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BARBER v. PITTSBURGH

decided: March 1, 1897.

BARBER
v.
PITTSBURGH, FORT WAYNE AND CHICAGO RAILWAY COMPANY.



CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

Author: Gray

[ 166 U.S. Page 97]

 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The real question between the parties, upon which the decision of this case must turn, is what estate Amanda Stephens took under the will of James S. Stevenson, by which he devised to her certain lots of land in Pittsburgh, and further provided as follows: "In the event of Amanda dying unmarried, or, if married, dying without offspring by her husband, then

[ 166 U.S. Page 98]

     these lots are to be sold, and the proceeds to be divided equally among the heirs of John Barber."

The testator duly published his will on October 16, 1831, and died on the same day, being fifty years old. At that date, John Barber was alive and married, and had children, some of whom are plaintiffs in this action of ejectment. Amanda Stephens, then a child of five years of age, and so described in the will, survived the testator, and afterwards married. She and her husband executed a deed of the land, intended and sufficient to bar an estate tail therein; and afterwards conveyed the land in fee simple to the defendants and others.

The testator died, and his will took effect, before the passage of the statute of Pennsylvania of April 8, 1833, c. 128, § 9, providing that "all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate"; and long before the statute of April 27, 1855, c. 387, § 1, providing that "whenever hereafter, by any gift, conveyance or devise, an estate in fee tail would be created according to the existing laws of this State, it shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable." Penn. Laws of 1832-33, p. 249; Laws of 1855, p. 368; Purdon's Digest, (12th ed.) 2103, § 11; 810, § 8.

A former action of ejectment was brought by the administrator with the will annexed of the testator against these defendants in the court of common pleas of Allegheny county, in the State of Pennsylvania, which directed a verdict and rendered judgment for the defendants, on the ground that Amanda Stephens took an estate tail, which had been duly barred, and the title conveyed to the defendants.

Upon a writ of error, that judgment was affirmed by the Supreme Court of Pennsylvania, on the ground that the devise over to the heirs of John Barber was an alternative and substitutionary devise, dependent upon the contingency of Amanda's dying without offspring in the lifetime of the

[ 166 U.S. Page 99]

     testator, and this contingency not having happened, that she took an absolute estate in fee simple. 165 Penn. St. 645.

This second action of ejectment was afterwards brought in the Circuit Court of the United States, which directed a verdict and rendered judgment for the defendants, on the ground that Amanda, if she did not take a fee, took at least an estate tail. 69 Fed. Rep. 501.

To reverse this judgment, the plaintiffs sued out a writ of error from the Circuit Court of Appeals, which has certified to this court these two questions:

"First. Is the decision of the Supreme Court of Pennsylvania, before referred to, conclusive? If not, then,

"Second. What estate did Amanda Stephens take under the devise?"

The first question, in the terms in which it is expressed, and taken by itself, is somewhat difficult to answer.

The decision of the Supreme Court of Pennsylvania, in the former action of ejectment, is certainly not conclusive as an adjudication of the rights of the parties, inasmuch as a single verdict and judgment in ejectment, not being conclusive under the laws and in the courts of the State, is not conclusive in the courts of the United States, and is no bar to a second action of ejectment. Equator Co. v. Hall, 106 U.S. 86; Britton v. Thornton, 112 U.S. 526; Gibson v. Lyon, 115 U.S. 439; Smale v. Mitchell, 143 U.S. 99.

The question, whether the opinion of the Supreme Court of the State in the former action is conclusive evidence of the law of Pennsylvania in a court of the United States, depends upon the further question whether the opinion is declaratory of the settled law of Pennsylvania as to the effect of such devises, or is a decision upon the construction of this particular devise.

When the construction of certain words in deeds or wills of real estate has become a settled rule of property in a State, that construction is to be followed by the courts of the United States in determining the title to land within the State, whether between the same or between other parties. Jackson v. Chew, 12 Wheat. 153, 167; Henderson v. Griffin,

[ 166 U.S. Page 1005]

     Pet. 151; Suydam v. Williamson, 24 How. 427; Burgess v. Seligman, 107 U.S. 20, 33.

But a single decision of the highest court of a State upon the construction of the words of a particular devise is not conclusive evidence of the law of the State, in a case in a court of the United States, involving the construction of the same or like words, between other parties, or even between the same parties or their privies, unless presented under such circumstances as to be an adjudication of their rights. Lane v. Vick, 3 How. 464, and Vick v. Vicksburg, 1 How. (Miss.) 379; Homer v. Brown, 16 How. 354, and Brown v. Lawrence, 3 Cush. 390; Gibson v. Lyon, 115 U.S. 439, 446.

It becomes important, therefore, that the opinion of the Supreme Court of Pennsylvania in the former action of ejectment should be carefully examined and compared with the previous judgments of that court.

In that opinion, delivered by Chief Justice Sterrett, the principal grounds of the decision ...


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