Barber v. Pittsburgh, Ft. W. & Ch. Ry. Co.
166 U.S. 83 (1897)

Annotate this Case

U.S. Supreme Court

Barber v. Pittsburgh, Ft. W. & Ch. Ry. Co., 166 U.S. 83 (1897)

Barber v. Pittsburgh, Fort Wayne & Chicago Railway Company

No. 481

Submitted May 7, 1898

Decided March 1, 1897

166 U.S. 83

Syllabus

A single verdict and judgment in ejectment, when not conclusive under the laws and in the courts of a state, is no bar to a second action of ejectment in the courts of the United States.

When the construction of certain words in deeds or wills of real estate has become a settled rule of property in a state, that construction is to be followed by the courts of the United States in determining the title to land within the state, whether between the same or between other parties.

A single decision of the highest court of a state upon the construction of the words of a particular devise is not conclusive evidence of the law of the state in a case in a court of the United States involving the construction of the same or like words between other parties, or even between the same parties or their privies, unless presented under such circumstances as to be an adjudication of their rights.

In Pennsylvania, under a will executed and taking effect before the passage of the statute of 1833, by which

"all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate,"

"and beginning with the statement that the testator was desirous of making a distribution of his property in the event of his decease, a devise of a parcel of land, without words of inheritance, gave an estate in fee unless qualified by other provisions of the will."

A devise over in the event of a married woman "dying without offspring by her husband" is equivalent to a devise in the event of her "dying without issue."

In Pennsylvania, in a will executed and taking effect before the statute of 1855, enlarging estates tail into estates in fee, a devise of certain lots of land to A in fee, and,

"in the event of A dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold,

Page 166 U. S. 84

and the proceeds to be divided equally among the heirs of B,"

looked to an indefinite failure of issue of A, and gave A an estate tail.

A power to sell land upon the expiration of an estate tail, and to divide the proceeds among persons then ascertainable, is not within the rule against perpetuities.

In a will devising certain land to A, and, if A die without issue, "then to be sold and the proceeds divided equally among the heirs of B," and directing the residue of the testator's estate to be sold and the proceeds divided into sixteen shares, of which two are given to B and two others to "the heirs of B," both B and his children being alive at the time of the testator's death, the word "heirs" in the specific devise applies either to children or to more remote descendants of B, whichever may be his heirs if he be dead, or his heirs apparent if he be living, when the devise takes effect.

Oral testimony to a testator's State of health at the time of publishing his will, or to his length of life afterwards, is incompetent to control the construction or effect of devises therein.

This was a certificate from the Circuit Court of Appeals for the Third Circuit of questions on which it desired the instruction of this Court, and, as originally made, was (omitting the words printed in brackets below) as follows:

"This was an action of ejectment, and comes before this Court on a writ of error to the United States Circuit Court for the Western District of Pennsylvania, which entered judgment for the defendants."

"First. The parties to the action both claimed title to the land in controversy under the will of James S. Stevenson, deceased, dated March 11, 1831, which is in the words following, to-wit:"

" I, James S. Stevenson, of the City of Pittsburgh, in the State of Pennsylvania, aged fifty years, on the 12th day of January, 1831, reflecting on the certainty of death, and desirous of making a distribution of my property in the event of my decease, do hereby declare this writing to be my last will and testament, made this twelfth day of March, in the year of our Lord one thousand eight hundred and thirty-one."

" I give and bequeath to Amanda Stephens, daughter of Margaret Stephens, lots 67, 68, 69, and 70, in the City of Pittsburgh, in their full extent, bounded by Penn Street, Wayne Street, the Allegheny River, and by lot 71. Said Amanda Stephens

Page 166 U. S. 85

is now five years old (born April 7, 1826). _____ Stephens and _____, his wife, the parents of Amanda's mother, live near Connellsville, in Fayette County, Pennsylvania."

" In the event of Amanda's dying unmarried, or, if married, dying without offspring by her husband, then these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber, of Columbia, Pennsylvania."

" I give and bequeath to John Barber, of Columbia, and to his heirs, the lots in the City of Pittsburgh numbered 71 and 72, bounded by Penn Street, by lot 70, by the Allegheny River, and by lot 73."

" I give and bequeath to Mary Livingston's children the lot 74 in the City of Pittsburgh And to her unmarried sister, Eliza Stevenson, I give and bequeath the lot 73 in the City of Pittsburgh, and, in the event of her death, the lot to go to her sister's children. Mary Livingston and Eliza Stevenson are daughters of the late Colonel S. Stevenson, son of Robert Stevenson, of York county, Pennsylvania."

" I give and bequeath to the sons of James Stevenson, formerly of York County, but who died in Lycoming County in 1810 or 1811, the brick and other buildings, with the ground on which they are erected, situated at the corner of Wood and Fifth Streets, Pittsburgh. These sons are Stephen, Manning, Reuben, Samuel, and I. Stephenson."

" All the remainder of my property to be sold, and, after paying my debts, to be divided into sixteen shares, and to be disposed of as follows: to Amanda Stephens, one share; to Mary Livingston, one share; to Eliza Stevenson, one share; to Stephen Stevenson, within named, one share; to James Wright, of Columbia, or his heirs, two shares; to John Barber, of Columbia, two shares; to Ann Elliott, formerly Ann West, now wife of Rev. Mr. Elliott, of Washington County, one share; to Jane E. Thecker, niece of the late Rev. Mr. Kerr, one-sixteenth (or one share); to the heirs of John Barber, of Columbia, two shares; to the heirs of James Wright, of Columbia, two shares; to Charles Avery,

Page 166 U. S. 86

J. M. Snowden, and John Thaw, to be divided equally, two shares."

" I hereby constitute and appoint the said Charges Avery, J. M. Snowden, and John Thaw, and John Barber the executors of this my will."

" Signed at Pittsburgh this 11th day of March, 1831."

"Jas. S. Stevenson"

"Witness:"

" Geo. Ogden"

" J. S. Craft"

"Second. That on October 16, 1831, when confined to his room by sickness [and after a dangerous illness for two weeks preceding his death], the testator [though he had theretofore signed his will] first published [the same] his will in the presence of witnesses, whom he called to attest it, and a few hours thereafter died, and this will, on October 18, 1831, was duly probated [which facts as to the time and circumstances of publication were not found by the special verdict, on which judgment was entered in the ejectment suit in the state courts of Pennsylvania]."

"Third. That the said Amanda Stephens, then a child of five years of age, survived the testator, and in 1847 intermarried with Samuel Haight; that in 1848, she and her husband executed a deed, intended to bar a supposed estate tail in the land covered by the devise, which, upon the assumption that she had taken an estate tail, would have been sufficient for that purpose; that she had children by her said husband, who, as well as her husband, died in her lifetime, and that she died [never having married again] on September 21, 1891. [But she and her husband in their lifetime, and after said steps to bar the entail, conveyed in fee simple to the defendants and others the property here in dispute.]"

"Fourth. That at the date of the death of the testator, John Barber was alive, married, and had children, some of whom are plaintiffs in this action."

"Fifth. That on March 20, 1893, S. Duffield Mitchell, administrator de bonis non cum testamento annexo of James S. Stevenson, deceased, brought an action of ejectment against these defendants in the Court of Common Pleas in and for Allegheny County, Pennsylvania, to recover the land here in controversy,

Page 166 U. S. 87

in which action a verdict was rendered under the direction of the court for the defendants, on which judgment was entered accordingly; that, on writ of error to the supreme court of the state, this judgment was affirmed."

"Sixth. That on February 2, 1895, a second action of ejectment for the same land was brought by the plaintiffs in this suit in the Circuit Court of the United States for the Western District of Pennsylvania, in which a verdict under the direction of the court was rendered for the defendants, on which judgment was entered accordingly, to which judgment a writ of error was sued out from the Circuit Court of Appeals of the Third Circuit, being the writ of error upon which the questions now to be submitted have arisen."

"The said court of appeals, desiring the instruction of the Supreme Court of the United States for its proper decision of the following questions or propositions of law, respectfully certifies the same:"

"First. Is the decision of the Supreme Court of Pennsylvania, before referred to, conclusive? If not, then,"

"Second. What estate did Amanda Stephens take under the devise?"

At the suggestion of both parties and by order of the circuit court of appeals, the certificate was afterwards amended by inserting the words above printed in brackets in the second and third paragraphs thereof; by striking out those in italics in the second paragraph; by adding to the fifth paragraph copies of the opinions delivered, in the action therein described, by Judge Ewing in the Court of Common Pleas of Allegheny County, not reported, and therefore (omitting the preliminary statement of facts) printed in the margin, * and by the Supreme Court of Pennsylvania, as reported

Page 166 U. S. 88

in 165 Penn.St. 645, and by adding to the sixth paragraph a copy of the opinion of the circuit court of the United States in the present case, as reported in 69 F. 501.

Page 166 U. S. 97

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