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duty of said court, pursuant to due process of appeals should, by its remittitur, confer of law, the law of the land, and the pro-power upon said subordinate courts to envisions of the Constitutions of the state of tertain and try the said issues. New York and of the United States, to re- "Thereupon these complainants duly made quire and order that said issues should be in application to said court of appeals so to fact considered, passed upon, and included in frame its said remittitur as to permit said judgment by the trial court, and until that subordinate courts to entertain and try the should be done said court could not duly ad- said issues, which application said court judge or determine whether any error had denied.” been committed in such determination upon To these bills the defendants filed pleas of said issues.

res judicata, claiming that the controversy “Nevertheless, said court at said general between the parties was finally settled by term did not so require or order, but by the decision of the state court. These pleas various fictions of law imputed to said trial were accompanied by an answer, denying term and court below that it had determined the allegations of fraud. The circuit court said issues and had decided in favor of the sustained the pleas, and dismissed the bill plaintiffs in said action upon such determi- and cross bill on the ground that the cause nation, contrary to the truth and fact, and of action set forth in them was barred by thereupon pretended to adjudge and deter- the prior judgment of the state court. From mine, as such court for the correction of this decree of dismissal the plaintiffs aperrors, that there was not sufficient prepond pealed directly to this court. erance of evidence to support the asserted invalidity of said releases to render such im- Messrs. Roger M. Sherman and Wilputed determination of said trial court er liam Blaikie for appellants. roneous as matter of law, but that such im. Messrs. Elihu Root, James L. Bishop, puted determination was supported by evi- John E. Parsons, C. N. Bovee, Jr., Thomas dence sufficient to relieve the same from the H. Hubbard, William Forse Scott, William assignment of error in so deciding.

Ford Upson, John McL. Nash, Stewart L. “It was not competent for said general Woodford, Horace Russell, Henry L. Stimterm to have exercised an original jurisdic-son, Alfred W. Kiddle, Seth Sprague Terry, tion, and to have adjudged said issues, and George G. Reynolds, Henry B. Twombly, Hathereupon to have modified said judgment ley Fiske, Henry Stoddard, for appellees. so as to include the actual determination Mr. Charles

Charles Andrews for the widow thereof; and said general term did not exer- and next of kin, upon the question of res cise such power, but confined its action judicata. wholly to the consideration of errors in the record,

Mr. Justice Brewer delivered the opinion “Thereupon said judgment was by appeals of the court: taken from the. judgment of affirmance so Our jurisdiction of this direct appeal rendered, in which appeals these complain from the decision of the circuit court is inants were respondents as well as appellants, voked on the ground that the case involves and reviewed by the court of appeals of the the application of the Constitution of the state of New York.

United States. “Said court determined that these com- The contention is that, by article 5 of the plainants had no standing to be heard or to Amendments to the Federal Constitution, no have their rights determined by said court person can "be deprived of life, liberty, or of appeals, because the limitations imposed property, without due process of law;” that by statute upon the jurisdiction of said these plaintiffs were entitled to large shares court precluded any inquiry into the facts, of the estate of Daniel B. Fayerweather; the proof, or the merits of the said issues, that they were deprived of this property by but the said court was bound by the formal the judgment of the circuit court, which record procured as aforesaid, and by the fic- gave unwarranted effect to a judgment of tions thereby adjudged as aforesaid, and had the state courts; that this action of the cirno power to review the same.

cuit court is not to be considered a mere “During the pendency of the appeals error in the progress of a trial, but a depriaforesaid, the control of the several courts vation of property under the forms of legal below over said action, and the trial thereof, procedure. In Chicago, B. & Q. R. Co. v. and the correction of any injustice arising Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. as aforesaid, was suspended, and upon the Ct. Rep. 581, we held that a judgment of a affirmance of said judgment of affirmance, state court might be here reviewed if it by the statutes of the state of New York operated to deprive a party of his property any correction of the injustice arising as without due process of law, and that the aforesaid was placed beyond the power of fact that the parties were properly brought any court of said state, except as the court 'into court and admitted to make defense was not absolutely conclusive upon the ques- this, that court came to its conclusion and tion of due process. We said (p. 234, L. ed. rendered its judgment without any deterp. 983, Sup. Ct. Rep. 584):

mination thereof; that the appellate courts “But a state may not, by any of its agen- wrongfully assumed that the trial court had cies, disregard the prohibitions of the 14th decided the question, and rendered their Amendment. Its judicial authorities may judgments on that assumption, so that the keep within the letter of the statute pre necessary result of the proceedings in the scribing forms of procedure in the courts, state courts was a deprivation of the right and give the parties interested the fullest of the plaintiffs to a share of the estate, opportunity to be heard, and yet it might without any finding of the vital fact which be that its final action would be inconsist- alone could destroy their right. The conent with that amendment. In determining tention is not that the state courts erred in włat is due process of law, regard must be their finding in respect to this fact, but had to substance, not to form. This court, that there never was any finding. Such dereferring to the 14th Amendment, has said: cision of the state courts, made without any *Can a state make anything due process of finding of the fundamental fact, was aclaw which, by its own legislation, it chooses cepted in the circuit court of the United to declare such? To affirm this is to hold States as a conclusive determination of the that the prohibition to the states is of no fact. Although these plaintiffs were parties avail, or has no application where the in- to the proceedings in the state courts, and vasion of private rights is effected under the presented their claim of right, if it be true forms of state legislation.' Davidson v. New that the necessary result of the course of Orleans, 96 U. S. 97, 102, 24 L. ed. 616, 618. procedure in those courts was a denial of The same question could be propounded, their rights,-a taking away and depriving and the same answer should be made, in ref- them of their property without any judicial erence to judicial proceedings inconsistent determination of the fact upon which alone with the requirement of due process of law. such deprivation could be justified,--a case If compensation for private property taken is presented coming directly within the defor public use is an essential element of cision in 166 U. S. 226, 41 L. ed. 979, 17 due process of law as ordained by the 14th Sup. Ct. Rep. 581. Giving effect in the cir

. Amendment, then the final judgment of a cuit court to the state judgment does not state court, under the authority of which change the character of the question. It is the property is in fact taken, is to be deemed simply adding the force of a new determinathe act of the state within the meaning of tion to one wrongfully obtained, and addthat amendment."

ing it upon no new facts. Whether the And again (p. 236, 237, L. ed. p. 985, Sup. contention of the plaintiffs in respect Ct. Rep. p. 584):

to the character of the state proceedings "The mere form of the proceeding insti

can be sustained or not is a question upon tuted against the owner, even if he be ad. the merits, and does not determine the matmitted to defend, cannot convert the process ter of jurisdiction. That depends upon used into due process of law, if the neces- whether there is presented a bona fide and sary result be to deprive him of his property reasonable question of the wrongful charwithout compensation."

If a judgment of a state court can be reacter of the proceedings in the state courts. viewed by this court on error upon the and the necessary result therefrom. We are ground that, although the forms of law were of opinion that the jurisdiction of this court observed, it necessarily operated to wrong. must be sustained. fully deprive a party of his property (as We pass, therefore, to consider the merits indicated by the decision just referred to), of the case. Private right and public wela judgment of the circuit court of the fare unite in demanding that a question once United States, claimed to give such un- adjudicated by a court of competent juriswarranted effect to a decision of a state diction shall, except in direct proceedings to court as to accomplish the same result, may review, be considered as finally settled and also be considered as presenting the question conclusive upon the parties. Interest reihow far it can be sustained in the view of publicæ ut sit finis litium. But in order to the prohibitory language of the 5th Amend make this finality rightful it should appear ment, and thus involve the application of that the question was distinctly put in the Constitution. It is said that the right issue; that the parties presented their eviof these plaintiffs to share in the estate of dence, or at least had an opportunity to preDaniel B. Fayerweather is undoubted, un- sent it, and that the question was decided. less destroyed by the releases they executed; Cases of an alleged prior adjudication have that the fundamental question presented in frequently been presented in this court and the trial court of the state was the validity the scope of a plea thereof fully determined. of those releases; that, notwithstanding In the leading case of Cromwell v. Sao

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County, 94 U. S. 351, 352, 24 L. ed. 195, 197, Bryar v. Campbell, 177 U. S. 649, 44 L. ed. we said:

926, 20 Sup. Ct. Rep. 794; United States v. In considering the operation of this California & O. Land Co. 192 U. S. 355-358, judgment, it should be borne in mind, as 48 L. ed. 476-478, 24 Sup. Ct. Rep. 266. stated by counsel, that there is a difference The state court was one of competent jubetween the effect of a judgment as a barrisdiction, and the present contestants were or estoppel against the prosecution of a before that court, taking part in the litigasecond action upon the same claim or de- tion. The validity of the releases was put mand, and its effect as an estoppel in an- in issue by the pleadings, and no judgment other action between the same parties upon could properly have been rendered without a different claim or cause of action. In the a determination of that question. The colformer case, the judgment, if rendered upon leges sought to enforce a secret trust, but the merits, constitutes an absolute bar to a the property covered by the trust, together subsequent action. It is a finality as to the with that passing under the 9th article of claim or demand in controversy, concluding the will, was the bulk of the estate, -far parties and those in privity with them, not more than half. Such a disposition of the only as to every matter which was offered testator's property was in contravention of and received to sustain or defeat the claim the laws of New York. They who would or demand, but as to any other admissible take the estate in case of intestacy had a matter which might have been offered for right to object to the enforcement of the that purpose. Thus, for example, a judg- trust. Only on condition that they waived ment rendered upon a promissory note is their objections and released could it be susconclusive as to the validity of the instru- tained. The judgment enforced it. It therement and the amount due upon it, although fore practically determined that the releases it be subsequently alleged that perfect de-were valid, and decided against the contenfenses actually existed, of which no proof tion of these plaintiffs, that they were was offered, such as forgery, want of con- fraudulent and void. All this is evident sideration, or payment. If such defenses from a perusal of the pleadings. The appelwere not presented in the action, and es-lants concede this and rest their claim in tablished by competent evidence, the subse the Federal court partly upon that basis. quent allegation of their existence is of no Thus, in their brief it is said: legal consequence. The judgment is as con- “The issues so joined came on to be tried clusive, so far as future proceedings at law in the state supreme court; these complain. are concerned, as though the defenses never ants gave evidence tending to prove their existed. The language, therefore, which is allegations, and thereupon it became the so often used, that a judgment estops not duty of the court to adjudge whether the only as to every ground of recovery or de releases which they assailed were invalid, fense actually presented in the action, but and whether they were entitled to the af. also as to every ground which might have firmative relief prayed. The issues so tenbeen presented, is strictly accurate, when dered were necessary to be determined beapplied to the demand or claim in con- fore any valid judgment upon those issues troversy. Such demand or claim, hav- could be given pursuant to due process of ing passed into judgment, cannot again be law, the law of the land and the provisions brought into litigation between the parties of the Constitution of the United States." in proceedings at law upon any ground The case was tried by the court without whatever."

a jury. No special findings of fact were See also Wilson v. Deen, 121 U. S. 525, made. According to testimony given on the 30 L. ed. 980, 7 Sup. Ct. Rep. 1004; Hefner trial of this case in the circuit court the v. Northwestern Mut. L. Ins. Co. 123 U. S. omission to make special findings was with 747, 31 L. ed. 309, 8 Sup. Ct. Rep. 337 ; | the acquiescence (if not at the instance) of Wiggins Ferry Co. v. Ohio & M. R. Co. 142 all the counsel appearing in the state court. U. S. 396, 35 L. ed. 1055, 12 Sup. Ct. Rep. The decree adjudged that the residuary es188; Nesbit v. Independent District, 144 tate was held in trust for the colleges U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Rep. named in the 9th article of the will, en746; Johnson Steel Street Rail Co. v. Whar- joined the residuary legatees from distributton, 152 U. S. 252, 38 L. ed. 429, 14 Sup. Ct. ing any portion of that estate under the Rep. 608; Dowell v. Applegate, 152 U. S. deed of gift, and directed that it be paid 327, 38 L. ed. 463, 14 Sup. Ct. Rep. 611; over to the respective colleges. The ordiLast Chance Min. Co. v. Tyler Min. Co. 157 nary rule in respect to a judgment without U. S. 683, 39 L. ed. 859, 15 Sup. Ct. Rep. any special findings is that it, like a general 733; New Orleans v. Citizens' Bank, 167 U. verdict of a jury, is tantamount to a finding S. 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905; in favor of the successful party of all the Southern P. R. Co. v. United States, 168 facts necessary to sustain the judgment. In U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; 'the general term, on the appeal taken to it,

25 S. C.-5.


two opinions were filed,--one by Judge Fol- not specified in the record. Otherwise the lett, in which Judge Parker concurred, and burden of deciding questions of fact would one by the presiding judge, Van Brunt. be cast upon this court, which has jurisdicJudge Follett, after stating that the execu- tion to decide only questions of law. We tors of the testator's widow and two of his think that the effect of a decision by the heirs at law and next of kin sought to have trial court without expressing the facts the residuary clause declared invalid, under found is the same as if there had been a chap. 360 of the Laws of 1860, said:

general verdict rendered by a jury, and that “The difficulty with their contention is the same presumptions arise in its support. that the widow and heirs released all of their interest in the estate for valuable con- “We are of the opinion, therefore, that siderations paid to them. .. It is where the decision of the special term does urged that these releases were procured by not state the facts found, and the judgment fraud and undue influence. There is no evi- entered thereon has been affirmed by the gendence in the record justifying this conten-eral term, upon an appeal to this court all tion. The terms of settlement were agreed the facts (alleged in the complaint] warranton during the controversy in the surrogate's ed by the evidence, and necessary to support court over the probate of the will and codi- the judgments below, are presumed to have cils, and the widow and heirs were repre- been found. Hence, upon such an appeal, sented in that controversy, and in the set- we have no more control over the facts than tlement by distinguished counsel, and acted we have when specific findings are made by under their advice.

If the person the special term and affirmed by the general entitled to contest a will, or some one or term. This conclusion takes the question as more of its provisions, voluntarily, and for to the fraud alleged to have been practised a valuable consideration, received after the by the residuary legatees upon the widow testator's death, with full knowledge of the and next of kin in procuring the releases invalidity of the will, devests himself of all out of the case, for it cannot be said on the interest in the property attempted to be dis- record before us that the evidence tending posed of by it, he cannot impeach its valid- to show fraud is so irresistible as to make ity.”

the omission to find fraud an error of law. Presiding Judge Van Brunt thus stated Assuming that there was evidence enough to his conclusions :

warrant the inference of fraud, there was al"The testator left him surviving a widow, so ample evidence to warrant the inference who was the only person who could call into that there was no fraud. A question of fact operation, for her protection, the statute was thus presented which is beyond our which we have quoted. The widow, however, power of review.[151 N. Y. 320, 321, 37 has released to the executors all claims to L. R. A. 320, 45 N. E. 886.] the estate, which release cannot be success- Thus the court of appeals held in accord fully attacked or set aside. There is conse- with the ordinary ruling as to the effect of quently no person for whose benefit the stat- a judgment without findings. So it has freute can operate.

quently decided.

In Bartlett v. Goodrich, “No rights of heirs and next of kin have 153 N. Y. 421, 424, 47 N. E. 794, 795, it been infringed upon, because the trust does said: not contravene any statute for their benefit, “The learned trial judge held that the and is not the subject of attack by them. plaintiff was entitled to recover, and the If it were, they have also executed a release general term has affirmed the judgment. of their interest in the estate in the same There were no findings made as the result manner as the widow.

of the trial, but simply a brief statement of “We have therefore the case of a trust the ground of the decision. In this condiestablished, which would be valid as against tion of the record we must presume that all all the world but for the statute in favor of facts warranted by the evidence, and necesthe widow; and the widow, having released sary to support the judgment, have been all her rights in the estate, how can her rep- found. Amherst College v. Ritch, 151 N. Y. resentatives claim the invalidity of a trust 282, 37 L. R. A. 305, 45 N. E. 876. The as to property in which she had no inter- appeal, therefore, cannot prevail unless it est ?” [91 Hun, 534, 36 N. Y. Supp. 576.] appears, as matter of law, that the learned

The opinion in the court of appeals was trial judge was not warranted, upon any delivered by Judge Vann, and concurred in fair view of the evidence, in finding as he by all the judges except Chief Judge An- did, that the deceased was, at the time of drews. In it it is said:

his death, the equitable owner of the poli. “Although the decision by the special cies.” term and the affirmance by the general term See also New York Security & T. Co. v. were general in form, necessarily some facts Lipman, 157 N. Y. 551, 556, 52 N. E. 595; were found by those courts, even if they are' Garvey v. Long Island R. Co. 159 N. Y. 323,

328, 70 Am. St. Rep. 550, 54 N. E. 57; Reed states “the view that I have taken of the v. McCord, 160 N. Y. 330, 334, 54 N. E. 737; facts and the law of this case renders it Solomon v. Continental F. Ins. Co. 160 N. Y. unnecessary for me to consider the very in595, 598, 46 L. R. A. 682, 73 Am. St. Rep. teresting questions of law propounded by 707, 55 N. E. 279; Rodgers v. Clement, 162 the learned counsel for the defendants ReyN. Y. 422, 427, 76 Am. St. Rep. 342, 56 nolds, Achter, and Fayerweather;" and, fiN. E. 901; National Harrow Co. v. Bement nally, the testimony of the trial judge, given & Sons, 163 N. Y. 505, 510, 57 N. E. 764; on the hearing in this case some six years Niagara Falls v. New York C. & H. R. R. after his decision in the state court, to the Co. 168 N. Y. 611, 61 N. E. 185; Critten v. effect that, in deciding the case he did not Chemical Nat. Bank, 171 N. Y. 219, 231, 57 consider the question of the validity of the L. R. A. 529, 63 N. E. 969; Hutton v. Smith, releases. 175 N. Y. 375, 378, 67 N. E. 633.

It is undoubtedly true that, in some cases, After the filing of its opinion an applica- evidence may be introduced outside the rection made to the court of appeals, as shown ord to show what particular question was in the statement of facts, to amend the re-tried and determined in the former suit. mittitur so as to direct the trial court to Washington, A. & G. Steam-Packet Co. v. find specifically whether the releases were Sickles, 24 How. 333, 344, 16 L. ed. - 650, valid or not, was denied.

654, 5 Wall. 580, 592, 18 L. ed. 550, 553; We have thus the case of a hearing in the Russell v. Place, 94 U. S. 606, 608, 24 L. ed. trial court upon issues which required a de- 214, 215. But it does not follow that testitermination of the validity of these releases mony of every kind is admissible for that as a condition of a judgment adverse to purpose. In Washington, A. & G. Steamthese plaintiffs; a judgment against them; Packet Company v. Sickles, although it was an affirmance of the judgment by the general held that "in cases where the record itself term of the supreme court, with an opinion does not show that the matter was necesdeclaring that there was in the record no sarily and directly found by the jury, evievidence justifying the claim that these re- dence aliunde consistent with the record leases were fraudulently obtained, and void; may be received to prove the fact,” yet, it and a further affirmance by the court of ap- appearing that some of the jurors on the peals, accompanied by an opinion declaring former trial were permitted to testify as to that, upon the state of the record, it was to the particular ground upon which they be presumed that the validity of the releases found their verdict, it was said (p. 593, L. had been affirmatively found, and also that ed. p. 554): there was sufficient evidence to sustain such “But it is proper to say that the secret a finding, followed by a refusal to send the deliberations of the jury or grounds of their question of the validity of the releases back proceedings while engaged in making up to the trial court for consideration. Not their verdict are not competent or admissiwithstanding all this, apparent upon the ble evidence of the issues or finding. The face of the record, the plaintiffs insist that jurors oftentimes, though they may concur the validity of the releases was never de in the result, differ as to the grounds or termined by any of the state courts, and reasons upon which they arrive at it. that the final judgment of affirmance by the “The evidence should be confined to the court of appeals was based upon the pre-points in controversy on the former trial sumption of a determination which was to the testimony given by the parties, and to never in fact made.

the questions submitted to the jury for their Upon what is this contention based ? First, consideration, and then the record furnishes the silence of the judgment, which contains the only proper proof of the verdict." no findings to indicate upon what it is See also Wood v. Jackson, 8 Wend. 9–36, based; second, a memorandum of decision 22 Am. Dec. 603; Lawrence v. Hunt, 10 filed by the trial judge, in which he states Wend. 80-85, 25 Am. Dec. 539. that "the grounds upon which the issues Tested by the rule thus laid down the have been decided are” a promise of the testimony of the trial judge, given six years executors that if made residuary legatees after the case had been disposed of, in rethey would distribute the residuary estate spect to the matters he considered and among the colleges named in the 9th article, passed upon, was obviously incompetent. and that the testator made them residuary True, the reasoning of the court for the rule legatees in reliance upon such promise; the is not wholly applicable, for, as the case was opinion of the trial judge, in which he dis- tried before a single judge, there were not cusses at some length, and with citation of two or more minds coming by different procauthorities, the validity of the secret trust esses to the same result. Nevertheless, no and the testimony by which it was estab- testimony should be received except of open lished, and then, without in terms passing and tangible facts,-matters which are susupon the contention respecting the releases,'ceptible of evidence on both sides. A judg.

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