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presiding judge. A stipulation was entered Passing to the second question, we preinto by the parties that the full report of mise by saying that it is well settled that the testimony and proceedings had before when the trial and the appellate courts agree Mr. Justice Cole and the jury should be pro as to the facts established on the trial, this duced, read, and heard by the equity court court will accept their conclusion, and not as a part of the record on the hearing in that attempt to weigh conflicting testimony. court and in the appellate court to which Stuart v. Hayden, 169 U. S. 1, 14, 42 L. ed. the cause might be carried by either or any 639, 644, 18 Sup. Ct. Rep. 274, and authori. of the parties. Thereupon a full report of ties cited in the opinion. And this rule of the proceedings was presented to Mr. Jus- concurrence with the conclusions of the tice Barnard, holding the equity court, who, trial and appellate courts is given more on May 14, 1900, filed an opinion sustaining weight when in the first instance the facts the verdict of the jury, and directing a de- are found by a master or a jury. Furrer cree in accordance with the prayers of the v. Ferris, 145 U. S. 132, 36 L. ed. 649, 12 bill. From that decree Louis Beyer, Louis Sup. Ct. Rep. 821, and cases cited in the Beyer, Junior, and Helen B. Johnson ap- opinion. These propositions we have often pealed to the court of appeals. On Decem- affirmed. At the same time there has alber 6, 1900, the court of appeals affirmed the ways been recognized the right and the duty decree. From that decree Louis Beyer, a of this court to examine the record, and if severance being had, appealed to this court. it finds that the conclusions are wholly un

warranted by the testimony it will set the Messrs. Henry E. Davis and Franklin verdict or report aside and direct a re-ex& Mackey for appellant.

amination. And after having carefully exMessrs. Clayton E. Emig and Charles amined the record in this case we are conPoe for appellee.

strained to the conclusion that there is no

testimony which justified the answer reMr. Justice Brewer delivered the opin- turned to the second question. On the conion of the court:

trary, if a will is set aside upon such a The appellant contends, first, that the su- flimsy showing as was made of undue inpreme court of the District, sitting as a fluence, few wills can hope to stand. court of equity, had no jurisdiction of this The facts are these: The testatrix was & cause; second, that the verdict of the jury woman sixty-five years of age; had been was not sustained by the evidence; and married forty-five years, but was childless; third, that there was duress and coercion of her relations with her husband and sisters the jury by the court, which resulted in an were pleasant; her near relatives were two unjust verdict.

sisters, Caroline Le Fevre, the present apWe pass the first question with the obser- pellee, and Mrs. Maus, the mother of Helen vation that, whatever might have been the B. Johnson. Another sister had died many conclusion if the defendants had stood upon years ago, leaving two children, Charles their challenge of the jurisdiction, the agree- Louis Smith (known in the record as Louis ment of the parties to submit certain ques. Beyer, Junior) and Helen C. Fenton. Louis tions to a jury, the trial before the jury and Beyer, Junior, while a little child, and on the stipulation for returning the testimony the death of his mother, was taken by the there taken to the equity court for consid- testatrix and brought up as her son. There eration by the judge thereof, must be held a does not appear to have been any formal waiver of the objection to the jurisdiction. adoption, but he went by the name of Louis Under the Federal system the same judge Beyer, Junior, and was recognized and may preside whether the court is sitting in treated as her son. He was twenty-seven equity or as a common-law court. While the years old at the time of her death. Helen pleadings and procedure are dissimilar, and B. Johnson was, as stated, the daughter of the rights of the parties, especially in re- Mrs. Maus, a sister of testatrix. She, too, spect to juries, are different, yet in many lived with the testatrix the most of her life, cases a party who appears in one branch of although it does not appear that she had the court and consents to a hearing and ad been recognized as a daughter. The testajudication, according to the practice there trix died of cancer in the abdomen. The prevailing, of an issue presented by the first indications of trouble were in Decem. pleadings and in respect to a subject matter, ber, 1893, though at that time the appear. which is within the general scope of its ju- ances were of an ordinary*case of indiges. risdiction, may be estopped from thereafter tion, and the fact that it was cancer was not and in an appellate court challenging such developed until sometime in the early part jurisdiction. Reynes v. Dumont, 130 U. S. of 1896, the year in which she died. In the 354, 395, 32 L. ed. 934, 945, 9 Sup. Ct. Rep. month of June of that year she went on a 486. This is such a case. The determina visit to the home of Helen Johnson's mothertion of the title to real estate is within the in-law, 12 miles south of Richmond. She scope of the general jurisdiction of a court returned about the 1st of July, was about of equity. The issue of undue influence in the house for a week or so after her return, respect to any transaction such a court is and then took to her bed, dying on July 26. competent to determine. The proceeding When spoken to, at different times prior to consented to, and in fact had, was practical- her visit to Richmond, about making a will ly the trial of a feigned issue out of chan. she had declined, saying she intended the cery. It is too late now to raise the question property should go to her husband; but beof jurisdiction.

ing advised, either before or after her visit

to Richmond, that in case she died without a Jing the fee in them, but charged with the will the property would go to her sisters duty of furnishing a home to her husband and their descendants, she decided to have as long as he lived, and relying upon their 2 will made, and so informed Louis Beyer, affection to give to him the comforts of a Junior, on Sunday, July 12; she also in- home such as they all had had together in quired if a will made on Sunday was valid, the past. While she gave them the power and was told by him, after an examination of alienation, she coupled with it the proviso of a cyclopædia, that it would be. He sug- that whatever was done with this property, gested an attorney living near, to whom they should still secure a home to him dur. she objected, whereupon he proposed to call ing his lifetime. She trusted much to their in Mr. Brennan, who occupied an office in the atřection, but is this singular considering same building in which he was employed. the length of time they had been members This was satisfactory. Mr. Brennan was of her family and that which she must have sent for. Witnesses were asked to attend, known to be the relation subsisting between among them her regular physician. Mr. them and him? Yet she did not leave provi. Brennan came in the afternoon, found her sion for her husband entirely to their affec. lying in bed, received instructions from her tion. She directed in terms that such pro. how she wanted the will drawn, and wrote vision should be made, and she doubtless beit then and there. It was thereafter read lieved that that direction would be binding, to her, signed and acknowledged by her in and it was binding. It was in the nature the presence of himself, the regular physi- of a precatory trust, and so expressed as to cian, and a Mr. Sullivan, and signed by be obligatory upon the devisees and enforcethem as witnesses. That will was similar able in the courts. Colton v. Colton, * 127* to the one finally executed, except that it de- U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. vised the property to Louis Beyer, Junior, 1164. It is no ground of criticism that oth. alone. Mr. Brennan took the will to his of. ers might have made a different will. That fice. On examination he found that he had she did not give the fee to her husband, but left out the word "heirs,' so that, as he to her adopted son and niece, burdened with thought, only a life estate would pass to the this precatory trust, may have been owing devisee, and on Monday prepared a new will, to a fact which is, at least, suggested by the exactly like the one which had been exe testimony, that her husband was visionary, cuted, with the addition of the word "heirs." and she feared might waste his property in He called on the testatrix and explained the developing some of his supposed inventions. change he had made; she then said that, in- That she was justified in placing confidence asmuch as there had to be a new will exe- in the affection of the devisees for her hus. cuted, she would like to have Mrs. Johnson band is shown by the fact that they conincluded with Louis Beyer, Junior. Where veyed to him a large portion of the property, upon Mr. Brennan went to his office and upon hearing that he was dissatisfied with wrote a will the third time, and on Tuesday the contents of the will. It is true that went back to the house, and there it was sometime thereafter, owing to his contem. executed. That is the will in dispute. It was plated marriage, the pleasant relations betaken by him to his office and kept in his tween him and them seem to have ceased, hands until after her death. That the con- but this unfortunate condition does not tents of this will were known to her at the prove that the testatrix did not at the time time of its execution, and that she was "of have good reason to trust in their affection sound and disposing mind, memory, and un- for him. derstanding, and capable of executing a Turning now to the testimony ofered to valid deed or contract,” were found by the show undue influence, it comes from two wit. jury, and were abundantly proved by the nesses, Mrs. Stone, the daughter of the aptestimony, among the witnesses thereto be- pellee, and Fanny Perry, a colored servant ing her regular physician, the minister who in the house of the testatrix. Mrs. Stone's visted her, the lawyer who drafted the will, testimony is mainly concerning the condi. and others wholly disinterested.

tion of the testatrix during her last sick. Before noticing what is claimed to be evi- ness, and had a tendency to show that she dence of undue influence, we remark that the was in a drowsy condition, if not uncon. will was not an unnatural one for the testa scious, during the last fourteen days of her trix to make. As long as she supposed her life, though as she was at the house of the husband would inherit the real estate, she testatrix only every other day, and then for declined to make any. She meant that he but a few minutes at a time, her testimony should have the benefit of the property. She was properly considered by the jury as of found, however, that it was necessary for no great significance and overborne by that her to make a will in order to secure this re- of the physician and other witnesses. She sult. He was an old man, and in the natur- does testify to one thing in reference to Mrs. al course of events could not be expected to Johnson, which will be considered hereafter. live many years. It is not strange that, The only other witness, and the one upon with the utmost affection for her sisters, she whom the appellee substantially relies, is should prefer that, after he had had the en- Fanny Perry, the servant. Now, in respect joyment of her property, it should go to the to her testimony, and indeed all the testi. nephew and niece who had made their home mony in the case, it must be observed that with her, who had been brought up by her, there is not a syllable tending to show that and one of whom, at least, was regarded as Louis Beyer, Junior, ever urged the testaan adopted child. So she makes a will vest- trix to make a will, ever suggested or spoko

*121

*123

to her in respect to the matter, and that all Johnson said: "Yes, you will leave it to the connection he had with it was in re him, and he will sink it in a boat or rum sponse to requests to ascertain what would mill;" and the testatrix replied: "Nellie, be the disposition of the property without how can you talk about your uncle like a will, the validity of a will made on Sun- that?" and also, “Nellie, you are harassing day, and in suggesting the name of a law. me to death.” Whereupon Mrs. Johnson yer to prepare the will and asking him to said she would go if the will was not made, come. Now, to find that*the will was ob- and the testatrix replied: “You have run tained by undue influence on his part, when Mrs. Stone out of the house to get something there is not the slightest syllable tending to when I die. You said she was waiting for show that he ever said or did a thing to a dead man's shoes, but you are the one to ward securing the execution of the will ex- catch it.” cept at her request, is a proposition which We put out of consideration the fact that cannot for one moment be entertained. Mrs. Johnson contradicts the witness and With this must also be remembered that the denies ever having urged the testatrix to will which was first drawn, the one executed make a will in her behalf or to make a will on Sunday, made him the sole devisee, and at all, and inquire whether, giving the full. that it was intended by the testatrix to est weight to this testimony, it warrants a vest the property absolutely in him, so as to finding that the execution of this will was deprive the appellee and other of her rela- secured by undue influence. We are clear tives of any interest in the property. That that it does not. The conversations which it did not have that effect was owing to a the witness states were had while the testamistake of the scrivener in omitting the trix was about the house and attending to word "heirs," a mistake which, when dis- ber ordinary duties were conversations which covered by him, he proceeded promptly to might naturally be had between one brought correct, and only when the corrected will up in the family, as Mrs. Johnson was, and was presented to her did she authorize a one who had been to her as a mother. It change so as to include Mrs. Johnson. Sup would not be strange that having lived all pose it were true that Mrs. Johnson did aft. her life in the family she felt that there was er the first will by her importunity per- something due to her in respect to the dissuade the testatrix to include her as a dev. position of the property. It will be rememisee, the change wrought no prejudice to bered that it is not influence, but undue in. the interests of the appellee. It took away suence, that is charged, and is necessary to nothing from her. It only added a new dev- overthrow a will. The question No. 2 puts isee, and that not the appellee,-another in the same category fraud, circumvention, one to share in the property.

and undue influence. Placing undue influ. But now, let us see what is the testimony ence along with fraud and circumvention which is claimed to show that Mrs. Johnson interprets the character of the influence. exercised undue intluence. Mrs. Stone tes. Noscitur a sociis. Surely there is nothing tified that she boarded with the testatrix in these conversations which has in it anyfor a couple of years (and that was a year thing suggestive of fraud or circumvention, or two before the death of testatrix), and nothing wrongful or misleading. that during that time, when Mrs. Johnson With reference to the last conversation seemed displeased at something, she heard detailed by the witness, that which took the testatrix say that "it was because she place after the testatrix had taken to her did not make a will and she never intended bed, it may be conceded that there is a disto make a will.” Fanny Perry testified that play of urgency and petulance on the part she lived with the testatrix about three of Mrs. Johnson and a rebuke on the part years prior to her death; that Mrs. Stone of the testatrix, but is there enough in it to called at the house on the Sunday when the justify a finding that the will was procured first will was executed, and she heard Mrs. by undue influence? May not one situated Johnson say to Louis Beyer, Junior, “You as was Mrs. Johnson properly plead her go down stairs, and after you get the wagon claims for recognition in a will? May she hitched uptake Mrs. Stone around to the not give her reasons why a will should be Christian Endeavor encampment first, and made and why property should not be left then take her home; if she knows what is to a particular person without being subject going on here she won't leave here to-night to the charge of exerting undue influence? unless she gets a share in the profits;" that The only threat made by her was that she she had heard Mrs. Johnson ask the testa- would go if the will was not made. We do trix to make a will, but the testatrix refused, not, of course, approve of such importunity saying that she would leave everything to to a sick person, and it may often be carried Mr. Beyer just as it was, and for them to to such an extent that a jury is justified in stay with him and treat him right, and finding that a will was executed in pursu. when he died he would do right by them. ance of it, and through undue influence, but To which Mrs. Johnson replied: "This is these significant facts must be borne in mind the way you are going to treat me after I in respect to this case: The witness, Fanny have been working for you all these years, Perry, does not locate the time of this conand this will be all the thanks I'll get for versation, whether before the first will was doing it;" that after the testatrix had taken executed or after. If before, plainly it had to her bed she asked her to make a will, but no effect upon the testatrix, for she made a she said she would not, but would leave the will giving the property to her adopted son property to her husband, to which Mrs. and leaving Mrs. Jolinson out altogether. I

22 S. C.-40.

after, while it may have had the effect of , Argued March 19, 20, 1902. Decided May causing the insertion of Mrs. Johnson's name

19, 1902. jury to the rights of the appellee

. If the O^States Circuit Court of Appeals for the testatrix had made up her mind to give her property to an adopted child with a preca- Fifth Circuit presenting a question as to the tory trust in behalf of her husband, then jurisdiction of a circuit court on the ground any change made in the devisees, as the re- of diverse citizenship. Jurisdiction sussult of whatever importunity, was a change tained. which wrought no prejudice to the parties who were not named in either will.

Statement by Mr. Chief Justice Fullers We are clearly of the opinion that the jury

The certificate in this case is as follows: were not, under the circumstances of this “This suit was commenced by filing in the case, warranted in finding that the execu- circuit court the following bill and exhibit, tion of the will was procured by fraud, cir- filed November 13th, 1899: cumvention, or undue influence practised or "To the honorable the judges of the Circuit exercised upon the testatrix.

Court of the United States for the Fifth One who is familiar with the volume of Circuit and Eastern District of Louisiana, litigation which is now flooding the courts New Orleans division: cannot fail to be attracted by the fact that "Alphonse Emsheimer, of New Orleans, actions to set aside wills are of frequent an alien and a subject of the Empire of Ger. occurrence. In such actions the testator inany, brings this his bill against the city cannot be heard, and very trifling matters of New Orleans, a municipal corporation are often pressed upon the attention of the created by the laws of Louisiana, and a citi. court or jury as evidence of want of mental zen of said state. And thereupon your capacity or of the existence of undue influ. orator complains and says: ence. Whatever rule may obtain elsewhere "Ist. That by an act of the legislature of we wish *it distinctly understood to be the Louisiana (No. 74), approved September rule of the Federal courts that the will of 14th, 1868, the parishes of Orleans, Jeffer. a person found to be possessed of sound son, and St. Bernard were territorially unitmind and memory is not to be set aside on ed in one district for the purpose of police evidence tending to show only a possibility government therein called the 'metropoli. or suspicion of undue influence. The ex- tan police district of New Orleans, state of pressed intentions of the testator should not Louisiana ;' that the government of said disbe thwarted without clear reason therefor. trict for police purposes was vested in a

T'he decrees of the Court of Appeals and board of commissioners, styled 'the board of the Supreme Court of the District are re- of metropolitan police.' versed and the case remanded to the latter “2d. That said board was required to apcourt, with instructions to set aside the de point all the officers* and employees of the* cree in favor of the appellee, and for further police force required in said district, and proceedings in conformity to this opinion. their salaries (which were prescribed by the

act) were required to be paid monthly; that Mr. Justice Harlan and Mr. Justice by said act and acts of said legislature, sup: Gray did not hear the argument, and took plementary to and amendatory thereof, said no part in the decision of this case. board was required to make annually an

estimate of the expenses of maintaining a (186 U. S. 33)

police force in said district, and to apportion

the same to the several cities and parishes ALPHONSE EMSHEIMER, Appt., within said district, and said cities and par.

ishes were required by said acts to prompt. CITY OF NEW ORLEANS. ly pay, and to provide the means for prompt

ly paying, the amounts thus apportioned to Appeal-certified questiondiverse citizen- them. ship as ground of Federal jurisdiction. "3d. That said city of New Orleans was

a municipal corporation created by the laws 1. Questions presented for determination by a of said state of Louisiana, and was within

certificate from the circuit court of appeals said metropolitan police district; that said will not be answered by the Supreme Court of board from and after its creation, as aforethe United States, where the certificate contains no statement of the facts on which the said, annually made the estimate of expenses question certified arises, as required by rule of maintaining said metropolitan police and 87 of the latter court, but the entire record apportioned the same to said several cities Is certified, and the questions contemplate an and parishes as required by said acts. examination of the whole case, and, in large "4th. That the apportionments made by part, its decision on the merits.

said board aforesaid to the city of New Or & A circuit court of the United States has ju- leans for all the years from 1869 to 1876,

shlp, of a sult by the assignee of the payees of inclusively, amounted to the sum of $6,033,police warrants, it such payees might, at the 030.51, and when said apportionments were time the sult was commenced, have them- made and notified, as they were to said city, nelves prosecuted suit therein on that ground she became liable to said board of metropoliIf there had been no assignment or transfer. tan police for the amount thereof.

"5th. That like apportionments of police (No. 347.)

expenses were made by said board to the

avers

cities of Jefferson and Carrollton, which the parish of Orleans with the consent of were within said police district, for which said city, to whom said city on July 25th, apportionments they each became liable to 1888, paid the sum of thirty thousand ning said board, but afterwards, by acts of said hundred and forty-four dollars ($30,legislature, said cities were consolidated 044.94) part and parcel of the moneys de. with said city of New Orleans, which by said rived from the collection of such taxes as acts of consolidation was made liable for well as other small sums thereafter, the their debts, including those created for their amount and date of payment of which is to apportionment of police expenses aforesaid. your orator unknown.

"Your orator has not sufficient informa “And your orator avers that afterwards, tion to state the amount of the liabilities to wit, on the 27th of December, 1890, said thus created and imposed upon said city of receiver died, and that said board has been New Orleans, but avers, upon information since then, and is now, without any succesand belief, that it was sufficient to pay and sor or representative, and its affairs are undischarge the proportion of police expenses der no administration whatsoever; that said due by each of said cities.

city of New Orleans has since the death of "6th. That like apportionments were said receiver continued to collect said police made by said board of police expenses to be taxes, and is still collecting the same, the paid by said parishes of Jefferson and st. amount of such collections being to your Bernard and the city of Kenner, all within orator unknown, but he avers that it is a said police district, and notice given to each large amount, no part of which she has apof said corporations thereof, as required by plied to the payment of any of her indebtlaw, and thereupon they became and were edness on account of said apportionments; absolutely liable to said board for the and that she holds the same subject to said amount of their respective apportionments; trust as above averred. but what the amounts of said apportion. "And your orator

that large ments were complainant is unable to state, amounts of said police taxes levied, as afore but avers that they were sufficient to meet said, became delinquent, and thereafter in. the annual police expenses within their re- terest accrued thereon at the rate of 10 per spective jurisdictions.

cent per annum; that said city of New Or. 7th. That while said cities and parishes leans collected large amounts of such interwithin the police district were required to est, which, as accessory to said taxes, should promptly pay and to provide the means for have been paid to said police board, but promptly paying their respective appor. which she neglected and refused, in violationments, the councils of said cities and tion of her duty as trustee, to apply to the the police juries of said parishes were au- payment of said apportionments, and she thorized to raise the amount required for should be required to account for the same that purpose by levying taxes upon the per- with interest thereon; that the amount of sons and things subject to taxation within police taxes, as well as the interest thereon, their respective jurisdictions, and for that so as aforesaid collected, is unknown to purpose did severally make such levies, and your orator, and he is entitled to an account your orator avers that said city of New Or: thereof from said city before one of the masleans annually, during the whole period of ters of this honorable court, or otherwise, as the existence of said board, included in her your honors may direct. budget of expenditures the amount thus ap "9th. That said board of metropolitan portioned to her, and in pursuance of said police, in obedience to the laws creating authority levied and collected taxes for the and governing the same, organized a metro purpose of paying the same, and paid upon politan police force in said district and mainaccount thereof large sums of money, but tained the same until March 31st, 1877, not enough to discharge her liability in the when said act No. 74 of September 14th, premises, there still being due upon account 1868, establishing said metropolitan police thereof, including Carrollton, the sum of district, as well as all other acts amendatwo hundred and forty-one thousand, one tory thereof and upon the same subject-mathundred and six and motor dollars ($241,- ter, were repealed, and said board of metro106.54), and the defendant, the present city politan police was abolished without any of New Orleans, successor of said city, provision being made for the liquidation of as existing at the time said apportionments its affairs, or the payment of its debts. were made, is liable therefor.

*"10th. That said board of metropolitan “Sth. And your orator avers that said police was a body corporate under the laws city of New Orleans was and is a statutory of its creation, and by the repeal of said trustee of the money derived from such tax law, ceased to be and had and has no repreation, and collected by her for the purpose sentative or successor against whom suit of paying said apportionments of police ex. Inight have been or may now be brought for penses; that ever since said several levies the establishment of the demands of the comof such taxes said city has been, and still is, plaint herein, and he is remediless, except making collections thereof, and has collected in this honorable court, where matters of large sums of money on account thereof, for this nature are cognizable and relievable, which she has failed to account and still wherefore he brings this his bill in behalt holds subject to said trust, the amount of himself and all other creditors of said thereof being to your orator unknown; that board, similarly situated, who may come in for a portion of such collections a receiver and contribute to the expense of this suit. was appointed by the civil district court for "11th. That one Lew Goldstein, as holder

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