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held that the provisions of the statute do |tion of a writ of error in forma pauperis.” not extend to writs of error. Moore v. Cooley, 2 Hill, 412."
We adhere to the view that the act, on its face, does not apply to appellate proceedings, and that it does not is sustained by other considerations.
The act of July 20, 1892, does not purport to grant the right to prosecute a writ of error or an appeal, and that right depends on a statute, and not on the common law. United States v. More, 3 Cranch, 171, 2 L. ed. 401. Errors can be reviewed only in the cases in which those processes are given by statute. Ex parte Parks, 93 U. S. 21, 23 L. ed. 788.
Section 11 of the judiciary act of March 3, 1891, creating the circuit court of appeals, provides:
"And all provisions of law now in force regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error provided for in this act in respect of the circuit courts of appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error, and any judge of the circuit courts of appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively." [26 Stat. at L. 829, chap. 517, U. S. Comp. Stat. 1901, p. 552.]
We answer that that court has no such power unless derived from statute, and we find no statute authorizing any order to that effect.
Costs are the creatures of statute, and it is settled that authority to permit prosecntion in forma pauperis must be given by statute.
By § 2 of the judiciary act of March 3, 1891, the costs and fees in the Supreme Court are made the costs and fees in the circuit courts of appeals, and the latter courts are empowered to establish all rules and regulations for the conduct of the business of the court.
And it appears that on November 21, 1898, rule 16 of the circuit court of appeals for the sixth circuit was so amended as to read that, "at the time of filing the record, the plaintiff in error or appellant shall deposit with the clerk the sum of $35 as security for costs, except in cases in which the proper showing is made, and an order of this court is entered thereon, allowing the cause to proceed in forma pauperis.”
But the exception must be assumed to have been framed on a construction of the act of July 20, 1892, which we have been constrained to hold it does not bear, and the exception falls in the absence of a statute authorizing such an order.
We need not advert to the distinction between costs and fees, but it should be noted that the power of the circuit courts of appeals, in respect of the distribution of costs, or in dealing with its officers in respect of their fees, under special circumstances, is not here involved.
Both questions answered in the negative.
(195 U. S. 276)
There are several such provisions, and, among others, § 1000 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 712) reads: "Every justice or judge signing a citation 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 government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect; and, if he fails to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid."
Clearly, an act giving the right to prosecute in forma pauperis cannot be extended by implication beyond its terms, in conflict with existing provisions in relation to writs of error and appeals.
The result is that the first question must be answered in the negative.
THOMAS G. RITCH et al., Individually, and as Executors, etc., and others. (No. 157.)
JOHN B. REYNOLDS, as Sole Executor of the Last Will and Codicil of Lucy Fayerweather, Deceased, Appt.,
THOMAS G. RITCH et al., Individually, and as Executors, etc., and others. (No. 158.)
Direct appeal to Federal Supreme Court― case involving application of Constitution-res judicata-parol testimony to limit conclusiveness of judgment.
2. The second question is whether, if the act of July 20, 1892, does not apply to appellate proceedings, the court of appeals has "any authority to permit the prosecu- 1.
The application of the due process of law
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 judicata, to the judgment of a state court which is claimed unlawfully to have deprived the parties of their property under the forms of law, without any judicial finding of the vital fact which alone could justify such deprivation.
The validity of certain releases is res ju
dicata as between the parties to a suit in which the question of their invalidity for fraud and undue influence was put in issue by the pleadings, where the decree of the trial court, which could not properly have been rendered without holding the releases valid,
"This certifies that I have executed my will of this date, having been advised by my counsel of the provision and restrictions of the law of this state relative to benevolent corporations. I trust my heirs will permit the provision of this my will to be carried into effect."
At that time, by chap. 360, Laws of 1860, of the state of New York, a testator having husband, wife, child, or parent was forbidden to give to literary or benevolent in
was followed by an affirmance on appeal, with an opinion declaring that there was no 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 reundue influence, with a further affirmance in voked the 10th article, and gave the residthe court of last resort, whose opinion de
stitutions more than one half of his estate.
clared that, upon the state of the record, ituary 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 fact, made no mention in his memorandum of decision of the contention respecting the releases, and in his opinion failed in terms to pass upon this point.
"I have made Messrs. Bulkley and Ritch my residuary legatces in the confidence that thereby my intentions as expressed in my will shall be carried into effect, and without litigations on the part of any person or persons interested. In case of my death, I trust that they will take such steps, by will or otherwise, as will protect my estate against the contingency of the death of either before my estate is settled and distributed."
By subsequent codicils minor changes were made, and Henry B. Vaughan was added as executor. The testator died on November 15, 1890, leaving a widow and three nieces, 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.
PPEALS from the Circuit Court of the United States for the Southern District of New York to review a decree sustaining pleas of res judicata to, and dismissing, a
bill and cross bill to set aside certain re
leases as fraudulently obtained. Affirmed. See same case below, 118 Fed. 943.
Statement by Mr. Justice Brewer: The controlling question in these cases arises on pleas of res judicata. The essential facts are as follows:
provisions of the will and prior codicils.
Mr. Fayerweather's estate amounted at the date of the will to about three millions of dollars, and at the time of his death to from five to six millions of dollars, mainly in personal property.
While by the articles in the will, prior to the 9th, he had made provision for his widow and also bequests to his three nieces, yet obviously his purpose was to give the bulk of his estate to the several colleges named, and to avoid the restraining effect of the New York statute. After the death 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-ruary 24, 1891, the three executors, resid
uary legatees, made a deed of gift, which | signed, being the widow and all of the next reads:
"Know all men by these presents, That we, Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, residuary devisees and legatees under the will, meaning thereby the original will and the subsequent codicils of Daniel B. Fayerweather, late of the city of New York, deceased, prompted by our determination that we will not retain for our own use any part of the residuary estate left to us by his will, and by the desire to make such disposition of his said residuary estate as in our judgment will best honor his memory, do dispose of so much of the same as shall remain after the payment of all lawful fees, expenses, and charges as follows:
"First, We reserve the power to make, and we retain the right to assent to, any enlargement of the $15,000 a year by the will left to Mrs. Fayerweather, which she may desire.
"Second, We reserve the power to make, and we retain the right to assent to, any enlargement of the provisions made by the will for Mrs. Mary W. Achter and Mrs. Emma S. Drury, in case we shall be satisfied that such enlargement would not be against the wishes of Mr. Fayerweather. "Third, We give to Lucy J. Beardsley, wife of Morris B. Beardsley, $100,000.
of kin of the said Daniel B. Fayerweather, do hereby severally agree for ourselves, our, and each of our heirs, executors, and administrators, as follows:
"1. All objections to the probate of the will and four codicils of the late Daniel B. Fayerweather, offered for probate to the surrogate of the county of New York, are hereby withdrawn, and we consent to the probate of the same.
"2. No suit shall hereafter be brought for the construction of the said will and codicils or either of them, or to set aside the will and codicils or either of them, and we further agree not to make any claim upon the said Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan or either of them, or against their heirs or personal representatives, or either against them, the said Bulkley, Ritch, and Vaughan, as executors, or as residuary legatees, other than for amounts left to us by the will and codicils aforesaid, and the deed of gift executed by the said Bulkley, Ritch, and Vaughan on the 24th day of February, 1891, and the instrument dated on the 5th day of March, 1891.
"3. Upon the payment to the undersigned, respectively, of the several amounts mentioned in said deed of gift and said instrument, we will severally execute a general release of all claims, except those arising under the will and codicils, both to the executors and to the donees mentioned in the deed of gift on the 24th day of February, 1891, and to the said Bulkley, Ritch, and Vaughan individually.”
"We do this because of Mr. Fayerweather's letter written to Mr. Vaughan and Mr. F. B. Myrick. If accepted, this gift is in discharge of any claim under that letter." Then, after making gifts of several sums 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:
"We execute this instrument, recognizing that there is pending a contest in proceedings for the probate of Mr. Fayerweather's will, and recognizing further that if such contest shall not prevail, a question may be made about our legal rights as devisees and legatees. Our object is each for himself to give away whatever may come to us as residuary devisees and legatees under Mr. Fayerweather's will."
Subsequently, and on March 5, the executors, as residuary legatees, entered into an agreement with the contestants by which the amounts coming to them were increased, and thereupon the contestants executed the following paper:
"In consideration of the instrument of even date herewith executed by Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, residuary devisees and legatees under the wili, meaning thereby the original will and subsequent codicils of Daniel B. Fayerweather, we, the under
test. On June 12, 1891, the widow executed the following release:
"Know ye, that I, Lucy Fayerweather, widow of Daniel B. Fayerweather, of the city of New York, for and in consideration of the sum of $225,000, lawful money of the United States, to me in hand paid by Justus L. Bulkley, Thomas G. Ritch, and Henry B. Vaughan, as executors and trustees under the last will and testament of Daniel B. Fayerweather, deceased, and individually, and as the representatives of the persons or corporations hereinafter named, forming a class known as donees, under the deed of gift executed by the said Bulkley, Ritch, and Vaughan, on February 24th, 1891, which sum is in compromise and full settlement of any and all contests on my part of the will of said Daniel B. Fayerweather, deceased, or concerning his estate, have remised, released, and forever discharged, and by these presents do, for myself and for my heirs, administrators, and executors, remise, 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 in law or in equity, which against the said persons or corporations, or any of them, I ever had or now have, or which I or my heirs, executors, or administrators hereinafter shall, can, or may have for, upon, or by reason of any matter, cause, or thing whatsoever, except my claim for the annuity given me by the will and codicils thereto of said Daniel B. Fayerweather, deceased, and also my claim for the increased annuity mentioned in the agreement dated March 5th, 1891, and made pursuant to the deed of gift above referred to."
Releases similar in form were executed by the other three contestants, the nieces and next of kin.
In January, 1893, five of the colleges named in article 9 of the will brought suit in the supreme court of the state of New York against the executors of Mr. Fayerweather's will, the executors of the will of Mrs. Fayerweather (who had died since the release), the nieces, the donees in the deed of gift, and all the colleges not joined as plaintiffs. The contention of the plaintiffs was that the codicil which gave the residue of the estate to the three executors absolutely was made in pursuance of an agreement that they should take that residue in trust for the colleges mentioned in the will, and distribute it among them. The complaint set forth the will and codicils, their admission to probate, and the issue of letters testamentary, and averred that the value of the estate left by the testator was upwards of $6,000,000 and the residuary estate more than $3,000,000. It alleged that the intention of the testator was to devote the principal part of his estate to the several institutions mentioned, and that the
The donees in the deed of gift answered, asserting the validity of that deed, and praying that its provisions be carried out.
The widow's executors and the nieces also appeared and filed an answer and counterclaim, in which they alleged that the agreement which the suit was brought to enforce was a secret trust to evade the New York statute by giving more than half to the several institutions, that the releases were obtained from them by concealment and fraud, and therefore of no obligation; and prayed for judgment, among other things
"3d. That it be adjudged that the said settlements and releases made with or obtained from the said Lucy Fayerweather, Mary W. Achter, and Emma S. Fayerweather, respectively, were and are each fraudulent and void, and that the same be set aside, upon such terms as may be just and equitable, and that the sums paid for the same to said releasors or their attorneys, respectively, with the interest thereon, including the increased payments to said Lucy Fayerweather on her annuity, be charged against or allowed upon the sums payable to them respectively under the judgment herein, or be otherwise provided or accounted for as may be according to equity.
"4th. That it be adjudged that the said deed of gift, dated February 24th, 1891 (Exhibit F), was and is fraudulent and void, and that the said Thomas G. Ritch, Justus L. Bulkley, and Henry B. Vaughan be enjoined and restrained from further distributing the said residuary estate, or any part thereof, under the same, except to continue the payment of the said annuity to said Anner Amelia Reynolds, as aforesaid.
"5th. That the said defendants Ritch,
Bulkley, and Vaughan may be required to account for the moneys and property received by them from the estate of the said Daniel B. Fayerweather under said last will and testament and codicils or otherwise, and for the application thereof, and to pay over the said moneys and property remaining in their hands among the parties to this action according to their several and respective rights thereto, as the same may be adjudged in this action.
"6th. That the ultimate rights of the parties to this action in the estate of the said Daniel B. Fayerweather be determined and enforced by the judgment in this action, in accordance with the allegations of this answer and the foregoing prayers for relief therein.
"7th. That these defendants may have such other and further relief herein as may be just and equitable, with their costs herein, to be paid as the court may direct."
The decree of the supreme court at special term, entered on December 28, 1894, adjudged and decreed that the residuary estate passed to the executors in trust for the colleges named in the ninth paragraph of the will; that the executors and trustees be restrained and enjoined from distributing the residuary estate, or any part thereof under the deed of gift, and that the plaintiffs and certain of the defendants (including therein the executors of the will of Mrs. Fayerweather and two of the nieces) recover from the trustees their costs, together with extra allowances to be paid out of the trust funds. There was no formal finding of facts and no mention made in the decree of the specific claim of the executors of Mrs. Fayerweather's will and the nieces, that the releases were fraudulently obtained. An appeal was taken by the defendants to the general term of the supreme court, which, on December 18, 1895, affirmed the judgment. A further appeal was taken to the court of appeals, which, on January 19, 1897, affirmed the judgment of the general term. 151 N. Y. 282, 37 L. R. A. 305, 45 N. E. 876. On January 28, 1897, a motion was made in the court of appeals to amend the remittitur so as to direct the justice of the supreme court before whom the action was tried at special term to consider the evidence given before him at the trial concerning the releases, and to determine whether the said releases were valid and binding or invalid and void, which motion was on March 9, 1897, denied.
After these proceedings in the state court two of the nieces and next of kin, being citizens of the state of Iowa, instituted this suit in the circuit court of the United States, making defendants substantially all the parties to the suit in the state court,
the one or two omissions in no way affecting the question before us. Subsequently the remaining executor, one having resigned, of the will of Mrs. Fayerweather, filed a cross bill, the allegations and the relief asked being similar to those in the original bill.
These bills-in addition to setting forth the will and codicils executed by Mr. Fayerweather, the probate proceedings, and the releases by the widow and nieces, and alleg ing that these letters were fraudulently obtained, and not binding—averred the bringing of the suit hereinbefore referred to in the supreme court of the state by the five. colleges, annexing copies of the pleadings, and alleged "thereupon the issues so joined, as well as others duly raised by the answers of the several defendants, came on to be tried before said court, and these complainants gave evidence tending to prove the allegations in their said answer, and all of the said allegations, and thereupon it became and was the duty of said court to adjudge and determine whether the releases therein described were invalid, and whether these complainants were entitled to the affirmative relief prayed in respect thereto;" and further, that the defendants
"Confederating and combining together and between themselves to prevent the entry of any judgment upon an actual determination of the invalidity of said releases so in issue, requested and induced the court to hold and decide that the right of the respective parties to said property and residuary estate did not require any consideration or decision of said issues, and said court thereupon made and rendered its decision without considering, passing upon, or including in judgment the said issues, and omitted to decide upon these complainants' right to the affirmative relief by said answer prayed in respect to said releases.
"And thereupon there was filed and entered in said action a decision and judgment, a copy of which is hereto annexed, which complainants pray may be referred to and taken as part of this bill as if the same were herein set forth at length.
"Thereupon, by appeals taken from said judgment, in which appeals these complainants were respondents as well as appellants, said judgment was reviewed by the general term of said supreme court, sitting as a court for the correction of errors, and not exercising any original jurisdiction, and thereupon said court held and determined that the right of the respective parties to said property and residuary estate did require the consideration and decision of said issues, and thereupon, being duly informed by the record that said issues had not been in fact considered, passed upon, or included in said judgment, it became and was the