to give) was greatly agitated. Some were for giving the value of the old tenor, or bills contracted for, as it stood when the obligation was out, or the debt became due. Others would have it settled, as it was when at the last and worst period ; and others again, were for taking a medium. But the more general method was, to take the value of the bills, when they should have been paid by the contract.” Lord Mansfield observed, that from this information, he had received much light, and was relieved from his difficulty. That much might be said, for taking as a rule the value of the old tenor, at the time set by the bond for payment. That, unon the mention of it, it struck him as the rule of right in general: but that, in the present case, the bond had been outstanding so very long, the bills of credit, which were the currency of the country, had, in the meantime, sunk gradually, and became, in some measure, every one’s loss : and that, therefore, in this case, he thought the loss ought to be divided between them.

The Board, upon the whole, instead of taking the price of silver at the time of the contract, and time set for the payment (which was about 27s. per ounce), fixed it at 37s. per ounce, and computed the debt accordingly. This made about 1001. sterling in favor of the appellant, by which he got the opinion of the court in his favor ; but as no costs are allowed upon appeal, he could not be much a gainer by the general result.


author: Wilcocks, Recorder.

text:
    MAYOR’S COURT OF PHILADELPHIA
    APRIL SESSION, 1797.
    Commonwealth v. Schaffer.

      Criminal jurisdiction.

    The jurisdiction of the state courts extends to the case of a forgery of powers of attorney, to receive warrants for lands granted by acts of congress, for military services.
    The defendant was indicted and convicted for forging the names of several soldiers to powers of attorney, authorizing him to demand and receive their warrants for the donation of lands granted by acts of congress, for services during the revolutionary war. Dallas observed, that as the question of the common-law jurisdiction of the federal courts, in criminal cases, had not been decided, it was his duty, as counsel for the defendant (without declaring his own opinion), to bring it before the court, on the present occasion. He, therefore, moved in arrest of judgment, that the offence, charged in the indictment, arises under a law or laws of the United States; and is exclusively cognisable in their courts.
    After argument, the Recorder stated the facts, authorities and principles of the case, in giving the judgment of the court.
   Wilcocks, Recorder.

— The offences charged against the defendant in the indictment, are forgeries, committed in forging the names of Allen Fox, Ebenezer Drake, Robert Battersby and Samuel Griswald, to four several powers of attorney, to demand and receive from the United States, for each of them, 100 acres of. land ; they having all been soldiers, who enlisted to serve during the late war with Great Britain, and who served through the war ; and in consequence, under various acts of congress, each of them was entitled to a donation of 100 acres of land.

*xxvii.] In support of this motion in arrest of judgment, made by Mr. Dallas, the constitution of the United States has been cited; Art. III., § 2, p. 12; the Judiciary Act of Congress, § 9, p. 97; § 11, p. 98, 99; § 34, p. 112; 2 vol. Resolves of Congress, 16th *Sept. 1776, p. 357-8; p. 361; 18th Sept. 1776, p. 365; 20th Sept. 1776, p. 456; 12th Nov. 1776, p. 438; 30th Oct. 1776; Laws of U. S. p. 151, § 14; Const. U. S., art. I. § 8; 1 Black. Com. 245. It has been contended, that, under the 2d section of the 3d article of the constitution of the United States, its judicial power extends, inter alia, to all cases arising under the constitution and laws of the United states.

By the resolutions of Congress, in 1776, referred to, it was shown, that the soldiers, who enlisted to serve during the war, and served to the end of it, were, individually, entitled toa donation of 100 acres of land from congress. It,has been said, that an inspection of the indictment will show, that the crimes charged against the defendant, consisted in forging certain writings, which, by the rules of office, were necessary to obtain from congress the soldier’s right to lands. For this reason, and because the soldier’s rights to lands are derived under the resolves or acts of congress, the conclusion is drawn, that a state court has no cognisance of this crime, because it arises out of a law of the United States. The 9th section of the judiciary law of the United States, it is alleged, gives to the district court, exclusive of the state courts, cognisance of all crimes and offences that shall be cognisable under .the authority of the United States, where the punishment is whipping under thirty stripes, &e. And § 11, p. 99, gives to the circuit court exclusive cognisance of all crimes and offences cognisable under the authority of the United States, except where that act otherwise provides, or the laws of the United States otherwise direct.

It was contended, that, for the reasons before recited, showing that the offence arose out of a law of the United States, that, therefore, the courts of the United States had cognisance of it. And that, by the 9th and 11th sections of the judiciary law, their cognisance was declared to be exclusive of the state courts, unless otherwise provided by that or some other law of the United States; and it was said, that no such provision had been made, therefore, the conclusion was, that the state courts had no jurisdiction of this offence.

In answer to an objection, that the laws and constitution of the United States nowhere defined the crime of forgery, in such manner as to comprehend the offence charged in the indictment; nor was the common law of England, relating to crimes and offences, extended to the United States; nor was there any law of the United States which prescribed a punishment for forgeries generally. The act of congress for punishing certain crimes against the United States, Laws of United States, § 14, p. 151, and against .■f .•••-] forgery of indents or public securities of the United States, were '•* *cited, and the judiciary law, § 34, p. 112, which says that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require, shall be regarded as the rules of decision, in trials at common law, in the courts of the United States. It has been inferred from hence, that the rule of punishment, in this case, would be the rule of the common law, if it obtained in the state, or such rule as the law of the state provided. 4 Bl. Com. 245, has been referred to for the definition and punishment of forgery at the common law.

Henfields case has been referred to, which was an indictment in the circuit court of the United States, for a misdemeanor; that he, being a citizen of the United States, entered on board a French privateer, to cruise against the British, with whom the United States were at peace, under a treaty. lavareis case was also cited, who was a consul from the state of Genoa to the United States, and indicted in the district court of the United States, for a misdemeanor in sending a threatening letter to Benjamin Holland, for the purpose of obtaining money from him.

It was said, that there was no act of congress which either defined the offence or the punishment in those cases ; but it was said, that the common law would give the rule for both. It was argued, that whatever was necessary to the existence of the United States, must not depend upon the state courts. That this offence was committed in prejudice, and to the injury, of the United States, and therefore, the jurisdiction of it belongs to the courts of the United States. That under the constitution of the United States, no power is given to punish the offence of stealing records, robbery, perjury, and the laws of congress (p. 153) prescribe the punishment of these offences in particular cases. As the laws of congress have made provision, in these cases, without any power given by the constitution expressly for the purpose ; in the same manner, the authority of congress is competent to declare, by law, how the offence charged against John Schaffer, shall be tried and punished. And therefore, it is an offence not of state cognisance, but ought to be tried in the courts of the United States only.

Mr. Ingersoll and Mr. Thomas, in support of the jurisdiction of the court, referred to the following authorities. Const. of U. S. art. III. § 2; art. I. § 8, p. 8; 12th Amend. Const. U. S.; Resol. of Cong. vol. 8, p. 289; 4th July 1783, Ib. vol. 10, p. 366; 1st Aug. 1786, Ib. vol. 12, p. 114; 23d July 1787, 2 vol. Laws of Cong., p. 49, 52, 154; 2 vol. Federalist, p. 323, 324; Const. U. S. art. I. § 8; Laws of U. S. § 16, p. 151. *From these sources, r*xxjx a system of argument has been drawn, which, as it has been generally L adopted by the court (in the sentiments they have formed) I shall forbear tp state it minutely, but proceed to deliver the opinion of the court on the case before them.

The soldier who enlisted to serve during the war, and afterwards continued to serve to the end of it, had a light to demand and receive from the United States, a promised donation of 100 acres of land. This right had its inception under several resolutions of congress, passed in the year 1776, and it became a perfect right, at the close of the war, in the year 1783. The commonwealth of Pennsylvania, for a long course of time before the revolution, down to the present day, has always had subsisting laws, competent to the trial and punishment of every species of forgery that could be fabricated. In the year 1789, when the constitution of the United States was completely organized, it found this commonwealth in full possession of jurisdiction over this forgery. And as offences on this subject may have occurred after the peace, and. before the existence of the present constitution, it is possible, that some instances of prosecutions on similar papers, may have taken placo in the courts of this state, before the establishment of it, as several have been known to take place, in this court, since that period; particularly in the cases of Dixen, and McConcillan and wife.

The important question is — what has been the effect of the constitution of the United States (and the laws which have been enacted under it), to divest this commonwealth of a jurisdiction of which, at the time it was made, it found the state constitutionally possessed ?

The 1st and 3d articles of the constitution of the United States principally affect this question ; they respect the legislative and judicial powers, and contain an extensive enumeration of subjects whereon their legislative power may be exercised, and to which the judicial power shall extend ; and it is reasonable to say, that there may be powers which are not enumerated in it, but ought to be considered as granted by the constitution ; for instance, those (if such there be) which are essential to the independence of the government, to its protection and defence, to such as grow out of the constitution, and out of the constitutional laws of congress.

If it be true, that this offence may be considered as growing out of an act of congress, because, if congress had never engaged to give lands to soldiers of a particular description, there never could have been a forgery of such a power of attorney : yet, it still remains a question, whether, under all existing circumstances, this court has jurisdiction. If the authority of congress is competent to declare the false making such a paper to be a *xxx 1 C1'™-e forgery, to prescribe its *punishment, and to appoint the place of trial to be in the courts of the United States, exclusively of the state courts; yet, on examination, it will be found, .that congress has not, by an act, legislated on any of these points. No act of congress has, either definitely or by general description, made the false fabrication of such a writing to be a forgery, nor has any act declared how such a forgery or forgeries, generally, shall be punished. No act has given jurisdiction to any court, either concurrent or exclusive, to try the crimes of forgeries generally.

If these positions be true, they tend to show it doubtful, whether, at this day, under the existing laws of the United States, this forgery could be tried and punished in their courts ; however, future laws may make them so.

To say that the constitution of the United States operated any abridgment of the jurisdiction of the state courts, as to crimes generally, of forgery, perjury, larceny, merely because they related to the interest or concerns of the United States, or their officers, acting under their laws, before they themselves, by their own acts, shall have provided for the punishment of such crimes, and taken order as to the jurisdiction of them, would lead to this consequence, that for a time, consistent with such doctrine, some crimes would, by law, be subject to no prosecution or punishment.

In the 2d vol. of the Federalist, pages 323, 324, which may be called a commentary on the constitution of the United States, contemporary with it, it is held, that the states retain all pre-existing authorities which may not be exclusively delegated to the federal head ; and that this exclusive delegation can only exist in one of three ways : 1. Where an authority is, in express terms, granted to the Union : 2. Or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the states : 3. Or where an authority is granted to the Union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think, that they are, in the main, just, with respect to the former as well as the latter ; and under this impression, I shall lay it down as a rule, “ That the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated ways.” (Page 324.) I am even of opinion, that, in every case in which they are not expressly excluded by the future acts of the national legislature, they will, of course, take cognisance of the causes to which those acts may give birth.”

But the present case is not one of those which comes within the exceptions of that writer. 1st. The jurisdiction of this crime is not exclusively granted to the Union. 2d. It is not prohibited to the states. 3d. Nor, if it is granted to the Union, is it a case where a similar authority in the states would be incompatible.

*In the act of congress (p. 141) “ for the punishment of certain crimes,” the murders or larcenies there mentioned, are such as may be committed within the forts, arsenals, dock-yards, federal district, places ceded by the states to the United States, or upon the high seas, perjuries in their own courts of justice under any act of congress, forgeries of indents or public securities. In general, they are those subjects submitted by the constitution to be legislated upon by them, and made subject to their judicial authority. Congress having exercised their power over many subjects submitted by the constitution, and to some arising under their laws ; but never having touched the present subject, of which this state had a pre-existing cognisance, it may be considered as casus omissus by their laws ; and until they shall, by some future act, exercise their authority over the subject by designating the crime, prescribing the punishment, and giving to the courts of the United States exclusive jurisdiction, this court may, constitutionally, take cognisance of the cause, and punish the offence, by the laws of this state. Therefore, the 11th section of the judiciary act, which gives to the circuit court exclusive cognisance of all crimes and offences cognisable under the authority of the United States, may be reasonably supposed not to have contemplated this ease, which by no act of congress is designated as a crime, nor has it any appointed punishment. [*xxxi.

The prosecution against Henfield, in the circuit court, was for a violation of his duty, as a citizen of the United States, in entering on board a French privateer, and cruising against the subjects of the king of Great Britain, with whom the United States were at peace, under the sanction of a treaty. This was contrary to the law of nations, to the treaty, and against the constitution of the United States. This was not a crime resulting from the regulations of an act of congress. Havara was a public minister, a consul, and, therefore, the jurisdiction over him by the constitution was expressly to be exercised by the courts of the United States. Neither of these cases rests upon the principles on which the present case stands, and therefore, are no authorities.

The 34th section of the judiciary act (p. 112), which says, that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise direct, shall be regarded as the rules of decision, in trials at common law, in the courts of the United States, plainly refers to trials of a civil nature, according to the course of the common law, and not to the trial of crimes by the rules of the common law.

Upon this comprehensive view of the question, the court are of opinion, that they are competent to the jurisdiction of this cause, and therefore, do overrule the motion that has been made in arrest of judgment, founded on the objection to their want of jurisdiction.


author: Mr. Justice Story

text:
    James Moody Vaughan and others, Appellants, vs. Henry Northup, Administrator of James Moody, deceased, and others.
    An administrator, appointed, and deriving his authority from another state, is not liable to be sued, in (he District of Columbia, in his official character, foi assets, lawfully received by him in the District, under, and in virtue of his original letters of administration.
    Every grant of administration is "strictly confined in its authority and operation to the limits of the territory of the government which grants it, and does not, de jure, extend to other countries.- It cannot confer, as a matter.of right, any authority to collect-assets of the deceased, in any other staie; and whatever operation is allowed to it beyond the original territory of - the grant, is a mere matter of courtesy, which every nation is" at liberty to yield or to withhold, according to its own policy ,and'pleasure, with reference to its own institutions, jmd the interests of its own citizens.
    The administrator is exclusively bound to account for all the assets which ‘he" receives under, and by virtue of his administration, to the proper tribunals of the government . under which he derives his authority. The tribunals of other states have no right to interfere with, or control the application of those assets according to the lex loci. Hence it has become an established doctrine, that an administrator cannot, in his official capacity, sue for any debts due to his intestate, in the Courts of another State; and that he is not liable to be sued in,that capacity, in the Courts of the latter, by' any creditor, for any debt due there by'his intestate.
    The debts due from the government of the United States, have no locality at the reat of government. The-United States, in their sovereign capacity, have no particular place of domicile: but possess, in contemplation of law, an ubiquity throughout tie Union; and the debts due by them are not to be treated like the debts of a priva, e debtor, which constitute local assets in his own domicile.
    The administrator of a creditor of the government, duly appointed in the state where ■ he was domiciliated at his death, has full authority to receive payment, and give á full discharge of the debt due to his intestate, in ány place where the government may choose to pay it; whether it be at the seat of government, or at any other place where the funds are derujsited.

      The act of Congress, of June, 1833, authorizes any person to whom letteralestamentaiy or of administration have been granted, in the States of the Umted-States, to prosecute claims by suit in the Couitaaf the District of Columbia, in the same manner as if the same-had been granted "to such persons by the proper authority in the District of Columbia. The power is limited by its terms to the institution of suits; and does not authorize suits against an executor' or administrator. The effect of thisiaw was to make ¿11 .debts due by persons in the District,.riot loeal assets, for which the administrator was bound to account in the Courts of the District; but general assets, which he had full authority 'to receive, and for which he was bound to account in the Courts of the state from which .he’ derived' his letters of administration.
    The case of Kane vs. Paul, 14 Peters, 33,-cited.
    ON appeal from the Circuit’ Court of the United Spates for Alexandria; in the District of Columbia. .
    A bill was filed on the. equity §ide of the Circuit. Court ■of the District of Columbia, stating that ..the complainants are the next of kin and distributees of Janies Moody, deceased, who resided in Kentucky at .the time of hjs death: that the defendant, Northup, took out letters of administration on the estate of said Moody, in the proper court in Kentucky, and by virtue of said letters claimed and received from the government of the United States a -large sum of money, to wit, fifty-two hundred dollars. The bill further stated that the complainants reside in Virginia; that Northup was in the District of' Columbia at the time of filing' the bill; (and Northup was actually found in said District, as appears- by the. marshal’s, return of the subpoena ;) and that the other defendants reside in Kentucky, and pretend to be the. next' of kin and' distributees of said Moody. The bill prays an account of said estate against said Northup, and distribution of the,assets received from the' United States, &C. Northup answered, and pleaded to the jurisdiction, of the Court on thé ground-'that he was only responsible to the Court, in Kentucky, in which he- had obtained letters of administration: he then went on and answered the bill-at large, denying all "its material allegations. The other defendants also' came in’and answered the bill. The complainants ordered the plea of Northup to the jurisdiction of the Court to be set down for argument; and upon the argument, the Court below ordered the bill of complaint-to be dismissed.
    The complainants appealed to the Supreme Court.

      The case Was argued by Mr. Brent, for the appellants; and by Mr. Coxe, for the appellee.
    Mr. Brent stated that the question was, whether a foreign administrator, one who had taken out letters of administration in another state, can come into the Distrielof Columbia, and receive money in the District, and was hot answerable for the amount so received in the District.
    The appellee, Henry Northup, was in the District when the suit was brought..
    It is admitted, that at common law, an administrator, is only-liable to account where the administration is granted. But this rule should not be applied to cases in the District of Columbia. There would be a peculiar hardship in .the rule,if it is applied here. A' small amount of security might be taken on the granting letters of administration; and on those letters, a large amount of assets might be received out of the state granting the same. The creditors and next of kin would have no relief against the • sureties of such an administrator.
    An act of Congress of the 24th of June, 1812, authorizes ad-, ministrators from other states 'of the Union, to collect money -and institute suits in the District of Columbia. This places the foreign administrator on the same footing as .if letters had been granted to him in the District of Columbia, and places him under the same responsibilities.- The Court is bound to take notice of foreign administrators coming -into, the district. Káne v. Paul, 14 Peters, 33.
    Thus, no administration to the effects of Moody could be obtained in this District, after the granting of the letters to Northup in Kentucky; but the funds were all received nere by the administrator: and the Court will administer the assets, at the place where they have been. received, and at the place of suit. 11' Massachusetts Reports, 264. A legatee can sue the administrator, when he obtains the assets. 4 Mass.- 344. . 3 Peters’ Rep, 144. • Story’s Conflict of Laws, 1st ed., 425, declares that non-resident claimants are to -be regarded in the same manner as residents. • Cited, 1 Mason, 381. 1 Story’s Conflict of Laws, sect. 534. 531. 588.
    The act of Congress óf 1821, gives jurisdiction to the Courts of the District of Columbia, in all cases in law or equity, where both, or either of the parties are residents within the District of Columbia. The Probate Courts of Kentucky have not exclu-' sive jurisdiction over the distribution of assets. 1 A. K. Marshall’s Rep. 459.
    As to the pleadings; cited, Livingston v. Story, 1I Peters, 393. Milford’s'Pleading, 305, 309.
    Mr. Coxe, for the ap'pellees.- In the casé of Livingston v. Story, there was a plea- to the, disability of the plaintiff. • The objection in this case is to the; jurisdictionof the Circuit Court of the District of Columbia, in the matter of this administrator, and the distribution of the- assets, which must be made, as a great portion of them has already been made, in the state of Kentucky.'
    '-' The act of Congress of 1812^ does no more than authorize administrators of other- states to sue ip the District of Columbia'; this was nécessary, 'in consequence of the large claims in the District, from every part of the Union. The act goes no further than this ;- and not to abrogate all the laws prevailing on the subject. The law never, intended to oblige á foreign administrator to stand a suit here; it would be vastly-injurious, if such should be -the law. ■
    The act giving jurisdiction to the Courts of the United States, in the District of Columbia,, cannot-receive the construction given to it by the eounsél for the'appellants; the jurisdiction is given in cases' properly cognisable in the Courts', when one of the -parties is inthe District. Cited, Story’s Conflict of Laws, sect. 422.. 513. 515. ' .
    The argument for the appellants is, that as the money was received in the District of Columbia, it is to be distributed and •administered according to the laws of the District. It is important that this .question shall be settled. This was a claim in the hands of an administrator in Kentucky, of a debt due to a citizen of Virginia, by the state of Virginia,-for military services, for ■which the United States had agreed to pay.. Is this to,bring the fund, because it was received in the District, subject to the laws of the District?
   Mr. Justice Story

delivered the opinion of the. Court.

This is an appeal from a decree of the Circuit Court of the District of Columbia, sitting for- the county .of- Washington, dismissing a bill in equity, brought by the appellants against the appellees.

The facts, so far as they ar& necessary to be stated upon the present occasion, are, that one James Moody, an inhabitant of Kentucky, died in that state about the year 1802, intestate, without leaving any children; that in May or June, 1833, the defendant, Northup,. obtained letters of administration upon ,his estate from the proper Court of Jefferson county, in Kentucky; and afterwards under and in virtue of those letters of administration, he received from the treasury of the United States the sum of five thousand two hundred and fifteen dollars and fifty-six cents] for money due to the intestate, or his representatives, for military services rendered during the revolutionary war. The • present bill was brought by the appellants, claiming to be the next of kin, and heirs of the intestate, for their distributive shares of the said money, against Northup-as administrator; and the other defendants, who are made parties, are asserted to be adverse claimants, as next of kin and distributees. At the hearing of the cause in the Court beíów; the same .having been set down for argument upon the answer of Northup, denying the jurisdiction of the Court; the bill was ordered to be dismissed for want of jurisdiction; and from that decree the present appeal has been, taken.

Under these circumstances the question is broadly presented whether an administrator, appointed and deriving his authority from another state, is liable to be sued here, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration. We are of opinion, both upon principle, and authority, that he is not. Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it] and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other state; and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of comity, which every nation is at liberty to yield or to withhold, a'ccording-to its own policy and pleasure, with, reference to its own institutions and the interests of its own citizens. On the other ■ hand, the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states'have no right to interfere with or to control the application of those assets, according to the lex loci. Hence it has become an established doctrine tha.t an administrator} appointed in one state, cannot, in his official canacity, sue for any debts due to his intestate in the courts of another state; and that he is not liable to be sued in that capacity in the Courts of the latter, by any creditor, for any debts due there by his intestate. The authorities to this effect are exceedingly numerous, both in England and America; but it seems to us unnecessary, in the present state of the law, to do more than to refer to the leading principle as recognised by this Court in Fenwick v. Sears, 1 Cranch, 259; Dixon’s Executors v. Ramsay’s Executors, 3 Cranch, 319; and Kerr v. Moon, 9 Wheat. 565.

But it has been suggested that the present case is distinguishable, because the assets sought to be distributed were not collected in Kentucky, but were received as a debt due from the government at the treasury department at Washington, and so constituted local assets within this District. We cannot yield our assent to the correctness of this argument. The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicile, but possess, in contemplation of law, an ubiquity throughout the.Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicile. On the contrary, the administrator of a creditor of the government, duly appointed in the. state where he was domiciled at his death, has full authority to receive payment, and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it; whether it be at the seat of government, or at any other place’ where the public funds are deposited. If any other doctrine were to be recognised, the consequence would be, that before the personal representative of any deceased creditor, belonging to any state in the Union, would be entitled to receive payment of any debt due by the government, he would be compellable to take out letters of administration in this Bistrict for the due administration of such assets. Such a doctrine has never yet been sanctioned by .any practice of the government; and would be full of public as well as private inconvenience. It has not, in our judgment, any just foundation in the principles of law. We think that Northup, under the letters of administration taken out in ¡Kentucky, was fully authorized to receive the debt due from the government to his intestate; but the.moneys so received constituted assets under that administration, for which he was accountable to the proper tribunals in Kentucky; and that distribution thereof might have been, and should have been, sought there in the same manner as of any other debts due to the intestate in Kentucky.

It has also been supposed, that the act of Congress of the 24th of June, 1812, may well entitle the appellants to maintain the present suit; since it places a foreign administrator upon the footing, of a domestic administrator, in the District of Columbia. That act provides that it shall be lawful for any person to whom letters testamentary'or of administration hath been or may hereafter be granted by the-proper authority, in any of the United States or the territories thereof, to maintain any suit or action, or to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or of admi nistration had been granted to such person by the proper authority, in the said District. It is observable, that, this provision is limited by its terms to the maintenance of suits, and the prosecution and recovery of claims in the District, by any executor, or administrator appointed under the authority of any state. It does not authorize any suits or actions in the District, against any such executor or administrator. Its obvious design was, therefore, to enable foreign executors and administrators to maintain suits, and to prosecute and recover claims in the District, no,t against the government alone, but. against any persons whatever, resident within the District, who were indebted to the deceased, and to discharge the debtor therefrom, without the grant of any local. letters of administration. In effoc-t, it made all debts due from persons within the District, not local assets, for which a personal representative would be liable to account in the Courts of the District ; but general assets, which ho had full authority to repeive, and for which he was bound to account in the Courts of the state from which he derived his original letters of administration. Indeed, the very silence of the act as to any liability of the personal representative to be sued in the Courts of the District for such assets, so received, would seem equivalent to a declaration that he was not to be subjected to any such liability. It fortifies, therefore,,rather than weakens the conclusion which is derivable from the general principles of law, upon this subject. • The same view of the purport and objects of the act was taken by this Court, at the last term, in the case of Kane v. Paul, 14 Peters, 33.

Upon the whole, we are of opinion that the Circuit Court was right in dismissing the bill for the want of jurisdiction; and, therefore, the decree is affirmed with costs.

This case came on to be heard on the transcript of the record from the Circuit Gourt of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel.

On consideration whereof, it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is, hereby, affirmed, with costs.


author: Mr. Justice Thompson

text:
    Edmund P. Gaines, and Mira Clarke, late Whitney, Complainants, vs. Richard Relf, Beverly Chew, and others, Defendants.
    In the case of Livingston v. Story, which came before this Court, in 1835, (9 Peters, 655,) the Court took occasion to examine the various laws of the United States, establishing and organizing the District Court of Louisiana, and to decide whether that Court had equity powers; and if so, what should be the mode of .proceeding in the exercise of such pow.ers. The various cases which had been before the Court, involving, substantially, the same question in relation to the states where there were no .equity State Courts, or laws regulating the practice in equity causes, were referred to; and the uniform decisions of the Court have been, that there being no equity State Courts, did naTfirevent the exercise of equity jurisdiction in the Courts of the United States; and it was, accordingly, decided, that the District Court of Louisiana, was bound to proceed in equity causes, according to the principles, rules, and usages which belong to the Courts of equity, as contradistinguished from Courts of common law.
    The cases of Livingston 1). Story, 9 Peters, 655. .. 13 Peters, 368. Ex parte Poultney v. The City of La Fayette, 13 Peters, 474. Ex parte Mira Clarke Whitney, 13 Peters, 404. cited; and the principles' of these cases affirmed.
    The Supreme Court has not the power to compel the Circuit. Court to proceed according to established rules in chancery cases. All that the Court can. do, is to prevent proceedings otherwise, by reversing them, when brought here on appeal.
    It is a matter of extreme regret, that it appears to be the settled determination of the District Judge of Louisiana, not to suffer chancery practice to prevail in the Circuit Court of Louisiana in equity causes, in total disregard of the repeated decisions of this Court, and the rules of practice established by the .Supreme Court, to be observed in chancery cases.
    ON a certificate of division from the Circuit Court of- the United States, for the Eastern District of Louisiana.
    A bill of complaint was originally filed in the District Court of the United States for the Eastern District of Louisiana; and was afterwards transferred to the Circuit Court for the same District.
    Subpoenas were issued on the 1st of August, 1836, with a copy of the bill, to each and all thé defendants, about fifty in, number. Service of this process was made by the marshal, on twenty-seven of the defendants, and amongst them, on Richard Relf. W. W. Whitney, one of the plaintiffs, having deceased, the proceeding was continued in the name of Mira Clarke Whitney, his widow. The bill claimed the estate left by Daniel Clarke, at the time of his death; alleging that Mira Clarke Whitney was his. only child, and heir at law, and his devisee.
    The bill charged Beverly Chew and Richard Relf, With having fraudulently concealed and suppressed Daniel Clarke’s true.and last will, in which the complainant, his daughter and heir at law, was his only devisee, and was his general legatee; with having sét up another will, in Which they were named executors, and with having taken and appropriated all the estate, real and personal, of Daniel Clarke. The other defendants are charged with confederating with the executors; and with having obtained, and still holding large portions of the estate, through the executors or under them.
    The bill contains an inventory of the estate of Daniel Clarke, as far as Can be made out. For these frauds and breaches of trust the bill claims restitution, &c.
    On the 20th February, 1837, (about two months after subpoenas were returned, served,) the two executors, with twenty-fiva of their co-defendants, appeared by their respective solicitors, and filed a petition: wherein, styling themselves respondents, eleven of them say, French is their “ mother tongue,” (not that they do not understand English as well;) and práy, as a precedent condition to their being held to plead, answer, or demur to the bill, that a copy, in their “ maternal language,” be served on each and every of them, severally, over and above the English copies already served. Then, “ all the aforesaid respondents, (including, of course, the two executors,) here appearing separately by their respective solicitors, crave oyer” of all the instruments and papers of every sort mentioned in the bill; but,if it be not possible for said complainants to afford these respondents oyer of the originals of said supposed instruments, they then pray that copies of the same, duly certified according to the laws of the state of Louisiana, may, by order of this honourable Court to said complainants, be filed herein, and served on these respondents, that they may be enabled to take proper cognisance thereof.” ' The respondents more especially crave oyer of twenty-three of these instruments, enumerated and specified in a list, referring to the several' clauses ofthe bill Where they are respectively mentioned.
    No answer having been put in by the twenty-fiVe respondents, a motion was made for an attachment, which was refused by Judge Lawrence, the District Judge, sitting as a judge of the Circuit Court, to which the proceedings were transferred after the establishment of a Circuit Court in the eastern district of Louisiana.
    At the same time Judge Lawrence, sitting alone in the Circuit Court, prescribed rules of practice for that Court; among which was a general one, that “ the mode of proceeding in all civil cases, those of admiralty alone excepted, shall be conformable to the Code of Practice of Louisiana,-and to the'acts of the Legislature of that state, heretofore passed, amendatory thereto.”
    The complainant applied to the Supreme Court, at January term, 1839, for.a mandamus to ‘ Judge Lawrence, in order to compel him to proceed in the case. 13 Peters, 40S.
    The mandamus so applied for was denied, for reasons appearing in the Court’s opinion; but the Court, at the same time, expressly declared, though the remedy by mandamus be inadmissible, that it is the duty of the Circuit Cdurt to proceed in this suit, according to the rules prescribed by the Supreme Court, at the February term, 1822, can admit of no doubt'; and that the proceedings of the District Judge, and the orders made by him in the cause, which are complained of, are not in conformity with those rules of chancery practice, can admit of as little doubt. 13 Peters, 408.
    Since then, the present complainants, (having intermarried,) filed a petition for rehearing the before stated order, by a bill filed in the Circuit Court on the 1st of June, 1839..
    The petition stated that the complainants were much aggrieved by the interlocutory decree made in the case by the former District Judge for the eastern district of Louisiana-; whereby it is ordered that the application of the defendants for oyer of documents, and for copies of the bill of complaint be allowed: and further, that all further proceedings in the case shall be in conformity with the existing practice of the Court.
    On June 1, 1839, in the Circuit Court, before the honourable Judges M'Kinley and Lawrence, the counsel for the complainants moved the Court,
    1st. To set aside and vacate said decretal order.
    2d. To remand the said cause to the rule docket, and order that the complainants should be permitted to proceed therein according to chancery practice. The defendants appeared by their counsel, and resisted said application and motion, upon the ground that chancery practice shohld not be had in this Court, arid they relied upon the treaty of cession of Louisiana to the United States, from France, in 1803; the acts of Congress of 29th September, 1789; 26th May, 1824; the 19th May, 1828; and 20th May, 1830; and the first rule adopted by this Court,of. 20th November, 1837.
    The judges of the Circuit Court having differed in opinion on the hearing of the motion, it was ordered to be certified to the Supreme Court for its decision upon the following questions:
    1st. Does chancery practice prevail, and should it be extended to litigants in this Court, and in this cause ?
    2d. • Should or not the. said order .of the date of 9th March, 1837, be annulled and vacated ?
    3d. Should or not the cause be placed upon a rule docket, and the complainants be permitted to proceed according to chancery practice, and the defendants be required to answer without oyér of the documents prayed for, or a service of the bill in French, as prayed for ?
    And the cause coming on to ,be heard, by consent of parties, upon the demurrer,- and upon the adjudication thereof, the judges were opposed in their opinions, and the foregoing questions were ordered to be certified .to the Supreme Court of tfie United States for its decision and adjudication.
    The case was argued by Mr. Key, and Mr. Jones, for the plaintiffs; and by Mr. Coxe, for the defendant.
    The counsel for the plaintiffs contended that the -single question in the case was, whether the Circuit Court' of Louisiana has chancery jurisdiction. The argument that the case is not one for chancery jurisdiction, does not apply. The question Avhether the case of the complainants is, or is not one of chancery cognisance, is not before the Court on the certificate of devision.: No provision of the Code of Louisiana, gives chancery jurisdiction to the Courts of that state. Chancery law as administered in the Courts of the United States, is á fixed code of laws; and depends on established rules and decided cases. The Courts of equity are of a peculiar form. The Code of Louisiana gives a judge in certain cases a right to proceed according to the principles of natural justice; but this gives no chancery powers.
    They contended that the case .exhibited in the complainants’ bill, was one peculiarly of chancery jurisdiction. It is a beneficial bill, and should háve the protection of the Court. Cited, Brown’s Parliamentary: Cases, 550.. Dickens’ Reports, 26. 2 Vesey and Beame, 259. But the chancery jurisdiction of the Circuit Court has been fully recognised in the case of Livingston v. Story, 9 Peters, 655. 12 Peters, 474. 3 Peters, 368. 404. The rules of Court regulating the practice of the Circuit Court, show that the call for papers as made by the defendant, is not allowed. 10 Rule of Court. 3 Dallas, 335. 339. The rules of practice in the Civil Code of Louisiana, do not sanction such a call for papers.
    Mr. Coxe argued thát the case exhibited in the bill was not one of chancery jurisdiction; nor is a proceeding to vacate a will, in the power of a Chancery Court. Cases cited, 13 Peters, 369. 9 Peters} 657. 12 Wheaton, 169. 175. 1 Williams on Executors, 157. Cowper’s Equity Pleading, 268. 2 Story’s Equity, 670. Mr. Coxe referred to the Louisiana Code, to show that the Probate Court was the proper tribunal to set aside the will. So, too, the code authorizes proceedings in the established Courts of Louisiana to recover legacies.
    It was not his intention to controvert the decisions of the Court; but such a cage as this had not yet been decided.
   Mr. Justice Thompson

delivered the opinion of the Court.

This case comes up from the Circuit Court of the United States,'for the Eastern District of Louisiana, upon a Certificate of division of opinion upon the following points

1'. Does chancery practice prevail, and should it be extended to litigants in this Court, and in this cause ?

2. Should or not the said order of the 9th of March, 1837, be annulled and vacated ?

3. Should or not the cause be placed upon a rule docket, and the complainants be permitted to proceed according to the chaneery practice'; and the defendants be required to answer withoutoyer of. the documents prayed' for, or a service of the bill in French, as prayed for?

- This was a bill filed in the District Court of the United States, for that district, on the 28th of July, 1836, according- to the course of practice in the Courts of the United States, upon the equity side of the Court;' and in -the course of proceeding, the district judge, on the 9th of March, 1837, entered the following order: “ W. W. Whitney and wife vs. Richard Relf and others. In this case having maturely considered the prayer for oyer, and for copies of bill in.French, the Court this day delivered its written opinion thereon, whereby it is ordered, adjudged, and decreed, that the application for oyer of documents, and for copies of the bill of complaint, in the manner prayed for, (in French,) be granted: and further, that all future proceedings in this case shall be in conformity with the existing practice of this Court.”

At the June term of the Circuit Court; in the year 1839, a motion was made to set aside and vacate that order; and that the complainant might be permitted to proceed in the cause, according to the course of chancery practice. And upon this motion, the division of opinion upon the points above-stated, arose.

These -points present the same question that has been repeatedly before this Court, and received its most délíberate consideration and judgment, viz., whether the proceedings in suits in equity, in the Courts of the United States, in the district of Louisiana, are required to be according to the course of chancery practice, and in conformity to that which is adopted and established in the other states. It is not intended to go into an examination of this question, as one that is new and undecided, but barely to refer to the cases which have been heretofore decided by this Court. In the case of Livingston v. Story, which came before this Court, in the year 1835, 9 Peters, 655, the Court took occasion to examine the various laws of th.e United States establishing and organizing the District Court in Louisiana, and to decide whether-that Court had equity powers, and if so, what-should be the mode of proceeding in the exercise of such powers. The various cases which had been before the Court, involving substantially the same question, in relatioh to the states where there were no equity State Courts, or laws regulating the practice in equity causes, were referred to •, and the uniform decisions of this Court have been, that there being no equity State Courts did not prevent the exercise of equity jurisdiction in the Courts of the United States. And it was accordingly decided, that the District' Court of Louisiana was bound to proceed in equity causes according to the principles, rules, and usages, which belong to Courts of Equity, as contradistinguished from Courts of common law; that the acts of Con'gress have distinguished between remedies at common law and in equity; and that to effectuate the purposes of the legislature, the remedies in the Courts of the United States are to be at common law, or in equity, not according to the practice of the State Courts, but according to the principles of common law and equity as distinguished and defined in that country from which' we derived our knowledge of those principles; subject, of course, to such alterations as Congress might think proper to make. But that no act of Congress had bepn passed affecting this question. That thé act of Congress of 1824 could have no application, to the case, because there were no .Courts of Equity or state laws in?Louisiana, regulating the practice in equity cases. And again, in the same case of Story v. Livingston, which came before the Court in 1839, 13 Peters, 368, one of the'exceptions taken to the master’s report was, that by a rule of the District Court, chancery practice had been abolished, and that such -a proceeding was unknown to the practice, of the Court. This Court says, no such rule appears on the record. But we think the occasion a proper one to remark, that if any such rule has been made by the District Court of Louisiana, it is in violation of those ruleswhich the Supreme Courtof the United States has passed to regulate the practice in the Courts of Equity of the United States; that those rules are as obligatory upon the Courts of the United States in Louisiana, as upon all other United States Courts; and that the only fnodificatiofis or additions that can be made in them, by the Circuit or District-Courts, are such as shall not be inconsistent with the rules thus prescribed: and that where such rules do not apply, the practice of the Circuit and District Courts must be regulated by the practice of the C.purt of Chancery in England. That parties to suits in Louisiana have a right to the benefit of these rules; nor can they be denied by any rule or order, without causing delays, producing unnecessary and oppressive expenses; and in the greater number of cases, an entire denial of equitable rights.. That' this Court has said, upon more than one occasion, after mature deliberation, that the Courts of the United States in Louisiana possess equity powers under the constitution and laws of the United States. That if there are any laws in Louisiana directing the mode of proceeding in equity causes, they are adopted by the act of the 26th of May, 1824, and will govern the practice of the Courts of the United States. But) as has been already said, there are no such laws in Louisiana, and, of course, the act cannot apply.

And in the case Ex parte Poultney v. The City of La Fayette, 12 Peters, 474, this Court said, the rules of chancery practice, in Louisiana, mean the rules prescribed by this Court for the government of the Courts of the United States, under the authority given by the act of the 8th of May, 1792.

And again; in the year 1839, in the case Ex parte Mira Clarke Whitney, 13 Peters, 404, application was made to this Court for a mandamus to compel the district judge'to proceed in this-case according to the course of chancery practice, upon a petition to the Court representing that he had refused so to do, but had( entered an order that all further proceedings should be conformable to the provisions of the Code of Practice in Louisiana, and the acts of the legislature of that state. Upon this application, this Court again declared, that it is the duty of the Court to pro-' ceed in the suit according to the rules prescribed by the Supreme Court for proceedings in equity causes, at the February term, 1822. That the proceedings of the district judge, and the orders made by him in this cause, (the very order now in question,) were not in conformity with those rules, and with chancery practice; but that it was not a case in which a mandamus ought to issue, because the district judge was proceeding in the cause; and however irregular that proceeding might be, the appropriate redress, if any, is to be obtained by an appeal, after a final decree shall be made in the cause.. That a writ of mandamits was not the appropriate remedy for any orders which. may be made in a cause by a judge, in the exercise of his authority, although they may seem to. bear harshly or oppressively upon the party.

Such are the views which have been heretofore taken by this Court upon the questions raised by the points which have been certified in the record before us; and which leave no doubt that they must all be answered in the affirmative. These questions having been so repeatedly decided by this Court, and the grounds upon which they rest so fully stated and published in the reports, that it is unnecessary, if not unfit, now to treat this as an open question. It is matter of extreme, regret, that it appears to be the settled determination of the District Judge, not to suffer chancery practice to prevail in the Circuit Court in Louisiana, in equity causes; in total disregard of the repeated decisions of this Court, and the rules of practice established by the Supreme Court to be observed in chancery cases.

This Court, as has been heretofore decided, has not the power to compel that Court to proceed according to those established rules; all that we can do is to prevent proceedings otherwise, by reversing them when brought here on appeal.

All the questions presented by the record are accordingly answered in the affirmative.

This cause came on to be heard on the transcript of the record from the>Circuit Court of the United States for the Eastern District of Louisiana, and on the points and questions on which the judges of the said Circuit Court were opposed in opiuion, and which were certified to this Court for its opinion, agreeably to_the act of Congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st. That chancery practice cloes prevail, and-should be extended to litigants in the. said Circuit Court, and in this cause. ' 2d. That the order of the said Court, of the date of 9th March, 1837, should be annulled and vacated.' And,lastly, that this cause should be placed upon a rule docket, and the complainants be permitted to proceed according to chancery practice; an^ the defendants pc required to answer, without oyer of the documents prayed for, ora service of the bill in French, as prayed for. -Whereupon it is now here ordered and decreed by this •Court, that it be so certified to the said Circuit Court, with directions to proceed accordingly.