within the jurisdiction of this court, unless it falls within the Act of Feb. 25, 1889. 8. A plea in bar, and not in abatement to the jurisdiction, does not question the jurisdiction of the circuit court. [No. 163.] The circuit court had jurisdiction of the cause. Texas & P. R. Co. v. Cox, 145 U. S. 593 (36: 829); Teras & P. R. Co. v. Anderson, 149 U. S. 237 (37: 717). The action is a suit at law on a contract of Argued and Submitted Dec. 13, 1893. Decided indemnity. The liability of the company does IN Jan. 3, 1894. N ERROR to the Circuit Court of the United States for the Eastern District of Texas, to review a judgment for the plaintiff, Henry Horn, in a suit brought by him against The Texas & Pacific Railway Company,defendant, for damages for personal injuries by the negligence of the receiver of said railroad, in which the judgment was reduced by remittitur from the sum of $11,000 to the sum of $4999.00. Dismissed. not depend upon any principle of equity. such a demand is appropriately enforced in court of law. Morley v. Thayer, 3 Fed. Rep. 737; Sloan v. Central lowa R. Co. 62 Iowa, 728; Brown v. Wabash R. Co. 96 Ill. 297; Schmid v. New York, L. E. & W. R. Co. 32 Hun, 335; Beach, Receivers, § 735; High, Receivers, § 3:486. The court properly refused to transfer the case upon the broad ground that defendant in error had a plain, adequate and complete remedy at law. The facts are stated in the opinion. U. S. Rev. Stat. § 723; Hayward v. An The judgment in this case was for an amount exceeding the sum or value of five thousand dollars, exclusive of interest, and all questions are open to review here. The award of execution constitutes no part of the judgment. Freem. Judgm. § 2; Kramer v. Rebman, 9 Iowa, 114: Gregory v. Nelson, 41 Cal. 278. There is neither pleading nor proof that the publication was made and the notice given, provided for by the order, and without which it did not become operative. Farmers Loan & T. Co. v. Central R. of loira, 7 Fed. Rep. 541: Windsor v. McVeigh, 93 U. S. 277 (23: 915); Brown, Jur. § 46, 172. Mr. Chief Justice Fuller delivered the opin As the jurisdiction has once attached, it can-ion of the court: not be defeated by a waiver or release of the amount in excess of $5000. New York Elv. R. Co. v. Fifth Nat. Bank of New York, 118 U. S. 608 (30: 259). The court below was without jurisdiction of the subject-matter of plaintiff's action. McNulta v. Lochridge, 141 U. S. 327 (35: 796); Teras & P. R. Co. v. Cox, 145 U. S. 593 (36: 829); Broen v. Brown, 71 Tex. 357; Dillingham v. Anthony, 3 L. R. A. 634, 73 Tex. 47; Harding v. Nettleton, 86 Mo. 658; Jesup v. Wabash, St. L. & P. R. Co. 44 Fed. Rep. 663. The personal claim was against the receiver, and, before property surrendered by him could be reached with an equitable charge for his liabilities, the claim must have been ascertained and reduced to judgment. 1 Pom. Eq. Jur. § 178, 3 Pom. Eq. Jur. § 1415; Brown v. Long, 36 N. C. 190, 36 Am. Dec. 43; Massey v. Gorton, 12 Minn. 145, 90 Am. Dec. 287; Van Weel v. Winston, 115 U. S. 228 (29: 381); Brown v. Wabash R. Co. 96 Ill. 297; Davis v. Duncan, 19 Fed. Rep. 477. The power to make orders limiting the time for presentation of claims in order that they shall be chargeable upon the surrendered property has been clearly recognized by this court. Olcott v. Headrick, 141 U. S. 543 (35: 851); Union Trust Co. v. Morrison, 125 U. S. 591 (31: 825): Pine Lake Iron Co. v. La Fayette Car Works, 53 Fed. Rep. 853. Mr. C. A. Culberson, for defendant in error: The legal effect of the order, if applicable to defendant in error, is that he cannot maintain any action at any time, whether present or future, in respect to the supposed cause of action. 1 Chitty, Pl. 445; Stephen, Pl. 89; Gould, Pl. chap. 2, § 33, 38, 39, 42. Upon the trial of this cause a verdict was returned for the plaintiff in the sum of eleven thousand dollars, and upon the suggestion of the court the plaintiff entered a remittitur of six thousand and one dollars, and prayed that the same be allowed, and judgment entered for four thousand nine hundred and ninety-nine dellars. The bill of exceptions states that judgment was rendered for that amount, although, as recorded,the *terms of the judgment, after [111 reciting the return of the verdict, were: "It is, therefore, ordered and adjudged by the court that the plaintiff, Henry Horn, do have and recover of the defendant, the Texas & Pacific Railway Company, the sum of elev en thousand dollars and all costs in this behalf expended. "And it appearing to the court that on this day the plaintiff filed, in writing, a remittitur of $6000. "It is, therefore, ordered and adjudged by the court that execution issue for the sum of $4999 only, and all costs herein." The writ of error bore date June 24, 1890, and was made a supersedeas, the order of allowance declaring that the judgment was rendered for $4999, February 13, 1890, and that a motion for new trial was filed, but not acted on until June 5, 1890. The bond and citation describe the judgment as for $4999. Although the judgment was entered immediately upon the return of the verdict in accordance with the practice in that jurisdiction, and, therefore, for the amount of the verdict, it was within the power of the court to allow the remittitur; and while the order to that ef fect might have been more accurately worded, we are of opinion that, upon the entire record, plaintiff in error cannot be permitted to insist that the judgment as it stands is for a larger sum than $1599, nor can it be hereafter held liable as on ud ment for any other amount. the will, but also real estate subsequently ac- Hence this case is not within our jurisdiction, unless it falls within the Act of Congress of February 25, 1889 (25 Stat. at L. 693) which, for the reasons given in Texas & P. R. Co. v. Saunders, ante, p. 90, we do not think it does. The railway company, in this case as in that, Argued Dec. 12, 13, 1893. Decided Jan. 3, 1894. filed a plea based upon the order of October 26, 1888, of the Circuit Court of the United States for the Eastern District of Louisiana, and in this case, as in that, the matter set up was in bar and not in abatement. The juris diction of the Circuit Court for the Eastern District of Texas was not thereby questioned. Writ of error dismissed. 'N ERROR to the Circuit Court of the District of Oregon, to review a judgment in favor of Thomas L. See same case below, 33 Fed. Rep. 812. By the rule of the common law, under a statute simply giving the power to make a will of the real estate of the testator real estate acquired after the date of the making of the will did not pass to the devisee, but descended to the heirs-at-law. Harood v. Goodright, 1 Cowp. 90; Brunker V. Cook, 11 Mod. 122; Arthur v. Bokenham, 11 Mod. 148; Wind v. Jekyl, 1 P. Wms. 575; Marwood v. Turner, 3 P. Wms. 163; Van Kleeck v. Dutch Church of New York, 20 Wend. 479,498; Pond v. Bergh, 10 Paige, 149; Parker v. Bogardus, 5 N. Y. 310. The general rule is that a devise of lands those owned at the date of the will. will not carry after acquired lands, but only 2. In an action of ejectment where the jurisdic-V. court. 7. In ascertaining what the intention of the testator is, the words used in his will are to be taken according to their meaning as gathered from the construction of the whole will. 8. When the words of the will of a testator wil! fairly carry the whole estate of which he dies Beised and possessed, there is no presumption of an intention to die intestate as to any part of his property. 9. Where the testator makes a general devise of bis real estate, such a devise will carry not only the property held by him at the execution of NOTE. That domicil of testator governs validity of will and distribution: foreign will, necessary to be proved where assets are, see note to Smith v. Union Bank of Georgetown, 8: 212. As to interpretation of wills: intention of testaton to govern, see note to Pray v. Belt, 7: 309. Jackson v. Holloway, 7 Johns. 394; Jackson Potter, 9 Johns. 312; Girard v. Philadelphia, 4 Rawle, 323, 26 Am. Dec. 145; Grimke v. Grimke, 1 Desaus. Eq. 366; Parker v. Cole, 2 J. J. Marsh. 503; McKinnon v. Thompson, 3 Johns. Ch. 307; George v. Green, 13 N. H. 521; Watson v. Child, 9 Rich. Eq. 129; Jones v. Shewmake, 35 Ga. 151; Kemp v. McPherson, 7 Har. & J. 320; Bruen v. Bragawo, 4 N. J. Eq. 261; Ballard v. Carter, 5 Pick, 112, 16 Am. Dec. 377; Johnston v. Hunly, Taylor & C. 305, 1 Am. Dec. 590. And at common law it made no difference how clearly expressed was the testator's intention to pass such after acquired lands. Beall v. Schley, 2 Gill, 198, 41 Am. Dec. 415; Roberts v. Elliott, 3 T. B. Mon. 395; Bowman v. Violet, 4 T. B. Mon. 351; Girard v. Philadelphia, supra. United States, after acquired lands may now But by statutes in England and most of the pass by devise if such was the testator's intention. Willis v. Watson, 5 Ill. 64; Peter v. Spillman, 18 Ill. 370; Turpin v. Turpin, 1 Wythe Ch. 22; Jack v. Schoenberger, 22 Pa. 416; Hitchcock v. Hitchcock, 35 Pa. 399. Messrs. John H. Mitchell and James K. Kelly, for defendants in error: The will spoke not merely from the date of the will, but from the date of the death of the he testator, and passed all the personal property of which he died possessed, unless, indeed, estrictive words were employed by the testafor which clearly evidenced an intention upon his part to exclude from the operation of the will all after acquired property. 2 Bl. Com. chap. 23; 1 Jarman, Wills, 157, ote 10; Haven v. Foster, 14 Pick, 534,539; Brimmer v. Sohier, 1 Cush. 118,133; Goodlad | are as follows: Peter De Witt Hardenbergh, v. Burnett, 1 Kay & J. 341. Men know that their wills are not to take effect until they die and they make them for the purpose of fixing the distribution of their property from that moment. Applegate v. Smith, 31 Mo. 167; Campbell v. Rawdon, 18 N. Y. 412; Walker v. Williamson, 25 Ga. 549; Morse v. Macrum, 22 Or. 236; Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616; Jette v. Picard, 4 Or. 297; 1 Redf. Wills, 7-9, 210; 1 Jarman, Wills, 286, 287. The old English rule prevailed in Pennsylvania until 1833. Girard v. Pennsylvania, 2 Wall. Jr. 305. One's wil! may operate upon his after acquired real estate whenever such was his ob vious intention. 1 Jarman, Wills, 51,326; 2 Redf. Wills, 388; 1 Williams, Executors (Perkin's Notes) 6. Where it appeared on the face of the will that the purpose of the testator was not to die intestate as to any portion of his estate, it will be presumed this intention still existed where the testator afterwards purchased real estate. Cushing v. Aylwin, 12 Met. 169; Pray v. Waterston, 12 Met. 262; Blaney v. Blaney, 1 Cusb. 107, 116. The rule is, unless the contrary appears, that the will shall operate on all the estate held at the date of the death. 1 Redf. Wills, p. 380, 30, notes 2, 4; Henderson v. Ryan, 27 Tex. 670; Wakefield v. Phelps, 37 N. H. 295; Lrieux v. Keller, 5 Iowa, 196; McNaughton v. McNaughton, 41 Barb. 50. A disposition in general terms prima facie includes everything capable of being comprehended under those terms which the testator had power to dispose of. Morrice v. Aylmer, 44 L. J. Ch. 212; Smith v. Bell, 31 U. S. 6 Pet. 68 (8: 322); Williams v. Ash, 42 U. S. 1 How. 1 (11:25); Robison v. Female Orphan Asylum of Portland, 123 U. S. 707 (31:295). unmarried and without children, a citizen of Portland, Oregon, died in 1886, leaving a will executed by him, May 15, 1872, which was duly probated and remains in full force and effect. By the first clause of the will the testator devised to several nephews, named therein, a certain farm in Ulster county, New York; by the second clause he devised to his sister, Catherine L. Tremper, all his right, title, and interest in and to all other lands in that county and state; and by the third and last clause he gave and bequeathed to his sister, Ellen E. Ray, "all my right, title, and interest in and o all my lands, lots, and real estate, lying and being in the state of Oregon, or elsewhere, except as aforesaid; also all my personal property and es ate of whatsoever kind and nature." At the date of the will the testator owned certain real property in Portland, Oregon, and in January, 1882, some ten years after the will was executed, he purchased, and at the time of his death owned, a parcel of land in the city of Portland, valued at $30,000, which is the subject of controversy in this suit. Ellen E. Ray, the devisee under the third clause of the will, died intestate in 1873, leaving as her heirs Thomas L. Ray, Rachel L. Ray, Hylab E. Ray, and Mary E. Arbuckle, citizens of Oregon; John De Witt Ray, a citizen of Illinois; and Sarah E. Ray, a citizen of New York. Upon the death of the testator these beirs of Ellen E. Ray, who, under the laws of Oregon (Hill's Anno. Laws of Oregon, S 3077) succeeded to her rights as devisee, took possession of the premises in controversy, as well as other real property in Oregon owned by the testator at the time the will was execu ed. Herman R. Hardenbergh, a brother of the testator, claimed *and demanded an in- [118 terest in common with the heirs of Ellen E. Ray in the real property acquired after the execution of the testator's will, on the ground that as to those lands he died intestate. This claim was denied and he thereupon brought an action at law in the nature of ejectment against Charles Sliter, J. C. Miller, and W. H. West, citizens of Oregon, who were in possession of the dePray v. Waterston, 12 Met. 262; Cushing v.manded premises as tenants of the heirs of Aylwin, 12 Met. 169; Bishop v. Bishop, 4 Hill, Mrs. Ellen E. Ray. 139; De Peyster v. Clendining, 8 Paige, 295; Re Learned's Estate, 70 Cal. 140; 1 Redf. Wills, p. 387, note 31. The words employed by the testator are sweeping in their import. They cover all estate whatsoever of the testator, except that specifically devised. It is the reasonable presumption that the testator did not intend to die intestate as to any of his estate. Annin v. Vandoren,'14 N. J. Eq. 135; Collier v. Collier, 3 Obio St. 374; Cate v. Cranor, 30 Ind. 292; Gourley v. Thompson, 2 Sneed, 387; Jarnagin v. Conway, 2 Humph. 50. Mr. Justice Jackson delivered the opinion of the court: 117] The principal questions presented by the record in this case are, first, whether by the laws of Oregon, in force in 1872, a testator was authorized or empowered to devise after acquired real property; and, second, whether if such power existed, the after acquired real es tate in controversy passed by the testator's will in the present case. The facts which give rise to these questions Subsequently on their own motion, these heirs were substituted as defendants in place of their terants, against whom the action was originally brought, and by their answer set up that by the law of Oregon the land in question passed to them by the third clause of the will, and that the testator did not die intestate in respect thereto. The heirs of Ellen E. Ray having thus made themselves par ies to the suit, and one of them (Sarah A. Ray) being a citizen of the same state (New York) as the plaintiff, the point was made in the court below, and has been presented in this court, that the jurisdiction of the United States circuit court was thereby defeated. This objection to the jurisdiction of the court is without merit, and was properly overruled by the lower court. When the original suit was brought against Sliter, Miller, and West, the persons in possession, the court acquired jurisdiction of the controversy, and no subse quent change of the parties could affect that | Under this statute real estate, subsequently ac jurisdiction. This is well settled by the au- quired, could not pass by devise; in other words, thorities. Mollan v. Torrance, 22 U. S. 9 under the statute of 32 Henry VIII. the will as Wheat. 537 [6: 154]; Dunn v. Clarke, 33 U. S. to lands spoke from the date of its execution. 8 Pet. 1 [8: 845]; Clark v. Mathewson, 37 U. S. So that a general devise of all the testator's 12 Pet. 164 [9: 1041]; Whyte v. Gibbes, 61 estate would comprehend and include all the U. S. 20 How. 542 [15: 1016]; Phelps v. Oaks, personalty to which he was entitled at the time 117 U. S. 236, 240 [29: 888, 890]. In this last of his death, but would not embrace after accase it was held that in ejectment against quired land, though such might be the extenants in possession of real estate, whose land-pressed intention of the testator. The reason lord is a citizen of another state, the plaintiff given for the distinction between real and perhas a real and substantial controversy with the sonal estate was that a devise of land was redefendant within the meaning of the act for garded in the same light as a conveyance, and the removal of causes from state courts, which as a conveyance at common law would not continues after the landlord is substituted and rest for want of seizin, it was therefore held to becomes a party for the purpose of protecting be operative only on such real estate as the his own interesis. The rule announced in this testator might have at the time of the making case clearly settles, in a case like the present, of the will, that is to say, that a devise was in that where the jurisdiction of the court has the nature of a conveyance or appointment of 119] completely attached against the tenant real estate then owned, to take effect at a in possession, the substitution of the landlord future date, and could not therefore operate on as a defendant for such tenant will in no way future acquisitions. affect or defeat the jurisdiction of the court. While this strict and arbitrary rule of the By stipulation of parties the trial of the common law has been modified by the statutes cause by jury was waived, and all questions of of most, if not all, of the states of the Union, law and fact were submitted to the court for it is contended for the plaintiff in error that its decision. The court found the facts sub- the rights of the parties in the present case are stantially as set out above, and the conclusions controlled by it, for the reason that the legis of law announced were to the effect that at lature of Oregon did not confer by statute testhe time the will was made the testator was tamentary power to dispose of after acquired empowered and authorized by the laws of Ore-real property until February, 1891. gon to devise any real estate situated in that state, whether acquired before or after the making of the will, of which he might die seized and possessed. Also, that the intention of the testator, as manifested by the will in the present case, was to devise all of his real estate situated in the state of Oregon to Ellen E. Ray, and that under and by virtue of the devise the demanded premises, on the death of the testator, vested in the defendants as her heirs, and that they were entitled to the exclusive possession thereof. 33 Fed. Rep. 812. The present writ of error is prosecuted to reverse that judgment. The two assignments of error present the questions heretofore stated. For the plaintiff in error it is contended that the testator died intestate in respect to the demanded premises, for the reasons that at the time of the execution of his will he possessed no testamentary power to devise after acquired, lands, and because his will manifests no intention to dispose of such property. If either of these propositions can be sustained, the judgment of the court below must be reversed. In support of the first proposition, it is urged, on behalf of the plaintiff in error, that the common law, with its limitations and restrictions upon testamentary power in respect to real estate, was in force in the state of Oregon at the date of the execution of the will, and up to the death of the testator. Without reviewing the authorities, it is well settled that by the common law lands were not devisable, except in particular places where custom authorized it. This disability of the common law was partially removed by the statute of 32 Henry VIII. which authorized persons having title to 120] land to dispose *thereof by will, and was construed as restricting the right of devising lands, to such an interest only, as the testa or had at the time of the execution of the will. The provisional government of Oregon in 1844 formally declared by its legislature that "all the statute laws of Iowa territory, passed at the first legislative assembly of that territory, and not of a local character, and not incompatible with the conditions and circumstances of this country, shall be the law of this country, unless otherwise modified; and the common law of England, and principles of equity, not modified by the statutes of Iowa, and of this government, and not incompatible with its principles, shall constitute the law of the land." Among the laws enacted by the first territorial legislature of Iowa, and thus adopted by the provisional government of Oregon, was the following act relative to wills: *"SECTION 1. Be it enacted by the Coun-[121 cil and the House of Representatives of the Territory of Iowa, That any person having an estate in any lands, tenements, or hereditaments, or any annuity or rent charged upon, or issuing out of the same, or any goods or chattels, rights, credits, and choses in action, or in possession, and property of every description, whatever, may give or devise the same to any person by last will and testament by him or her lawfully executed." (Laws of the first session of the legislative assembly of the territory of Iowa, 1838-39, p. 471.) This statute was substantially the same as that of 32 Henry VIII. under which, as settled by the decisions of the English courts, and by those of the states where that statute is in force, after acquired real estate could not pass by will. This statute remained in force until 1849, the year after Oregon became a territory, when the legislature adopted a statute of wills, copied from the Revised Statutes of Missouri, which provided that "every person of twenty years of age and upwards, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower." This Missouri statute, thus adopted by the territory of Oregon, was a revision of the Virginia statute of 1785, which, by the first section thereof, empowered every adult person of sound mind to devise by last will and testament in writing "all the estate, right, title, and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death, shall have of, in, or to, lands, tenements, etc.; also all goods and chattels." When the laws of Missouri were revised in 1835, it appearing that one section of the Virginia act gave to the testator the same testamentary power over his real estate that was given him in a separate and distinct clause over his personal estate, the superfluous words were dropped, and the testamentary power over both real and personal properties were united in the one section above quoted. The Missouri statute thus adopted by Oregon was re enacted in December, 1853, and took effect May 1, 1854, as a part of the code of the territory. After the admission of the state into 122] the Union in 1859, the legislature of Oregon, in 1862, re-enacted without change the above quoted section conferring testamentary power, which has since continued to be the law of Oregon. Hill's Anno. Code of Oregon, § 3066. By an act of the legislature of Oregon, ap proved February 20, 1891, it has been provided that "any estate or interest in real property, acquired by any one after the making of his or her will, shall pass thereby, unless it clearly appears therefrom that such was not the intention of the testator; nor shall any conveyance or disposition of real property by any one after the making of his or her will prevent or affect the operation of such will upon any estate, or interest therein, subject to the disposal of that testator at his or her death." The construction which the plaintiff in error seeks to have placed upon these statutes is, that the territorial statute of 1849, copied from the Missouri statute, simply conferred the power to make a will devising real estate, which, under the rules of the common law, would not operate to pass real estate acquired after the making of the will, and that such testamentary power over after acquired real estate was first conferred by the act of 1891. eral language; it embraces both real and person- we do Again, in Applegate v. Smith, 31 Mo. 166, 169, the same court said: "We consider that the case of Liggat v. Hart, 23 Mo. 167, settles the one now under consideration. That case determines that the power over the after acquired lands possessed by the testator is the same as that which he possessed over lands which he owned at the making of the will; that with respect to after acquired lands, when the question arises whether they have passed by the will, it is just the same and to be de termined on the same considerations as would determine the question whether lands owned by the testator at the date of his will passed by it, or, in other words, that after acquired lands, as to the power of disposition, rests on the same ground as the lands owned by the testator at the date of his will, and the personal estate. According to this there can be no question but that the lands in Missouri passed by the will." The construction which the supreme court of the state of Missouri bas thus given to its statute since its first adoption thereof by Oregon does not have the same controlling effect it would *have if the decisions had been ren [124 dered before such adoption, still, they are strongly persuasive of the proper in'erpreta Prior to the adoption of the Missouri statute by the territorial government of Oregon, that statute had received no construction by the supreme court of Missouri, but subsequently,tion of the act, and have been so regarded by in 1856, that court was called upon, in the case the courts of Oregon, which have clearly in of Liggat v. Hart, 23 Mo. 127, to decide dicated that the statute of wills of that state whether after acquired real estate would pass should receive the same construction which by will under the statute, where such appeared has been placed thereon by the Missouri deto be the intention of the testator. The court cisions. Thus in Gerrish v. Gerrish. 8 Or. said: "The question is as to the construction 355, 34 Am. Rep. 585, decided after the Mis of the present law. Must we hold that the act souri cases, it was said by the court: "Our now in force does not confer testamentary statute of wills is an exact copy of the Mispower over after acquired land, and, on ac- souri statute, and the courts of that state hav count of the change in phraseology of the stating been called upon frequently to construe it, ute, which was made in 1835, go back to the construction put upon the original statute? We think not. The language now used does This approval of the construction placed by not require such a construction at our hands. the supreme court of Missouri upon the stat It is different from the English statute of wills. ute, after its adoption by the territorial gov. 'The testamentary power is given here in gen-ernment, in connection with its re-enactment we must look principally to the decisions of that state to ascertain its judicial construction.” |