428
76 FEDERAL REPORTER.
PEARSOL et al. v. MAXWELL et 0.1. (Olrcult Oourt of Appeals, Third Oircuit. October 5, 1896.) No.1, Sept. Term, 1896. WILLS-:T;IIlCHNICAL WORDS-!NTENT"--,'PRESUMPTION.
. Testator devised a certain estate, "to have and to hold to the said E. and the ,heirs of her body," followed by a provision that, if any of the children of E. should marry into a certain family, the share of the chila or children so marrying should go to the other children. Held, (1) that E. took an estate tail, the presumption being that the words were used in their technical sense; (2) that the proviso as to the children did not present such an unequivocal intent to limit E. to a life interest as to rebut such presumption. 68 Fed. 513, affirmed.
In Err.or to the Circuit Court of the United States for the Western of Pennsylvania. Edward Oampbell, for plaintiffs in error. William G. Guiles, for defendants in error. Before. DALLAS, Circuit Judge, and BUTLER and WALES, District Judges. DALLAS, Circuit Judge. The case of the plaintiffs in error rests upon their contention that by the will of Samuel N. Crawford there was vested in the children of Edith Pearsol an estate in remainder in the land indisplite upon determination of an estate for life in the said Edith Pea-rsol; but the conclusive answer to this contention is that the estate devised to Edith Pearsol is an estate of inheritance, and not' for life only, and that no interest or estate whatever was de· vised to her children. The quantity of the estate which Edith Pear· sol.was t9 take was defined by the words, "to have and to hold to the said EdithrPearsol and the heirs of her body," and that these words, if alone considered, created an estate tail, is hornbook law.' The learned counsel. for the plaintiffs has, however, strenuously insisted that the legal significance of technical words will not prevail against the true intent of a testator asdisclosediby his entire will, and eflpecially by its latest dispositions, which, when in conflict with any preceding part of it, are to be given controlIingeffect. These general princorrectly understood and rightly ciples need not be applied, they are unquestionable,-but they are not determinative of the present controversy, for the reason that, even in a will, the presumption is that technical words have been used in their technical sense, and this presumption cannot be rebutted otherwise than by showing an unequivocally expressed inteIj.t to use them in some other sense. The only dispositive provision of Samuel N. Crawford's will affecting this land devises an estate tail to Edith Pearsol, and we are asked to infer or imply an inconsistent devise to her children because the testator, towards the end of his will, declared that none of the family of his uncle, Joseph Crawford, should receive any bene· fit from his (testator's) estate, and more especially because the devise to Edith Pearsol is followed by these ,vords: "Provided, however, that the children of the said Edith Pearsol do not marry or be given in marriage to any of the children of my uncle Joseph
KANSAS CITY, FT. S. 1& M. R. CO. V. MORGAN.
429
Crawford, or to any of his grandchildren or great-grandchildren, or to any other lineal descendant of the said Joseph Crawford; but, should any of the children of the said Edith Fearaol marry any of the descendants of the said Joseph Crawford, the share of my estate, of he, she, or they so marrying as aforesaid, shall go to and Mcome vested in the other child or children of the said Edith, share and share alike."
We cannot say that this language discloses an intent (it certainly does not plainly do so) to use the words "heirs of her body" as meaning precisely the same thing as the words "for her life only, and, upon her death, to her children." If the latter words hlld been used, the children of Edith Pearsol would have taken as purchasers, and, of course, subject to tbe provision immediately under consideration. But it. is not unlikely that the testator supposed that by giving to the mother an estate of inheritance the same children would become entitled as heirs, and so be equally subjected to its operation. But we will not enlarge upon this subject To do so would be to involve ourselves in a maze of .conjecture into which the law wisely forbids us to enter. We are not at liberty, nor inclined, to ascribe to a testator an intent to do what he has not done, and to nullify what he has done, merely because he has made it possible to suspect, but not to clearly discern, that, if he had fully appreciated all the effects of his will as he expressed it,he would have expressed it differently. The conclusion we have reached is further supported by several matters contained in the will to which we do not deem it necessary to particularly refer. They have been sufficiently and satisfactorily discussed in the opinion filed by the learned judge of the circuit court. The jUdgment is affirmed.
KANSAS CITY. FT. S. & M. R. CO. v. MORGAN. (Circuit CO-.lrt of Appeals, Sixth Circuit. October 5, 1896.) No. 407. 1. JUDGMENT-CONCI,USIYENEaS,-INF ANCY.
An infant Who sues by his next friend Is as much bound by the judgment of a court having juriSdiction of the parties and subject-matter as if of full age.
2.
SA:ME-r-COLLATERAL ATTACK.
Plaintiff sued defendant for negligence which caused the loss of his leg. Defendant pleaded in bar a judgment obtained in favor of plaintiff for the identical cause in a former suit prosecuted by plaintiff's father as his next friend. Plaintiff replied that at the time the alleged judgment was obtained he Wail a minor; that his father, an illiterate man, agreed with defendant to accept $100 as full settlement for Injuries to plaintiff; that the suit and judgment were simulated and pretended, being instituted by advice of defendant's counsel, and it was in fact no judgment. Held, that these allegations, even if conceded to be a legal fraud, could not be set up In a collateral attack upon tbe judgment, The federal courts are bound to give the judgments of state courts the same faith and credit which the courts of another state are bound to give them. Pennoyer v. Neff, 95 U. S. 714, cited. Federal courts can determine whether or not a state court had jurisdic. tion of the parties to or subject-matter of a cause in whicb it bas rendered
8.
SAME-FAITH AND CREDIT.
4.
SAME-PAROL OR EXTRINSIC EVIDENCE TO CONTRADICT RECORD.
