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wise. The request made of the Secretary of the time appointed for action upon a of the Treasury was not that he should petition for the settlement of the final acname a competent person with whom the count of an executor and for the final disSecretary of the Interior might contract for

tribution of the decedent's estate is so unthe performance of the desired services, but

reasonable as to a nonresident claimant as

to be wanting in due process of law is too was that he should "authorize,” that is,

clearly unsubstantial and devoid of merit designate, “a competent person” to do such to furnish a basis for

to furnish a basis for a direct appeal to work. The reply to such request, dated the Federal Supreme Court from a decree March 14, 1901, we think makes evident the of a circuit court. fact that it was not expected that the per-| [Ed. Note.-For other cases, see Courts, Dec.

Dig. $ 385.“] son who was to be supplied from the regular force of the Treasury Department, because it could be done without detriment to the

[No. 120.] public service, would be additionally com

Argued March 19, 22, 1909. Decided May pensated. Indeed, any inference that such

17, 1909. thought was entertained by the Secretary of the Treasury is rebutted by the circumstance that, in his letter, he directed the at.

APPEAL from the Circuit Court of the

A United States for the Northern Distention of the Secretary of the Interior to the fact that an expense of about $500

trict of California to review a decree diswould be necessary for the employment of

missing a bill to set aside the probate of a draftsmen and others who could not be sup

will and to reopen the probate proceedings plied by the Treasury Department, and that

in which the final account of the executor this sum would be regarded as sufficient for

has been passed and the estate finally dis“the expense incident to a general inspection

tributed. Dismissed for want of juris. of the work during the period of installa.

diction. tion." The direction given to Mr. Wood

See same case below, 145 Fed. 844.

| The facts are stated in the opinion. well to confer with the chief clerk of the

Messrs. John G. Johnson, Tyson S. Department of the Interior "relative to the installation of a electric light, heating, and

Dines, L. Sidney Carrère, and Henry Ar. power plant in the old Postoffice Depart. den for appellant. ment building was addressed to him in

Messrs. J. W. Dorsey, Henry E. Davis, his capacity of "inspector of electric light

and Henry Ach for appellees. plants" in the Treasury Department. Pre

*Mr. Justice White delivered the opinion Bumptively, the aid which Mr. Woodwell rendered by direction of the Secretary of the o

of the court:

Upon demurrers, the court below disTreasury to the Department of the Interior was done by him in and by virtue of the or

missed the bill filed by Goodrich, the appelder and direction of his superior officer, and

lant, for want of equitable jurisdiction to was not, therefore, a distinct employment.

grant the relief which was prayed. 145 Fed.

844. To review that decree this appeal Certainly it cannot be said that Mr. Wood

| direct to this court is prosecuted. Juriswell, whatever may have been the value of his services, was called upon to render a

diction to review is challenged. That quesservice specially required by an existing

tion, therefore, at the outset requires at

tention. law, and for the performance of which the

To clarify the issue for decision, instead remuneration was fixed by law. These conclusions clearly bring the case within the

of reciting the allegations of the bill in prohibitions against payment contained in

the order in which they are therein stated, $1765, Rev. Stat. As there is no conten

we shall briefly recapitulate the facts altion in argument respecting the claim for

leged in their chronological order, in so far

as essential to be borne in mind for the expenses ($110), which it is assumed has been paid, we eliminate it from considera

purpose of the question of our jurisdiction.

In February, 1886, Thomas H. Williams, tion. Affirmed.

a resident of California, died in San Fran. cisco, leaving as his lawful heirs four*sons,

viz., Sherrod, Thomas H., Jr., Percy, and (214 U. S. 71) GEORGE G. GOODRICH, Appt.,

Bryant, and one daughter, Mary, who was

the wife of Frank S. Johnson. The wife v.

of the deceased and the mother of his chilJOHN W. FERRIS et al.

dren had died before him. Williams left an COURTS (8 385*) – DIRECT APPEAL FROM estate of large value, composed principally CIRCUIT COURT - FRIVOLOUSNESS OF I of real property. Shortly after his death. FEDERAL QUESTION - NOTICE IN PRO

on April 2, 1886, in the court having proBATE PROCEEDINGS A claim that ten days' statutory notice bate jurisdiction in San Francisco, a last will

*For other cases see same topic & $ NUMBER IN Dec. & Am. Dlgs. 1907 to date, & Rep'r Indexes

and codicil thereto of Williams were duly, in the city of New York. The son Percy admitted to probate. Leaving out of view was married in August, 1888; a child was certain bequests of personal property and born in 1889, but died the year following; small legacies in money, the estate was prin- and Percy died on October 3, 1890, leaving cipally disposed of as follows: The title of his widow surviving. Bryant Williams, anthe property was vested in the executor and other son, died in May, 1893, unmarried and trustee named in the will, George E. Wil without issue. In that year also Mrs. Goodliams, a brother of the deceased, for the rich, the daughter, died in the city of New purpose of making the distribution which York, without issue from her marriage with the will provided. To one of the sons, Sher. Goodrich, leaving her husband surviving. rod, nothing was given. It was provided In the nearly eight years which superthat the sum of $50,000 should be absolutely vened between the death of the father and vested in the son Percy, that $200,000 should the death of Mary, the daughter, the latter "be set aside absolutely" for the benefit of undoubtedly received from the executor of the daughter, Mary, wife of Johnson, and the estate of the father, by way of revenue that $100,000 should be set aside for the or allowance, the provision made for her benefit of each of the sons, Thomas H., Jr., benefit by the will of the father. By the Percy, and Bryant. The will, however, pro- various deaths it came to pass that, at the vided that the gifts to the children above end of 1893, those entitled to the estate of stated, other than the gift of $50,000, which Williams by the terms of the will, either was to vest absolutely in Percy, were only for life or in remainder, were the surviving intended for the use and benefit of the chil. son, Thomas H. Williams, Jr., and the indren to whom they were given during their fant son of Mary, the daughter, represented respective lives, with the remainder in fee by his father, Frank S. Johnson, who had, to the lineal descendants, or, if none such, in 1889, in the proper probate court, been to the surviving brothers or sister, as the duly appointed the guardian of the estate case might be. The residuum of the estate of such minor. was directed to be set aside in equal shares After the death of Mrs. Goodrich, her for the benefit of the daughter and two of husband went from*New York to California the sons (Thomas H., Jr., and Percy) dur. for the purpose of the interment of the reing their respective lives, with the remain-mains of his wife, and, while being there a der in fee, as heretofore recited. The will short time, undoubtedly met the executor. contained the following clause:

Goodrich returned to New York, where he "Item 4. When the term of three years continued to reside. In 1896, three years after my death, shall have elapsed, unless after the return of Goodrich to New York, the executor, herein named, shall for good in the court having jurisdiction over the cause extend it for two years, or in case estate and person of the minor, the guardian there be another executor, three of my chil. Johnson applied for authority to agree with dren, or representatives, shall by writing, the executor of the estate of Williams on a extend it for two years, distribution of my final distribution of the estate. In makestate, shall be made, as herein directed.” ing this application no reference was made

*Until the setting aside or distribution to the fact of the marriage of Goodrich with thus directed, the executor was authorized the mother of the minor after her divorce. to advance monthly to the daughter the sum Conforming to the requirements of the of $250, and to each of the three sons, $100. California Code of Procedure, after hearing, The executor was authorized to carry on the guardian was authorized to make the the business in which the testator was en agreement for final distribution. Simul. gaged at the time of his death, and ex. taneously or thereabouts the executor also tensive powers were conferred in regard to filed in the proper probate court a petition the sale and reinvestment of the property to asking the authority of the court to pass be set aside for the benefit of the children, his accounts and make a final distribution etc. George E. Williams qualified as ex of the estate. Express notice was given to ecutor, and entered upon the performance Williams, the surviving son, and to Johnof his duties.

son, the guardian of the minor, and, in acIn 1888 one of the sons, Sherrod, died un cordance with the provisions of the Calimarried and without issue. In the same fornia Code, a publication, by a posting of year Frank S. Johnson, the husband of notice for a period of ten days, was ordered Mary, the daughter, obtained a decree of and duly made. On January 5, 1897, after divorce against his wife, by which he was hearing, and in view of the consent of the awarded the custody of an infant son, Frank parties, the accounts were finally passed Hansford Johnson, the issue of the mar- and a full distribution of the estate was riage. In December of the following year, made between the parties in interest; that Mary, the divorced wife, married George is, 40 per cent of the estate was transferred G. Goodrich, and thereafter lived with him to the minor, Frank Hansford Johnson,

through his guardian, 2643 per cent to , fraud, but to have been absolutely wanting Thomas H. Williams, Jr., the son, in fee, in due process of law, because of the absence and 3313 per cent was vested in Williams as of express notice to the complainant, and trustee for the benefit during life of Thomas because the provisions of the statutes of H. Williams, Jr.

California providing for notice by ten days' Nearly three years after the entry of the posting were void, because*insufficient as to * decree of final distribution, in December, a resident of the city of New York, and, in 1899, Williams, the trustee, died, and, by consequence, repugnant to the due process proceedings in the superior court of the city clause of the 14th Amendment. Without and county of San Francisco, John W. stating the various grounds upon which the Ferris was appointed trustee.

defendants demurred, it suffices to say that More than eighteen years after the death the bill, having been submitted to the court of Williams and the probate of his will, on the demurrers, was, by it, dismissed, as about eleven years from the date of the we have said, because the court was with:

death of the daughter, Mary, the wife of out jurisdiction in equity to set aside the e Goodrich, and more than seven years after probate of the will and to reopen, upon the • the passing of the final account of the*ex- grounds alleged in the bill, the probate pro

ecutor, and the final distribution of the ceeding had conformably to the local law. estate by the probate court, viz., on May It is manifest from the foregoing state19, 1904, the bill which is here in question ment that the only possible ground upon was filed.

Ferris, trustee, Williams, the which the assertion that we have jurisdicsurviving son of the deceased, and Johnson, tion by direct appeal to review the action of as guardian, and his minor son, were made the trial court can rest is the contention defendants. The facts above recited in made below, that, as to the complainant, the various forms of statement were alleged, notice of the hearing in the probate court and, in substance, it was charged that the upon the petition for the settlement of the will and codicil of Williams, the deceased, account of the executor and for the final were void because the absolute power of distribution of the estate of Williams did alienation of the property of the deceased, not amount to due process of law. Farrell contrary to the laws of California against v. O'Brien (O'Callaghan v. O'Brien) 199 perpetuities, was, by the terms of the will, U. S. 89, 100, 50 L. ed. 101, 107, 25 Sup. suspended for a period of three years, and Ct. Rep. 727, and cases cited.

It is equal. not for a period measured by the continu ly certain, as held in the cited case, that ance of lives in being, and therefore, as to the mere fact that a constitutional ques. all property included in the trust which tion is alleged does not suffice to give us Williams, the deceased, attempted to create jurisdiction to review by direct appeal if by his will, he had died intestate, and all such question is unsubstantial, and so de his property, by reason thereof, vested at void of merit as to be clearly frivolous. his death in his heirs at law. It was The grounds for the contention that a averred that complainant, as heir of his de constitutional question exists thus ceased wife, was entitled to a stated share stated in the brief of counsel for appellant: of her estate. It was charged that all the “4. Sections 1633 and 1634 of the Civil proceedings had in the probate court were Code of California, upon which jurisdiction fraudulent and subject to be avoided; that, of the court to make the consent decree of in those proceedings, the fact of the re distribution is based, are in contravention marriage of the daughter, Mary, and the of g 1, article 6, of the Constitution of the survivorship of her husband, Goodrich, the United States. complainant, had been sedulously concealed “The notice of final settlement and dig. for the purpose of misleading the court; tribution, posted for ten days in the city that when Goodrich was in California, after and county of San Francisco, did not constithe death of his wife, he was notified, as tute due process of law as to appellant, who the result of an inquiry made of the ex was and is a citizen and resident of the ecutor, that the death of his wife termi- state of New York.” nated her interest in the estate of her The sections of the California Code above father; that the proceedings in the probate referred to are thus set forth in the bill: court concerning the final accounting and “Sec. 1633. When any account is rendered distribution were fraudulently had for the for settlement, the clerk of the court must purpose of depriving the complainant of appoint a day for the* settlement thereof, his interest in the estate, and it was ex and thereupon give notice thereof by caus. pressly charged that, in those proceedings, ing notices to be posted in at least three the existence of the complainant and his public places in the county, setting forth interest in the estate were concealed. The the name of the estate, the executor or ad. whole proceedings, it was also averred, were ministrator, and the day appointed for the not only subject to be avoided because of I settlement of the account. If, upon the

are

08.

final hearing at the time of settlement, the of the various steps in tlie 2.'ninistration court, yr a judge thereof, should deem the of an estate in the custody of one of its notice insufficient from any cause, he may courts, we hold that the claim that ten days' order such further notice to be given as statutory notice of the time appointed for may seem to him proper.

the settlement of the final account of the "Sec. 1634. If the account mentioned in executor, and for action upon the petition the preceding section be for a final settle for final distribution of the Williams estate, ment, and a petition for the final distri- was so unreasonable as to be wanting in bution of the estate be filed with said ac due process of law, was clearly unsubcount, the notice of settlement must state stantial and devoid of merit, and furnished those facts, which notice must be given by no support for the contention that rights posting or or publication.

On the under the Constitution of the United settlement of said account, distribution and States had been violated. As held in Bellpartition of the estate to all entitled there. ingham Bay & B. C. R. Co. v. New Whatto may be immediately had, without further com, 172 U. S. 314, 318, 43 L. ed. 460, 461, notice or proceedings."

19 Sup. Ct. Rep. 205, even although the While various decisions of this court and power of a state legislature to prescribe of the courts of two states are cited in the length of notice is not absolute, yet it is brief of counsel for appellant under each of certain “that only in a clear case will a the foregoing propositions, none of them notice authorized by the legislature be set are apposite, and indeed, although citing aside as wholly ineffectual on account of the them, counsel have specifically commented shortness of the time.” upon but one; viz., Roller v. Holly, 176 U. The jurisdiction to determine this appeal S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410. upon the merits being dependent upon the That case, however, concerned the validity existence of a constitutional question in the of original process by which the conceded record, and the mere averment that such a property of a nonresident, situate within the question was raised below not being sufjurisdiction of the state of Texas, was ficient where the alleged Federal question sought to be subjected to the control of its is so wanting in merit as to cause it to be courts. The proposition which was pre- frivolous or without any support whatever sented for decision in that case was whether in reason, it follows that the appeal must a statutory notice of five days, given to a be and it is dismissed for want of jurisresident of Virginia, requiring him to ap- diction. pear in Texas and defend a suit brought against him to foreclose a vendor's lien upon Mr. Justice McKenna took no part in his land, constituted reasonable and ade the decision of this case. quate notice for the purpose. Manifestly, that case is not, in any particular, analogous to the one under consideration, which

(214 U. S. 47) is a case involving the devolution and ad J. M. CEBALLOS & COMPANY, Appts., ministration of the estate of a decedent, a subject peculiarly within state control.

UNITED STATES. Broderick's Will (Kieley v. McGlynn) 21 Wall. 503, 519, 22 L. ed. 599, 005. It is COURTS ($ 389*)—UNITED STATES SUPREME elementary that probate proceeding by

COURT-APPEAL FROM COURT OF CLAIMS

-REVIEW OF FACTS. which jurisdiction of a probate court is asserted over the estate of a decedent for the make an allowance for the transportation

1. The refusal of the court of claims to purpose of administering the same is in the from the Philippine Islands to Spain, * nature of g* proceeding in rcm, and is there under a contract with the United States,

fore one as to which all the world is charged of certain Spanish prisoners of war, cer. with notice. And that the law of Cali. tified by an American consul to have been fornia conforms to this general and ele- landed in a Spanish port, will not be dis. mentary rule is beyond question. William turbed on appeal where the method preHill Co. v. Lawler, 116 Cal. 359, 48 Pac. scribed by the contract for determining the 323. The distribution of the estate of initial fact that such persons had been Williams was but an incident of the pro had not been pursued, and the evidence did

taken on board in the Philippine Islands ceeding prescribed by the laws of California not establish to the satisfaction of that in respect to the administration of an estate court that such persons were entitled to in the custody of one of its probate courts. transportation under the contract. Under such circumstances, therefore, and [Ed. Note.-For other cases, see Courts, Dec.

Dig. § 389.*) putting aside the question of whether or

UNITED STATES (8 70*)-GOVERNMENT CONnot the state of California did or did not

TRACT-CONSTRUCTION. possess arbitrary power in respect to the 2. The manifest spirit of the contract character and length of notice to be given and the prior conduct of the parties de

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

V.

as

mand that the United States be charged forces at Santiago, made a contract with at the cabin rate, with the usual reduc- the United States for the repatriation from tion for children under ten years, for the Cuba to Spain of the prisoners of war retransportation to Spain as cabin passen: sulting from that surrender. That contract gers of the wives and children of Spanish military and civil officers in the Philip

was performed, and it is conceded that all pine Islands, under a contract calling for obligations of the United States under the the transportation of such officers at that same were discharged. It is admitted, howrate, and of such other persons as might be ever, that, at the trial below, the Cuban designated by the Secretary of War at the contract, as it is termed, was offered and steerage rate.

the mode of execution thereof was estab[Ed. Note.--For other cases, see United States, lished by competent evidence, upon the asDec. Dig. $ 70.*] UNITED STATES (8 70*)

sumption that such facts were proper to be

GOVERNMENT CONTRACT CONSTRUCTION "OTHER taken into view in the elucidation of the PERSONS.'

particular contracts which are here in 3. All noncombatants except the wives volved. No finding was made by the lower and children of military and civil officers court on the subject, although one was rewere embraced in the words “other persons” in a contract with the United States quested. After the filing of the record in for the transportation to Spain at the cab- this court a motion was made, praying that in rate of Spanish military and civil offi-| the lower court be directed to find whether cers in the Philippine Islands, and at the or not the Cuban contract had been made, steerage rate of such other persons as stated, and whether or not the wives and might be designated by the Secretary of children of Spanish officers transported War.

A Preview dr judgment refusing to malo | tiedlaha männen.

thereunder were also transported under the (Ed. Note.—For other cases, see United States, contract, and, if they were, the rate paid Dec. Dig. $ 70.*

For other definitions, see Words and Phrases, for such transportation. The motion was vol. 6, pp. 5089-5091.]

resisted, and action thereon was postponed [No. 108.)

until the hearing on the merits. In the dis

cussion at bar it was conceded by the gove Argued March 10, 1909. Decided May 17, ernment that the Cuban contract had been 1909.

offered in evidence below, that the contract

was correctly printed in one of the briefs, PPEAL from the Court of Claims to and that it had been performed in a par.

It was, however, insisted certain items claimed under a contract that the Philippine contracts here involved with the United States for the repatria- were unambiguous, and therefore the Cuban tion of certain persons from the Philip contract was irrelevant. It was conceded, pine Islands to Spain. Reversed.

if it was deemed that there was such amSee same case below, 42 Ct. Cl. 318.

biguity in the Philippine contracts as to reThe facts are stated in the opinion. quire construction, and that* the construc

Messrs. William V. Rowe, John J. tion might be elucidated by the Cuban conHemphill, and Sullivan & Cromwell for tract and the mode of its performance, that appellants.

contract and the admission as to the manner Assistant Attorney General John Q. in which it had been performed might be Thompson and Mr. Franklin W. Collins treated as part of the record for the pur. for appellee.

poses of the case before us, without the

necessity of directing findings on the sub* Mr. Justice White delivered the opinion ject. As we are clearly of opinion that the of the court:

contracts which are here involved require Speaking in a general sense, this case in construction, and that the previous convolves determining how much, if anything, tract between the parties as to the moveis due by the United States to J. M. ment of the prisoners of war from Cuba to Ceballos & Company, the appellants, for Spain, and the construction which obtained services rendered in pursuance of oral and in the execution thereof, may serve within written contracts for the repatriation of proper limitations to throw light upon the certain persons from the Philippine Islands construction of the contracts here involved, to Spain. Before coming to the case as we treat the Cuban contract and its mode made by the record it is necessary to dis- of performance as embraced in the record, pose of a preliminary consideration which and review the case in the light thereof. may throw light upon one of the questions In the month of July, 1898, and from that arising for decision.

time until the commencement of this liti. Ceballos & Company–who here assertgation, the members of the appellant firm their rights as arising from contracts made, were the American operators and agents of as we have said, concerning transportation the Compañía Transatlántica, a steamship of persons from the Philippine Islands to line engaged in the transportation of freight Spain-after the surrender of the Spanish I and passengers between the ports of Spain

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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