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Argument for Petitioner.

erally to refuse to open what has been decided-not a limit to their power.

In a conflict between decisions of the state and Federal courts, this court is free when the case comes here.

In this case, in which the Circuit Court of Appeals construed a will as giving testator's son a life interest only with remainder that he could not affect, and the state court construed it as giving him the estate subject to the divesting clause, held, that the construction given by the state court was right and that the Circuit Court of Appeals should have followed it.

Quare whether the decision of the state court did not finally adjudicate the question of title as between the parties so as to be binding upon every court before which the title might subsequently be discussed.

171 Fed. Rep. 785, reversed.

THE facts, which involve the construction of a will affecting real estate in Ohio, and the question of whether the Federal courts should follow the state court in such a case, are stated in the opinion.

Mr. Harry E. King and Mr. Clayton M. Everett, with whom Mr. Oliver B. Snider was on the brief, for petitioner: 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 City v. West, 7 Wall. 82; Smith v. 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. Anderson v. United Realty Co., 79 Ohio St. 23; § 5970, R. S. O. (10580, Gen'l Code); Carter v. Gray, 58 N. J. Eq. 411; Chamberlain v. Owings, 30 Maryland, 447; Piatt v. Sinton, 37 Ohio St. 353; Lambert v. Paine, 3 Cranch, 97.

Argument for Petitioner.

225 U.S.

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. Abbot v. Essex Co., 18 How. 202; Parrish v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320, citing and following Abbot v. Essex Co., supra; Taylor v. Foster, 17 Ohio St. 166; Piatt v. Sinton, 37 Ohio St. 353; Martin v. Lapham, 38 Ohio St. 538; Collins v. Collins, 40 Ohio St. 353; Durfee v. MacNeill, 58 Ohio St. 238; Anderson v. United Realty Co., 79 Ohio St. 23; § 5970, R. S. O. (10580, Gen'l Code); Walker v. Walker, 20 O. C. C. 409; Darlington v. Compton, 20 O. C. C. 242; Pendleton v. 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.; Brine v. Ins. Co., 96 U. S. 627; De Vaughn v. Hutchinson, 165 U. S. 566; Clarke v. Clarke, 178 U. S. 186; Orr v. Gilman, 183 U. S. 278; East &c. Co. v. Central Co., 204 U. S. 266; Olmstead v. Olmstead, 216 U. S. 386.

The Circuit Court of Appeals erred in not following the Ohio decisions and statute. Giles v. Little, 104 U. S. 291; Britton v. Thornton, 112 U. S. 526; Roberts v. Lewis, 153 U. S. 367; Little v. Giles, 25 Nebraska, 313; Yocum v. Parker, 134 Fed. Rep. 205; Bilger v. Nunan, 186 Fed. Rep. 665.

For decisions construing statutes like the Ohio statute, see: Devecmon v. Shaw, 70 Maryland, 210; Snyder v. Baer, 144 Pa. St. 278; Kiefer v. Keepler, 173 Pa. St. 181; Simons v. Simons, 168 Massachusetts, 144; Harris v. Dyer, 18 R. I. 540; May v. San Antonio, 83 Texas, 502; Page on Wills, § 562, pp. 653, 654.

Independently of statute, the will devised only a de

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Argument for Petitioner.

feasible fee. Thompson v. Hoop, 6 Ohio St. 480; Smith v. 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; Niles v. Gray, 12 Ohio St. 320.

A limitation over after definite failure of issue creates a defeasible fee. Pells v. Brown, 3 Croke's Rep. 590; DeWolf v. Middletown, 18 R. I. 810; Toman v. Dunlop, 18 Pa. St. 72; Jordan v. Roach, 32 Mississippi, 481; Daniel v. Thompson, 14 B. Mon. (Ky.) 662; Wardell v. Allaire, 20 N. J. L. 6; Page on Wills, § 591.

The construction given the will by the Circuit Court of Appeals, 146 Fed. Rep. 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 in Shaw v. Hoard, 18 Ohio St. 228, but the opposite as in Anderson v. United Realty Co., 79 Ohio St. 23, and cases therein cited. In Georgia, not as in Wetter v. United &c. Co., 75 Georgia, 540, but the opposite as in Matthews v. Hudson, 81 Georgia, 126; Chewing v. Shumate, 106 Georgia, 751; Hill v. Terrell, 123 Georgia, 49; Kinard v. Hale, 128 Georgia, 485. Carr v. Green, 2 McCord (S. C.), 75, construed a will which was given exactly the opposite construction in Carr v. Jeanerett, 2 McCord (S. C.), 66. See also Carr v. Porter, 1 McCord Ch. 60; Shaw v. Erwin, 41 So. Car. 209; Bond v. Moore, 236 Illinois, 576. Other cases overruling Carr v. Green are: Durant v. Nash, 30 So. Car. 184; Gordon v. Gordon, 32 So. Car. 563; Powers v. Bullwinkle, 33 So. Car. 293; Thompson v. Peake, 38 So. Car. 440; Sheppard v. Jones, 77 So. Car. 274.

Argument for Respondent.

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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. Jordon v. Roach, 32 Mississippi, 481; Sims v. Conger, 39 Mississippi, 231; Busby v. Rhodes, 58 Mississippi, 237; Johnson v. DeLome, 77 Mississippi, 15; Halsey v. Gee, 79 Mississippi, 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. Hart v. Thompson, 42 Kentucky, 482; Daniel v. Thompson, 53 Kentucky, 562; Harris v. Berry, 70 Kentucky, 113; Sale v. Crutchfield, 71 Kentucky, 636; Crozier v. Cundall, 99 Kentucky, 202; Smith v. Ballard, 117 Kentucky, 179; Harvey v. Bell, 118 Kentucky, 512; Rice v. Rice, 118 S. W. Rep. 270 (Ky.); Williamson v. Tunis, 107 Tennessee, 83; Mullreed v. Clark, 110 Michigan, 229.

Mr. Rhea P. Cary and Mr. C. H. Trimble for 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; Jackson v. Bull, 10 Johns. 19; Burleigh v. 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. Kelly v. Meins, 135 Massachusetts, 234; Ramsdell v. Ramsdell, 8 Maine, 205; Larned v. Bridge, 17 Pick. 339; Burleigh v. 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. Dooley v. Baines, 86 Virginia, 648; Dodge v. Freedmen's S. & T. Co., 93 U. S. 379; Henderson v. Wanamaker, 79 Fed. Rep. 738; Baker v. Humphrey, 101 U. S.

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499; 2 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. Holton v. White, 23 N. J. L. 330, Lytle v. Beveridge, 58 N. Y. 592; In re Moore's Estate, 11 Misc. Rep. 436; Bentley v. Kaufman, 12 Phila. 435; In re McAlpin's Estate (Pa.), 60 Atl. Rep. 321; Beilstein v. Beilstein, 194 Pa. St. 152.

Parrish v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320; Taylor v. Foster, 17 Ohio St. 166; Piatt v. Sinton, 37 Ohio St. 353; Martin v. Lapham, 38 Ohio St. 538; Collins v. Collins, 40 Ohio St. 353; Anderson v. United Realty 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, citing Campbell v. Thomas, 42 Wisconsin, 437; Miller v. Sears, 91 California, 282; Prutsman v. Baker, 30 Wisconsin, 644; In re Cornelius' Estate, 151 California, 550. And see Shirley v. Heirs, 14 Ohio St. 310; Provart v. Harris (Ill.), 39 N. E. Rep. 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. Willcox v. Consolidated Gas Co., 212 U. S. 19.

MR. JUSTICE HOLMES delivered the opinion of the court. This is an action of ejectment for land in Toledo, Ohio,

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