Opinion · Supreme Court of the United States
Messenger v. Anderson
32 S. Ct. 739
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1912-06-07
- Topic
- general
holding that the law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided” | observing that a court’s decision to apply the law of the case doctrine is with in its discretion | explaining that "law of the case" "merely expresses the practice of courts generally to refuse to reopen what has been decided" | explaining that "law of the case" "merely expresses the practice of courts generally to refuse to reopen what has been decided" | observing that “the practice of courts [is] generally to refuse to reopen what has been decided” | noting that the law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power” | noting that the law of the case doctrine "is not an inexorable command” | discussing whether the mandate tule is jurisdictional in the Ninth Circuit, noting a circuit split on the issue, and collecting cases | noting the doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power” | explaining that the law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power” while noting that “[o]f course this [C]ourt, at least, is free when the case comes here” | explaining the law of the case is “not a limit to [a court’s] power” | explaining circumstances in which court will not apply law of the case doctrine | “[L]aw of the case ... merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” | "[L]aw of the case ... merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." | law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided” | law of the case doctrine “expresses the practice of the courts generally to refuse to reopen what has been decided” | doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power” | doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power" | emphasis added [in Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So.2d 441, 445 (Ala.2005)] | law of the case doctrine does not limit court’s power, rather it merely expresses practice of courts to refuse to reopen what has been decided | law of the case expresses practice of courts to refuse to reopen what has been decided | law of the case expresses practice of courts to refuse.to reopen what has been decided | doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power" | doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided” and is “not a limit to their power” | law of the ease doctrine “expresses the practice of courts generally to refuse to reopen what has been decided” | law of the case doctrine does not limit court’s power, rather it merely expresses practice of courts to refuse to reopen what has been decided | doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power” | doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided” and is “not a limit to their power” | “In contrast to claim preclusion, law-of-the-case doctrine does not bar all matters that could have been decided in earlier proceedings.” (citation omitted) | “[W]here litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” | “[R]econsideration of matters already resolved ordinarily is referred to [as] law-of-the-case theory” or “direct estop- pel.” | “Law of the
Citator
- Cited by
- 462 opinions
The first and second judgments of the Circuit Court of Appeals each reversed the preceding judgment of the Circuit Court, and remanded the case generally, without other direction, and therefore, until the last judgment of the Circuit Court, no final judgment was rendered.Aurora Cityv.West, 7 Wall. 82;Smithv.Adams,130 U.S. 167.
Respondent acquired no title under the will of his grandfather. Thereby testator intended to give his sons, or the survivor of them, an estate in fee simple, subject to defeasance should they or the survivor of them die without issue.Andersonv.United Realty Co.,79 Ohio St. 23; § 5970, R.S.O. (10580, Gen'l Code);Carterv.Gray,58 N.J. Eq. 411;Chamberlainv.Owings,30 Md. 447;Piattv.Sinton,37 Ohio St. 353;Lambertv.Paine, 3 Cranch, 97.Page 438
The decision of the Circuit Court of Appeals that under the will respondent took an estate in remainder upon the decease of his father, is contrary to long settled rule of property in Ohio.Abbotv.Essex Co., 18 How. 202;Parrishv.Ferris,6 Ohio St. 563;Nilesv.Gray,12 Ohio St. 320, citing and followingAbbotv.Essex Co., supra; Taylorv.Foster,17 Ohio St. 166;Piattv.Sinton,37 Ohio St. 353;Martinv.Lapham,38 Ohio St. 538;Collinsv.Collins,40 Ohio St. 353;Durfeev.MacNeill,58 Ohio St. 238;Andersonv.United Realty Co.,79 Ohio St. 23; § 5970, R.S.O. (10580, Gen'l Code);Walkerv.Walker, 20 O.C.C. 409;Darlingtonv.Compton, 20 O.C.C. 242;Pendletonv.Bowler, 27 Cinn. L. Bull. 313.
The Federal courts must look to the law of the State in which land is situated for the rules which govern its descent, alienation and transfer and for the effect and construction of wills and other instruments conveying title thereto, and in trials at law must regard the state law as a rule of decision. Section 721, U.S. Rev. St.;Brinev.Ins. Co.,96 U.S. 627;DeVaughnv.Hutchinson,165 U.S. 566;Clarkev.Clarke,178 U.S. 186;Orrv.Gilman,183 U.S. 278;East c. Co. v.Central Co.,204 U.S. 266;Olmsteadv.Olmstead,216 U.S. 386.
The Circuit Court of Appeals erred in not following the Ohio decisions and statute.Gilesv.Little,104 U.S. 291;Brittonv.Thornton,112 U.S. 526;Robertsv.Lewis,153 U.S. 367;Littlev.Giles,25 Neb. 313;Yocumv.Parker, 134 F. 205;Bilgerv.Nunan, 186 F. 665.
For decisions construing statutes like the Ohio statute, see:Devecmonv.Shaw,70 Md. 210;Snyderv.Baer,144 Pa. 278;Kieferv.Keepler,173 Pa. 181;Simonsv.Simons,168 Mass. 144;Harrisv.Dyer,18 R.I. 540;Mayv.San Antonio,83 Tex. 502[83 Tex. 502]; Page on Wills, § 562, pp. 653, 654.
Independently of statute, the will devised only a defeasiblePage 439fee.Thompsonv.Hoop,6 Ohio St. 480;Smithv.Berry,8 Ohio 365; other Ohio cases above cited; Schouler on Wills, § 262, p. 549.
The limitation over provided for in the will constituted a definite failure of issue; an estate tail, or an estate in remainder was not and could not have been created or implied. Kent's Comm., vol. 4, pp. 274, 275, star paging; 1 Tiffany on Real Prop., § 25, p. 63; 2 Jarman on Wills, 6th ed., Big star paging 1320; 2 Washburn, Real Prop., 5th ed., star paging 355;Nilesv.Gray,12 Ohio St. 320.
A limitation over after definite failure of issue creates a defeasible fee.Pellsv.Brown, 3 Croke's Rep. 590;DeWolfv.Middletown,18 R.I. 810;Tomanv.Dunlop,18 Pa. 72;Jordanv.Roach,32 Miss. 481:Danielv.Thompson, 14 B. Mon. (Ky.) 662;Wardellv.Allaire,20 N.J.L. 6; Page on Wills, § 591.
The construction given the will by the Circuit Court of Appeals, 146 F. 929, rests largely upon three cases, one from Ohio, one from Georgia and the third from South Carolina, each of which has been discredited or overruled. The rule in Ohio is not as declared inShawv.Hoard,18 Ohio St. 228, but the opposite as inAndersonv.United Realty Co.,79 Ohio St. 23, and cases therein cited. In Georgia, not as inWetterv.United c. Co.,75 Ga. 540, but the opposite as inMatthewsv.Hudson,81 Ga. 126;Chewingv.Shumate,106 Ga. 751;Hillv.Terrell,123 Ga. 49;Kinardv.Hale,128 Ga. 485.Carrv.Green, 2 McCord (S.C.), 75, construed a will which was given exactly the opposite construction inCarrv.Jeanerett, 2 McCord (S.C.), 66. See alsoCarrv.Porter, 1 McCord Ch. 60;Shawv.Erwin,41 S.C. 209;Bondv.Moore,236 Ill. 576. Other cases overrulingCarrv.Greenare:Durantv.Nash,30 S.C. 184;Gordonv.Gordon,32 S.C. 563;Powersv.Bullwinkle,33 S.C. 293;Thompsonv.Peake,38 S.C. 440;Sheppardv.Jones,77 S.C. 274.Page 440
The decision of the Circuit Court of Appeals is also opposed to the decisions of the highest court of Mississippi, where the testator resided when his will was drawn, executed and took effect.Jordonv.Roach,32 Miss. 481;Simsv.Conger,39 Miss. 231;Busbyv.Rhodes,58 Miss. 237;Johnsonv.DeLome,77 Miss. 15;Halseyv.Gee,79 Miss. 193; and besides being contrary to the decision of the Supreme Court of Ohio is also opposed to the decisions of the highest courts of all the States comprising the Sixth Circuit.Hartv.Thompson,42 Ky. 482;Danielv.Thompson,53 Ky. 562;Harrisv.Berry,70 Ky. 113;Salev.Crutchfield,71 Ky. 636;Crozierv.Cundall,99 Ky. 202;Smithv.Ballard,117 Ky. 179;Harveyv.Bell,118 Ky. 512;Ricev.Rice,118 S.W. 270(Ky.);Williamsonv.Tunis,107 Tenn. 83;Mullreedv.Clark,110 Mich. 229.Mr. Rhea P. CaryandMr. C.H. Trimblefor respondent: An executory devise or bequest cannot be prevented or disturbed by any alteration in the estate out of which or subsequent to which it is limited. The executory interest is wholly exempted from the power of the first beneficiary or taker. 4 Kent's Comm. 270;Jacksonv.Bull, 10 Johns. 19;Burleighv.Clough,52 N.H. 275.
If only a life estate is granted, a power of disposition in the life tenant does not invalidate a remainder over.Kellyv.Meins,135 Mass. 234;Ramsdellv.Ramsdell,8 Me. 205;Larnedv.Bridge, 17 Pick. 339;Burleighv.Clough, supra.
The contract of October 4, 1844, was competent evidence. Declarations by one in possession, in disparagement of his title, are admissible against those claiming under him.Dooleyv.Baines,86 Va. 648;Dodgev.Freedmen's S. T. Co.,93 U.S. 379;Hendersonv.Wanamaker, 79 F. 738;Bakerv.Humphrey,101 U.S. 499;Page 4412 Wigmore on Ev., §1080; 1 Elliott on Ev. (1904 ed.), § 261; 16 Cyc. 986.
It is the duty of courts to construe wills as they find them, and not to make them. While the doctrine of implication must be resorted to cautiously in the construction of wills, the courts should not hesitate to resort to that doctrine, when thus only can the manifest intention of the testator be carried out.Holtonv.White,23 N.J.L. 330,Lytlev.Beveridge,58 N.Y. 592;In re Moore's Estate,11 Misc. 436;Bentleyv.Kaufman, 12 Phila. 435;In re McAlpin's Estate(Pa.),60 Atl. Rep. 321;Beilsteinv.Beilstein,194 Pa. 152.Parrishv.Ferris,6 Ohio St. 563;Nilesv.Gray,12 Ohio St. 320;Taylorv.Foster,17 Ohio St. 166;Piattv.Sinton,37 Ohio St. 353;Martinv.Lapham,38 Ohio St. 538;Collinsv.Collins,40 Ohio St. 353;Andersonv.UnitedRealty Co.,79 Ohio St. 23, can be distinguished from the case at bar.
It is essential to a complete and effectual delivery of an instrument intended to operate as a present deed, that the grantor should part with all control and dominion over it. If he retains the right to recall the deed, it cannot be considered as delivered. The same principle applies to an escrow. 1 Devlin on Deeds, § 324, p. 578, citingCampbellv.Thomas,42 Wis. 437;Millerv.Sears,91 Cal. 282;Prutsmanv.Baker,30 Wis. 644;In re Cornelius'Estate,151 Cal. 550. And seeShirleyv.Heirs,14 Ohio St. 310;Provartv.Harris(Ill.),39 N.E. 958.
A plaintiff cannot be forbidden to try facts upon which his right to relief is based before a court of his own choice, if otherwise competent.Willcoxv.Consolidated Gas Co.,212 U.S. 19.
In 1846 Henry Anderson, then domiciled in Mississippi, made his will and died, leaving two sons William and James. These sons executed deeds declaring that their father Henry held and intended to hold the land in trust to secure the payment of Butler's note, and Butler subsequently made such payments on the same that it may be assumed that unless the plaintiff has a title that his father James could not affect by the above-mentioned deed, he has none. Whether he has such a title depends on the terms of Henry's will. That instrument, after creating a general trust of substantially all the testator's property, went on thus: "Item. It is my will that when my son William arrives at the age of twenty-one years the trustees . . . shall deliver to him a settlement of the affairs of the trust, and if my debts are then paid, and as soon as that takes place, they shall put him in possession of one-half of my property reserving thereout two-fifth parts of said moiety, by valuation which my said trustees shall hold in trust and properly invest and pay over toPage 443him at the age of twenty-five years . . . And it is my will that my said trustees hold and invest and pay over the remaining moiety of my estate to my son James at the respective periods of twenty-one and twenty-five years of age being governed as to the amounts to be paid at each of the respective periods by the same rules and directions as are above laid down in the bequest to William," c.
If these clauses were all, there would be no doubt that William and James got an absolute title when they reached the age mentioned. But a following paragraph reads, "If either of my sons die without lineal descendants the one surviving shall take his estate above bequeathed, and if the survivor die without lineal descendants then" over to brothers and sisters of the testator. Later in the paragraph the testator says: "I make the following explanation: The limitations over on the death of my surviving son without lineal descendants is intended to take effect if there be no lineal descendants living at the time of the decease of such son. Nothing in the foregoing will shall be construed as to deprive either of my sons of disposing of their portions by will on their attaining the age of twenty-one years respectively. The above limitations over shall give way to the provision of such wills." The testator's son William died in 1850, unmarried and intestate. The other son James died in 1902, intestate and leaving the plaintiff his only child.
The Circuit Court of Appeals when this case first came up held that James took only a life estate and that the plaintiff got a remainder that his father could not affect. 146 F. 929. But pending the proceedings another case was tried in the state courts between these same parties concerning other parcels of land in Toledo depending on the same title, in which it was decided by the lower court and affirmed on writ of error by the Supreme Court of Ohio that James took a fee subject to be defeatedPage 444only by his leaving no lineal descendant.Andersonv.UnitedRealty Co.,79 Ohio St. 23.S.C.,222 U.S. 164. The judgment of the lower court was pleaded, but it was held by the Circuit Court of Appeals after the affirmance by the Supreme Court that its own previous decision was the law of the case and that it was not at liberty to reverse the judgment even if the matter wasres judicataon the principle laid down inNew Orleansv.Citizens' Bank,167 U.S. 371,396. SeeParrishv.Ferris, 2 Black, 606. In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.Kingv.West Virginia,216 U.S. 92,100.Remingtonv.CentralPacific R.R. Co.,198 U.S. 95,99,100.Great Western TelegraphCo. v.Burnham,162 U.S. 339,343. Of course this court, at least, is free when the case comes here.Panama R.R.R. Co. v.Napier Shipping Co.,166 U.S. 280.United Statesv.DenverRio Grande R.R. Co.,191 U.S. 84. In our opinion even apart from the effect of the state judgment as an adjudication it should have been followed, if for no other reason, because at least as against the decision of the Circuit Court of Appeals it was right.
The later clauses that we have quoted from the will make a difference, it is true, according to whether the sons leave lineal descendants at their death or not. But the interest thus exhibited in descendants is satisfied by the probability that they would inherit the property or be provided for out of it. It is not shown to be so definite and paramount as to cut down the gifts imported by the previous words except in the single event in which the will does so in terms. On the contrary the still later provision that nothing shall be construed to `deprive' the sons of the power to dispose of `their portions' by willPage 445indicates that the testator meant the sons to be owners of his estate, subject to the divesting clause.
We should lean toward an agreement with the state courts, especially in a matter like this. In the present instance we see no sufficient reason for refusing to follow their judgment, even if, for any cause not pointed out to us, it did not finally adjudicate the question of title as between these parties in such wise as to be binding upon every court before which that title subsequently might be discussed.Judgment reversed.