Keen, 391; Shine v. Gough, 1 Ball. & B., 436;
Finley v. Bank of the U. S., 11 Wh., 304; Story's
Eq. Pl., sec. 106; Wiswall v. Sampson, 14 How.,
52, 67.

The general principle governing courts of equity, in proceedings of this description, is more clearly stated by Sir John Leach, Master of the Rolls, in David v. Froud, above referred to, than in any other case that has come under our notice.

That was a case where one of the next of kin, who had no notice of the administration suit, filed a bill against the administratrix and distributees to obtain her share of the estate. The bill was filed some two years after the decree for distribution had been made and car ried into effect.

pel the parties defendants to restore to the creditor that which of right belongs to him." The Master of the Rolls then applied this principle to the right of the next of kin, the complainant in the bill, and observed, that it had been argued that the case is extremely hard upon the party who is to refund, for that he has a full right to consider the money as his own, and may have spent it; and that it would be against the policy of the law to recall the money, which the party had obtained by the effect of a judg ment upon a litigated title. "But," he observed, there is here no judgment upon a litigated title; the party who now claims by a paramount title was absent from the court, and all that is adjudged is, that, upon an inquiry in its nature imperfect, parties are found to have a prima facie claim, subject to be defeated upon better information. The apparent title, under the master's report, is, in its nature, defeasible. A party claiming under such circumstances, has no great reason to complain that he is called upon to replace what he has received against his right.

In the case of Gillespie v. Alexander, also above referred to, Lord Eldon observed, that although the language of the decree, where an account of debts is directed, is, that those who do not come in, shall be excluded from the ben

The Master of the Rolls observed that "the personal property of an intestate is first to be applied in payment of his debts, and then dis tributed among his next of kin. The person who takes out administration to his estate, in most cases, cannot know who are his creditors, and may not know who are his next of kin; and the administration of his estate may be exposed to great delay and embarrassment. A court of equity exercises a most wholesome jurisdiction for the prevention of this delay and embarrassment, and for the assistance and protection of the administrator. Upon the appli-efit of it; yet the course is to permit a creditor, cation of any person claiming to be interested, the court refers it to the master, to inquire who are creditors, and who are next of kin, and for that purpose to cause advertisements to be published in the quarters where creditors and next of kin are most likely to be found, calling upon such creditors and next of kin to come in and make their claims before the master, within a reasonable time stated; and when that time is expired, it is considered that the best possible means having been taken to ascertain the parties really entitled, the administrator may reasonably proceed to distribute the estate among those who have before the master established an apparent title. Such proceedings having been taken, the court will protect the administrator against any future claim."

"But it is obvious," he remarks, "that the notice given by advertisements may, and must in many cases, not reach the parties really entitled. They may be abroad, and in a different part of the kingdom from that where the advertisements are published, or from a multitude of circumstances they may not see or hear of the advertisements, and it would be the height of injustice that the proceedings of the court, wisely adopted with a view to general convenience, should have the absolute effect of conclusively transferring the property of the true owners to one who has no right to it."

The Master of the Rolls further observed, "that if a creditor does not happen to discover the proceedings in the court, until after the distribution has been actually made, by the order of the court, amongst the parties having, by the master's report, an apparent title, although the court will protect the administrator, who has acted under the orders of the court, yet, upon a bill' filed by this creditor against the parties to whom the property has been distributed, the court will, upon proof of no willful default on the part of such creditor, and no want of reasonable diligence on his part, com

he paying costs, to prove his debt, as long as there happens to be a residuary fund in court,. or in the hands of the executor, and to pay him out of the residue. If the creditor does not come till after the executor has paid away the residue, he is not without remedy, though he is barred the benefit of that decree. If he has a mind to sue the legatees, and bring back the fund, he may do so, but he cannot affect the legatees except by suit, and he cannot affect the executor at all.

These principles are decisive of this branch of the case, as they establish, beyond all controversy, the right of the administrator to assert the title of Williams, the intestate, to the proceeds of the share in question, notwithstanding the decree of distribution by the Baltimore County Court. There has been no laches on his part, or on the part of those whom he represents.

The cases above referred to relate to the rights of creditors, and next of kin, but the principle is equally applicable to all parties interested in a common fund brought into a court of equity for distribution amongst the several claimants.

It is worthy of observation in this connection, that the decree, however conclusive in its terms in the distribution of the fund amongst the apparent owners then before the court, possesses no binding effect upon the rights of the absent party whose interests have not been represented on the subject of litigation. The opinion of the court given, and decree in pursuance thereof, applies only to interests of those amongst whom the fund is distributed.

These observations furnish an answer to the argument on behalf of the appellees, drawn from a reference to the terms of the decree of the Court of Appeals of Maryland, in this case, by which the fund is adjudged to the executors of Oliver. As between all the parties then before the court, this adjudication was doubtless proper and conclusive upon their rights.

It is agreed in the case that but five eighths of the fund in controversy is in the hands of the executors, the residue having been paid over in the administration of the assets of the estate.

If this portion had been paid over by the executors in pursuance of an order of the court in an administration suit, the defendants would be protected to that extent, and the complainant compelled to proceed against the distributees. But no such fact appears in the case. Without saying, at this time, that an executor, in all cases, may be compelled to account to a party making title to a portion of the estate after distribution among the legatees and next of kin, unless first procuring an order of the court having charge of the administration, we perceive no reason, under the circumstances of this case, for exonerating them, or turning him round to a bill against the distributees. Upon the whole, after the fullest consideration we have been able to give to this case, we think the decree of the court below was erroneous, and should be reversed.

parties entitled. Many claimants appeared presenting conflicting claims for shares in the company.

Goodwin, Gooding and Williams all became insolvent-Goodwin in 1817, Gooding and Williams in 1819; and their respective trustees appeared in the Maryland court, and claimed the amount due to the insolvent.

On the other hand, the executors of Oliver claimed these three shares-Goodwin's under an assignment made to Oliver by Goodwin in 1829, and the other two under assignments made to him in 1825, by George Winchester, who was the trustee of each of them. The controversies which arose upon the distribution of this fund were removed to the Maryland Court of Appeals, which is the highest court of the State. And in the trial there, it was objected that the contract with Mina was in violation of law, and therefore fraudulent and void, and vested no rights in the members of the Company which the law would recognize, and consequently that no right of property in it could vest in the trustee when the party

Dissenting, Mr. Chief Justice Taney, Messrs. became insolvent. Justices McLean and Daniel.

Mr. Chief Justice Taney, dissenting:

I dissent from the opinion in these two cases: but they are so intimately connected with the case against Lyde Goodwin's Administrator, just decided, that I shall be better understood by considering the three together.

When the case of Gill (who was trustee of Goodwin. under the Insolvent Laws of Maryland) against Oliver's Executors was before the court, I did not concur in the judgment then given, as will be seen by the report of the case in 11 Heward's Reports. It appeared to me unnecessary at that time to do more than simply express my dissent; but the course which these cases have since taken, and the decisions now given, make it my duty to state more fully my own opinion, and the grounds upon which I passed the decrees that are now before the court. The history of the controversy is this: Goodwin, Gooding and Williams were members of the Baltimore Mexican Company, which made the contract with Mina, in 1816. The character of that contract is fully stated in the 11th and 12th volumes of Howard's Reports, and also the manner in which it came before the commissioners under the Treaty with Mexico, and their award upon it.

It may be proper to remark, that under the Maryland Insolvent Law, all the property, rights and credits belonging to the insolvent at the time of his petition, become vested in his trus tee: and he,at the same time, executes a deed to the trustee, conveying and assigning to him all his property, rights and credits of every de scription for the benefit of his creditors. And if the persons above named, at the times of their petitions in 1817 and 1819, had any interest whatever, either legal or equitable, vested or contingent, under this Mexican contract, it passed to their trustees.

The Court of Appeals decided that the contract with Mina was fraudulent and void under our neutrality laws, and therefore vested no right in the parties which a court of justice in this country could recognize; and consequently that they had no interest or property under it which could be transferred to or vested in their trustees at the time of their insolvency. And upon this ground they decided against the claim of the trustees, and directed the whole amount of the three shares to be paid to Oliver's executors.

The ground upon which they supported the claim of Oliver's executors to these shares is not stated fully in the opinion. It was, I presume, upon the ground that, by the terms of The commissioners awarded the sum men- the award, the shares of these three persons tioned in their award to the Mexican Company were received by the trustees named in the of Baltimore, as due for arms, vessels, mu-award, in trust for these executors; and that nitions of war, goods and money, furnished by the Company to General Mina for the service of Mexico in the years 1816 and 1817," and gave interest to the Company according to the stipu lation in the contract with Mina. I have given the words of the award, because they show that the commissioners affirmed the validity of this contract, and directed the amount due by its terms to be paid to the trustees therein named, for the benefit of the parties interested in it.

Proceedings were soon after instituted in a Maryland court of equity against the trustees by persons claiming an interest in the fund; and the money by order of the court was brought into court to be distributed among the

the trustees, therefore, had no right to withhold it from them; as neither they nor their testator had any participation in the fraudulent contract out of which it had arisen. And if the court was right in deciding that neither the trustee of the insolvent, nor anyone else, could derive a title to this money under the contract with Mina, perhaps the language of the award, together with the documents referred to in it. might justify this decision. But I express no opinion on this point, and merely suggest it in justice to the Court of Appeals, in order to show that their opinions in these cases are not necessarily inconsistent with each other, although the court may have reasoned erroneously, and decided incorrectly.

ment of the State Court upon the rights of the trustees.

The Court of Appeals assigned two reasons for their decision, and taking them literally, as they stand, they are inconsistent with each other. But the opinion appears to have been hastily written, and not sufficiently guarded in its words; and it is evident they meant to say, that in the opinion of the court, no interest vested in the trustee, because there was no legal or equitable interest acquired by the contract that could vest anywhere, or in any person. But if there was a legal interest, it passed to his trustee, and by his assignment vested in Oliver. This mode of decision upon alternative grounds, is an ordinary and familiar one in courts of justice, and will often be found in the decisions of this court.

that it did not intend to decide that the acknowledgment of Mexico, that Mina's contract was binding upon the Republic, could give any validity to it in the courts of the United States. For the contract of the Baltimore Company would have been liable to the same objections if it had been made originally, in 1816, with the Mexican government instead of General Mina. And if it was void in 1817, and Good win then had no interest under it, it was equally void in 1829, when the assignment to Oliver was made; and it is due to the Court of Appeals to say, that they have not indicated, in any of their opinions, that the Acts of the Mexican Congress had any influence on their judgments. Upon these considerations I dismissed the bill at circuit, upon two grounds: 1st. My own opinion is, that the interest of Goodwin passed to his trustee, and consequently that the present complainant (his administrator) can have no title. 2d. This court decided, upon a view of the whole case, that it had no appellate power over this judgment, and that it had been decided by the Maryland court upon its own construction of its own laws. And that point being adjudged by this court, I did not see upon what ground I could, in conformity to this opinion, revise the judgment of the State Court and reverse its decision. It would, in substance, have been the exercise of an appellate power at circuit over the decisions of the state courts, upon their own laws, which this court had refused to exercise on writ of error, and, for the reason first above stated, I now concur in affirming the judgment here in the case of Good-committed by the State Court in interpreting win's Administrator.

And however the reasoning of the State Court may be regarded, it is clear that with the interest of the intestate before them and under consideration, they decreed that the shares belonged to Oliver's executors. Now, it is perfectly immaterial whether the reasons assigned by the court were right or wrong. Here is their judgment, their decree-a decree founded altogether on state laws, as this court have said in their former decisions, and made by a court of competent jurisdiction. Upon what principle, then, can a court of the United States, either at circuit or here, undertake to revise it or reverse it for error? If we had no appella te power upon the writ of error, and no right to reverse the judgment for errors supposed to be

and administering its own laws, how can this I come now to the cases of The Administrators court or the Circuit Court exercise this revising of Gooding and Williams, which are in many power over the judgment in the form it now respects alike. These writs were also dismissed comes before us. It is doing in another way for want of jurisdiction, when formerly before what it is admitted cannot be done in the pre the court; and in dismissing them, the court scribed mode of proceeding by writ of error. said that the title of the trustees to the shares And I am not aware of any precedent for this of Gooding and Williams "involved only a exercise of power in a court of the United question of state law, and therefore was not the States administering state laws, when the judgsubject of revision here, and was conclusive of ment of the highest court of the State is before his rights, and decisive of the case." I quote them upon the same case upon which the Unitthe language of the court. The want of juris-ed States Court is called on to decide. diction was, therefore, the only point decided in these cases, and they were dismissed on that ground.

It will be remembered that the appellate and revising power of the courts of the United States over the judgments of state courts stands upon very different principles from those which. in England, govern the relation of superior and inferior tribunals, and they are not, therefore, always safe guides upon the revising and reversing power which the courts of the United States may constitutionally exercise over the judgments of the state courts.

It is true that in these cases, as well as in that of Goodwin's Trustee, language is used, in the opinion of the court, which would seem to imply that the court was of opinion that the contract was void originally, but had after wards become valid by the events referred to in the opinion. But I understood these observations, as I did those made in Goodwin's case, I know it is said that the administrators of merely as suggesting considerations which these insolvents who have filed these bills were might have led to the decision of the State not parties to the former proceedings, and are Court, without impeaching the award of the not therefore estopped by the decree of the commissioners, but not as approving or sanc- Court of Appeals. And a good deal of argument tioning them as sufficient grounds for their has been offered to maintain that proposition; decree. For the court determined that it had but that question cannot arise until other quesno jurisdiction, and consequently the merits of tions which stand before it and control it are the case were not before it, and I presumed it first disposed of. For this court held, upon the did not mean to express any opinion concern former writs of error, that these cases were deing the correctness or incorrectness of the judg- cided by the Court of Appeals exclusively upon ment of the State Court. Such I have under- Maryland law; and if that be the case, before stood to be the established practice of this we come to the question of parties, other quescourt, and I was not aware that this case was tions must be decided: 1st. Whether in this intended to be an exception. The only point form of proceeding you can examine into the decided was the conclusiveness of the judg-validity of the grounds upon which the State