author: Mr. Justice GRIER

text:
    David S. Stacy, Administrator of Charles S. Lee, Plaintiff in error, v. J. B. Thrasher, for the use of William Sellers, Defendant in error.
    An action of debt will not lie against an administrator, in one of these United States, on a judgment obtained against a different administrator of the same intestate, appointed under the authority of another State.
    The doctrine of privity examined.
    • This case was brought up, by .writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.
    The history of the case is this.
    In April, 1836, Charles S. Lee,- a resident of the county of Claiborne and State of Mississippi, was sued in the county court of Claiborne, by Christopher Dart and William Gardner, who called themselves late merchants and copartners trading under the style and firm of Dart & Co., and stated the suit to be for the use of Christopher Dart.
    It is not necessary to state the cause of action, or trace the progress of the suit minutely.
    Lee appeared to the suit.
    In December; 1836, his death was suggested.
    In July, 1837, Ann Lee took out letters of administration upon the estate of Charles S. Lee, under the authority of the probate court of Claiborne county.
    In September, 1837, the suit was revived against the administratrix, by a, scire facias. ■

      In November, 1837, she appeared to the suit and pleaded the general issue.
    On the 1st of December, 1838, the cause came on for trial, when the plaintiffs obtained a judgment for §6,080.99.
    On the same day, viz. the 1st December, 1838, Christopher Dart, for whose use the judgment was entered, made an assignment of it to John B. Thrasher, of Port Gibson, the nominal defendant in error in the present case;
    After this, however, a new trial was granted by the court-of Claiborne corner in the suit against Ann Lee, administratrix, which resulted in another -judgment, for a different sum of money, in June, 1840.
    Another new trial was granted, and in December, 1840, another judgment was rendered against the administratrix for §6,988.05.
    Nothing further appears to have been done for some time. The next fact in the history of the case is, that David S. Stacy, the plaintiff in error in the present case, and a citizen of Louisiana, took out letters of administration upon the estate of Charles S. Lee, in the State of Louisiana. ' At what particular time these letters were taken out, the record does not show.
    In January, 1844, John B. Thrasher, to whom the judgment in Mississippi had been assigned by Christopher Dart, as above stated, filed a petition in the Circuit Court of the United States, for the Eastern District of Louisiana, against Stacy, the admits' istrator of Charles S. Lee. Thrasher now stated himself to be suing for the use of William Sellers, and averred that Sellers and himself were both citizens of the State of Mississippi. The petitioner stated himself to be the legal owner, by transfer and assignment, of a judgment for § 6,988.05, which judgment was final and definitive.
    In February, 1844, Stacy appeared to the suit and filed the following exceptions and answer, which are according to the practice -in Louisiana, and equivalent to a demurrer.

      “ David S. Stacy, a citizen of the State of Louisiana, residing in the parish of Concordia, administrator of the succession of Charles S. Lee, in the State of Louisiana, under the appointment and authority of the Court of Probates' of the parish of Concordia aforesaid, being made defendant in the above-entitled suit, appears and pleads as follows, by way of exception: —
    “ 1. That plaintiff in his petition does not allege or show that this honorable court has jurisdiction of this - suit, as it is not therein alleged that Christopher Dart, who is declared to be the assignor of the judgment Upon which this suit' is brought, was-either an alien or a citizen of another State than Louisiana, or could have maintained this suit in this honorable court either against the appearer or the said Charles S. Lee.

      “ 2. Appearer alleges that Christopher Dart and William Gardner, the alleged owners of the, claim upon which the judgment was obtained in Mississippi, were citizens of Louisiana, and members of a commercial firm located in New Orleans, and could not have maintained this suit in this honorable court either against the said Lée or against this appearer, and that this court has no jurisdiction of this suit.
    “ 3. That the said William Gardner, one of the joint owners of said claim, was a citizen of Louisiana, and that the said Dart & Gardner could not have maintained a suit upon said claim in this honorable court either against the said C. S. Lee or against this appearer.
    “ 4. That the said Ct Dart, under an assignment and transfer of said claim from the said Gardner, could not have maintained a suit thereon in this honorable .court.

      “ 5. Appearer further excepts and says, that this honorable cotut has no jurisdiction over successions in the State-of Louisiana, nor over the settlement of said successions and the distributions of the proceeds among the creditors, nor over-administrators and .others appointed to administer them, nor of the establishment of claims for money against such successions; that the Court of. Probate of this State have the sole and exclusive jurisdiction of all these matters; that no property-belonging to a succession in the course of administration in the probate court, whose jurisdiction has attached over the subject-matter, can be taken,. levied upon, or sold by process from the cotuts of the United States; nor can said probate courts be ousted or disseized of their said exclusive jurisdiction once obtained, nor the property withdrawn from their control by any other tribunal. That this has been the well-known and settled law of the State for the last twenty years, and that the Said Dart & Gardner contracted in New Orleans, in Louisiana, under and in reference to this law, and are bound by it; appearer alleges that this honorable court, for the above reasons, has no jurisdiction in this suit, rations persones, nor rations materies, ■ but avers that the Court of Probates of the parish of Concordia has .sole and exclusive jurisdiction thereof. Wherefore appearer prays that this suit may be dismissed at plaintiff’s costs, &c.
    If all the above exceptions should be overruled, then ap-. pearer pleads that the plaintiff has neither alleged nor shown any cause of action against him whatever, nor any indebtedness to the plaintiff by the succession of C. S. Lee in the State of. Louisiana.

      ■ If the above' exception should be also overruled, then defendant denies gérierally and specially each and every allegation in plaintiff’s- petition contained. Wherefore he prays that plaintiff’s demand may be rejected with costs, and for general relief in. the premises, &c.
    (Signed,)
    D. S. Stacy, Adm’or estate C. 8. Lee.”

    On the 26th of February, 1844, Thrasher filed ah amended petition, averring that Christopher Dart, the assignor of the judgment, was, at the time of the assignment, an alien,,being a citizen of the republic of Texas, and resident therein, hnd that Charles S. Leé, at the time of said assignment and of his deajh, was a citizen of Louisiana.
    On the 13th of March, 1844, the court overruled ’the exceptions, and on the 11th of April following gave tíie following final judgment.
    “ This cause came on for trial, and the law and the evidence being in favor of the plaintiff, it is orderud, adjudged, and decreed, that the defendant, David S. Stacy, as administrator of the estate of Charles S. Lee; be condemned to pay to the plaintiff, for the use of William Sellers, the sum -of six thousand nine hundred and eighty-eight dollars and five cents, with eight per cent, interest thereon per annum from the first day of December, eighteen hundred and forty, until paid, and costs of suit. Judgment rendered April 11th, 1844. Judgment signed April 18th, 1844.
    (Signed,)
    J. McKinley.”
    From this decree, a writ of error brought the case up to this court.
    The case was argued by Mr. T. B. Barton, for the plaintiff in error, and Mr. Crittenden, Mr. Thrasher, and Mr. Henderson, for the defendant in error.

      Mr. Barton, for the plaintiff in error.
    The great and important question which the record presents, and to which this argument will be confined, is that to which the last exception is directed.
    The petition, with the other proceedings in Louisiana upon the judgment in Mississippi, are not distinguishable from an action of debt, brought under the same circumstances, upon a like judgment, in the courts of those States where the practice is according to the course of the common law. The petition is founded, as the action of debt would be, upon the judgment. The validity and effect of the judgment must be the same in both kinds of proceedings. The case involves the question whether a judgment, rendered in one State against an administrator who has taken administration of the assets in that State, and within that jurisdiction, can be made the foundation of an action in another State against a different administrator, whose administration has been taken within the jurisdiction of the latter, of the assets within the latter jurisdiction.
    There are some special circumstances in this record which arrest our attention in advancing to the discussion of the main point. Cases of this kind must always be open to .remark, and entitled to gravé consideration. The judgment rendered against the first administrator, which is made the foundation of a recovery against the administrator out of the ■assets in another jurisdiction, must be taken to have adjudged that the administrator against whom the judgment was rendered had assets to satisfy the debt. That administrator, in the proceédings against him, must have admitted, by his pleadings, that he had assets; and that will always be the case when he neglects (as was the case in Dart & Co. v. Lee’s Administratrix in Mississippi) to plead plene administravit; or, if assets have been denied by such plea, that issue must have been found' against him. A general judgment, therefore, against an administrator, necessarily includes in it the adjudication of assets in the hands of that administrator to the amount of the judgment. According to the rigor of the common law, the judgment in that form would be absolutely conclusive against the defendant’s administrator, and against the plaintiff and all others; and the only ulterior proceedings upon such judgment, if not satisfied, upon an execution to be levied de bonis testatoris, would be against that administrator for a devastavit. (2 Lomax on Executors, 391, séc. 8, and 451, sec. 21.)
    Virginia, and perhaps others of the States, has mollified, in some respects, the rigorous conclusion of this common law fule, but without destroying it. In its most mitigated application to such a recovery, the judgment will be at least taken, until the contrary is shown by that, defendant, as a judgment that the administrator had assets for the satisfaction of the recovery. For this reason, as well as for other reasons, -it is certain that we shall find no case in the English authorities where a judgment has been recovered against one administrator, in. which any recovery has been sought against another administrator, unless in cases of an administrator de bonis non, or unless in cases of special administrations, such as administrator durante minore estate, &c. And, for the same reason, it is probable that no such cases can be found in any of the American authorities, even where the rules alluded to have been «litigated. It will be found extremely difficult, within, the jurisdiction where administration was granted, to conceive any case of that kind. The judgment, then, upon which the petitioner founds his recovery against the administrator in Louisiana, shows upon its face that assets for its satisfaction, in the State- of Mississippi, were also adjudged. The very judgment, by showing that matter, an adjudged liability of a sufficiency of estate in Mississippi, shows an exoneration of assets elsewhere than in Mississippi, and that the Louisiana administrator ought not to be charged, by a double recovery, for that which has been already or can be recovered against another representative in Mississippi.
    There is also another remark that may be made upon the proceedings in this case,. — that the decision, if sustained, must lead to alarming mischiefs in the administratioh of assets which an intestate has left in two or more States. It seems, from the aniended petition, that C. S. Lee, at the time of his death, was a citizen of Louisiana; that wás his domicile, and consequently Ann Lee, in Mississippi, was a foreign administratrix. The bulk of an intestate’s assets will almost always be found in the jurisdiction of his domicile. The proposition which is contended for to sustain this recovery goes to this extent, — that if an intestate in one State had died, leaving ¡property of the «lost inconsiderable, valué in another State,-malting it necessary that there should be an administration in the latter, a plaintiff, by recovering a judgment against the latter, establishing a debt of the intestate, that judgment, as contended for by the' defendant in error, would be conclusive upon the administrator and the assets, in the State of the domicile, at least so far as it established, the indebtedness of the intestate. In vain might the domiciliary administrator attempt, in an action brought against him upon that judgment, to prove that the plaintiff had no shadow of claim against the intestate ; he would be repelled, by force of the judgment, from any such defence.
    Is it reasonable, that, in the international law of these States under the Constitution and acts of Congress, such ruinous stringency should be given to the judgment of one State in the courts of another ? — that a judgment against the foreign administrator, who is regarded only as auxiliary or ancillary to the domiciliary administration, and who is in practice oftentimes, in some of the States, little more than a nominal administrator, shall conclude the primary domiciliary administrator, holding the main bulk of the assets, by establishing against him and against those assets the principal fact in the case, the indebtedness' of the intestate, so that they can never be extricated from this rigid conclusiveness of the foreign judgment ?

      There is a further remark, that the petitioner seeks a recovery upon the Mississippi judgment against “ a considerable estate, real and personal,” left by the intestate in the State of Louisiana; estates of both descriptions, it would seem, are liable as assets in the hands, or under the control, of the administrator in that State. There is no principle in general jurisprudence, and particularly in the United States, better established, than that land can never be subjected to a foreign jurisdiction. (Story’s Confl. of Laws, pages 436, 437,. <§>§ 522, 523.)
    To give to the judgments of one State validity and effect in ■ the courts of another, is a wise provision under our system, of government. It cannot, however, be overlooked, that to what-' ever extent force is allowed to them,' out of the State which pronounced them, in the jurisdiction of another State, it operates as a restriction or compulsion upon this jurisdiction, making it subordinate to the jurisdiction of a foreign forum. The provision, therefore, which has been alluded to should be jealously guarded by the courts; and unless its application should -be shown to be clearly reasonable, the application should be denied. It has before been intimated, that no authority can be found, certainly not in the English law, probably not in the American law, which can govern the precise case now under consideration.
    -Without attempting to disturb any doctrine heretofore established in regard to the coiticlusiveness of judgments, and the effect of the judgment of a court of one State,: when sued upon or offered in evidence in the courts of another State, it is contended that that doctriné has never been extended to'a case like the present, and that it would not be reasonable to give it such. application.. It is a principle incontrovertibly established in the English jurisprudence, in that of Louisiana (Benjamin and Slidell’s Digest of Louisiana Laws, page 559, et seq.), and in all the other States, that “ no one, in general, can be bound by a verdict or judgment, unless he be a party to the shit, or be in privity with the party, or possess the power of making himself a party. For (as has been well said) otherwise he has no power of cross-examining the witnesses, or of adducing evidence in support of his rights. He can have no attaint, nor. can he challenge the inquest, or appeal (or have a. writ of error on the judgment). In short, he is deprived of the means provided by the law for ascertaining the truth, and consequently it would’be repugnant to the first principles of justice that he should be bound by the results of an inquiry to which he was altogether a stranger.” (1 Stark. Law Ev. 217, 6th Am. ed.)
    It is not pretended that the administrator in Louisiana was a party to the proceedings in Mississippi, or could by any possible means have made himself a party to them. It is incumbent upon the defendant in error' clearly to show, before the jurisdiction in Mississippi shall control that of Louisiana, that the administrator of the latter State was, in the proceedings in which judgment was recovered in the former, in privity with the defendant in that suit. The contrary, has been distinctly laid down by Justice Story, in his learned treatise on the Conflict of Laws, <§> 522. That is a direct authority upon the present case. It makes no, difference that the judgment in the cases in Rawle, 431, to which he refers, was a judgment rendered in Barbadoes. The matter under consideration involves no discussion, as to the difference between the effect of a judgment when rendered in a State jurisdiction, and when rendered in a jurisdiction out of- the-United States. The point decided there was, that there was no privity between one administrator and another administrator of the same intestate, when both administrations have been granted by different jurisdictions entirely separate and independent of each other.
    The jurisdiction - of each' State of this Union is sovereign and independent in granting letters of administration, as much so as -that of any two foreign states. The grant, when made, invests the administrator under the authority of that State with the proprietorship of the effects of .the intestate within that State, but, having no jurisdiction beyond its own limits, it can confei; no property upon him out of those limits.
    - Each administrator, when several administrations are granted in' several States, is made the owner of a distinct property, wholly unconnected with any other out of the State. The authority under which each derives his title is a separate sovereign power ; and it is exclusively by that authority, not by virtue of testamentary appointment of the dead, that they are invested with any interest or control in the respective estates; and it .is entirely to the authority from which then; rights are alone derived that they are in any manner accountable. In some sense they may severally be said to be a representative of the deceased.
    There would be no ground for asserting that these representatives in different States constitute one representative, as several executors under the same will, or administrators under the same jurisdiction, may constitute one executor or administrator, though the assets confided to each may be separated.
    It is believed that this doctrine, here attempted to be presented, of the relation in which the separate administrators under different jurisdictions stand in these United States, has been universally recognized by the States excent so far as by. statutory law (showing, that the original principle was as here stated) the doctrine has been changed or modified, it would seem necessarily so, not only as regards the relation of the administrator, but as regards the rights of the executor as affecting the assets and the representative of the deceased, for he has no lien upon the fund in the hands of the representative as the debtor, but the person of the administrator, who is, in a measure, the officer or bailiff of the court appointing him, in respect of the, assets which he has in his hands, is the debtor. (T Lomax on Executors, 345.; Ram. on Ass. 484.) What constitutes privity between one representative of a dead man and another representative depends upon no peculiar rules springing out of a practice of the probate court, in-regard to the representatives of deceased'persons, but is to be ascertained upon principles of the common law, as applicable to cases generally, of which a variety of illustrations will be found in the books, especially 1 Stark. Law Ev. 217, et. seq. Privity' between one administrator and another does not depend upon, and cannot be created by, their being each of them the representative of the ' same intestate, though it be a duty in which they all unite. It has not been so regarded in the English law, which, until the 17th Car. 2, did not regard the administrator de bonis non in privity with an executor or administrator, to bring scire facias on the judgment which the executor, or administrator, had obtained. (See authorities, 1 Lorn. Ex. 325.) So, if one brings several ejectments against several upon the same title, a verdict against one is not evidence against the rest, because ithe party against whom the verdict was had might be relieved against it, if it was not good, but the rest could not (1 Stark. Law Ev. 217); as the title'under-which all these defendants in ejectment claimed is the same, each of them, of course, must have held in privity to some one person, from whom all their titles were' severally derived; nevertheless, that privity in one common title did not unite them in privity to each other.
    The judgment,- therefore, in Mississippi, against Ann Lee, administratrix of the assets of Charles S. Lee in Mississippi, could not bind the appellant, D. S. Stacy, administrator of the assets of C. S. Lee in Louisiana.
    The rule excluding res inter alios acta as a ground of action, or as a bar in the pleadings, it is hardly necessary to remark, extends with' equal stringency to exclude such matter as evidence at the trial. (1 Stark. Law Ev. 217; and 1 Greenl. Ev. $ 522, et se'q.)
    The principle here-contended for cannot be evaded by force of the statute of Mississippi, which seems, as is contended for, to make the judgment recovered in Mississippi against Ann Lee, administratrix, have the effect of being a judgment recovered against Charles S. Lee, the intestate himself,' because that suit was instituted against him in his lifetime. That statute enables the plaintiff to revive the suit: pending against. the intestate, and empowers the court to render judgment for or against such administrator, in the., same manner as if the original party were in existence. (How. & Hutch. Dig. 584.) This statute can mean nothing more than in the strongest expressions to remove-merely the impediment thrown in the way of the proceedings; of the plaintiff by abatement. It did not mean, by strict adherence to the same manner as if the original party were in existence, to preclude the administratrix from pleading pleas peculiarly allowed to executors and administrators, — such as pierde administravit, generally or specially, no assets, and the like ; or to preclude the plaintiff from taking a judgment against the administratrix ; and if so, the judgment could not be in the same manner as if the original party was in existence. If the legislature had intended that, it would have adopted a provision like that in the 17th Car. 2, c. 8, s. 1, where a party dies between verdict and judgment, directing that the judgment, shall be entered as. if both parties were living. (See 1 Lorn. Ex. 324, 325.)
    . The judgment rendered in this very case shows that such has not been, the interpretation given to that statute, for it is á judgment, hot against the intestate, but against the administratrix. Whatever may be the interpretation to be put upon the statute, 'it is sufficient here to say, that the judgment taken ■Was not in., accordance with any directions that it should be rendered as if the party were living, but that was waived if the statute gave such power, and the plaintiff has taken a judgment against the administratrix ; and taking it in that manner, the plaintiff subjects himself to all the consequences of that form of judgment.
    ■ In conclusion, the plaintiff in error is not precluded from the grounds of error, here attempted to be maintained by force of the 32d section of the Judiciary Act of 1789. That section was-only intended to apply to proceedings'in actions at. common law; not to proceedings by petition, according to the practice of Louisiana. Even if it did, the exception taken in the court below cannot but be regarded as tantamount to' a demurrer according to the requisitions of that statute. That clause is a transcript of. the provisions of 27th Eliz. c. 5, and 4th Anne, c. 16, for the purpose of curing mere defects of form, and requiring special demurrers, leaving matters of substance unaffected by its provisions, to be taken advantage of by general demurrer, without setting down any special, cause, or to be taken advantage of by errors in arrest of judgment, or by writ of error. (See Bac. Abr. Pleas and Pleading; Stephens-on Pleading, 140.)

      Mr. Crittenden, Mr. Thrasher, and Mr. Henderson, for the defendant in error,
    sustained the judgment of the court below upon the same grounds,, which are thus explained in the argument of Mr. Henderson.

    This Mississippi judgment, we say, conclusively established the plaintiffs’ demand against the estate of the intestate Lee, not only in Mississippi, but in every State of the Union. We do not say but its ratable priorities and claims, as to order of satisfaction, are to be governed by the local law of the administration. The claim, however, is legally authenticated as against the decedent estate, so as to entitle it to payment and satisfaction, though put to judgment in a different State than that of the administration. 13 Pet. 312.
    Notwithstanding all that is said in the books upon original and.ancillary administrations in different States, we insist the -.administrative tribunals cf a decedent’s effects in no one State can' reject the allowance of a creditor’s claim from another State, if.legally established.

    The Constitution of the United States gives to the citizens of each State the privileges and immunities of the citizens of the several States. • State tribunals, theréfore, cannot regard a co-State creditor as a foreign creditor, and so administer the effects of the decedent within a State, to the exclusive use of creditors within that State. And so is it implied in 3 Pick. 1S58; and so, undoubtedly, is the requirement of the Constitution of the United States, above quoted.
    The record of this judgment in Mississippi shows that the. action was instituted against Lee in his lifetime, who appeared and plead; that before verdict he died, and his widow and administratrix, by the positive requirements of the laws of Mississippi, came in on scire facias, plead to, and defended the action. This, in Mississippi, merged the original cause of action, established the debt against the decedent estate, and was and is res adjudicóla.

    The act of Congress of 26th May, 1790, expressly requires that this judgment shall have full faith and credit given to it in every court within the United States, as it has by law or usage in the courts of the State of Mississippi. 1 Statutes at Large, p. 122.
    It undoubtedly has, in that State, the “ faith and credit ” of establishing or authenticating the debt against the estate of Lee, regardless of • whosesoever hands the .estate may come to, or be found in. It is not that it merely establishes the debt against the administratrix, Ann Lee ; but-against the estate of C. S. Lee. '
    The judgment, thus presented, either by suit, in the courts of Louisiana, or to the administrator, in Louisiana; for. allowance or payment, must have the same “faith and credit ” accorded to it as in Mississippi. 6 Wheat. 129; 7 Or. '481; 13 Pet. 312.
    Now, this “faith and credit ” is not so conceded to a foreign judgment. Hence the case in 2 Rawle, 431, which was a judgment from Barbadoes, sued on in Pennsylvania. All the pleas in that case imply the opinion of the pleader, that, had it been a judgment from another State of the Union, the defence could not have been relied on; nor does the court say otherwise.
    Another well-established rule of decision sustains the point we contend for; namely, that the judgment .of a competent State court merges and extinguishes the original cause of action as to all parties and privies, whether privies by blood or. estate in all other States of the Union. 3 Wash. C. G. R. 17; 1 Pet. 692, 693; 16 Mass. 71.
    But a foreign judgment does not so extinguish the cause of action, if again sued on here, as to bar recovery for this cause.
    Again: our petition makes no personal demand against the-defendant; but, setting forth a claim against the estate of Lee, by authentication of a.judgment, duly obtained, in contest with the administratrix in Mississippi, seeks its satisfaction out of Lee’s estate in Louisiana, represented by the defendant as. administrator. But the spirit of his objection is personal to himself. It is not that he questions but the cause of action has been established in judgment, by a court of competent-jurisdiction, as against Lee's estate, so' far as represented by his administratrix in Mississippi; but defendant objects, the estate is not thereby liable- in. Louisiana, till he, defendant, has litigated the same question over again. And for what good ? • Is there in the Constitution of the United States, and the laws of Congress, any sensible purpose or policy that this question should be twice litigated, in order to conclude the estate of Lee, as represented by this administrator, any more than if this judgment, had been rendered against Lée, in his lifetime ?
    Suppose this judgment in Mississippi had been rendered in. the United States Circuit Court, and then sued on as now in the United States Circuit Court of Louisiana; could this defence be heard ? Now the 31st section of the Judiciary Act of 1789 providés, that where the defendant dies pending the suit, his representatives may be brought in by sdre facias, as in this case, and “ the court may render judgment against the estate of the deceased party.” But what a silly provision of law, if, when they have so rendered judgment, the same controversy shall be tried over again in every other State where the judgment may be carried for enforcement and satisfaction, against the same decedent’s “ estate.”
    As this pretended right of defence does not go to bar the original cause of action, it is a mere technical objection, without semblance of merit. For, on any supposition that the first judgment was fraudulently obtained, the defendant here could undoubtedly make that defence by plea. But, with no.objection against the justice or integrity of the judgment, that the defendant may relitigate it from mere caprice is certainly a most idle rule of construction, for no possible good.
    .The only pretence of le^al rule which can be offered in vindicatiqn'of this claim of the defendant to litigate the original cause of action in this case over again is, that, as between the defendant with whom it was contested in the State of Mississippi, and this defendant in Louisiana, there is no privity ; and hence the judgment is not evidence against him.
    But we deny the fact that there is no privity. There is, in all truth, and in the rationale of‘the thing, a clear privity of estate. On Lee’s death; his estate, everywhére throughout the United States, was liable to payment of his debts. No one anywhere could take possession of this estate, either by lawful administration or by tort, that did not hold in privity to the creditor’s claim, as verily as to the claims of heirs and distributees. The decedent’s estate, to' this end and responsibility, is but a unit, though possessed by a dozen administrators in different States of the Union. And in what sense can an administrator claim to be a privy at all ? No connection of blood, nor the agent's claim which he has to the estate, could give him, as administrator, the relation of privity in any legal sense. Had this judgment been granted against Lee in his lifetime, this objection would have the same force. His privity, as administrator on the estate of Lee, would have been ..precisely what it now is; namely, he would have been no' party to the judgment, nor would he be holding any part of the estate, by virtue of his administration in Louisiana, which the judgment directly bound, or could be levied on. Yet, surely, this plea could not avail in such’ case; and equally clear, on the.. same principles, it cannot avail here. But if there were any room to distinguish the legal effect of a judgment obtained against the decedent, and. one obtained by suit against his administrator, then we reply, that this suit, having been instituted against the decedent in persbn,a.ud who became party to the record, the same privity in succession, connects this defendant with this record and judgment, as if the decedent had survived till the-verdict was rendered against him.
    But the truth is, the doctrine, of personal privity has no application here, and can never he interposed, but as to parties who may be affected in their personal rights. A trustee of á legal title for the heirs cannot object to the judgment against the ancestor as incompetent evidence in suit, against him to recover the trust property, oh the ground that he is not a privy to the judgment. And so of the administrator, who is but a trustee for the creditors and distributées.

    If the case .in 16 Mass. 71 would seem to conflict with this last position, that of 3 Rand. 287 sustains a contrary rule.
    The authority of the late Justice Story, in his Conflict of Laws, § 522, has been referred to in support of the defendant’s objection.' In a clear case of conflict of laws, where the foreign claimwas “ to affect 'assets ” of the local administrator, to the prejudice of local creditors, the rulé insisted on might, to some form and extent, be applicable. But the conflict of laws, as between nations foreign to each other, not bound to recognize each other’s judgments, nor to recognize the claim of the foreign creditor on the same ground as the domestic creditor, — such conflict of laws is not predicable of the subsisting relations of these United States. The judgments of the several States under the Constitution and laws of Congress, before referred to, are not foreign to each other in the sense of the common law. And the Constitution of the United States secures each creditor of the different -States the same-rights in prosecuting his claims in any. other State, whether against the living man .or the estate of the dead, as are secured to the citizéns of the State whére the same is prosecuted. If, therefore, the rule as now contended for was intended to be asserted by Justice Story as applicable to these States, we. are bound to say his assertion is without authority, and against the paramount, laws of the Union.
   Mr. Justice GRIER

delivered the opinion of the court.

John B. Thrasher, the plaintiff below, commenced this action by a petition'(according to the practice of the courts of Louisiana) in the nature of an action of debt upon a judgment. He claimed as assignee of a judgment obtained in the Circuit Court of Claiborne county, in the State of Mississippi, by Dart & Gardner against Ann Lee, administratrix of C.- S. Lee, deceased. David S. Stacy, the defendant below, is the'administrator of Lee in the State of Louisiana, where he had his domicile at the time of his death. In his pleas he has set forth six " several grounds of exception against the plaintiff’s right to recover, the last of which is in the nature of a demurrer to the declaration, or a denial of the plaintiff’s right to recover on the case set forth in his petition. As the decision of this point will be conclusive of the whole case, it will be unnecessary to notice the .-others.

The question presented by the demurrer is, whether- the judgment against Ann Lee, the administratrix of Charles.S. Lee in Mississippi, is evidence by itself sufficient to entitle the plaintiff to recover against Stacy, -the administrator of the same intestate in Louisiana. Or, to state the point disconnected with the accidents of the case, Will an- action of debt lie against an administrator in one of these United States, on a judgment obtained against a different administrator of the same intestate appointed under the authority of another ?

This is a question of great practical importance, and one which, we believe, has not yet been decided.

The administrator receives his authority from the ordinary or other officer of the government where the goods of the intestate are situate. But coming into' such possession by succession to the intestate, and encumbered with the duty to pay his debts, he is considered in law as in privity with him, and therefore bound or estopped by a judgment against him. Yet his representation of his intestate is a qualified one, and extends not beyond the assets of which the ordinary had jurisdiction. He cannot, therefore, do any act to affect assets in an-. other jurisdiction, as his authority cannot be more extensive than that of the goverñment from whom he received it. The courts of another State will not acknowledge him as a representative of the deceased, or notice his letters of administration. (See Tourton v. Flower, 3 P. Wms. 369; Borden v. Borden, 5 Mass. 67; Pond v. Makepeace, 2 Metcalf, 114; Chapman v. Fish, 6 Hill, 554, &c.)

It follows as a necessary inference from these well-established principles, “ that, where administrations are granted to different persons in different States, they are so far deemed independent of each other that a judgment obtained against one wül furnish no right of action against the other, to affect assets . received by the latter in virtue of his 'own administration ; for in contemplation of law there is no privity between him and the other administrator.” (See Story, Cond. of Laws, § 522 ; Brodie v. Bickley, 2 Rawle, 431.) The 'same doctrine is recognized in the case of Aspden v. Nixon (4 How. 467) by this court.

But it is contended, that,, however applicable these principles may be to judgments against administrators acting under powers received from States wholly foreign to each other, they canr . not apply to judgments against administrators in different States of this Union, because of the provision of the Constitution, which ordains that “ full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.”

.The act of Congress of 26th May, 1790, which prescribes the mode of authenticating records, and defines their “ effect,” enacts, that they “shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or. shall be taken.”

The question, then, arises, what is the “ effect,” or the “ faith and credit,” given to the judgment on which this suit is brought, in thg courts of Mississippi ? The answer to this must be, that it is evidence, and conclusive by way of estoppel, 1st, between the same parties ; 2d, privies ; and 3dly, on the same subject-matter, where the proceeding is in rem.

But the parties to these judgments are not the same.

Neither are they privies. “ The term privity denotes mutual succession or relationship to the same rights of property.” (Greenleaf on Ev. § 523.) Privies are divided by Lord Coke into three classes, — 1st, privies in blood ; 2d, privies in law ; and 3d, privies by estate. The doctrine of estoppel, however, so far as it applies to persons falling under these denominations, applies to them under one and the same principle, namely, that a party claiming through another is estopped by that which es-topped that other respecting the same subject-matter. Thus, an heir who is privy in blood would be estopped by a verdict against his ancestor, through whom he claims. An executor or administrator; suing, or sued as such, would be bound by a verdict against his testator or intestate, to whom he is privy in law. With regard to privies in estate, a verdict against feoffor would estop feoffee, and lessor, the lessee, &.c.

An administrator under grant of administration in one State stands in none of these relations to an administrator in another. Each is privy to the testator, and would be estopped by a judgment against him ; but they have no privity with each other,' in law or in estate. They receive their authority from different sovereignties, and over different property. The authority of each is paramount to the other. Each is accountable'to the ordinary from whom he receives his authority. Nor does the one come by succession to the other into the trust of the same property,.encumbered by the same debts, as in the case of an administrator de bonis non, who may be truly said to have an official privity with his predecessor in the same trust, and therefore, liable to the same duties. In the case of Yare v. Gough (Cro. Jac. 3), it was decided that an administrator de bonis non could not have .sdre facias upon a judgment obtained by his predecessor on a debt due to the intestate “for default of privity.” But in Snape v. Norgate (Cro. Car. 167), it was. decided that a sdrefadas would lie against an administrator de bonis non, on a judgment against the executor ; and the court attempt to make a distinction between that and the preceding .case, on the ground that he cometh in place of the executor ”; or in other words, by reason of an official succession or privity. These cases cannot be well reconciled on principle ; but the difficulty was remedied in England by the statute of 17 Charles 2, c. 8. The Court of Appeals of Virginia have considered the latter case as fpunded on-more correct principles than the first, and have overruled the doctrine of Yare v. Gough. (Dykes v. Woodhouse, 3 Randolph, 287.)

We may assume, therefore, that in the State of Mississippi, as in most other States .in the Union, the administrator bonis non is' treated as privy with his predecessor in the trusty and estopped by a judgment against him; but the question still recurs as to the effect of a judgment in .that State as against one who has neither personal nor official privity with the defendant. ■ Each. administrator is severally liable to pay the debts of the deceased out of the assets committed to him, and therein they resemble joint and several co-obligors in a bond. A judgment against one is no merger of the bond, nor is it evidence in a suit against the other. Their common liability-to pay the same debt creates no privity between them, either in law or .in estate.

It is for those who assert this privity to show wherein it lies, and the argument for it seems to be this: — that the judgment against the administrator is against the estate of the intestate, and that his estate, wheresoever situate, is liable to pay his debts; therefore the plaintiff, having once established his claim against the estate by the judgment of a court, should not be called on to make proof of it again. This argument assumes that the judgment, is in rent, and not in personam, or that the estate has a sort of corporate entity and unity. But this is not true, either in fact or in legal construction. The judgment is against the person of the administrator, that he shall pay the debt of the intestate out of the funds committed to his care. If there be another administrator in another State,. liable to pay the same debt, he may be subjected to a like judgment"-upon the same demand, but the assets in his hands cannot be affected by a judgment to which he is personally a stranger. A judgment may fiave the “ effect ” of a lien upon all the defendant’s lands in the State where it is rendered, yet it cannot have that effect on lands in another State by virtue; of the faith and credit given to it by the Constitution and act of Congress. The laws and courts of a State can only affect persons and things within their jurisdiction. Consequently, both as to the administrator and the property confided to him, a judgment in another State is res inter alios acta. It cannot be even primafade evidence, of a debt; for if -it have any effect at .all, it'must be as a judgment, and operate by way of estoppel. . - -

It is alleged- by those who desire to elude this conclusion, while they cannot deny the correctness- of the principles on which it is founded, that it is technical and theoretical, and leads to an inconvenient result. But every logical conclusion upon admitted legal principles may.be liable to the same imputation. Decisions resting only on a supposed convenience, or principles accommodated} to the circumstances of a particular case, generally form bad .precedents; . It may be conceded that in this case there is an apparent hardship, — that the plaintiff who has established his claim after a tedious litigation in Mississippi should be compelled- to go through the same .troublesome process in Louisiana. But the hardship is no greater than if the administrators had been joint and several co-obligors in a note or bond. • A plaintiff may be fairly presumed always to have the evidence of his demand in his possession, and the ability to establish.it in any court. But if a judgment against an administrator in one State, raised up, perhaps, for the very purpose of giving the plaintiff a judgment, should be conclusive on the administrator in another State, the estates of decedents would be subjected to innumerable frauds. And to what purpose is the argument that the defendant may be permitted to prove collusion and fraud, when, in order to substantiate it, he must commence by proving a negative ? This would be casting the burden of proof where it ought not to rest, and would cause much greater inconvenience and injury than any that can possibly result from the present decision..

The judgment of the Circuit Court must} therefore, be reversed.

Mr. Justice McLEAN and Mr. Justice WAYNE dissented.

Order.

This cause came on to be heard on the transcript of the record of the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said. Circuit Court, to be proceeded in according to law and justice, and in conformity to the opinion of this court.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Mary Ann Van Ness, Plaintiff in error, v. Cornelius P. Van Ness, Administrator of John P. Van Ness.
    The act of Congress, passed on the 27th of Februa y, 1801 (2 Stat. at Large, 103), authorizes a writ of error from this court to the Circuit Court for the District of Columbia in those cases only where there has been a final judgment, order, or decree in that court.
    Where the Orphans’ Court directed an issue to be sent for trial in the Circuit Court, which issue was, “ whether- the petitioner was the widow of the deceased or not,” and the Circuit Court proceeded to try the issue, and the jury, under the instructions of the court, found that the petitioner was not the widow, exceptions to these instructions cannot be reviewed by this court on a writ of error.
    The certificate of the finding of the jury, transmitted by the Circuit Court to the Orphans’ Court, was not such a final judgment, order, or decree as is included within the statute. After the reception of the certificate, the Orphans’ Court had still to pass a decree in order to settle the rights of the parties.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington.
    All the circumstances of the case are fully set forth in the opinion of the court,, as delivered by Mr. Chief Justice Taney, from the commencement of which the Reporter extracts the following statement.
    A motion has been made to dismiss this case, which is brought here by writ of error directed to the Circuit Court for. Washington county, in the District-of. Columbia.
    The case is this. John P. Van Ness, of the same county and District, died intestate, and letters of administration were granted by the Orphans’ Court to Cornelius' P Van Ness, his brother, who is the defendant in error.
    Shortly after the letters were granted, Mary Ann Van Ness, the plaintiff in error, filed her petition • in the Or hans’ Court., alleging that she was the widow of the deceased, and praying that the letters granted to the defendant should be revoked, arid administration granted to her. The defendant answered, denying that she was the widow of the deceased. The right to the letters depended upon this fact; as by an act of Assembly of Maryland, passed in 1798, and adopted by Congress when it assumed jurisdiction over this P istrict, the widow is entitled to letters, of administration, in preference to any other person, where the husband' dies intestate.
    This act of. Assembly (1798, eh. 101, subchap. 8, sec. 20, and subchap. 15, sec. 16, 17) makes it, the duty of the Orphans’ Court, in a case like this, if required by either party, to direct an issue to be sent for trial to any court of law most convenient for trying, it; and the court to which it is sent is authorized to direct the jury, and to grant a new trial if it thinks proper, as if the issue were in a suit therein instituted ; and upon a certificate from such court, or a judge thereof, of the verdict or finding of the jury, under the seal of the court, the Orphans’ Court is directed to give judgment upon such finding. It is unnecessary to give the words of the act. We state its provisions only so far as they relate, to the case before us.
    When the answer of the defendant came in, the Orphans’ Court, upon the motion of the plaintiff, ordered the following issue to be made up and sent to the Circuit Court for Washington county, to be there tried; that is to say, “ whether the - said Mary Ann Van Ness be the widow of the said John P.. Van Ness or not.” No depositions or other testimony were taken on either side in the Orphans’ Court.
    The Circuit Court proceeded to the trial of the issue, and in the course of the trial sundry directions were given to the jury, to which the plaintiff excepted ; and finally, as appears by the eleventh exception, the court instructed the jury that there was no evidence from which, they could find that the plaintiff .was lawfully married to John P. Van Ness, the intestate. . Under this direction, the jury found by their verdict that. Mary A. Van ■ Ness, was not the widow of the late- John P. Van Ness; and this finding was, by order of the court, certified under seal to the Orphans’ Court.
    This is the case before us, upon the record brought here by the writ of error; and the question to be decided is, whether this court can take cognizance of the casé, and inquire whether error has or has not been committed by the Circuit Court in giving the instructions under which the verdict was found.
    . The cause was argued upon a motion to dismiss the writ of error for want of jurisdiction. Mr. Coxe and Mr. Bradley for the motion, and Mr. May and Mr. Brent against it.

      Mr. Coxe, in support- of the motion,
    explained the-laws of Maryland upon the subject, and referred to the act of 1798, in I-Dorsey’s Laws of Maryland, p. 414, subchap. 15, sec. 17, and also to p. 394, subchap. 8, sec. 20.
    the certificate directed to be transmitted to the Orphans’ Court is altogether different from chancery practice, where the verdict is merely to inform the chancellor, who may set it aside and direct a new trial. Mr. Coxe referred also to the cases in 1 Peters, 562, 565 ; 2 Peters, 243 ; 5 Howard, 118 ; and 3 Howard, 681.

      Mr. May, against the motion to dismiss.
    The widow in this case filed a petition praying for letters of administration to herself, and for a revocation of those previously granted to the brother. If she was the widow, she was entitled to letters in preference to any one else. Act of ,1798, chap. 101, subchap. 15, sec. 17 ; 2 Harris & Gill, 51.
    After receiving the certificate from the Circuit Court, the Orphans’ Court dismissed her petition. We took an appeal from this dismissal, but the Circuit Court affirmed it.
    It is evident that the appeal carried up nothing but the mere certificate, and under it it was impossible again to bring before the Circuit Court the instructions which had been given at the • previous trial. The Orphans’ Court never saw these exceptions. If we could have got them into the record which was’ transmitted from the Circuit Court to the Orphans’ Court, then an appeal from the order of dismissal would have carried them again to the Circuit Court and from that court to this. But we could not do it; and if this writ of error should be dismissed, it will follow that instructions were given by the court below.which were decisive of the result, and yet there is no mode of having such instructions reviewed by this court. The certificare either established or destroyed the claim, because it .was conclusive upon the Orphans’ Court. It was, therefore, a final order. The act of 1801 includes final orders. See 2 Statutes .at Large, 106, sec. 8.
    This court, in 6 Cranch, 235, decided that any final judgment, order, or decree might be brought up for review.
    The act of 1801 has been ■ pronounced comprehensive. 4 Cranch, 396; 8 Cranch, 252.
    What are final orders ? See 3 Dali. 404 ; 2 Peters, 464.
    The tendency of decisions is to enlarge the power of appeal. •3 Miss. Rep. 328 ; 1 Stewart & Porter, 171; 1 Martin, N. S. 75 ; 4 N, H. Rep. 220 ; 2 Mass. Rep. 142;' 4 Mass. Rep. 107, 108 ;¡ 5 Mass. Rep. 194 ; 11 Mass. Rep. 275.
    For -the definition of a judgment see 3 Bl. Com. 296.

      Mr.'Brent, on the same side..
    It is. admitted by the other side, that she had a right to administer if she was the .widow, and thát this right was not lost by the- fact, that letters had been issued to the brother previous to her application. The power of the Orphans’ Court to revoke letters cannot be questioned. T he only point in issue was, whether she was or was not the widow. If the certificate of the Circuit Court had been that she was the widow, it might not have been a final order or judgmént, because the Orphans’ Court would still have to inquire whether she was competent in other respects to take out letters. For example, whether she was a resident, &c. But as the certificate was against her, it was conclusive of her rights. Mutur ality is not necessary. Can there be any doubt of the certifi- • cate deciding the question as to her ? The Orphans’ Court are compelled to obey it. No case ever occurred in Maryland by which the opinion of her courts'upon this point can be ascertained; A case did happen involving it; but before a certificate was sent to the Orphans’ Court, a special act of the legislature was applied for and obtained in 1834 — 5. Under this act,- the case was carried to the Court of Appeals, and is reported in 5 Gill & Johnson.

      Mr. Brent:then made the two following points: —
    1. The power of the Circuit Court over this case, sent to it from the Orphans’ Court, was as absolute, respecting a control over the jury and granting a new trial, as over a case which originated within itself.
    2. The Orphans’ Court.had no control whatever over the verdict and judgment of the Circuit Court.
    What appeal had we ? The Orphans’ Court could not review the proceedings of the Circuit Court, and yet it was a case where the verdict either established or destroyed the claim. If the present remedy is not applicable, then there is a strange anomaly here in Washington, —'that there is no mode of correcting errors where very important rights are involved. The act of 1785, chap. 87, sec. 6, gave to a party aggrieved by any “ judgment or determination ” a right to appeal to the Court of Appeals. See Dorsey’s Laws of Maryland. Can there now be, under our system, such a thing as a legalized error ? See 5 Harris & Johns. 176. As to what is a final judgment in Maryland, see 2 Harris & Gill, 378 ; 12 Gill &. Johns. 332.
    The certificate was in effect a final order, and an appeal from a judgment opens all interlocutory orders. An instruction to a jury is a substitute for the old demurrer to evidence. 3 Peters, 37.
    A writ of error must be upon a judgment which settles the whole matter. 11 Coke,' 38; 21 Wendell, 6'58, 668; 1 Roll. Abr. 751. Pennsylvania decisions are, 3 Laws of Pennsylvania, 34; 1 Yates, 113; 2 Yates, 46, 51; 1 Binney, 444. Other cases respecting appeals, 7 Clark & Fin. 52.

      The judgment in this case is final. 3 Binney, 276 ; Addison, 21, 121; 5 Howard, 214; 12 Wendell, 327; 2 Paige, 487; 19 Tes. 499 ; 2 Dan. Ch. Pr. 747, 1306, 1360; 1 Binney, 444 ; 5 Serg. & Rawle, 146; 6 Watts & Serg. 188.
    The statute of Pennsylvania is the only one in all the States like that of Maryland; and the courts of Pennsylvania have practically entertained appeals from such issues. If the substance appears in the recdrd, this court will not regard forms, because, if it did, its jurisdiction would fluctuate, and it would be in the power of the court below to oust it of its proper jurisdiction; The right of appeal must éxist or not exist when the bill of exceptions is taken, and cannot depend upon the mode in which the judgment is rendered.
    The act of -Congress mentions a final order. But here an order was necessary to direct the certificate to be transmitted to the Orphans’ Court, and that order was final. If there are two judgments,, one for dower and the other for damages, an appeal may lie from one, and not the other. Tiner’s Abr. tit. Judgment, letter PI T.
    The Orphans’ Court must dismiss our petition on the reception of the certificate. 2 Harris & Grill, 51.
    But it is said on the other side, suppose we now succeed, and-another trial takes place in the Circuit Court, with a different result, what is the Orphans’ Court to do with these two different verdicts ? The difficulty is solved by referring to 10 Leigh, 572.
    The act of Congress gives the same jurisdiction to this court in common law cases as in chancery. But in chancery an appeal will lie, although further proceedings may be necessary. 3 Barbour’s Eq. Dig. 118, and cases there cited; 3 Cranch, 179.
    (That part of Mr. Brent’s argument relating to the amount in controversy is omitted, the decision of the court not involving that point.)

      Mr. Bradley, in reply,
    and. in support of the motion to dismiss, maintained the following propositions.: —
    1. That a writ of error can be issued from this court only in .cases provided by. statute.
    2. That it can be issued only upon a final judgmént, according to the common law.
    3. There has been no judgment, final or otherwise, in the Circuit Court.
    4. That the words “ order and decree,” in the act of 1801, refer to proceedings in equity; not to orders in a court of common law.

      5. The statute of Maryland of 1798, chap. 101, gives to the courts of law a peculiar, special, and limited jurisdiction, and has not provided any mode for reviewing proceedings under that jurisdiction.
    6. That no writ of error could lie to such a court, because there is no judgment of that court, final or otherwise.
    In support of these propositions he cited Wilson v. Daniel, 3 Dali. 401; Rutherford v. Fisher, 4 Dali,' 22; Boyle v. Zacharie & Turner, 6 Pet. 656, 657 ; Toland v. Sprague, 12 Pet. 331; Evans v. Gee, 14 Pet. 1; Amis v. Smith, 16 Pet. 303; Smith v. Trabue’s Heirs, 9 Pet.. 4; United States v. Goodwin, 7 Cranch, 108; United States v. Gordon, 7 Cranch, 287; United States v. Tenbroek, 2 Wheat. 248; United States v. Barker, 2 Wheat. 395; Sarchet v. United States, 12 Pet. 143; Mayberry v. Thompson, 5 How. 121; Ches. & Ohio Canal Co. v. U. Bank of Georgetown, 8 Pet. 259 ; Brown v. U. Bank of Florida, 4 How. 465; Winston v. Bank of United States, 3 How. 771; Judiciary Act of 1789, ch. 20, § 22.
   Mr. Chief Justice TANEY

delivered the opinion of the court. After stating the case, as above recited, the opinion proceeded as follows: ■

The appellate power of this court in relation to the Circuit Court for the District of Columbia is regulated by the act of Congress of February 27, 1801. And% it authorizes the writ of error to the Circuit Court'in those cases only in which there has been a final judgment, 'order, or decree in' that court. Whatever errors, therefore, may have been(committed, and however apparent they may be in the record, yet we have not the power to correct them unless, the Circuit Court has passed a final judgment, order, or decree in the case before it.

The argument on the part of the plaintiff is, that inasmuch as the verdict was found in obedience to the positive _ instructions of the court, and as the certificate of the finding of the jury was conclusive upon the Orphans’ Court, the order of the Circuit Court to certify the verdict to the Orphans’ Court ought to be regarded as a final judgment or order within the meaning of the act of Congress.

It is true the Orphans’ Court has no power to grant a new trial, and is bound to consider. the fact to be as found by the jury; and consequently the judgment of that court must be against the plaintiff. But the matter in contest in the Orphans’ Court is the right- to the letters of administration. And it is ■ the province of that court to apply the law upon that subject to the fact, as established by the verdict of the jury, and to make their decree accordingly; refusing to revoke the letters granted to the defendant, and dismissing the petition of the plaintiff. The suit between the parties must remain still pending until that decree is pronounced. The certificate from the Circuit Court is nothing more than evidence of the finding of the jury upon the trial, of the issue. It merely certifies a fact, that is to say, that the jury had só found. And the order of the Ciicuit Court, directing a fact to be certified to another court to enable it to proceed to judgment, can hardly be regarded as a judgment, order, or decree,- in the legal sense of ■these terms as used in the act of Congress. Certainly it is not a final judgment or order. For it does not put an end to the suit in the Orphans’ Court, as that court alone can dismiss the petition of the plaintiff which is there pending ,• and no other court has the power to pass a judgment upon it. . A verdict in any court of common law, if not set aside, is in all cases conclusive as to the -fact found by the jury, and the judgment of the. court must follow it; as the Orphans’ Court must follow the verdict in this case. Yet a writ of error will not lie upon the verdict.

And if this court should take jurisdiction, and should determine that the Circuit Court had erred, in its directions to the jury, what judgment could be given here ? Could we give a judgment reversing an order which does nothing more than direct a fact to be certified to another court ? If we could do this, it would not reach the judgment in the Orphans’ Court, nor exercise any control over it. And a writ of error can hardly be maintained where the judgment of the appellate court would be ineffectual and nugatory.

Neither could it make any difference as to the jurisdiction of this court, if there had been a feigned issue with formal pleadings, and the Circuit Court had entered a judgment upon the verdict. For the judgment would have had no effect upon the rights of either party to the administration in dispute, nor could it exercise any influence upon the decision of the Or- ■ phans’ Court. And • if this court could have regarded the feigned issue as an action regularly brought in the Circuit Court, and upon that ground, have-taken jurisdiction, the affirmance or reversal of the judgment would have had as little effect upon the proceedings in the Orphans’ Court as the original judgment in the Circuit Court. It would, indeed decide the right to the fictitious wager stated in the pleadings. But if the judgment of the Circuit Court was reversed, and a venire de novo awarded, it would not alter the decree in the Orphans’ Court. • That court is required by law to act upon the finding of the jury, and not upon the judgment of the Circuit Court. And the reversal of that judgment and a new finding would not authorize the Orphans* Court to recall the judgment it had given, and was bound to give upon the original verdict certified by the Circuit Court.

The act of Assembly of Maryland appears to have received in practice in that State the same construction that we have given to it. There is, indeed, no judicial'opinion on the subject ; but there is no ground for supposing that a writ of error was ever sued out under that law. In 1832, an act was passed authorizing a writ of error in such cases, and staying proceedings in the inferior courts until a decision was had in the appellate court; and this law embraces eases which had been tried before -its passage, as well as those which should afterwards take place. But from 1798 dofirn to the passage of this act of Assembly, we can find no trace of a writ of error sued out in a case,like this. The absence of any such proceeding for so many years is the strongest evidence of the construction put upon the law, and of- the opinion entertained by the bar of the State, that the writ would not lie. For many, issues from the Orphans’ Courts must have been tried during that period of time which would have given rise to the writ of error if it had been supposed to be warranted by the law. The act of 1832, also, embracing as it does prior as well as future cases, would have been altogether unnecessary, if a different construction had been given-to the act of 1798.

Upon the whole, therefore, this court is of opinion that there has been no final judgment, order, or decree in the Circuit Court, and the writ of error must be dismissed for‘want of jurisdiction.

Order.

■This cause came on to be heard on the transcript of the record from the Circuit Court 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 now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed for want of jurisdiction.


author: Mr. Justice CATRON

text:
    Robert Marshall, Appellant, v. Susan G. Beall, Defendant.
    Where a husband and wife, in order to carry out an ante-nuptial agreement, conveyed personal property to a trustee, with directions to hold a part of it for the sole and separate use of the wife, with a power to the wife to alien or devise it, such part goes, if she dies intestate, to her next of kin, free of all claim on the . part of the husband.
    But where a legacy was left to a trustee for the benefit of the wife, and the trustee was directed “ to let the wife have some part or parcel of the money, occasionally, as she may stand in need, to be paid out to her at the discretion of the trustee,” this fund goes to the husband at the wife’s death, by the laws of Maryland.
    This was an appeal from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
    In February, 1820, Robert Marshall and Ann Berry, being about to be married, executed the following contract, which was duly recorded.
    “ Whereas Robert Marshall and Ann Berry, both of Prince George’s county, State of Maryland, are about to intermarry, its thereof agreed by the parties, before the marriage, that the said Ann Berry shall hold in herself all her right, title, and interest to the following funds of her own; viz. one hundred and fifty shares of stock in the Patriotic Bank, of which ten dollars have been paid, which stock stands to the credit of Ann Berry; also, one hundred and thirty-seven shares of the stock in the Central Bank of Georgetown and Washington, upon which eleven dollars per share have been paid; and three thousand five hundred dollars in the bonds of Charles Glover.
    “ Given under our hands and seals, this 17th day of February, 1820.
    “ Robt. Marshall, [seal.] Ann Berry. [seal.]
    “Witness: Jane H. T. Dorsett.”
    Soon after this, the marriage was solemnized.
    On the 27th of August, 1823, Marshall arid wife executed a deed to Susan G. Beall, which appeared to be unsatisfactory, and to have no influence upon the decision of the case.
    On the 1st of May, 1824, Marshall and wife made another deed to Susan G. Beall, who was the sister of Mrs. Marshall, as follows: —
    “ This indenture, made this first day of May, in the year of our Lord one thousand eight hundred and twenty-four,' between Robert Marshall and Ann Marshall his wife, late Ann Berry, of Prince George’s county, in the State of Maryland, of the first part, and Susan G. Beall, of Washington county, in the District of Columbia, of the other part. Whereas, by an agreement entered into between Robert Marshall and Ann Marshall, late Ann Berry, dated the 17th day of February, in the year of our Lord one thousand eight hundred and twenty, and previous to the marriage of the said Robert Marshall and Ann Marshall, it was agreed by and between- the said parties, that the said Ann Marshall should have and possess, in her own right, the following funds for. her own property, to wit: one hundred and fifty shares of'stock'in the Patriotic Bank, upon which ten dollars per share had been paid; also, one hundred and thirty-seven shares of stock, in the Central Bank of Georgetown and Washington, upon which eleven dollars per share had been paid, and "three thousand five hundred dollars due to the said Ann Marshall, then Ann Berry, by Charles Glover, and which was secured by a mortgage of a tract of land, formerly sold by the said Ann Berry to the said Charles Glover, all which stocks and debts belonged to the said Ann Berry previous to the said marriage, besides considerable other real and personal property; ■ and whereas the said Robert Marshall did, at the same time/ agree to make any other of further instrument of conveyance which might be considered necessary fully to assure and convey the said stock and debts above mentioned to the sole and separate' use of the said Ann Berry, her heirs and assigns, free and clear from any debts, control, demands, or encumbrances of the said Robert Marshall; and whereas the said bank stock has been sold by the mutual consent and agreement of the said Robert Alarshall and Ann Marshall; and whereas iudgment has been obtained against the said Charles Glover W two thousand dollars, part of the said three thousand five hundred dollars, with interest and costs, in the'name of the said Robert Marshall, and on which execution hath been issued against the property of said Charles Glover, and one other judgment for fifteen hundred dollars, with interest and costs, being the remaining part of the said three thousand five hundred dollars, due by said Charles Glover; and whereas the said Robert Marshall and Ann Marshall hive agreed further to dispose of and settle the' judgments above mentioned,.and .the tract of land hereinafter mentioned, by a more full, complete, and formal instrument of writing than the marriage agreement above mentioned, according to. the terms, stipulations, and conditions of the present instrument of writing. Now, this indenture witnesseth, that for and in consideration of the premises, and for the more fully, completely, and perfectly carrying into effect the marriage contract between said parties, and for the further consideration of five .dollars, to them in hand paid by the said Susan G. Beall, the receipt whereof is hereby acknowledged, and for divers other 'good causes and considerations, them thereunto moving, the said Robert and Ann Marshall have given, granted, bargained, sold, released, and assigned, and by these presents do give, grant, bargain, sell, release, and assign, to the said Susan .G. Beall, her heirs, executors, administrators, and assigns, the following tract, piece, or parcel of land, situate, lying, and being in Prince George’s county aforesaid, on which the said Robert and Ann Marshall at present reside, being lot number four in the division of the estate of William D. Berry, and containing about fifty acres of land, more or less, for and during the joint lives of the said Robert and Ann Marshall, and the survivor of them; likewise the two judgments above particularly recited, against Charles- Glover; to have and to hold the said tract of land above mentioned and 'described for and during the lives of the said Robert and Ann-Marshall,, and the survivor of them, and the said two judgments against the said Charles Glover, to the said Susan G. Beall, her heirs, executors, administrators, and assigns; in trust, nevertheless, and to and for the following uses, intents, and purposes, to wit: in trust to' hold the above-mentioned and described tract of land for the use of the said Robert and Ann Marshall, during their joint lives; and if the said Robert Marshall shall survive' the said Ann Marshall, for the use of the said Robert Marshall during his life and no longer, upon the express agreement and understanding that the said tract of land is hot to be subject, or liable for the debts, contracts, or engagements of the said Robert Marshall, and in further trust that the said Robert Marshall shall have and receive the said judgment of two thousand dollars, with interest and costs, against the said Charles Glover, to his sole and separate use, free and clear of the marriage contract above mentioned, and of all separate claim of the said Ann Marshall, and his receipt shall be good and sufficient acquittance and, discharge of said judgments; and in further trust, that the said' Susan G. Beall 'shall hold the said judgment of fifteen hundred dollars, with interest and costs, for the sole and separate use of the said Ann Marshall, her executors, administrators, and assigns, free and clear from any control or demand of the said Robert Marshall, or of his creditors, debts/ or engagements ; and upon the • payment of the said judgment, or any part thereof, to invest the said money in stock, or to loan the same on interest, with the approbation, of the said Ann Marshall, for the like sole and separate use of the said Ann Marshall; and in further trust, that the said Ann Marshall, Muring the life of her husband, may dispose of said judgment, or the proceeds thereof, and of her right, interest, and estate in the said tract of land, after the death of the said Robert Marshall, either by her last [will] and testament, or by any instrument of writing, under her hand and seal, in the presence of two witnesses, dining her coverture, in the same manner as if she were single. It is further understood and agreed, that said Robert Marshall is to pay- and satisfy the' judgment of Hodges and Lee against them ; and the claim'of Mr. McDaniel’s estate, if judgment should be recovered; and all fees, costs, and expenses in prosecuting and recovering the two judgments against Charles Glover, and all legal expenses of the judgment assigned to him.

      “ In testimony whereof, the said -parties have hereunto set their hands and seals, the day and year first above written.

      “ Robert Marshall, Ann Marshall, Susan G. Beall.
    SEAL.] SEAL.] SEAL.] ”
    In November, 1825, there was paid to the trustee, on account of the judgment for $ 1500 reserved as above for the separate use of Ann Marshall, the sum of $ 1960.66.
    In May, 1832, Ann T. Beall, the mother of Ann Marshall, died: By her will, she gave the following legacy to her daughter: —
    “ I give and bequeathb to my daughter, Ann Marshall, the sum of four hundred dollars, and hereby appoint my daughter, Susan G. Beall, her • trustee, to. - hold and retain the. whole amount in her hands, and let the said Ann Marshall, wife of Robert Marshall,, have some part or parcel of the money occasionally, as she may stand in need, but to be paid.out to her at the discretion of my trustee, Susan G. Beall.”
    During the lifetime of Ann Marshall, Susan G. Beall, the trustee, loaned the sum. of $ 400 to Amelia T. Dorsett, a third sister, out of the trust fund.
    In July, 1833, Ann Marshall, the wife, died, never having disposed of the trust property belonging to her and in the hands of the trustee, in the manner provided for in the deed carrying out the marriage articles.
    After her death, her surviving husband, Robert Marshall, sued Amelia T. .Dorsett, to recover the four hundred dollars loaned to her by the trustee, as above recited, and obtained a ■judgment.
    In April, 1835, Robert Marshall also, filed a bill on the equity side of the court against Susan G. Beall, the trustee, in which he recited the facts as above set forth, averred that the trust fund, with the profits and interest, became vested in him by the death.of his:wife, and prayed an account by the trustee, with, an- mjtmction, &c.

      In April, 1836, Susan G. Beall, ^he trustee, filed her answer, admitting the facts stated in the bill, but denying that the complainant had any right to the trust fund.
    To this answer the complainant filed a general replication.
    In November, 1836,. Amelia T. Dorsett filed a bill of inter-pleader, averring substantially the same facts and .exhibiting the same documents as had been stated and produced by complainant ; alleging that the provision in the deed referred to, that the real estate was to be conveyed to complainant if he survived his wife, was null and void, and inoperative against the legal representatives or heirs of said Ann; averring that - the said Ann died intestate in July, 1833, without children, and leaving the complainant and another sister, Susan G. Beall, living, and three children of a deceased sister; that they were the only heirs of said Ann, and entitled to the trust property.
    Thathluring the lifetime of said Ann, the complainant, with her consent, borrowed of the trustee $ 400, part of said trust fund, and gave her note therefor ; that, since her death, Marshall had brought suit for the recovery of. this-money, as surviving husband of said Ann, and by the judgment of the court had obtained judgment for the same; but denied his right to the money, asserting that she, as next of kin of her deceased sister, was entitled to letters of administration on the estate, and if said Marshall had obtained any, they should be revoked.
    The bill prayed that the children of her deceased sister may be made parties to the original suit, in which Marshall was complainant; that this bill of interpleader may be filed in said suit; that the said parties may be required to interplead; that the judgment against her may be enjoined, the trust property adjudged to the heirs of said Ann, and the said Marshall be perpetually enjoined, <fcc., &c.
    To this bill the defendants filed the following demurrer : —

      Demurrer to Bill of Interpleader.

    Whereupon the defendants, by their solicitors, Coxe & Carlisle, .filed the following demurrer to the foregoing bill of interpleader:
    The demurrer of Robert-Marshall and Richard H. Marshall, jointly and severally, to the bill of interpleader of Amelia T. Dorsett.
    The defendants, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant’s bill of interpleader contained to be true in such -manner and form as the same are therein set forth and alleged, do. demur to the said bill; and for cause of demurrer show.

      that the said complainant hath not in her said bill of inter-pleader made such a case as entitles her, in a court of equity, to any relief against these defendants, or either pf them, as to the matters contained in said bill of interpleader.
    And for further cause of demurrer these defendants show, that although the said complainant’s bill is avowedly, and on the face thereof, a bill of interpleader, yet the said complainant doth herself claim an interest in the subject-matter in dispute between the various parties named in the said bill of inter-pleader.
    And for further cause of demurrer the defendants show, that the said complainant, although she admits in and by her said bill of interpleader that the subject-matter in dispute, or a portion thereof, is money loaned to,'and justly due by, the said complainant to the person who shall be adjudged entitled to the specific fund out of which the said loan was made, yet nowhere in the said bill of interpleader does the said complainant offer to bring the said, money so loaned into court. Nor hath the same, or any part thereof, been brought into court, to be subject to the decree or order of the' court.
    Wherefore, and for divers other good causes of demurrer, these defendants do demur to the said bill of interpleader, and they pray the court to adjudge whether they shall make any other or further answer to the same ; and they humbly pray to be hence dismissed, with costs, &c., &C.
    Coxe & Carlisle, iSolicitors for defendants.

    The cause was then set for hearing by complainant on bill, answer, exhibits, and replication, and upon the demurrer and bill of interpleader, and at March term, 1843, the court passed the following decree : —
    “ The said bill of injunction, and for general relief, wherein the said Robert Marshall is complainant, and the said Susan G. Beall is defendant, together with the said other bill, by way of cross-bill and bfil of interpleader, wherein the said Amelia T. Dorsett is complainant, and the said Robert Marshall is defendant, having been regularly set for hearing by consent of the parties, as well upon the said first-menti.oned bill, the answer thereto, the replication to said answer, and' the several exhibits and papers therewith filed, and in the proceedings mentioned, as upon the last-mentioned bill and the demurrer of the said Robert Marshall thereto, and as if taken for confessed against the other defendants therein named or referred to, this court, upon consideration of the premises, and the arguments of counsel, as well in behalf of the said complainants respectively ás of the said defendants respectively, has ordered and decreed, and now here, on this 23d day of May, 1843, doth order and'decree, that the said first-mentioned bül be and the same is hereby dismissed, with' costs; that the demurrer of the said Robert Marshall to the last-mentioned, bill be and the same is hereby overruled, with costs; that the said Amelia T. Uorsett pay to the said Susan G. Beall all the principal sum of money with the interest thereon recovered against her in the name of said Robert Marshall by the said judgment at law in the proceedings mentioned, to be, together with all' such personal property, moneys,'securities, stocks, and effects as have come or may come to the hands of the said Susan G. Beall as trustee for the deceased Alin Marshall in the proceedings mentioned in virtue of the marriage contract, and marriage settlement in the proceedings mentioned, and of the last will and testament of Ann T. Beall, also in the proceedings mentioned, accounted, distributed, and paid over to and among the next of kin by blood of the said deceased Ann Marshall, in the order and proportions prescribed by law for the distribution of the personal estate of persons dying intestate among such next of kin; that upon the payment by the said Amelia T. Dorsett, in the manner aforesaid, of the principal and interest of the debt so recovered at law against her in the name of the said Robert Marshall as aforesaid, she be and is hereby exonerated, released, and discharged from the said judgment at law so recovered against her ; which the clerk of this court, upon such payment being certified to him by said Susan G. Beall, is hereby authorized and required to enter of record as paid and satisfied pursuant to this decree ; and that the said Robert Marshall pay to the said Susan G. Beall her costs in this behalf expended, &c., &c.”
    An appeal from this decree brought the case up to this court.
    It was argued by Mr. Coxe, for the appellant, and Mr. Jones, for the appellee.

      Mr. -Coxe contended that the decree was irregular, informal, and erroneous. Upon overruling the demurrer of Marshall to the bill of interpleader, he should have Ipeen held to answer, and the case was not ready for a final decrpe against him. The demurrer itself was good, and ought to have been sustained. This was no regular bill of interpleader. Such a bill only lies where a person' has to pay money and' is fit a loss to whom it ought to be paid. But here the party who files the bill avers ah interest in the subject. 1 Madd. Ch. Pr. 239 ; Story’s Eq. PI: <§>$ 291 - 293
    Marshall was not bound by the laws of Maryland to take out letters of administration upon the estate of his wife. He was administrator by force of Jaw. When he sued . Amelia T. Dorsett for the four hundred dollars loaned to her by the trustee, all the matters stated in the bill of interpleader were open as grounds of defence, and having omitted to avail herself of them at law, she cannot now bring them into a court of equity.
    A bill of interpleader is regarded as an original suit, and therefore demurrable to by one or all the persons against whom it is brought. But in this case it was demurred to by Marshall alone, and the court ordered it to be taken pro confesso a§ to the other parties. It had no right to do this.

      Mr. Jones, contra,

    said, that there might be some technical informality in the proceedings, .but the right of the wife to her separate estate was fairly presented. The substantial equity was against Marshall, and in favor of the next of kin to the wife. There were two distinct funds which Marshall claimed, arising in different modes, to be governed by different rules.
    The bill called an interpleader was miscalled. It was in fact a cross-bill, because the trust fund was placed in danger, and the parties interested in it had a right to be heard. They would have a right of appeal in England. If the decision of the court below is correct in saying that the property of the wife does not belong to Marshall, it is of no consequence to him who gets it. A misnomer of the bill is, therefore, of no value.
    It is said that it was irregular for the court to pass a final decree without first calling upon Marshall to answer, after overruling his demurrer. But upon referring to the order of the court, it appears that Marshall had set the cause down for hearing upon the demurrer, &c., and therefore waived all such irregularity. If he chooses to rest his case upon his demurrer, he may do so.
    All the questions now involved could not have been raised in a court of law when Marshall sued for the four hundred dollars.
    When a married woman has separate property, the question whether the rights of the husband axe destroyed, or only suspended, must depend upon the instrument which they execute, as the interpreter of their intentions. Clancy on Married Women, 34.
    That the instrument now under consideration is sufficient to vest the property absolutely in the wife, see Clancy, 43, 51; 2 Roper, Hus. and Wife, 157 j 2 Story’s Eq. <§,§.1378 - 1383.

      Mr. Coxe, in reply,
    insisted, that, if these defences had been made at law, the judgment must have been decisive of the husband’s rights. The objection to fhe bill of interpleader is not technical. The rule is positive, that no such bill shall be filed in such a case. Clancy says there must be a manifest intention to give the wife an exclusive right. This is not apparent either in the deed or the will. The will only gives the property to Ann Marshall, but does not exclude the husband.

      Mr. Jones referred to 7 Johns. Ch. 229, and 6 Gill & Johns. 349, to show under what circumstances the court would consider the husband as being shut out.
   Mr. Justice CATRON

delivered the opinion of the court.

Robert Marshall -filed his bill against Susan G. Beall, to recover two funds held by her as trustee for Ann Marshall, the late wife of the coriiplainant. The larger fund sued for was fifteen hundred dollars, with the addition of some interest that had accrued oh it, at the time it was received by the trustee. In Í830, Robert Marshall and Ann Berry, both of Maryland, were about to intermarry, and before the marriage took place agreed in writing that the said Ann should hold in herself all right, title, and interest to the following funds of her own, to wit: one hundred and fifty shares of stock of the Patriotic Bank, on which ten dollars for each share had been paid ; also, one hundred and thirty-seven shares of stock in the Central Bank of Georgetown, on which eleven dollars to each share had been paid; and three thousand five hundred dollars in bonds on Charles Glover. The marriage took place, and a portion of the property sought to be secured to the wife by the foregoing agreement having fallen into the hands of the husband, further to secure the wife in some portion of her property, another agreement was made in May, 1834, to which Marshall and wife, and Susan G. Beall, as trustee, are parties. First, the husband and wife conveyed to Miss Beall a tract of land, the property of Mrs. Marshall, to hold in trust for the use of the husband and wife during their joint lives, and for the separate use of the husband for life,' if he was the survivor. Then follows the three thousand five hundred dollar debt from Glover, secured by the first articles, and reduced to two judgments. This debt and the land seem to have been the only property left in 1834 to either party. The use of the land was fairly divided ; and of the debt from Glover the wife very generously gave the husband the larger portion, “ to his sole and separate use, free and clear of the marriage contract of 1830.” And then she reserved to herself the smaller judgment of fifteen hundred dollars. in very nearly the same language ; the trustee was to hold executors, administrators, and- assigns, free and clear from any control of demand of .the said Robert Marshall.” The_wife retained the power of appointment, in regard to the land and the fund, but failed to exercise the power. She died intestate, and as by the laws of Maryland the husband was her administrator by. mere force of law, he noy claims to recover the fund from the trustee, and to retain the. money by force of his marital rights. And the question .presented for our decision is, whether the husband only made a temporary surrender of his marital rights during the coverture, or whether he abandoned them altogether. This depends on the intention of the parties, as expressed in the marriage articles. By the first agreement we do not doubt the wife desired, and really intended, to retain her property after the marriage as if she was a feme sole ; but the agreement was vague, and it is doubtful' whether the husband’s marital rights did not attach; then he stood as trustee himself, and"' might, and obviously did, use the property. Under these circumstances,-the article of 1834 was entered into, and the wife secured in her separate use as if she was a feme sole ; and, in consideration of a division of the wife’s property with the husband, he abandoned all claim, founded on his marital .rights, to-that part secured to the wife. We think that the terms of the agreement .of 1834 sufficiently show that the intention of the parties was to carry the title of the fund beyond the period of the wife’s death, and to exclude the -husband. And in this conclusion we are supported by the opinion of the Court, of Appeals of Maryland, in the case of War’d v. Thompson (6 Gill & Johns. 349), and in th.e soundness of which opinion we fully concur.

But there was another fund vested in Miss Beall by the will of Ann T. Beall, the mother of Susan G., the trustee, and of Mrs. Ann Marshall; and as respects this latter fund, also, the court below dismissed the complaniant’s bill, on the ground, as we suppose, that his marital rights never attached to it. The correctness of this decree depends on the will of Mrs. Beall, the clause of which vesting in trust this legacy,, is as follows : —

“ To my daughter, Amelia, Dorsett, the sum of four hundred dollars, loaned to her some years, ago. I give and bequeathe to my daughter, Ann Marshall, the sum of four hundred dollars, and hereby appoint my daughter, Susan G. Beall, her trustee, to hold and retain the whole amount in her hands, and let the said Ann Marshall, wife of Robert Marshall, have some part or parcel of the money occasionally, as she may stand in need, but to be paid out to her at the discretion of my trustee, Susan G. Beall.”. of the marriage articles. Its granting part limits the use of the fund exclusively to Mrs. Marshall’s oyvn use and benefit; there is no disposition of the property in the event of her death ; as, for instance, to the next of kin of the devisee. In Watt v. Watt, 3 Yes. 244, Garrick v. Camden, 14 Yes. 372, and in Bailey v. Wright, 18 Ves. 49, the cases turned on a provision, that for want of appointment the property should go over to the next of kin of the deceased; and this was held to be a limitation that excluded the husband, he not being of the next of kin. But we think there is no doubt, that, if such a limitation over had not existed, the English courts would without hesitation have adjudged the fund to the husband. Such is the plain inference from these and other cases of the same class. On the wife’s death, he is -entitled to all the undisposed of choses in action of the deceased wife. This fund was not disposed of at her death; it does not belong to the trustee, and is subject to. be distributed according to the laws of Maryland, and by these laws the husband is entitled, in exclusion of the next of kin of the deceased wife. As to this fund, the bill will be sustained, and for so much the decree will be reversed. And the bill of Amelia T. Dorsett will also be retained as part of the proceeding in the court below on the cause being remanded there for further proceedings; when the Circuit Court will take an account between the complainant, Robert Marshall, and Susan G. Beall, in which they will charge the complainant with any moneys he may owe said Susan G., and for the balance of the sum of four hundred dollars, with such interest as the court may find to be reasonable and proper; a decree will be rendered for said Marshall, either out of the.moneys due from Amelia T. Dorsett, or out of the fund in the hands of Susan G. Beall, the trustee.' And it is ordered, that one half the costs of this appeal be paid by the appellant, Robert Marshall, and that the other half of said costs be paid by Susan G. Beall out of the trust fund of fifteen hundred dollars in her hands ; and that as to all other costs, the court below shall adjudge their payment on the final decree as in the- discretion of that court may be deemed proper.

Order.

This cause came oh to be heard on the transcript of the record from the Circuit Court 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 now here ordered and decreed by this court, that the decree of the said Circuit Court in this case be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, to be proceeded with in conformity to the opinion of-.this court, and. that each party pay his own costs in this court.