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held that the provisions of the statute do I tion of a writ of error in forma pauperis.” not extend to writs of error. Moore v. We answer that that court has no such Cooley, 2 Hill, 412.”

power unless derived from statute, and we We adhere to the view that the act, on find no statute authorizing any order to that its face, does not apply to appellate pro- effect. ceedings, and that it does not is sustained Costs are the creatures of statute, and it by other considerations.

is settled that authority to permit proseci). The act of July 20, 1892, does not purporttion in forma pauperis must be given by to grant the right to prosecute a writ of statute. error or an appeal, and that right depends By § 2 of the judiciary act of March 3, on a statute, and not on the common law. 1891, the costs and fees in the Supreme United States v. More, 3 Cranch, 171, 2 L. Court are made the costs and fees in the ed. 401. Errors can be reviewed only in the circuit courts of appeals, and the latter cases in which those processes are given by courts are empowered to establish all rules statute. Ex parte Parks, 93 U. S. 21, 23 L. and regulations for the conduct of the busied. 788.

ness of the court. Section 11 of the judiciary act of March And it appears that on November 21, 3, 1891, creating the circuit court of ap- 1898, rule 16 of the circuit court of appeals peals, provides :

for the sixth circuit was so amended as to "And all provisions of law now in force read that, "at the time of filing the record, regulating the methods and system of re- the plaintiff in error or appellant shall deview, through appeals or writs of error, posit with the clerk the sum of $35 as seshall regulate the methods and system of curity for costs, except in cases in which appeals and writs of error provided for in the proper showing is made, and an order this act in respect of the circuit courts of of this court is entered thereon, allowing appeals, including all provisions for bonds the cause to proceed in forma pauperis.or other securities to be required and taken But the exception must be assumed to on such appeals and writs of error, and any have been framed on a construction of the judge of the circuit courts of appeals, in re- act of July 20, 1892, which we have been spect of cases brought or to be brought to constrained to hold it does not bear, and the that court, shall have the same powers and exception falls in the absence of a statute duties as to the allowance of appeals or authorizing such an order. writs of error, and the conditions of such We need not advert to the distinction beallowance, as now by law belong to the jus-tween costs and fees, but it should be noted tices or judges in respect of the existing that the power of the circuit courts of apcourts of the United States respectively.” peals, in respect of the distribution of costs, [26 Stat. at L. 829, chap. 517, U. S. Comp. or in dealing with its officers in respect of Stat. 1901, p. 552.]

their fees, under special circumstances, is There are several such provisions, and, not here involved. among others, $ 1000 of the Revised Stat

Both questions answered in the negative. utes (U. S. Comp. Stat. 1901, p. 712) reads: “Every justice or judge signing a citation

(195 U. S. 276) on any writ of error shall, except in cases brought up by the United States, or by EMMA S. FAYERWEATHER and Mary W. direction of any department of the govern

Achter, Appts., ment, take good and sufficient security that the plaintiff in error or the appellant shall THOMAS G. RITCH et al., Individually, prosecute his writ or appeal to effect; and, and as Executors, etc., and others. (No. if he fails to make his plea good, shall 157.) answer all damages and costs, where the writ is a supersedeas and stays execution, JOHN B. REYNOLDS, as Sole Executor of or all costs only where it is not a super

the Last Will and Codicil of Lucy FayerBedeas as aforesaid."

weather, Deceased, Appt., Clearly, an act giving the right to prosecute in forma pauperis cannot be extended THOMAS G. RITCH et al., Individually, by implication beyond its terms, in conflict

and as Executors, etc., and others. (No. with existing provisions in relation to writs

158.) of error and appeals.

The result is that the first question must Direct appeal to Federal Supreme Courtbe answered in the negative.

case involving application of Constitu2. The second question is whether, if the tion-res judicataparol testimony to act of July 20, 1892, does not apply to limit conclusiveness of judgment. appellate proceedings, the court of appeals has "any authority to permit the prosecu- ' 1. The application of the due process of law

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clause of U. S. Const. 5th Amend. is involved | ing them to divide it equally among the so as to sustain a direct appeal to the Fed twenty colleges named in the 9th article. eral Supreme Court from a circuit court, On the same day he signed the following where the latter court gave effect, as res ju

statement: dicata, to the judgment of a state court which is claimed unlawfully to have deprived “This certifies that I have executed my the parties of their property under the forms will of this date, having been advised by my of law, without any judicial finding of the counsel of the provision and restrictions of vital fact which alone could justify such the law of this state relative to benevolent deprivation. The validity of certain releases is res ju the provision of this my will to be carried

corporations. I trust my heirs will permit dicata as between the parties to a suit in which the question of their invalidity for into effect.” fraud and undue influence was put in issue by At that time, by chap. 360, Laws of 1860, the pleadings, where the decree of the trial of the state of New York, a testator having court, which could not properly have been husband, wife, child, or parent was forrendered without holding the releases valid, bidden to give to literary or benevolent inwas followed by an affirmance on appeal, with an opinion declaring that there was no

stitutions more than one half of his estate. evidence in the record justifying the conten- On December 13, 1884, the testator made a tion that they were obtained by fraud and first codicil to his will, by which he re undue influence, with a further affirmance in voked the 10th article, and gave the residthe court of last resort, whose opinion declared that, upon the state of the record, it uary, of his estate absolutely to his execwas to be presumed that the validity of the utors. In other respects the will was ratireleases had been affirmatively found and fied. At or about the same time a paper, that there was sufficient evidence to sustain bearing date December 11, 1884, headed such a finding, followed by a refusal to frame "Private Memorandum,” was signed by him, its remittitur so as to send this question which reads as follows: back to the trial court for consideration, although the trial judge made no findings of

“I have made Messrs. Bulkley and Ritch fact, made no mention in his memorandum of my residuary legatces in the confidence that decision of the contention respecting the re- thereby my intentions as expressed in my leases, and in his opinion failed in terms to will shall be carried into effect, and without pass upon this point.

litigations on the part of any person or per8. The effect as res judicata of a decree in a

sons interested. In case of my death, I trust case in which the validity of certain releases was put in issue by the pleadings, and in that they will take such steps, by will or which no judgment could properly have been otherwise, as will protect my estate against rendered without a determination of that the contingency of the death of either before question, cannot be limited by the oral testi- my estate is settled and distributed.” mony of the trial judge, some six years after his decision, to the effect that, in deciding

By subsequent codicils minor changes were the case, he did not consider the validity of made, and Henry B. Vaughan was added as the releases.

executor. The testator died on November

15, 1890, leaving a widow and three nieces, [Nos. 157, 158.)

his only heirs at law and next of kin. On

the day of his death he executed a codicil, Argued October 12, 13, 1904. Decided No which was mainly a confirmation of the vember 28, 1904.

provisions of the will and prior codicils.

Mr. Fayerweather's estate amounted at PPEALS from the Circuit Court of the the date of the will to about three millions

United States for the Southern District of dollars, and at the time of his death to of New York to review a decree sustaining from five to six millions of dollars, mainly pleas of res judicata to, and dismissing, a

in personal property. bill and cross bill to set aside certain re

While by the articles in the will, prior leases as fraudulently obtained. Affirmed. to the 9th, he had made provision for his See same case below, 118 Fed. 943. widow and also bequests to his three nieces,

yet obviously his purpose was to give the Statement by Mr. Justice Brewer:

bulk of his estate to the several colleges The controlling question in these cases named, and to avoid the restraining effect arises on pleas of res judicata. The essen- of the New York statute. After the death tial facts are as follows:

of Mr. Fayerweather the will and codicils On October 6, 1884, Daniel B. Fayer- were propounded for probate, to which the weather, a citizen and resident of the state widow and nieces filed objections. A hearof New York, made a will, by the 9th article ing was had before the surrogate, and on of which he gave to twenty colleges bequests February 25, 1891, he entered an order adamounting in the aggregate to $2,100,000. mitting the will to probate, and leaving the By the 10th article he gave the residuary contest of the codicils to continue. On Febestate to his executors, as trustees, direct- I ruary 24, 1891, the three executors, resid.

A

uary legatees, made a deed of gift, which signed, being the widow and all of the next reads:

of kin of the said Daniel B. Fayerweather, “Know all men by these presents, That do hereby severally agree for ourselves, our, we, Justus L. Bulkley, Thomas G. Ritch, and each of our heirs, executors, and adminand Henry B. Vaughan, residuary devisees istrators, as follows: and legatees under the will, meaning there- “1. All objections to the probate of the by the original will and the subsequent cod. will and four codicils of the late Daniel B. iciis of Daniel B. Fayerweather, late of the Fayerweather, offered for probate to the city of New York, deceased, prompted by surrogate of the county of New York, are our determination that we will not retain hereby withdrawn, and we consent to the for our own use any part of the residuary probate of the same. estate left to us by his will, and by the de- "2. No suit shall hereafter be brought for sire to make such disposition of his said the construction of the said will and codresiduary estate as in our judgment will icils or either of them, or to set aside the best honor his memory, do dispose of so will and codicils or either of them, and we much of the same as shall remain after the further agree not to make any claim upon payment of all lawful fees, expenses, and the said Justus L. Bulkley, Thomas G. Ritch, charges as follows:

and Henry B. Vaughan or either of them, or "First, We reserve the power to make, against their heirs or personal representaand we retain the right to assent to, any tives, or either against them, the said Bulkenlargement of the $15,000 a year by the ley, Ritch, and Vaughan, as executors, or as will left to Mrs. Fayerweather, which she residuary legatees, other than for amounts may desire.

left to us by the will and codicils aforesaid, “Second, We reserve the power to make, and the deed of gift executed by the said and we retain the right to assent to, any Bulkley, Ritch, and Vaughan on the 24th enlargement of the provisions made by the day of February, 1891, and the instrument will for Mrs. Mary W. Achter and Mrs. dated on the 5th day of March, 1891. Emma S. Drury, in case we shall be satis- “3. Upon the payment to the undersigned, fied that such enlargement would not be respectively, of the several amounts menagainst the wishes of Mr. Fayerweather. tioned in said deed of gift and said instru

“Third, We give to Lucy J. Beardsley, ment, we will severally execute a general rewife of Morris B. Beardsley, $100,000. lease of all claims, except those arising un

“We do this because of Mr. Fayerweath- der the will and codicils, both to the exer's letter written to Mr. Vaughan and Mr. ecutors and to the donees mentioned in the F. B. Myrick. If accepted, this gift is in deed of gift on the 24th day of February, discharge of any claim under that letter." | 1891, and to the said Bulkley, Ritch, and

Then, after making gifts of several sums Vaughan individually." to individuals, hospitals, and colleges (some On March 24, 1891, the codicils were adbeing those named in the will of Mr. Fayer- mitted to probate on written consent, signed weather, and others not so mentioned), the by the attorneys for the parties to the condeed closes with these words:

test. On June 12, 1891, the widow executed “We execute this instrument, recogniz- the following release: ing that there is pending a contest in pro- “Know ye, that I, Lucy Fayerweather, ceedings for the probate of Mr. Fayerweath- widow of Daniel B. Fayerweather, of the er's will, and recognizing further that if city of New York, for and in consideration such contest shall not prevail, a question of the sum of $225,000, lawful money of the may be made about our legal rights as dev- United States, to me in hand paid by Jusisees and legatees.

Our object is tus L. Bulkley, Thomas G. Ritch, and Heneach for himself to give away whatever may ry B. Vaughan, as executors and trustees come to us as residuary devisees and lega under the last will and testament of Daniel tees under Mr. Fayerweather's will.” B. Fayerweather, deceased, and individually,

Subsequently, and on March 5, the ex- and as the representatives of the persons or ecutors, as residuary legatees, entered into corporations hereinafter named, forming a an agreement with the contestants by which class known as donees, under the deed of the amounts coming to them were increased, gift executed by the said Bulkley, Ritch, and and thereupon the contestants executed the Vaughan, on February 24th, 1891, which following paper:

sum is in compromise and full settlement “In consideration of the instrument of of any and all contests on my part of the even date herewith executed by Justus L. will of said Daniel B. Fayerweather, deBulkley, Thomas G. Ritch, and Henry B. ceased, or concerning his estate, have reVaughan, residuary devisees and legatees mised, released, and forever discharged, and under the wili, meaning thereby the orig. by these presents do, for myself and for my inal will and subsequent codicils of Daniel heirs, administrators, and executors, remise, B. Fayerweather,

we, the under-' release, and discharge the said Justus L. Bulkley, Thomas G. Ritch, and Henry B. proceedings taken by him were under the Vaughan, as executors and trustees afore advice of counsel and for the purpose of said, as individuals and as representatives carrying into effect that intention, and upof the said donees constituting a class, and on a promise and assurance from the exalso the said donees, to wit, the persons and ecutors that they would dispose of the residcorporations mentioned in a certain deed of uary estate accordingly; it averred also gift duly delivered, made by Justus L. Bulk the fact of a contest in respect to the proley, Thomas G. Ritch, and Henry B. bate of the will and codicils, a settlement Vaughan on the 24th day of February, 1891, with the contestants in consideration of which deed of gift was introduced in evi- the payment of $310,000 and the execution dence in the probate proceedings of the last of releases by them. The prayer was that will and testament of Daniel B. Fayer- it be adjudged and decreed that the residweather, deceased, and marked 'Exhibit No. uary estate was devised by the testator and 7, contestants,' and which said deed of gift received by the executors in trust for the is hereby made a part of this release, in or- purposes set forth, that they be required to der that the persons constituting said class apply that estate to those purposes, and, of donees and to whom this release runs also, “that the ultimate rights of the plainmay be more fully known, and also the le- tiffs as between them and each of them and gal successors, assigns, heirs, executors, and every of the other defendants herein be deadministrators of all the aforesaid persons termined by the judgment in this action in and corporations, of and from all and all accordance with the allegations of this manner of action and actions, cause and complaint and the prayer hereinbefore concauses of action, suits, debts, dues, sums tained.” of money, claims and demands whatsoever The donees in the deed of gift answered, in law or in equity, which against the said asserting the validity of that deed, and persons or corporations, or any of them, I praying that its provisions be carried out. ever had or now have, or which I or my The widow's executors and the nieces also heirs, executors, or administrators herein- appeared and filed an answer and counterafter shall, can, or may have for, upon, or claim, in which they alleged that the agreeby reason of any matter, cause, or thing ment which the suit was brought to enforce whatsoever, except my claim for the an- was a secret trust to evade the New York nuity given me by the will and codicils statute by giving more than half to the thereto of said Daniel B. Fayerweather, de- several institutions, that the releases were ceased, and also my claim for the increased obtained from them by concealment and annuity mentioned in the agreement dated fraud, and therefore of no obligation; and March 5th, 1891, and made pursuant to the prayed for judgment, among other things, deed of gift above referred to."

“3d. That it be adjudged that the said Releases similar in form were executed by settlements and releases made with or obthe other three contestants, the nieces and tained from the said Lucy Fayerweather, next of kin.

Mary W. Achter, and Emma S. FayerIn January, 1893, five of the colleges weather, respectively, were and are each named in article 9 of the will brought suit fraudulent and void, and that the same be in the supreme court of the state of New set aside, upon such terms as may be just York against the executors of Mr. Fayer and equitable, and that the sums paid for weather's will, the executors of the will of the same to said releasors or their attorneys, Mrs. Fayerweather (who had died since respectively, with the interest thereon, inthe release), the nieces, the donees in the cluding the increased payments to said deed of gift, and all the colleges not joined Lucy Fayerweather on her annuity, be as plaintiffs. The contention of the plaintiffs charged against or allowed upon the sums was that the codicil which gave the residue payable to them respectively under the of the estate to the three executors ab- judgment herein, or be otherwise provided solutely was made in pursuance of an agree or accounted for as may be according to ment that they should take that residue in equity. trust for the colleges mentioned in the will, "4th. That it be adjudged that the said and distribute it among them. The com- deed of gift, dated February 24th, 1891 plaint set forth the will and codicils, their (Exhibit F), was and is fraudulent and admission to probate, and the issue of let- void, and that the said Thomas G. Ritch, ters testamentary, and averred that the val. Justus L. Bulkley, and Henry B. Vaughan ue of the estate left by the testator was be enjoined and restrained from further disupwards of $6,000,000 and the residuary es-tributing the said residuary estate, or any tate more than $3,000,000. It alleged that part thereof, under the same, except to conthe intention of the testator was to devote tinue the payment of the said annuity the principal part of his estate to the sev- to said Anner Amelia Reynolds, as aforesaid. eral institutions mentioned, and that the "5th. That the said defendants Ritch, Bulkley, and Vaughan may be required to the one or two omissions in no way affecting account for the moneys and property re- the question before us. Subsequently the received by them from the estate of the said maining executor, one having resigned, of Daniel B. Fayerweather under said last will the will of Mrs. Fayerweather, filed a cross and testament and codicils or otherwise, and bill, the allegations and the relief asked for the application thereof, and to pay over being similar to those in the original bill. the said moneys and property remaining in These bills-in addition to setting forth their hands among the parties to this action the will and codicils executed by Mr. Fayeraccording to their several and respective weather, the probate proceedings, and the rights thereto, as the same may be adjudged releases by the widow and nieces, and alleg. in this action.

ing that these letters were fraudulently ob"6th. That the ultimate rights of the par- tained, and not binding—averred the bringties to this action in the estate of the said ing of the suit hereinbefore referred to in Daniel B. Fayerweather be determined and the supreme court of the state by the five enforced by the judgment in this action, in colleges, annexing copies of the pleadings, accordance with the allegations of this an. and alleged "thereupon the issues so joined, swer and the foregoing prayers for relief as well as others duly raised by the answers therein.

of the several defendants, came on to be “7th. That these defendants may have tried before said court, and these complainsuch other and further relief herein as may ants gave evidence tending to prove the alle be just and equitable, with their costs here- gations in their said answer, and all of in, to be paid as the court may direct.” the said allegations, and thereupon it be

The decree of the supreme court at special came and was the duty of said court to adterm, entered on December 28, 1894, ad- judge and determine whether the releases judged and decreed that the residuary es- therein described were invalid, and whether tate passed to the executors in trust for these complainants were entitled to the afthe colleges named in the ninth paragraph firmative relief prayed in respect thereto;" of the will; that the executors and trustees and further, that the defendantsbe restrained and enjoined from distributing "Confederating and combining together the residuary estate, or any part thereof and between themselves to prevent the entry under the deed of gift, and that the plain- of any judgment upon an actual determinatiffs and certain of the defendants (includ- tion of the invalidity of said releases so in ing therein the executors of the will of Mrs. issue, requested and induced the court to Fayerweather and two of the nieces) re hold and decide that the right of the recover from the trustees their costs, together spective parties to said property and residuwith extra allowances to be paid out of the ary estate did not require any consideration trust funds. There was no formal finding or decision of said issues, and said court of facts and no mention made in the decree thereupon made and rendered its decision of the specific claim of the executors of Mrs. without considering, passing upon, or includFayerweather's will and the nieces, that the ing in judgment the said issues, and omitted releases were fraudulently obtained. An ap- to decide upon these complainants' right to peal was taken by the defendants to the the affirmative relief by said answer prayed general term of the supreme court, which, in respect to said releases. on December 18, 1895, affirmed the judg- “And thereupon there was filed and enment. A further appeal was taken to the tered in said action a decision and judgment, court of appeals, which, on January 19, a copy of which is hereto annexed, which 1897, affirmed the judgment of the general complainants pray may be referred to and term. 151 N. Y. 282, 37 L. R. A. 305, 45 N. taken as part of this bill as if the same E. 876. On January 28, 1897, a motion was were herein set forth at length. made in the court of appeals to amend the “Thereupon, by appeals taken from said remittitur so as to direct the justice of the judgment, in which appeals these complain. supreme court before whom the action was ants were respondents as well as appellants, tried at special term to consider the evi. said judgment was reviewed by the general dence given before him at the trial concern term of said supreme court, sitting as a ing the releases, and to determine whether court for the correction of errors, and not the said releases were valid and binding or exercising any original jurisdiction, and invalid and void, which motion was on thereupon said court held and determined March 9, 1897, denied.

that the right of the respective parties to After these proceedings in the state court said property and residuary estate did retwo of the nieces and next of kin, being quire the consideration and decision of said citizens of the state of Iowa, instituted this issues, and thereupon, being duly informed suit in the circuit court of the United by the record that said issues had not been States, making defendants substantially all in fact considered, passed upon, or included the parties to the suit in the state court, 'in said judgment, it became and was the

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