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    FAYERWEATHER v. RITCH, 195 U.S. 276 (1904)

    U.S. Supreme Court

    FAYERWEATHER v. RITCH, 195 U.S. 276 (1904)

    195 U.S. 276

    EMMA S. FAYERWEATHER and Mary W. Achter, Appts.,
    v.
    THOMAS G. RITCH et al., Individually, and as Executors, etc., and others.
    No. 157.

    JOHN B. REYNOLDS, as Sole Executor of the Last Will and Codicil of Lucy Fayerweather, Deceased, Appt.,
    v.
    THOMAS G. RITCH et al., Individually, and as Executors, etc., and others.

    No. 158.

    Nos. 157, 158.
    Argued October 12, 13, 1904.
    Decided November 28, 1904.

    [195 U.S. 276, 277]   The controlling question in these cases arises on pleas of res judicata. The essential facts are as follows:

    On October 6, 1884, Daniel B. Fayerweather, a citizen and resident of the state of New York, made a will, by the 9th article of which he gave to twenty colleges bequests amounting in the aggregate to $2,100,000. By the 10th article he gave the residuary estate to his executors, as trustees, directing them to divide it equally among the twenty colleges named in the 9th article. On the same day he signed the following statement:

    At that time, by chap. 360, Laws of 1860, of the state of New York, a testator having husband, wife, child, or parent was forbidden to give to literary or benevolent institutions more than one half of his estate. On December 13, 1884, the testator made a first codicil to his will, by which he revoked the 10th article, and gave the residuary of his estate absolutely to his executors. In other respects the will was ratified. At or about the same time a paper, bearing date December 11, 1884, headed 'Private Memorandum,' was signed by him, which reads as follows:

    By subsequent codicils minor changes were made, and Henry B. Vaughan was added as executor. The testator died on November 15, 1890, leaving a widow and three nieces, his only heirs at law and next of kin. On the day of his death he executed a codicil, which was mainly a confirmation of the provisions of the will and prior codicils.

    Mr. Fayerweather's estate amounted at the date of the will to about three millions of dollars, and at the time of his death to from five to six millions of dollars, mainly in personal property.

    While by the articles in the will, prior to the 9th, he had made provision for his widow and also bequests to his three nieces, yet obviously his purpose was to give the bulk of his estate to the several colleges named, and to avoid the restraining effect of the New York statute. After the death of Mr. Fayerweather the will and codicils were propounded for probate, to which the widow and nieces filed objections. A hearing was had before the surrogate, and on February 25, 1891, he entered an order admitting the will to probate, and leaving the contest of the codicils to continue. On February 24, 1891, the three executors, residuary legatees, made a deed of gift, which reads:

    Then, after making gifts of several sums to individuals, hospitals, and colleges (some being those named in the will of Mr. Fayerweather, and others not so mentioned), the deed closes with these words:

    Subsequently, and on March 5, the executors, as residuary legatees, entered into an agreement with the contestants by which the amounts coming to them were increased, and thereupon the contestants executed the following paper:

    On March 24, 1891, the codicils were admitted to probate on written consent, signed by the attorneys for the parties to the contest. On June 12, 1891, the widow executed the following release:

    Releases similar in form were executed by the other three contestants, the nieces and next of kin.

    In January, 1893, five of the colleges named in article 9 of the will brought suit in the supreme court of the state of New York against the executors of Mr. Fayerweather's will, the executors of the will of Mrs. Fayerweather (who had died since the release), the nieces, the donees in the deed of gift, and all the colleges not joined as plaintiffs. The contention of the plaintiffs was that the codicil which gave the residue of the estate to the three executors absolutely was made in pursuance of an agreement that they should take that residue in trust for the colleges mentioned in the will, and distribute it among them. The complaint set forth the will and codicils, their admission to probate, and the issue of letters testamentary, and averred that the value of the estate left by the testator was upwards of $6,000,000 and the residuary estate more than $3, 000,000. It alleged that the intention of the testator was to devote the principal part of his estate to the several institutions mentioned, and that the proceedings taken by him were under the advice of counsel and for the purpose of carrying into effect that intention, and upon a promise and assurance from the executors that they would dispose of the residuary estate accordingly; it averred also the fact of a contest in respect to the probate of the will and codicils, a settlement with the contestants in consideration of the payment of $310,000 and the execution of releases by them. The prayer was that it be adjudged and decreed that the residuary estate was devised by the testator and received by the executors in trust for the purposes set forth, that they be required to apply that estate to those purposes, and, also, 'that the ultimate rights of the plaintiffs as between them and each of them and every of the other defendants herein be determined by the judgment in this action in accordance with the allegations of this complaint and the prayer hereinbefore contained.' [195 U.S. 276, 283]   The donees in the deed of gift answered, asserting the validity of that deed, and praying that its provisions be carried out.

    The widow's executors and the nieces also appeared and filed an answer and counterclaim, in which they alleged that the agreement which the suit was brought to enforce was a secret trust to evade the New York statute by giving more than half to the several institutions, that the releases were obtained from them by concealment and fraud, and therefore of no obligation; and prayed for judgment, among other things--

    The decree of the supreme court at special term, entered on December 28, 1894, adjudged and decreed that the residuary estate passed to the executors in trust for the colleges named in the ninth paragraph of the will; that the executors and trustees be restrained and enjoined from distributing the residuary estate, or any part thereof under the deed of gift, and that the plaintiffs and certain of the defendants (including therein the executors of the will of Mrs. Fayerweather and two of the nieces) recover from the trustees their costs, together with extra allowances to be paid out of the trust funds. There was no formal finding of facts and no mention made in the decree of the specific claim of the executors of Mrs. Fayerweather's will and the nieces, that the releases were fraudulently obtained. An appeal was taken by the defendants to the general term of the supreme court, which, on December 18, 1895, affirmed the judgment. A further appeal was taken to the court of appeals, which, on January 19, 1897, affirmed the judgment of the general term. 151 N. Y. 282, 37 L. R. A. 305, 45 N. E. 876. On January 28, 1897, a motion was made in the court of appeals to amend the remittitur so as to direct the justice of the supreme court before whom the action was tried at special term to consider the evidence given before him at the trial concerning the releases, and to determine whether the said releases were valid and binding or invalid and void, which motion was on March 9, 1897; denied.

    After these proceedings in the state court two of the nieces [195 U.S. 276, 285]   and next of kin, being citizens of the state of Iowa, instituted this suit in the circuit court of the United States, making defendants substantially all the parties to the suit in the state court, the one or two omissions in no way affecting the question before us. Subsequently the remaining executor, one having resigned, of the will of Mrs. Fayerweather, filed a cross bill, the allegations and the relief asked being similar to those in the original bill.

    These bills-in addition to setting forth the will and codicils executed by Mr. Fayerweather, the probate proceedings, and the releases by the widow and nieces, and alleging that these letters were fraudulently obtained, and not binding-averred the bringing of the suit hereinbefore referred to in the supreme court of the state by the five colleges, annexing copies of the pleadings, and alleged 'thereupon the issues so joined, as well as others duly raised by the answers of the several defendants, came on to be tried before said court, and these complainants gave evidence tending to prove the allegations in their said answer, and all of the said allegations, and thereupon it became and was the duty of said court to adjudge and determine whether the releases therein described were invalid, and whether these complainants were entitled to the affirmative relief prayed in respect thereto;' and further, that the defendants--

    To these bills the defendants filed pleas of res judicata, claiming that the controversy between the parties was finally settled by the decision of the state court. These pleas were accompanied by an answer, denying the allegations of fraud. The circuit court sustained the pleas, and dismissed the bill and cross bill on the ground that the cause of action set forth [195 U.S. 276, 288]   in them was barred by the prior judgment of the state court. From this decree of dismissal the plaintiffs appealed directly to this court.

    Messrs. Roger M. Sherman and William Blaikie for appellants.

    Mr. Charles Andrews for the widow and next of kin, upon the question of res judicata.

    Statement by Mr. Justice Brewer:

    [195 U.S. 276, 291]   Messrs. Elihu Root, James L. Bishop, John E. Parsons, C. N. Bovee, Jr ., Thomas H. Hubbard, William Forse Scott, William Ford Upson, John McL. Nash, Stewart L. Woodford, Horace Russell, Henry L. Stimson, Alfred W. Kiddle, Seth Sprague Terry, George G. Reynolds, Henry B. Twombly, Haley Fiske, Henry Stoddard, for appellees.

    [195 U.S. 276, 297]  

    Mr. Justice Brewer delivered the opinion of the court:

    Our jurisdiction of this direct appeal from the decision of the circuit court is invoked on the ground that the case involves the application of the Constitution of the United States.

    The contention is that, by article 5 of the Amendments to the Federal Constitution, no person can 'be deprived of life, liberty, or property, without due process of law;' that these plaintiffs were entitled to large shares of the estate of Daniel B. Fayerweather; that they were deprived of this property by the judgment of the circuit court, which gave unwarranted effect to a judgment of the state courts; that this action of the circuit court is not to be considered a mere error in the progress of a trial, but a deprivation of property under the forms of legal procedure. In Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 , 41 L. ed. 979, 17 Sup. Ct. Rep. 581, we held that a judgment of a state court might be here reviewed if it operated to deprive a party of his property without due process of law, and that the fact that the parties were properly brought into court and admitted to make defense was not absolutely conclusive upon the question of due process. We said (p. 234, L. ed. p. 983, Sup. Ct. Rep. 584):

    And again (p. 236, 237, L. ed. p. 985, Sup. Ct. Rep. p. 584):

    If a judgment of a state court can be reviewed by this court on error upon the ground that, although the forms of law were observed, it necessarily operated to wrongfully deprive a party of his property (as indicated by the decision just referred to), a judgment of the circuit court of the United States, claimed to give such unwarranted effect to a decision of a state court as to accomplish the same result, may also be considered as presenting the question how far it can be sustained in the view of the prohibitory language of the 5th Amendment, and thus involve the application of the Constitution. It is said that the right of these plaintiffs to share in the estate of Daniel B. Fayerweather is undoubted, unless destroyed by the releases they executed; that the fundamental question presented in the trial court of the state was the validity of those releases; that, notwithstanding this, that court came to its conclusion and rendered its judgment without any determination thereof; that the appellate courts wrongfully assumed that the trial court had decided the question, and rendered their judgments on that assumption, so that the necessary result of the proceedings in the state courts was a deprivation of the right of the plaintiffs to a share of the estate, without any finding of the vital fact which alone could destroy their right. The [195 U.S. 276, 299]   contention is not that the state courts erred in their finding in respect to this fact, but that there never was any finding. Such decision of the state courts, made without any finding of the fundamental fact, was accepted in the circuit court of the United States as a conclusive determination of the fact. Although these plaintiffs were parties to the proceedings in the state courts, and presented their claim of right, if it be true that the necessary result of the course of procedure in those courts was a denial of their rights,-a taking away and depriving them of their property without any judicial determination of the fact upon which alone such deprivation could be justified,-a case is presented coming directly within the decision in 166 U.S. 226 , 41 L. ed. 979, 17 Sup. Ct. Rep. 581. Giving effect in the circuit court to the state judgment does not change the character of the question. It is simply adding the force of a new determination to one wrongfully obtained, and adding it upon no new facts. Whether the contention of the plaintiffs in respect to the character of the state proceedings can be sustained or not is a question upon the merits, and does not determine the matter of jurisdiction. That depends upon whether there is presented a bona fide and reasonable question of the wrongful character of the proceedings in the state courts, and the necessary result therefrom. We are of opinion that the jurisdiction of this court must be sustained.

    We pass, therefore, to consider the merits of the case. Private right and public welfare unite in demanding that a question once adjudicated by a court of competent jurisdiction shall, except in direct proceedings to review, be considered as finally settled and conclusive upon the parties. Interest reipublicoe ut sit finis litium. But in order to make this finality rightful it should appear that the question was distinctly put in issue; that the parties presented their evidence, or at least had an opportunity to present it, and that the question was decided. Cases of an alleged prior adjudication have frequently been presented in this court and the scope of a plea thereof fully determined. In the leading [195 U.S. 276, 300]   case of Cromwell v. Sae County, 94 U.S. 351, 352 , 24 S. L. ed. 195, 197, we said:

    See also Wilson v. Deen, 121 U.S. 525 , 30 L. ed. 980, 7 Sup. Ct. Rep. 1004; Hefner v. Northwestern Mut. L. Ins. Co. 123 U.S. 747 , 31 L. ed. 309, 8 Sup. Ct. Rep. 337; Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U.S. 396 , 35 L. ed. 1055, 12 Sup. Ct. Rep. 188; Nesbit v. Independent [195 U.S. 276, 301]   District, 144 U.S. 610 , 36 L. ed. 562, 12 Sup. Ct. Rep. 746; Johnson Steel Street Rail Co. v. Wharton, 152 U.S. 252 , 38 L. ed. 429, 14 Sup. Ct. Rep. 608; Dowell v. Applegate, 152 U.S. 327 , 38 L. ed. 463, 14 Sup. Ct. Rep. 611; Last Chance Min. Co. v. Tyler Min. Co. 157 U.S. 683 , 39 L. ed. 859, 15 Sup. Ct. Rep. 733; New Orleans v. Citizens' Bank, 167 U.S. 371 , 42 L. ed. 202, 17 Sup. Ct. Rep. 905; Southern P. R. Co. v. United States, 168 U.S. 1 , 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Bryar v. Campbell, 177 U.S. 649 , 44 L. ed. 926, 20 Sup. Ct. Rep. 794; United States v. California & O. Land Co. 192 U.S. 355 -358, 48 L. ed. 476-478, 24 Sup. Ct. Rep. 266.

    The state court was one of competent jurisdiction, and the present contestants were before that court, taking part in the litigation. The validity of the releases was put in issue by the pleadings, and no judgment could properly have been rendered without a determination of that question. The colleges sought to enforce a secret trust, but the property covered by the trust, together with that passing under the 9th article of the will, was the bulk of the estate,-far more than half. Such a disposition of the testator's property was in contravention of the laws of New York. They who would take the estate in case of intestacy had a right to object to the enforcement of the trust. Only on condition that they waived their objections and released could it be sustained. The judgment enforced it. It therefore practically determined that the releases were valid, and decided against the contention of these plaintiffs, that they were fraudulent and void. All this is evident from a perusal of the pleadings. The appellants concede this and rest their claim in the Federal court partly upon that basis. Thus, in their brief it is said:

    The case was tried by the court without a jury. No special [195 U.S. 276, 302]   findings of fact were made. According to testimony given on the trial of this case in the circuit court the omission to make special findings was with the acquiescence (if not at the instance) of all the counsel appearing in the state court. The decree adjudged that the residuary estate was held in trust for the colleges named in the 9th article of the will, enjoined the residuary legatees from distributing any portion of that estate under the deed of gift, and directed that it be paid over to the respective colleges. The ordinary rule in respect to a judgment without any special findings is that it, like a general verdict of a jury, is tantamount to a finding in favor of the successful party of all the facts necessary to sustain the judgment. In the general term, on the appeal taken to it, two opinions were filed,-one by Judge Follett, in which Judge Parker concurred, and one by the presiding judge, Van Brunt. Judge Follett, after stating that the executors of the testator's widow and two of his heirs at law and next of kin sought to have the residuary clause declared invalid, under chap. 360 of the Laws of 1860, said:

    Presiding Judge Van Brunt thus stated his conclusions:

    The opinion in the court of appeals was delivered by Judge Vann, and concurred in by all the judges except Chief Judge Andrews. In it it is said:

    ... * *

    Thus the court of appeals held in accord with the ordinary ruling as to the effect of a judgment without findings. So it has frequently decided. In Bartlett v. Goodrich, 153 N. Y. 421, 424, 47 N. E. 794, 795, it said:

    See also New York Security & T. Co. v. Lipman, 157 N. Y. 551, 556, 52 N. E. 595; Garvey v. Long Island R. Co. 159 N. Y. 323, 328, 70 Am. St. Rep. 550, 54 N. E. 57; Reed v. McCord, 160 N. Y. 330, 334, 54 N. E. 737; Solomon v. Continental F. Ins. Co. 160 N. Y. 595, 598, 46 L. R. A. 682, 73 Am. St. Rep. 707, 55 N. E. 279; Rodgers v. Clement, 162 N. Y. 422, 427, 76 Am. St. Rep. 342, 56 N. E. 901; National Harrow Co. v. Bement & Sons, 163 N. Y. 505, 510, 57 N. E. 764; Niagara Falls v. New York C. & H. R. R. Co. 168 N. Y. 611, 61 N. E. 185; Critten v. Chemical Nat. Bank, 171 N. Y. 219, 231, 57 L. R. A. 529, 63 N. E. 969; Hutton v. Smith, 175 N. Y. 375, 378, 67 N. E. 633. [195 U.S. 276, 305]   After the filing of its opinion an application made to the court of appeals, as shown in the statement of facts, to amend the remittitur so as to direct the trial court to find specifically whether the releases were valid or not, was denied.

    We have thus the case of a hearing in the trial court upon issues which required a determination of the validity of these releases as a condition of a judgment adverse to these plaintiffs; a judgment against them; an affirmance of the judgment by the general term of the supreme court, with an opinion declaring that there was in the record no evidence justifying the claim that these releases were fraudulently obtained, and void; and a further affirmance by the court of appeals, accompanied by an opinion declaring that, upon the state of the record, it was to be presumed that the validity of the releases had been affirmatively found, and also that there was sufficient evidence to sustain such a finding, followed by a refusal to send the question of the validity of the releases back to the trial court for consideration. Notwithstanding all this, apparent upon the face of the record, the plaintiffs insist that the validity of the releases was never determined by any of the state courts, and that the final judgment of affirmance by the court of appeals was based upon the presumption of a determination which was never in fact made.

    Upon what is this contention based? First, the silence of the judgment, which contains no findings to indicate upon what it is based; second, a memorandum of decision filed by the trial judge, in which he states that 'the grounds upon which the issues have been decided are' a promise of the executors that if made residuary legatees they would distribute the residuary estate among the colleges named in the 9th article, and that the testator made them residuary legatees in reliance upon such promise; the opinion of the trial judge, in which he discusses at some length, and with citation of authorities, the validity of the secret trust and the testimony by which it was established, and then, without in terms passing upon the contention respecting the releases, states 'the [195 U.S. 276, 306]   view that I have taken of the facts and the law of this case renders it unnecessary for me to consider the very interesting questions of law propounded by the learned counsel for the defendants Reynolds, Achter, and Fayerweather;' and, finally, the testimony of the trial judge, given on the hearing in this case some six years after his decision in the state court, to the effect that, in deciding the case he did not consider the question of the validity of the releases.

    It is undoubtedly true that, in some cases, evidence may be introduced outside the record to show what particular question was tried and determined in the former suit. Washington, A. & G. Steam-Packet Co. v. Sickles, 24 How. 333, 344, 16 L. ed. 650, 654, 5 Wall. 580, 592, 18 L. ed. 550, 553; Russell v. Place, 94 U.S. 606, 608 , 24 S. L. ed. 214, 215. But it does not follow that testimony of every kind is admissible for that purpose. In Washington, A. & G. Steam-Packet Company v. Sickles, although it was held that 'in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact,' yet, it appearing that some of the jurors on the former trial were permitted to testify as to the particular ground upon which they found their verdict, it was said (p. 593, L. ed. p. 554):

    See also Wood v. Jackson, 8 Wend. 9-36, 22 Am. Dec. 603; Lawrence v. Hunt, 10 Wend. 80-85, 25 Am. Dec. 539.

    Tested by the rule thus laid down the testimony of the trial [195 U.S. 276, 307]   judge, given six years after the case had been disposed of, in respect to the matters he considered and passed upon, was obviously incompetent. True, the reasoning of the court for the rule is not wholly applicable, for, as the case was tried before a single judge, there were not two or more minds coming by different processes to the same result. Nevertheless, no testimony should be received except of open and tangible facts,-matters which are susceptible of evidence on both sides. A judgment is a solemn record. Parties have a right to rely upon it. It should not lightly be disturbed, and ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision. Undoubtedly, when the pleadings are general, as in a case of the common counts, evidence may be given of the testimony which was introduced on the trial, for that may disclose what must have been considered and determined. And where the evidence is that testimony was offered at the prior trial upon several distinct issues, the decision of any one of which would justify the verdict or judgment, then the conclusion must be that the prior decision is not an adjudication upon any particular issue or issues, and the plea of res judicata must fail.

    Putting one side the oral testimony of the trial judge, there is nothing in the other matters specified to disturb the conclusion which follows from an examination of the record, that the validity of the releases was actually determined. Of course, the omission of special findings means nothing, for the judgment implies a finding of all necessary facts. The memorandum of decision naturally states the grounds for arriving at a conclusion concerning the respective claims of the colleges named in the 9th clause and the beneficiaries of the deed of gift, for that was the controversy between those parties, and indeed, the primary controversy presented by the pleadings. The declaration in the opinion, that the conclusion reached upon the matters discussed rendered it unnecessary to consider the questions of law propounded by the counsel for these plaintiffs, must be read in the light of the [195 U.S. 276, 308]   prior statement therein that the widow and next of kin were demanding that the releases executed by them be set aside and they be given the residuary estate, and the further fact that whether the releases were fraudulently obtained and void was a question of fact rather than of law. Evidently the opinion proceeded and the conclusion was reached on the assumption that there was no sufficient testimony to invalidate the releases.

    Further, the entire record of the case was taken on appeal to the general term. That court had before it for consideration all the evidence which was presented to the trial court; and, as we have seen, declared in its opinion that there was no evidence justifying the contention that the releases were procured by fraud and undue influence. While this was not stated in the form of a speciat finding, it discloses the conclusion of the court from the evidence. We cannot hold that it was not authorized to pass upon this question, for its conclusion was sustained by the court of appeals, which, in its opinion, also referred to the question. Finally, by the motion to amend its remittitur, the attention of the court of appeals was specifically called to these very matters which are now urged as showing a failure on the part of the lower courts to determine the question of the validity of the releases, and it refused to make any order which would permit a further consideration. Nothing can be clearer from this record than that the question of the validity of the releases was not only before the state courts, but was considered and determined by them, and the regularity of the procedure was sustained by the highest court of the state. The question was, as affirmed by counsel for these appellants, put in issue by the pleadings, and its determination was a necessary prerequisite to an adverse judgment. It was referred to by all the courts in their opinions, was affirmatively decided by the general term, its decision sustained by the court of appeals, and reaffirmed by that court, by a refusal to amend its remittitur.

    Under these circumstances the pleas of res judicata were [195 U.S. 276, 309]   properly sustained, and the decree of the Circuit Court, dismissing the bill and cross bill, is affirmed.

    The CHIEF JUSTICE did not hear the argument, and took no part in the decision of this case.

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