not disclosed by this record. For, under the jurisprudence of Louisiana, upon the death of a member of a partnership, the title to his interest in the partnership effects descends to his heir, and does not vest in the survivor. The law of Louisiana on this point is stated and filustrated by the following decisions of the supreme court of that State:

In the case of Simmons v. Parker, 4 Martin, N. S. 200, the court said: "We think the power of the surviving partner to alienate the property belonging to" the partnership "ceased with the dissolution, that the heirs of the deceased" partner "became joint owners of the common property, and that the utmost effect that can be given to a transfer" by the surviving partner is to consider it as disposing of all the right which the vendor had in the thing sold."

In Shipman v. Hickman, 9 Rob. 149, it was held that after the death of a member of a partnership the partnership property was owned in common by the representatives of the deceased partner and the surviving partner, and that the interest of the representatives of the deceased could not be disposed of or alienated by the surviving partner.

So in Notrebe v. McKinney, 6 Rob. 13, it was said: "Our laws recognize no authority in a surviving partner. He cannot administer the partnership effects until regularly appointed, nor is he then surviving partner, but adminis

rator."

In Norris v. Ogden, 11 Mart. 455, the court held that the heirs of a commercial partner have a right to participate with the survivor in the liquidation until a partition; if a partner sues for a partnership claim the others may be made parties to secure their rights.

"In commercial partnerships," says the court Flower v. O'Connor, 7 La. 194, "the survivor, to receive the deceased partner's share and hold it subject to partnership debts, must apply to the probate court, have the portion ascertained and valued, and give security.

In Skipicith v. Lea, 16 La. Ann. 247, it was beld that at the death of a partner his interest in the firm is vested in his heirs at law, and the surviving partner can only acquire that interest by transfer or assignment from the heirs. See also Pickerell v. Fisk, 11 La. Ann. 277; and McKonten v. McGuire, 15 La. Ann. 637.

But while it must be conceded that the cesson made by the surviving members of the inlerest of Antoine Carriere, the deceased partner, in the assets of the firm, was not authorized, unless for some reason appearing to the court bat not shown by this record, we are of opinion that the validity of the cession cannot be attacked in this collateral way. The cession of the surviving partners carried their own undivided interest in all the partnership effects, and it purported to carry the interest of the deCeased partner. The surrender was accepted by the court; which, by the appointment of a syndic, undertook the administration of all the property of the late firm of A. Carriere & Sons. It is not disputed that the court had jurisdiction over the subject matter and the parties inerested. It nad jurisdiction, and it was its dity to decide whether the cession of the effects of the partnership was valid and effectual, and what property it conveyed. The fact that the beirs of Antoine Carriere did not join in the

cession does not render the orders of the civil district court void. The judgment of that court accepting the cession of the property and ap pointing a syndic could only be reversed in a direct proceeding. This is the well settled law of Louisiana. It has been held by the supreme court of that State that the order of a court, accepting a cession of goods under the insolvent laws, and the staying of proceedings, is a judg ment which demands the exercise of legal discrimination and which, when granted, can be set aside only by appeal or action in nullity. State ex rel. Boyd v. Green, 34 La. Ann. 1027. So in Cloutier v. Lemeé, 33 La. Ann. 305, the same court said: "The judgment of the civil district court, accepting the cession of the property and appointing a syndic, cannot be collaterally attacked."

In Nimick v. _Ingram, 17 La. Ann. 85, the facts were that Ingram had made in the fifth district court a surrender of his property for the benefit of his creditors, among whom were Nimick & Co. The court accepted the cession and stayed all proceedings against his person and property. After these events Nimick & Co. caused an execution to be issued on a judgment which they had recovered against Ingram in the fourth district court, and under it seized certain property which they charged was the property of Ingram, and in his possession. Thereupon Ingram took a rule upon Nimick & Co. in the fifth district court, where the insolvency proceedings were pending, requiring them to show cause why they should not respect the order of that court suspending proceedings against him, and why all further action upon the execution sued out by Nimick & Co. should not be stayed. The rule was upon trial made absolute, and Nimick & Co. appealed. In the supreme court they urged that by their diligence and vigilance they had discovered the property seized by them, which had never been surrendered by the insolvent debtor and, having thus made it available, had the right to appropriate it to the satisfaction of their claim. Upon the case thus stated the court said: "However irregular the proceedings in insolvency may have been, and however fraudulently the debtor may have acted, the plaintiffs could not on that account disregard the decree of the court which tayed all judicial proceedings against the insolvent and his property. They were parties to the proceedings, and were bound to respect them.

*Any informality in the proceedings when questioned must be by direct action. No creditor will be permitted to disregard and treat as an absolute nullity a judgment accepting a surrender made by his debtor and granting a stay of proceedings. *** The acceptance for the creditors by the court of the ceded estate vests in them all the rights and property of the insolvent, whether placed on the schedule or not; and the syndic may sue to recover them. But any creditor may show, provided it be contradictorily with the mass of the creditors or their legal representatives, that any particular object or fund is not embraced in the surrendered estate, but is subject exclusively to his individual claim. And this is the remedy of the plaintiffs if they have any." See also Hanney v. Healey, 14 La. Ann. 426.

This is in accord with the general rule that when property is in the possession of one court

[No. 1221.]

Submitted Jan. 7, 1886. Decided March 1, 1886.
APPEAL from the Circuit Court of the
PPEAL from the Circuit Court of the United

The case is stated by the court.
Mr. Gordon E. Cole, for appellants.
Mr. Thomas Wilson, for appellee.

Mr. Justice Field delivered the opinion of the court:

This case was before us at the October Term, 1984. By an Act of Congress passed March 8, 1857, a grant of land was made to Minnesota, then a Territory, to aid in the construction of certain railroads, including one from Winona, a town on the Mississippi River, to a point on the Big Sioux River, in the present Territory of Dakota. 11 Stat. at L. 195. The grant was of every alternate section designated by dd numbers, for six sections in width on each side of the road, subject to certain exceptions, not important to be here mentioned, with a right to select indemnity lands within fifteen miles from the line of the road. In May following the Legislature of the Territory auhorized a company, previously incorporated, to construct and operate this road; and, to aid in its construction, granted to the company the interest and estate, present and prospective, of the Territory and future State, in the lands Deded by the Act of Congress, together with the rights, privileges and immunities conferred

by it.

In 1858 the Territory became a State and was admitted into the Union; and under proelings for the foreclosure of a mortgage exeed by the company, it became, before March, 1862, reinvested with the estate in the ands and the rights and privileges it had grantd In March, 1862, its Legislature passed an Art transferring the lands, property, franchises and privileges with which it had thus become reinvested, to the Winona and St. Peter Railroad Company, which soon afterwards commenced the construction of the road. By the Art of Congress of March 3, 1865, the quanty of land granted by the Act of 1857 was ressed to ten sections per mile, with an enazement of the limits within which indemy lands might be selected from fifteen to twenty miles. 13 Stat. at L. 562. The third sertion provided that any lands which had granted to Minnesota for the purpose of ing in the construction of any railroad ch might be located within the limits of extension, should be deducted from the fall quantity" granted by the Act. The quantity was the four additional sections, we held that the reservation was merely a ative declaration of that which the law aki have pronounced independently of it, asmuch as a prior grant of the same property In the opinion in 113 U. S. 621 (Bk. 28, L. ed. the admission by a misprint is stated to have in 1557. The Constitution of the State was ed in that year, but the admission was on May

11 Stat. at L. 285.

must necessarily be deducted from a subsequent one in which it is included.

In October, 1867, the Company agreed with the plaintiffs, upon sufficient consideration, to convey to them as many acres of land, previously granted by Congress to Minnesota, as it construction of its road already made, estishould receive from the State by reason of the mated to be 105 miles, but in fact only 102 miles and a fraction of a mile. This suit was brought to enforce the specific performance of this contract, and the only question between the parties was as to the quantity of land to be conveyed under it.

By the Act of 1857, lands were also granted to Minnesota to aid in the construction of the

road of the Minnesota (Minneapolis) and Cedar Minnesota Central Railroad Company (Laws Valley Railroad Company; afterwards of the of Minn. Extra Sess. 1857, 20, and Special Laws of 1863, 137); and that road intersected and Waseca; and lands of that company at the road of the defendant between Rochester the intersection were located within the limits of the extension of four sections made by the Act of 1865.

The court below, however, held that, for the part of the defendant's road constructed after the Act of 1865, the plaintiffs were entitled, under their contract, to ten full sections per which were located at the intersection of the mile, without any deduction for the lands road with the road of the Minnesota Central Railroad Company, and within the grant for the construction of the latter. It was accordingly adjudged that the plaintiffs were entitled, in addition to what had been voluntarily conveyed to them, to a conveyance of 197,111 acres and a fraction of an acre, and a decree to that effect was entered. The case being tober Term, 1884, was reversed, and the cause brought to this court, that decree, at the Ocsent back to the court below, in order that the proper deduction might be made by reason of elder grant be deducted from the extension the interference of the two grants, and the made by the Act of 1865, so far as it was located within that extension. 113 U.S. 618, 629 [Bk. 28, L. ed. 1109, 1113].

In speaking of the two grants we said of the first one, that of 1857, that it was one by deof quantity. It was of particular parcels of scription, that is, of land in place and not one land designated by odd numbers for six sections on each side of the road; that is, of particular parcels of land lying within certain defined lateral limits to the road and described by numbers on the public surveys. The grant of the four additional sections by the Act of 1865 was also a grant of land in place. The intention of Congress was to enlarge the first grant from six to ten sections per mile; the additional four to be taken in like manner as the original six, and subject to the same limitations, and to others that had been or might be prescribed, with a right to select indemnity lands within twenty miles instead of fifteen. The Act did not purport to change the character of the first grant, but to increase its quantity. We said, however, that the grant of these additional sections might be regarded as one of quantity; an inadvertence for which the writer of that opinion, who is also the writer of this one, is alone

9 How. 485 (50 U. S. bk. 13, L. ed. 227); Mil ler v. Travers, 8 Bing. 244; Barry v. Coombe, 1 Pet. 651 (26 Ú. S. bk. 7, L. ed. 301); Allen v. Lyons, 2 Wash. 477.

4. The parol evidence was competent evidence, and should have been admitted. It was offered "to identify the *** thing intended by the testator;" to identify the thing devised to Henry Walker in the will, etc.

River's Case, Purse v. Surplin, and Minshull . Minshull, 1 Atk. 410, 415 and 411; Powell v. Biddle, 2 Dall. 71 (2 U. S. bk. 1, L. ed. 293); Dev. Huthwaite, 8 B. & A. 632; Bradshaw v. Bradshaw, 2 Y. & Coll. Exch. 72; Allen v. Lyons, 2 Wash. 477.

5. There is a marked distinction between those cases where the exact words of the will had some operation and those where they have none; where a devise is operative, and where it wholly fails.

In the former cases courts have shown themselves uniformly disposed to insist on the literal sense of the words of the will. In the latter they have acted on the principle laid down by Chief Justice Marshall, in Smith v. Bell, above cited, that "No effort to explain the words in a different sense can do so much violence to the clause as the total rejection of the whole bequest;" and have sought diligently among the property of the testator, with all the light obtainable from extrinsic circumstances, for some subject on which the bequest or devise might operate.

See Doe v. Greening, 3 Maule & Sel. 171; Nerton v. Lucas, 6 Sim. 54; Miller v. Traverse, 8 Bing. 244.

Among the cases of the second class, of which there is almost an infinite variety, are the following:

Pacy v. Knolly, Brownlow, 131; Doe v. Roberts, 5 B. & Ald. 407; Merrick v. Merrick, 37 Ohio St. 127; Cleveland v. Spilman, 25 Ind. 95; Mreland v. Brady, 8 Oregon, 303; Winkely Kaim, 32 N. H. 268; Selicood v. Mildmay, 3 Ves. 306; Door v. Geary, 1 Ves. Sr. 255; Dobv. Waterman, 3 Ves. 308, note; Penticost v. Ly, 2 Jac. & W. 207; Clark v. Atkins, 90 N. C. 629.

The same principles have governed those cases where there is a mistake in the name or description of the person instead of the thing; in the object instead of the subject of the devise or bequest.

Tucker v. Seaman's Aid Society, 7 Met. 188; Button v. Am. Tract Society, 23 Vt. 336; Trustev. Peaslee, 15 N. H. 317. See also, Pinarv. Brase, Finch (Fol.), 403; Dowset v. reet, Amb. 175; Parsons v Parsons, 1 Ves. Jr. 2. Smith v. Coney, 6 Ves. 42; Garth v. Mey rich, Brown, C. C. 30; Stockdale v. Bushby, 1 Coop 229 Doev. Danvers, 7 East, 299; Hamprev. Pierce, 2 Ves. Sr. 218; Beaumont v. Fell, P Wms. 141.

The admitted power of courts to transpree words and clauses in wills, to effectuate the tention of the testator, has been applied in cass closely resembling the case at bar. Bradwin v. Harper, Amb. 874; Mosley v.

The cases all illustrate the fundamental rule by which courts are governed in dealing with a will, viz.: to carry out the intention of the testator and, if possible, not to allow it to be defeated. They do not seek to make an intention for him nor do they look for an intention not in the will; but, finding that he has expressed some intention in the paper, they are solicitous to ascertain what that intention was.

In the District of Columbia the law is the same today with reference to the devising of after-acquired property, as it was in England, when text writers and judges on the bench put their supposed cases, and decided actual cases without once considering whether the devise applied accurately to anything not belonging to the testator, which was wholly without the possible purview of the will.

The fact that there is a lot accurately described, as far as its arbitrary designation on the plat of the City of Washington is concerned, cannot affect this devise any more than the fact that there is such a lot laid down on the plat of the City of Melbourne in Australia. But the description in the devise is not in every particular an accurate description even of lot 6 in square 403, with which the testator and his will are shown to be entirely unconnected.

The devise is of a lot with improvements thereon erected. Lot 6 in square 403 had no improvements thereon erected. This makes it absolutely certain that the testator did not, in fact, devise in his will a lot which he did not own; while in law it was impossible for him to do so.

The real estate devised, including the residue, being all described by lots and squares, the will purports to contain a schedule of all that the testator owned; and lot 3 in square 406, which he did own, is not otherwise described than as lot 6 in square 403.

The last devise in the will purports to give a schedule of all his property which the testator had not disposed of; it does not contain lot 3 in square 406; and it consequently asserts, by implication, that said lot had been devised in a previous clause, and if so, then it was devised by the description of lot 6 in square 403.

Messrs. Walter D. Davidge and J. Holdsworth Gordon, for defendant in er

ror:

The evidence was properly rejected for two reasons: first, because it tended to the disherison of the heir at law; and second, because it tended to contradict the plain language of the will.

1. As to the first. The testator left an only child, his heir at law.

It is an established canon of interpretation that the heir at law, or those standing in his place cannot be disinherited, except by express devise or implication so inevitable that an intention to the contrary cannot be supposed. The heir takes by nature and law, and can only be disinherited by some explicit affirmative gift.

3 Jarm. Wills, 5th Am. ed. 704; 1 Powell, Devises, 199; Berry v. Berry, 1 Har. & J. 417; Cresswell v. Lawson, 7 G. & J. (Md.) 227; Ridgely v. Bond, 18 Md. 437; Saylor v. Plaine, 31 Md. 158; Lingan v. Carroll, 3 H. & MCH.