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ment. The court further said: "The state- | Ct. Rep. 167 (which was the case of cerment (embodied in the certificate and oc- tified questions from a circuit court of apcupying three closely printed pages in the peals), the rule as announced in the Rider record) of what the judges below call 'the Case was affirmed. To the same effect are facts found' is in truth a narrative in detail | Graver v. Faurot, 162 U. S. 435, 436, 40 L. ed. of various circumstances as to the debtor's 1030, 1031, 16 Sup. Ct. Rep. 799; Cross v. pecuniary condition, his dealings with the Evans, 167 U. S. 60, 64, 42 L. ed. 77, 78, parties to this suit and with other persons, 17 Sup. Ct. Rep. 733; McHenry v. Alford, and the extent of the preferred creditors' 168 U. S. 657, 658, 42 L. ed. 616, 617, 18 knowledge of his condition and dealings. It Sup. Ct. Rep. 242. is not a statement of ultimate facts, leaving nothing but a conclusion of law to be drawn ; but it is a statement of particular facts, in the nature of matters of evidence, upon which no decision can be made without inferring a fact which is not found. The main issue in the case, upon which its decision must turn, and which the certificate attempts in various forms to refer to the determination of this court, is whether the sale of goods was fraudulent as against the plaintiffs. That is not a pure question of law, but a question either of fact or of mixed law and fact. . . Not one of the questions certified presents a distinct point of law; and each of them, either in express terms or by necessary implication, involves in its decision consideration of all the circumstances of the case. • "They are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;' and 'It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so.' Waterville v. Van Slyke, 116 U. S. 699, 704, 29 L. ed. 772, 774, 6 Sup. Ct. Rep. 662." See also Fire Ins. Asso. v. Wickham, 128 U. S. 426, 434, 32 L. ed. 503, 506, 9 Sup. Ct. Rep. 113.

In United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983, the Chief Justice, speaking for the court, said that "it has always been held that the whole case could not be certified," and that "under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated." In that case it was also held that certificates of questions of law by the circuit courts of appeals under the judiciary act of March 3d, 1891, are governed by the same general rules as were formerly applied to certificates of division of opinion in the circuit court, citing Columbus Watch Co. v. Robbins, 148 U. S. 266, 37 L. ed. 445, 13 Sup. Ct. Rep. 594; Maynard v. Hecht, 151 U. S. 324, 38 L. ed. 179, 14 Sup. Ct. Rep. 353.

In United States v. Union P. R. Co. 168 U. S. 505, 512, 41 L. ed. 559, 561, 18 Sup.

The present certificate brings to us a question of mixed law and fact, and, substantially, all the circumstances connected with the issue to be determined. It does not present a distinct point of law, clearly stated, which can be decided without passing upon the weight or effect of all the evidence out of which the question arises. The question certified is rather a condensed, argumentative narrative of the facts upon which, in the opinion of the judges of the circuit court of appeals, depends the validity of the live-stock contract in suit. Thus, practically, the whole case is brought here by the certified question, and we are, in effect, asked to indicate what, under all the facts stated, should be the final judgment. It is, obviously, as if the court had been asked, generally, upon a statement of all the facts, to determine what, upon those facts, is the law of the case. We thus state the matter, because it is apparent that the case turns altogether upon the question propounded as to the validity, in view of all the facts stated, of the contract under which the plaintiff's cattle were transported. This court is without jurisdiction to answer the question certified in its present imperfect form and the certificate must be dismissed. Sadler v. Hoover, 7 How. 646, 12 L. ed. 855. It is so ordered.

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"without leaving a wife or child," unless the whole context of the will plainly and beyond question requires such substitution in order to give effect to the intention of

the testator.

Marriage per verba de præsenti.

2. Persons whose alleged marriage in Virginia might have been invalid for want of a license had they remained there, and might also, for want of a religious ceremony, have been invalid in Maryland, where they afterwards resided, must be deemed married in New Jersey, when, as husband and wife, they took up their permanent residence there, and lived together in that relation continuously in good faith and openly up to the time of the man's death, being regarded by themselves and in the community as husband and wife, since their conduct towards each other in the eye of the public while in New Jersey, taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife, which was as effective to establish the status of marriage in New Jersey as if it had been made in words of the present tense after they became domiciled in that state.

[No. 76.]

By the first item of the will certain lots are devised to the testator's son Elias "and his heirs and assigns forever in fee simple." By the same item other lots are devised to the same son, "which last two devises shall be subject to the general provision hereinafter made in case of any sons dying without leaving a wife or child or children."

By the second item the testator devised lot 5, in square 291, to his son "Joseph Travers and his heirs forever," and two other specified lots "to him and his heirs forever, in fee simple;" lot 5 "being subject to the general provision aforesaid hereafter made."

By the third item he devised to his son Nicholas and his heirs forever certain lots in square 291 "subject to the general provision hereinafter made;" also "to him and his heirs forever, in fee simple," other real estate in square 36, and a designated parcel of ground in square 291, "said piece or parcel of ground to be subject to the general provision hereafter made."

By the fourth item certain devises are made to the son "James Travers and his heirs forever," "all of which devises are to be subject to the general provision hereinafter made."

Here follows, at the close of the fourth

Argued November 1, 2, 1906. Decided April item, the "general provision" referred to:

A

15, 1907.

PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District, confirming a report of the auditor in a suit for partition, and decreeing the distribution of the proceeds of the sale in accordance therewith. Affirmed. See same case below, 25 App. D. C. 567. The facts are stated in the opinion. Messrs. Bernard Carter, Arthur A. Birney, Charles H. Stanley, Edward A. Newman, and Fillmore Beall for appellants.

"With regard to the several estates hereinbefore devised to my several sons, it is hereby declared to be my will, and I do order and direct, as a general provision, that if any of my sons should die without leaving a a child or children living at wife or his death, then his estate herein devised to him, saving and excepting those portions thereof expressly granted and so named to be 'in fee simple,' and which they can sell and dispose of as they think fit, shall go, and be invested in fee, to my surviving sons and the child or children of such as may be dead, such child or children representing the share of the father; but if either of my sons shall, at his death, leave a wife either with or without a child or children, such wife shall * Mr. Justice Harlan delivered the opinion be entitled to her dower rights and privof the court:

Messrs. George E. Hamilton, M. J. Colbert, William A. Gordon, and J. Holdsworth Gordon for appellees.

This suit was originally brought for the partition or sale of certain real estate in the city of Washington devised by the will (and codicils thereto) of Nicholas Travers, who died in the year 1849, leaving four sons and three daughters.

The only parts of that estate remaining in dispute are certain lots in square 291 in Washington, and the questions to be determined depend upon the construction of that will and upon the evidence touching the alleged marriage of James Travers, a son of the testator, with Sophia V. Grayson.

ileges."

This was followed in the will by certain devises for the benefit of the daughters, as well as by several codicils to the will, but it is not necessary to give their provisions in detail.

By a codicil, dated June 26th, 1848, the testator revoked certain parts of his will, providing:"And in lieu thereof I do hereby give and devise all of said lots or part of lots, so as aforesaid described, with the house and other improvements and appurtenances, to my son James and his heirs, subject to the express stipulations and restric

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tions contained in the will to which this | very dangerous to conjecture against that, is a codicil, wherein I declare that all and every portion of my real estate not devised by the use of the words 'in fee simple' shall be held by such devisees for life, and then according to stipulations and restrictions as therein contained and declared by said will."

It is contended here, as it was in the courts below, that the words in the above general provision, that “if any of my sons should die without leaving a wife or child or children living at his death," should be interpreted as if it read "if any of my sons should die without leaving a wife and child or children living at his death." The court is thus asked, by interpretation, to substitute the word "and" in place of "or" in the above sentence.

Looking at all the provisions of the will, and ascertaining, as best we may, the intention of the testator, we perceive no reason for interpreting the words used by him otherwise than according to their ordinary, natural meaning.

upon no better foundation than simply that it is improbable the testator could have meant to do one thing by one set of words, having done another thing, using other words, as to persons in the same degree of relation to him." It would seem clear that the words "without leaving a wife or child or children," where they first appear in the above general provision, were purposely chosen. They appear three times in the will, and their usual meaning is not doubtful. We think the testator meant "or," not "and." The court would not be justified in making the proposed substitution unless the whole context of the will plainly and beyond question requires that to be done in order to give effect to the will of the testator. That the words in the general provision, "without leaving a wife or a child or children," were deliberately selected, is to some extent shown by the last sentence in the first item of the will, "which two devises shall be subject to the general provision herein. after made in case of any sons dying with

We do not think that the testator used the word "or," intending thereby to convey the same thought as would be expressed by "and." We concur with the court of appeals, speaking by Chief Justice Shepard, in holding that the words in question are unambiguous, and their obvious, ordinary meaning must not be defeated by conjecture. 25 App. D. C. 567, 576.

The important question remains whether James Travers, the son of the testator, died leaving a wife or a child or children. If he did, then the decree below must be affirmed.

It is insisted by appellants that the gen-out leaving a wife or child or children." eral, dominant purpose of the testator was that his real estate should descend only through his sons, and that his daughters and their descendants should have no share therein. And the doctrine is invoked that "the predominant idea of the testator's mind, if apparent, is heeded as against all doubtful and conflicting provisions which might of themselves defeat it. The general intent and particular intent being inconsistent, the latter [the particular] must be sacrificed to the former [the general intent]." Schouler, Wills, § 476. This general doctrine is not controverted, but there are other cardinal rules in the interpretation of wills which must be regarded. Mr. Justice Story, speaking for this court, said that effect must be given "to all the words of a will, if, by the rules of law, it can be done. And where words occur in a will their plain and ordinary sense is to be attached to them, unless the testator manifestly applies them in some other sense.' Wright v. Denn, 10 Wheat. 204, 239, 6 L. ed. 303, 312. "The first and great rule in the exposition of wills," said Chief Justice Marshall, "to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided

it be consistent with the rules of law." Smith v. Bell, 6 Pet. 68, 75, 8 L. ed. 322, 325; Finlay v. King, 3 Pet. 346, 377, 7 L. ed. 701, 712. The same thought, in substance, was expressed by Lord Chancellor Eldon in Crooke v. De Vandes, 9 Ves. Jr. 197, 205. He said that "where words have once got a clear, settled, legal meaning, it is

The original bill averred that James Travers died in 1883 "without widow or lawful child or children or descendants of a child or children surviving him." This averment was not specifically denied in the answers, but in the progress of the cause the defendants, children of the sisters of James Travers, amended their answer and alleged that he left surviving him "his widow, Sophia V. Travers, now Sophia V. O'Brien, who was his lawful wife at the time of his death and who had been his lawful wife for many years prior thereto, and he left one child, Annie E. Travers, one of the defendants herein, who was his lawful child.” The issue thus made constituted the principal matter to which the proof was directed. Both of the courts below held that under the evidence Sophia V. was to be deemed the lawful wife of James Travers at the time of his death. Children were born to them, but they died very young. It is conceded that they left no child surviving them,

2

Annie E. Travers being only an adopted ing to be and recognized in the community child.

The appellants insisted throughout the case, and now insist, that the relation between James Travers and Sophia V. was not at any time one of a matrimonial cohabitation, but an illicit or meretricious cohabitation, which did not create the relation of husband and wife.

Upon a careful scrutiny of all the evidence as to the alleged marriage we think that the following facts may be regarded as established:

as the widow of James Travers, married a lawyer of Philadelphia, the ceremony being performed at the Catholic church in Point Pleasant.

From the 15th of August, 1865, up to his death, on the 1st day of November, 1883,a period of more than eighteen years,-Travers and Mrs. Travers continuously cohabited as husband and wife. During all that period they acted as if they were lawfully husband and wife, and uniformly held themselves out as sustaining that relation; and beyond all question they were regarded as husband and wife in the several communities in which they lived after leaving Alexandria in 1865. There is no proof that anyone coming in contact with them regard.

1. James Travers, whose domicil was in the District of Columbia, and Sophia V. Grayson, whose domicil was in West Virginia, were in Alexandria together on the 15th of August, 1865, when some sort of marriage ceremony (exactly what does not ap-ed them otherwise. pear) was performed by a friend of Travers, whom the woman, then only about seventeen years of age, and without living parents, supposed at the time was a minister, entitled to officiate in that capacity at a marriage. She thought it was a real marriage by a minister, although he did not produce or have any license to solemnize the marriage of these parties. It must be taken upon the evidence that he was not a minister. By the statutes of Virginia then in force it was provided: "Every marriage in this state shall be under a license and solemnized in the manner herein provided, but no marriage solemnized by any persons professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such persons, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage."

2. Immediately after the affair at Alexandria the parties-the woman, from and after that occasion, assuming the name of Mrs. Travers-left Virginia and went to Shrewsbury, New Jersey, where, as husband and wife, they remained for a short time, after which they went to Belair, Harford county, Maryland, living there, as husband and wife, at a rented place.

3. In 1867 Travers purchased a farm in Talbot county, Maryland, on which he lived with said Sophia until some time in 1883, when that farm was sold, and, on account of Travers's health, they removed to Point Pleasant, New Jersey, and purchased property there, having lived on the Talbot county farm, as husband and wife, for more than fifteen years. Travers died at Point Pleasant in the latter part of the year 1883, and five years after his death the woman, claim

|

5. About five or six years after the latter date Mrs. Travers learned, for the first time, that Travers's "friend," who had officiated at the ceremony in Alexandria, was not a minister. She was asked, when giving her deposition, this question: "Q. After you discovered, some four or five years after you went to live with Mr. Travers, that you had not been married to him according to any ceremony, did he ever make any promise to you in that regard? A. Always. Poor fellow, he would have it all right- Mr. Birney. We object to that. Q. And what did he say? A. Well, he would always say that it was all right, and we were just as much married as if we had been married before a priest or a minister." Upon the basis of their being husband and wife the parties continuously rested their relations to each other up to the death of Travers.

6. That Travers recognized Mrs. Travers as his wife and held her out as such, appears from many facts: (a) In a mortgage executed September 27th, 1867, to secure the balance of the purchase money due on the Talbot county farm, the mortgagors are described, both in the body of the mortgage as "James Travers and Sophia V. Travers, his wife, of Harford county, in the state of Maryland," and in the certificate of ac knowledgment as "James Travers and Sophia V. Travers, his wife," and she signed and acknowledged the mortgage as Sophia V. Travers. (b) By a mutilated, holographic will dated February 8th, 1881, and signed by James Travers, he gave, devised, and bequeathed "to my wife, Sophy Virginia Travers," all his household furniture, books, pictures, etc., to have and to hold the same to her, and her executors, administrators, and assigns forever; also, to her the use, improvement, and income of his dwelling house and farm, "to have and to hold the same to her for and during her

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