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Statement of the Case.

a petition for rehearing, no statement of facts was prepared by the Supreme Court, and no other determination of the facts than such as appears from the direction to enter a decree in conformity with the findings and recommendations of the master. But after the Supreme Court had adjourned, an application was made to have the findings of fact made by the master incorporated into the record as a statement and finding of facts by that court, for the purpose of an appeal, and upon that application the following order was entered:

"And now the foregoing statement and finding as to the facts proven and established by the evidence in each of said causes are ordered to be incorporated in the record of said Supreme Court as part thereof as fully as we may be thereunto empowered, the July term of the Supreme Court having been adjourned on the 26th day of September, A.D. 1896, and this order made and signed by each of the judges while in his district respectively.

THOMAS SMITH, Chief Justice.
NEEDHAM C. COLLIER,

Associate Justice, Supreme Court of New Mexico. "Signed at Silver City, in the third judicial district.

GIDEON D. BANTZ,

Associate Justice of the Supreme Court of New
Mexico and Presiding Judge of the Third
Judicial District Court.

"Signed at Santa Fé, N. M., in the first judicial district. N. B. LAUGHLIN,

Associate Justice of the Supreme Court and
Judge of the First Judicial District."

It appears from the bill, answer and findings that Frederick Metzger, though an unmarried man, was the father of several children by different women, and this suit is one between these several illegitimate children to determine their respective rights to share in his estate. The counsel for appellants says in his brief: "The bill of complaint and the testimony present for determination of the court two questions: First, what estate

Opinion of the Court.

and property did Metzger own at the time of his death? and, second, who is entitled to that estate?"

Mr. Harvey Spalding for appellants.

No appearance for appellees.

MR. JUSTICE BREWER delivered the opinion of the court.

No question is made in this record as to the admission or exclusion of testimony. There being no jury the case comes here on appeal, and the only question we can consider is whether the findings of fact sustain the decree. Act of April 7, 1874, c. 80, 18 Stat. 27; Stringfellow v. Cain, 99 U. S. 610; Cannon v. Pratt, 99 U. S. 619; Neslin v. Wells, 104 U. S. 428; Hecht v. Boughton, 105 U. S. 235, 236; Gray v. Howe, 108 U. S. 12; Eilers v. Boatman, 111 U. S. 356; Zeckendorf v. Johnson, 123 U. S. 617; Sturr v. Beck, 133 U. S. 541; Mammoth Min. Co. v. Salt Lake Foundry & Machine Co., 151 U. S. 447.

The order signed in vacation by the several members of the Supreme Court cannot be considered an order of the court. Assuming, however, for the purposes of this case, that, in view of the general language in the opinion of the court, we may take the findings of the master as its statement of facts, we observe that no doubtful question of law is presented for our determination. The master finds that Metzger was the father of the appellees, and that he owned certain property. These are questions of fact, resting upon testimony, concluded, so far as this court is concerned, by the findings, and into which it is not our privilege to enter.

While under the common law illegitimate children did not inherit from their father, the statutes of New Mexico introduced a new rule.of inheritance (Comp. Laws, New Mexico, 1884, tit. 20, c. 4, sec. 1435, p. 680): "Natural children, in the absence of legitimate, are heirs to their father's estate, in preference to the ascendants, and are direct heirs to the mother if she die intestate." In other words, under this stat

Counsel for Parties.

ute, there being no legitimate children, illegitimate children inherit.

It appears that on March 19, 1875, and while Metzger was living, the mother of these plaintiffs, then minors, in her own right and for the minors, receipted and relinquished all claims against him. Without stopping to consider what was meant by that release, and giving to it all the scope which its language may suggest, we remark that a natural guardian has no power to release the claim of a ward to an inheritance without the sanction of some tribunal. Woerner's American Law of Guardianship, p. 185, and following. The decree is

PIERCE v. SOMERSET RAILWAY.

Affirmed.

ERROR TO THE SUPREME JUDICIAL COURT OF THE STATE OF MAINE.

No. 12. Argued October 11, 12, 1899. Decided October 31, 1898.

Eustis v. Bolles, 150 U. S. 361, affirmed and followed to the points: (1) That to give this court jurisdiction of a writ of error to a state court, it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment, as rendered, could not have been given without deciding it;

(2) That where the record discloses that, if a question has been raised and decided adversely to a party claiming the benefit of a provision of the Constitution or laws of the United States, another question, not Federal, has been also raised and decided against such party, and the decision of the latter question is sufficient, notwithstanding the Federal question, to sustain the judgment, this court will not review the judgment.

THE case is stated in the opinion.

Mr. D. D. Stewart for plaintiffs in error. Mr. H. B. Cleaves was with him on the brief.

Mr. Edmund F. Webb and Mr. Josiah H. Drummond for

VOL. CLXXI-41

Opinion of the Court.

defendants in error. Mr. Joseph W. Symonds was with them on the brief.

MR. JUSTICE PECKHAM delivered the opinion of the court.

This is a writ of error directed to the Supreme Judicial Court of the State of Maine, for the purpose of reviewing a judgment of that court in favor of the defendant in error, who was plaintiff below. 88 Maine, 86-100. The facts necessary to an understanding of the case are as follows:

The Somerset Railroad Company was organized in 1871, pursuant to an act of the legislature of the State of Maine, for the purpose of building and operating a railroad between Oakland, in the county of Kennebec, and Solon, in the county of Somerset, in that State. In order to obtain the money to build its road, the company, on the first day of July, 1871, executed a mortgage to three trustees, covering its railroad and franchises and all its real estate and personal property then possessed by it or to be thereafter acquired. By the terms of the mortgage the trustees were to hold in trust for the holders of the bonds of the railroad company, to be issued by it, payable as therein mentioned. The company thereupon issued and sold its bonds, secured by the mortgage, to the amount of $450,000, with proper coupons for interest attached, payable semi-annually on the first days of January and July in each year, at the rate of seven per cent, the principal of the bonds becoming due on the first of July, 1891. The proceeds of the sale of these bonds were applied to the building, equipping and operating of the road from Oakland to North Anson, a station between Oakland and the proposed terminus of the road at Solon. In 1876 the road had been completed as far as the village of Anson, twenty-five miles from Oakland, and it was opened and its cars commenced running in that year between those points. The company continued to so operate its road until September, 1883. It had, however, become insolvent some time prior to April 1, 1883, and at that time its coupons for interest on the bonds secured by the above-mentioned mortgage had been unpaid for more

Opinion of the Court.

than three years. At the time when this mortgage was given corporations could be formed by the holders of bonds secured by a railroad mortgage in the manner provided for by the statute. Chap. 51, Rev. Stat. Maine, 1871. In 1878, seven years after the execution of the mortgage, the provision for the formation of corporations by the holders of bonds was extended so as to include the case of railroad corporations where the principal of the bonds should have remained overdue for the space of three years, and by an act of March 6, 1883, the provision was still further extended so as to apply to the case in which no interest had been paid thereon for more than three years.

By virtue of the provisions of the Revised Statutes of 1871, as amended and extended by the statutes of 1878 and 1883 (both statutes as will be seen being subsequent to the execution of the mortgage), the holders of bonds of the Somerset Railroad Company, following the method provided by those statutes, on the 15th day of August, 1883 formed a new corporation under the name of the Somerset Railway. The capital stock of this new corporation was $736,648.76, made up of the principal of $150,000 of the unpaid outstanding bonds and $286,648.76 of interest thereon up to the 15th of August, 1883. This was in accordance with the provisions. of the statute that the new company should issue the capital stock to the holders of the bonds, secured by the mortgage, in the proportion of one share of stock for each one hundred dollars' worth of bonds and interest. On the 1st of September, 1883, the Somerset Railway took possession of the railroad from Oakland to Anson (which was as far as it had then been completed), and of all the other property embraced in the mortgage, and it has ever since held and operated the same. Its capital stock was divided into shares of one hundred dollars each to the amount of the bonds and overdue coupons as the law provided. The stockholders of the old company had previously on the 13th of July, 1883, at their annual meeting, voted that the bondholders should organize a new corporation under the statutes of the State, and take possession of the railroad, and at the same meeting voted to surrender possession of the road to the new corporation, the Somerset Railway.

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