Where the circuit court of appeals has before it, in the second
trial of the same case, a will previously construed by it, and
meanwhile the highest court of the state in which the real estate
affected is situated has construed the will differently, the
circuit court of appeals is not bound to adhere to it previous
decision as being the law of the case. It may follow, and in such a
case it should lean toward an agreement with, the state court.
In the absence of statute, the phrase " law of the case," as
applied to the effect of previous order on the later action of the
court rendering them in the same case, merely expresses the
practice of courts generally to refuse to open what has been
decided -- not a limit to their power.
In a conflict between decisions of the state and federal courts,
this Court is free when the case comes here.
In this case, in which the circuit court of appeals construed a
will as giving testator's son a life interest only, with remainder
that he could not affect, and the state court construed it as
giving him the estate subject to the divesting clause,
that the construction given by the state court was
right, and that the circuit court of appeals should have followed
whether the decision of the state court did not
finally adjudicate the question of title as between the parties so
as to be binding upon every court before which the title might
subsequently be discussed.
171 F. 785 reversed.
The facts, which involve the construction of a will affecting
real estate in Ohio, and the question of whether the federal courts
should follow the state court in such a case, are stated in the
Page 225 U. S. 441
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action of ejectment for land in Toledo, Ohio,
Page 225 U. S. 442
brought by the respondent, Anderson. The case went three times
to the circuit court of appeals, and ended in a judgment for the
plaintiff. 146 F. 929; 158 F. 250; 171 F. 785. The facts that need
to be stated are these: in 1841, Charles Butler assigned an overdue
mortgage of the land to Henry Anderson as security for a note of
his own. He made default, Anderson brought a bill to foreclose
(Butler not being served with process), got a decree, bought in,
and got the sale confirmed. For the purposes of this decision, it
may be assumed that Anderson got the land in fee simple, subject to
some question as to Butler's rights. The plaintiff below, the
respondent here, claimed as remainderman under the will of Henry
Anderson, who was his grandfather. The petitioner claims under a
conveyance from Butler. If the plaintiff's title is bad, that is an
end of the case.
In 1846, Henry Anderson, then domiciled in Mississippi, made his
will and died, leaving two sons, William and James. These sons
executed deeds declaring that their father, Henry, held and
intended to hold the land in trust to secure the payment of
Butler's note, and Butler subsequently made such payments on the
same that it may be assumed that, unless the plaintiff has a title
that his father, James, could not affect by the above-mentioned
deed, he has none. Whether he has such a title depends on the terms
of Henry's will. That instrument, after creating a general trust of
substantially all the testator's property, went on thus:
"Item. It is my will that, when my son William arrives at the
age of twenty-one years, the trustees . . . shall deliver to him a
settlement of the affairs of the trust, and if my debts are then
paid, and as soon as that takes place, they shall put him in
possession of one-half of my property, reserving thereout two-fifth
parts of said moiety, by valuation, which my said trustees shall
hold in trust and properly invest and pay over to
Page 225 U. S. 443
him at the age of twenty-five years. . . . And it is my will
that my said trustees hold and invest and pay over the remaining
moiety of my estate to my son James at the respective periods of
twenty-one and twenty-five years of age, being governed as to the
amounts to be paid at each of the respective periods by the same
rules and directions as are above laid down in the bequest to
If these clauses were all, there would be no doubt that William
and James got an absolute title when they reached the age
mentioned. But a following paragraph reads:
"If either of my sons die without lineal descendants, the one
surviving shall take his estate above bequeathed, and if the
survivor die without lineal descendants, then"
over to brothers and sisters of the testator. Later in the
paragraph, the testator says:
"I make the following explanation: the limitations over on the
death of my surviving son without lineal descendants is intended to
take effect if there be no lineal descendants living at the time of
the decease of such son. Nothing in the foregoing will shall be
construed as to deprive either of my sons of disposing of their
portions by will on their attaining the age of twenty-one years
respectively. The above limitations over shall give way to the
provision of such wills."
The testator's son William died in 1850, unmarried and
intestate. The other son, James, died in 1902, intestate and
leaving the plaintiff his only child.
The circuit court of appeals, when this case first came up, held
that James took only a life estate, and that the plaintiff got a
remainder that his father could not affect. 146 F. 929. But,
pending the proceedings, another case was tried in the state courts
between these same parties concerning other parcels of land in
Toledo, depending on the same title, in which it was decided by the
lower court and affirmed on writ of error by the Supreme Court of
Ohio that James took a fee, subject to be defeated
Page 225 U. S. 444
only by his leaving no lineal descendant. Anderson v. United
79 Ohio St. 23, s.c., 222 U. S. 222
164. The judgment of the lower court was pleaded, but it was held
by the circuit court of appeals, after the affirmance by the
supreme court, that its own previous decision was the law of the
case, and that it was not at liberty to reverse the judgment, even
if the matter was res judicata
on the principle laid down
in New Orleans v. Citizens' Bank, 167 U.
, 167 U. S. 396
See Parrish v.
2 Black 606. In the absence of statute, the
phrase, "law of the case," as applied to the effect of previous
orders on the later action of the court rendering them in the same
case, merely expresses the practice of courts generally to refuse
to reopen what has been decided, not a limit to their power.
King v. West Virginia, 216 U. S. 92
216 U. S. 100
Remington v. Central Pacific R. Co., 198 U. S.
, 198 U. S.
-100; Great Western Telegraph Co. v. Burnham,
162 U. S. 339
162 U. S. 343
Of course, this Court, at least, is free when the case comes here.
Panama R. Co. v. Napier Shipping Co., 166 U.
; United States v. Denver & Rio Grande R.
Co., 191 U. S. 84
our opinion, even apart from the effect of the state judgment as an
adjudication, it should have been followed, if for no other reason,
because at least as against the decision of the circuit court of
appeals, it was right.
The later clauses that we have quoted from the will make a
difference, it is true, according to whether the sons leave lineal
descendants at their death or not. But the interest thus exhibited
in descendants is satisfied by the probability that they would
inherit the property or be provided for out of it. It is not shown
to be so definite and paramount as to cut down the gifts imported
by the previous words except in the single event in which the will
does so in terms. On the contrary, the still later provision that
nothing shall be construed to "deprive" the sons of the power to
dispose of "their portions" by will
Page 225 U. S. 445
indicates that the testator meant the sons to be owners of his
estate, subject to the divesting clause.
We should lean toward an agreement with the state courts,
especially in a matter like this. In the present instance we see no
sufficient reason for refusing to follow their judgment even if,
for any cause not pointed out to us, it did not finally adjudicate
the question of title as between these parties in such wise as to
be binding upon every court before which that title subsequently
might be discussed.