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duty of said court, pursuant to due process of law, the law of the land, and the provisions of the Constitutions of the state of New York and of the United States, to require and order that said issues should be in fact considered, passed upon, and included in judgment by the trial court, and until that should be done said court could not duly adjudge or determine whether any error had been committed in such determination upon said issues.

of appeals should, by its remittitur, confer power upon said subordinate courts to entertain and try the said issues.

"Thereupon these complainants duly made application to said court of appeals so to frame its said remittitur as to permit said subordinate courts to entertain and try the said issues, which application said court denied."

To these bills the defendants filed pleas of res judicata, claiming that the controversy between the parties was finally settled by the decision of the state court. These pleas were accompanied by an answer, denying the allegations of fraud. The circuit court sustained the pleas, and dismissed the bill and cross bill on the ground that the cause of action set forth in them was barred by the prior judgment of the state court. From this decree of dismissal the plaintiffs ap

"Nevertheless, said court at said general term did not so require or order, but by various fictions of law imputed to said trial term and court below that it had determined said issues and had decided in favor of the plaintiffs in said action upon such determination, contrary to the truth and fact, and thereupon pretended to adjudge and determine, as such court for the correction of errors, that there was not sufficient prepond-pealed directly to this court. erance of evidence to support the asserted invalidity of said releases to render such imputed determination of said trial court erroneous as matter of law, but that such imputed determination was supported by evidence sufficient to relieve the same from the assignment of error in so deciding.

Messrs. Roger M. Sherman and William Blaikie for appellants.

Messrs. Elihu Root, James L. Bishop, John E. Parsons, C. N. Bovee, Jr., Thomas H. Hubbard, William Forse Scott, William Ford Upson, John McL. Nash, Stewart L. "It was not competent for said general Woodford, Horace Russell, Henry L. Stimterm to have exercised an original jurisdic-son, Alfred W. Kiddle, Seth Sprague Terry, tion, and to have adjudged said issues, and thereupon to have modified said judgment so as to include the actual determination thereof; and said general term did not exercise such power, but confined its action wholly to the consideration of errors in the record.

"Thereupon said judgment was by appeals taken from the. judgment of affirmance so rendered, in which appeals these complainants were respondents as well as appellants, and reviewed by the court of appeals of the

state of New York.

"Said court determined that these complainants had no standing to be heard or to have their rights determined by said court of appeals, because the limitations imposed by statute upon the jurisdiction of said court precluded any inquiry into the facts, the proof, or the merits of the said issues, but the said court was bound by the formal record procured as aforesaid, and by the fictions thereby adjudged as aforesaid, and had no power to review the same.

"During the pendency of the appeals aforesaid, the control of the several courts below over said action, and the trial thereof, and the correction of any injustice arising as aforesaid, was suspended, and upon the affirmance of said judgment of affirmance, by the statutes of the state of New York any correction of the injustice arising as aforesaid was placed beyond the power of any court of said state, except as the court

George G. Reynolds, Henry B. Twombly, Haley Fiske, Henry Stoddard, for appellees.

Mr. Charles Andrews for the widow and next of kin, upon the question of res judicata.

Mr. Justice Brewer delivered the opinion of the court:

Our jurisdiction of this direct appeal from the decision of the circuit court is invoked on the ground that the case involves the application of the Constitution of the United States.

The contention is that, by article 5 of the Amendments to the Federal Constitution, no person can "be deprived of life, liberty, or property, without due process of law;" that these plaintiffs were entitled to large shares of the estate of Daniel B. Fayerweather; that they were deprived of this property by the judgment of the circuit court, which gave unwarranted effect to a judgment of the state courts; that this action of the circuit court is not to be considered a mere error in the progress of a trial, but a deprivation of property under the forms of legal procedure. In Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581, we held that a judgment of a state court might be here reviewed if it operated to deprive a party of his property without due process of law, and that the fact that the parties were properly brought into court and admitted to make defense

was not absolutely conclusive upon the question of due process. We said (p. 234, L. ed. p. 983, Sup. Ct. Rep. 584):

"But a state may not, by any of its agencies, disregard the prohibitions of the 14th Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This court, referring to the 14th Amendment, has said: 'Can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application where the invasion of private rights is effected under the forms of state legislation.' Davidson v. New Orleans, 96 U. S. 97, 102, 24 L. ed. 616, 618. The same question could be propounded, and the same answer should be made, in reference to judicial proceedings inconsistent with the requirement of due process of law. If compensation for private property taken for public use is an essential element of due process of law as ordained by the 14th Amendment, then the final judgment of a state court, under the authority of which the property is in fact taken, is to be deemed the act of the state within the meaning of that amendment."

And again (p. 236, 237, L. ed. p. 985, Sup. Ct. Rep. p. 584):

"The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation."

this, that court came to its conclusion and rendered its judgment without any determination thereof; that the appellate courts wrongfully assumed that the trial court had decided the question, and rendered their judgments on that assumption, so that the necessary result of the proceedings in the state courts was a deprivation of the right of the plaintiffs to a share of the estate, without any finding of the vital fact which alone could destroy their right. The contention is not that the state courts erred in their finding in respect to this fact, but that there never was any finding. Such decision of the state courts, made without any finding of the fundamental fact, was accepted in the circuit court of the United States as a conclusive determination of the fact. Although these plaintiffs were parties to the proceedings in the state courts, and presented their claim of right, if it be true that the necessary result of the course of procedure in those courts was a denial of their rights,—a taking away and depriving them of their property without any judicial determination of the fact upon which alone such deprivation could be justified,-a case is presented coming directly within the decision in 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. Giving effect in the circuit court to the state judgment does not change the character of the question. It is simply adding the force of a new determination to one wrongfully obtained, and adding it upon no new facts. Whether the contention of the plaintiffs in respect to the character of the state proceedings can be sustained or not is a question upon the merits, and does not determine the matter of jurisdiction. That depends upon reasonable question of the wrongful charwhether there is presented a bona fide and

If a judgment of a state court can be re-acter of the proceedings in the state courts. viewed by this court on error upon the and the necessary result therefrom. We are ground that, although the forms of law were of opinion that the jurisdiction of this court observed, it necessarily operated to wrong- must be sustained. fully deprive a party of his property (as indicated by the decision just referred to), a judgment of the circuit court of the United States, claimed to give such unwarranted effect to a decision of a state court as to accomplish the same result, may also be considered as presenting the question how far it can be sustained in the view of the prohibitory language of the 5th Amendment, and thus involve the application of the Constitution. It is said that the right of these plaintiffs to share in the estate of Daniel B. Fayerweather is undoubted, unless destroyed by the releases they executed; that the fundamental question presented in the trial court of the state was the validity of those releases; that, notwithstanding

We pass, therefore, to consider the merits of the case. Private right and public welfare unite in demanding that a question once adjudicated by a court of competent jurisdiction shall, except in direct proceedings to review, be considered as finally settled and conclusive upon the parties. Interest reipublicæ ut sit finis litium. But in order to make this finality rightful it should appear that the question was distinctly put in issue; that the parties presented their evidence, or at least had an opportunity to present it, and that the question was decided. Cases of an alleged prior adjudication have frequently been presented in this court and the scope of a plea thereof fully determined. In the leading case of Cromwell v. Sao

County, 94 U. S. 351, 352, 24 L. ed. 195, 197, | Bryar v. Campbell, 177 U. S. 649, 44 L. ed. we said:

"In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed. The language, therefore, which is so often used, that a judgment estops not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever."

See also Wilson v. Deen, 121 U. S. 525, 30 L. ed. 980, 7 Sup. Ct. Rep. 1004; Hefner v. Northwestern Mut. L. Ins. Co. 123 U. S. 747, 31 L. ed. 309, 8 Sup. Ct. Rep. 337; Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 35 L. ed. 1055, 12 Sup. Ct. Rep. 188; Nesbit v. Independent District, 144 U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Rep. 746; Johnson Steel Street Rail Co. v. Wharton, 152 U. S. 252, 38 L. ed. 429, 14 Sup. Ct. Rep. 608; Dowell v. Applegate, 152 U. S. 327, 38 L. ed. 463, 14 Sup. Ct. Rep. 611; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. 859, 15 Sup. Ct. Rep. 733; New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905; Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; 25 S. C.-5.

926, 20 Sup. Ct. Rep. 794; United States v. California & 0. Land Co. 192 U. S. 355-358, 48 L. ed. 476-478, 24 Sup. Ct. Rep. 266.

The state court was one of competent jurisdiction, and the present contestants were before that court, taking part in the litigation. The validity of the releases was put in issue by the pleadings, and no judgment could properly have been rendered without a determination of that question. The colleges sought to enforce a secret trust, but the property covered by the trust, together with that passing under the 9th article of the will, was the bulk of the estate,-far more than half. Such a disposition of the testator's property was in contravention of the laws of New York. They who would take the estate in case of intestacy had a right to object to the enforcement of the trust. Only on condition that they waived their objections and released could it be sustained. The judgment enforced it. It therefore practically determined that the releases were valid, and decided against the contention of these plaintiffs, that they were fraudulent and void. All this is evident from a perusal of the pleadings. The appellants concede this and rest their claim in the Federal court partly upon that basis. Thus, in their brief it is said:

"The issues so joined came on to be tried in the state supreme court; these complainants gave evidence tending to prove their allegations, and thereupon it became the duty of the court to adjudge whether the releases which they assailed were invalid, and whether they were entitled to the affirmative relief prayed. The issues so tendered were necessary to be determined before any valid judgment upon those issues could be given pursuant to due process of law, the law of the land and the provisions of the Constitution of the United States."

The case was tried by the court without a jury. No special findings of fact were made. According to testimony given on the trial of this case in the circuit court the omission to make special findings was with the acquiescence (if not at the instance) of all the counsel appearing in the state court. The decree adjudged that the residuary estate was held in trust for the colleges named in the 9th article of the will, enjoined the residuary legatees from distributing any portion of that estate under the deed of gift, and directed that it be paid over to the respective colleges. The ordinary rule in respect to a judgment without any special findings is that it, like a general verdict of a jury, is tantamount to a finding in favor of the successful party of all the facts necessary to sustain the judgment. In the general term, on the appeal taken to it,

two opinions were filed,-one by Judge Fol- | not specified in the record. Otherwise the lett, in which Judge Parker concurred, and burden of deciding questions of fact would one by the presiding judge, Van Brunt. be cast upon this court, which has jurisdicJudge Follett, after stating that the execution to decide only questions of law. We tors of the testator's widow and two of his think that the effect of a decision by the heirs at law and next of kin sought to have trial court without expressing the facts the residuary clause declared invalid, under found is the same as if there had been a chap. 360 of the Laws of 1860, said: general verdict rendered by a jury, and that the same presumptions arise in its support.

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"We are of the opinion, therefore, that where the decision of the special term does not state the facts found, and the judgment' entered thereon has been affirmed by the gen

"The difficulty with their contention is that the widow and heirs released all of their interest in the estate for valuable considerations paid to them. . . It is urged that these releases were procured by fraud and undue influence. There is no evidence in the record justifying this conten-eral term, upon an appeal to this court all tion. The terms of settlement were agreed on during the controversy in the surrogate's court over the probate of the will and codicils, and the widow and heirs were represented in that controversy, and in the settlement by distinguished counsel, and acted under their advice. . If the person entitled to contest a will, or some one or more of its provisions, voluntarily, and for a valuable consideration, received after the testator's death, with full knowledge of the invalidity of the will, devests himself of all interest in the property attempted to be disposed of by it, he cannot impeach its validity."

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the facts [alleged in the complaint] warranted by the evidence, and necessary to support the judgments below, are presumed to have been found. Hence, upon such an appeal, we have no more control over the facts than we have when specific findings are made by the special term and affirmed by the general term. This conclusion takes the question as to the fraud alleged to have been practised by the residuary legatees upon the widow and next of kin in procuring the releases out of the case, for it cannot be said on the record before us that the evidence tending to show fraud is so irresistible as to make the omission to find fraud an error of law.

Presiding Judge Van Brunt thus stated Assuming that there was evidence enough to his conclusions:

"The testator left him surviving a widow, who was the only person who could call into operation, for her protection, the statute which we have quoted. The widow, however, has released to the executors all claims to the estate, which release cannot be successfully attacked or set aside. There is consequently no person for whose benefit the statute can operate.

"No rights of heirs and next of kin have been infringed upon, because the trust does not contravene any statute for their benefit, and is not the subject of attack by them. If it were, they have also executed a release of their interest in the estate in the same manner as the widow.

"We have therefore the case of a trust established, which would be valid as against all the world but for the statute in favor of the widow; and the widow, having released all her rights in the estate, how can her representatives claim the invalidity of a trust as to property in which she had no interest?" [91 Hun, 534, 36 N. Y. Supp. 576.] The opinion in the court of appeals was delivered by Judge Vann, and concurred in by all the judges except Chief Judge Andrews. In it it is said:

"Although the decision by the special term and the affirmance by the general term were general in form, necessarily some facts were found by those courts, even if they are

warrant the inference of fraud, there was also ample evidence to warrant the inference that there was no fraud. A question of fact was thus presented which is beyond our power of review." [151 N. Y. 320, 321, 37 L. R. A. 320, 45 N. E. 886.]

Thus the court of appeals held in accord with the ordinary ruling as to the effect of a judgment without findings. So it has frequently decided. In Bartlett v. Goodrich, 153 N. Y. 421, 424, 47 N. E. 794, 795, it said:

"The learned trial judge held that the plaintiff was entitled to recover, and the general term has affirmed the judgment. There were no findings made as the result of the trial, but simply a brief statement of the ground of the decision. In this condition of the record we must presume that all facts warranted by the evidence, and necessary to support the judgment, have been found. Amherst College v. Ritch, 151 N. Y. 282, 37 L. R. A. 305, 45 N. E. 876. The appeal, therefore, cannot prevail unless it appears, as matter of law, that the learned trial judge was not warranted, upon any fair view of the evidence, in finding as he did, that the deceased was, at the time of his death, the equitable owner of the policies."

See also New York Security & T. Co. v. Lipman, 157 N. Y. 551, 556, 52 N. E. 595; Garvey v. Long Island R. Co. 159 N. Y. 323,

328, 70 Am. St. Rep. 550, 54 N. E. 57; Reed | states "the view that I have taken of the v. McCord, 160 N. Y. 330, 334, 54 N. E. 737; facts and the law of this case renders it Solomon v. Continental F. Ins. Co. 160 N. Y. unnecessary for me to consider the very in595, 598, 46 L. R. A. 682, 73 Am. St. Rep. teresting questions of law propounded by 707, 55 N. E. 279; Rodgers v. Clement, 162 the learned counsel for the defendants ReyN. Y. 422, 427, 76 Am. St. Rep. 342, 56 nolds, Achter, and Fayerweather;" and, fiN. E. 901; National Harrow Co. v. Bement nally, the testimony of the trial judge, given & Sons, 163 N. Y. 505, 510, 57 N. E. 764; on the hearing in this case some six years Niagara Falls v. New York C. & H. R. R. after his decision in the state court, to the Co. 168 N. Y. 611, 61 N. E. 185; Critten v. effect that, in deciding the case he did not Chemical Nat. Bank, 171 N. Y. 219, 231, 57 consider the question of the validity of the L. R. A. 529, 63 N. E. 969; Hutton v. Smith, releases. 175 N. Y. 375, 378, 67 N. E. 633.

After the filing of its opinion an application made to the court of appeals, as shown in the statement of facts, to amend the remittitur so as to direct the trial court to find specifically whether the releases were valid or not, was denied.

It is undoubtedly true that, in some cases, evidence may be introduced outside the record to show what particular question was tried and determined in the former suit. Washington, A. & G. Steam-Packet Co. v. Sickles, 24 How. 333, 344, 16 L. ed. 650, 654, 5 Wall. 580, 592, 18 L. ed. 550, 553; Russell v. Place, 94 U. S. 606, 608, 24 L. ed. 214, 215. But it does not follow that testimony of every kind is admissible for that purpose. In Washington, A. & G. SteamPacket Company v. Sickles, although it was held that "in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evi

may be received to prove the fact," yet, it appearing that some of the jurors on the former trial were permitted to testify as to the particular ground upon which they found their verdict, it was said (p. 593, L. ed. p. 554):

We have thus the case of a hearing in the trial court upon issues which required a determination of the validity of these releases as a condition of a judgment adverse to these plaintiffs; a judgment against them; | an affirmance of the judgment by the general term of the supreme court, with an opinion declaring that there was in the record no evidence justifying the claim that these re-dence aliunde consistent with the record leases were fraudulently obtained, and void; and a further affirmance by the court of appeals, accompanied by an opinion declaring that, upon the state of the record, it was to be presumed that the validity of the releases had been affirmatively found, and also that there was sufficient evidence to sustain such a finding, followed by a refusal to send the question of the validity of the releases back to the trial court for consideration. Notwithstanding all this, apparent upon the face of the record, the plaintiffs insist that the validity of the releases was never determined by any of the state courts, and that the final judgment of affirmance by the court of appeals was based upon the presumption of a determination which was never in fact made.

Upon what is this contention based? First, the silence of the judgment, which contains no findings to indicate upon what it is based; second, a memorandum of decision filed by the trial judge, in which he states that "the grounds upon which the issues have been decided are" a promise of the executors that if made residuary legatees they would distribute the residuary estate among the colleges named in the 9th article, and that the testator made them residuary legatees in reliance upon such promise; the opinion of the trial judge, in which he discusses at some length, and with citation of authorities, the validity of the secret trust and the testimony by which it was established, and then, without in terms passing upon the contention respecting the releases,

"But it is proper to say that the secret deliberations of the jury or grounds of their proceedings while engaged in making up their verdict are not competent or admissible evidence of the issues or finding. The jurors oftentimes, though they may concur in the result, differ as to the grounds or reasons upon which they arrive at it.

"The evidence should be confined to the points in controversy on the former trial to the testimony given by the parties, and to the questions submitted to the jury for their consideration, and then the record furnishes the only proper proof of the verdict."

See also Wood v. Jackson, 8 Wend. 9-36, 22 Am. Dec. 603; Lawrence v. Hunt, 10 Wend. 80-85, 25 Am. Dec. 539.

Tested by the rule thus laid down the testimony of the trial judge, given six years. after the case had been disposed of, in respect to the matters he considered and passed upon, was obviously incompetent. True, the reasoning of the court for the rule is not wholly applicable, for, as the case was tried before a single judge, there were not two or more minds coming by different processes to the same result. Nevertheless, no testimony should be received except of open and tangible facts,-matters which are susceptible of evidence on both sides. A judg

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