201 F. 224 | 9th Cir. | 1912
(after stating the facts as above). The' plaintiff in error, the John Ii Estate, Limited, claims the whole fund in court: (1) By deed through Irene, who was the daughter of John Ii, deceased, and was named as a devisee in her father’s will, and who, claiming an estate in fee simple under the will, deeded the lands condemned to the John Ii Estate, Limited; (2) by prior adjudication in the Hawaiian courts. The defendants in error, Erancis and George,. children of Irene, denying the fee-simple estate of their mother, and admitting only a life estate in her, claim an interest in the fund by'-' way of remainder under the will of John Ii deceased. The court be- . low held that the devise to Irene was for life, that the children had an interest in the fund as claimed by them, and that there had been no adjudication in the courts of Hawaii foreclosing that interest. The court entered judgment accordingly. Was the court in error in entering this judgment ?
The primary question is whether the devise to Irene was in fee simple or for life. To determine this question it will be necessary to carefully examine the provisions of the will of John Ii. The original of this will is in the Hawaiian language, and for convenience the material ■ parts as translated and agreed to by the parties will" be restated. The’ controversy as to the intention of the testator with respect to the devise made to his daughter, Irene, turns upon the construction of the clauses and paragraphs in the will which for the purpose of easy^ reference are placed in italics, and one clause where the agreed translation is in dispute is placed in small capitals:
“All my property, both real and personal, shall descend to my heirs who are mentioned beloio, as follows:
“First. Irene Haalou Ii, my own daughter, is the first heir as follows: [Here follows a description of certain lands, including the land condemned in this case.] And one-half of all my personal property.
“Second. My wife, Maraea Ii, is my second heir. [Here follows a description of certain lands.] And one-half of all my personal property; and in case my wife marries again this land shall descend to my daughter; she cannot bequeath to any one.
“Third. My brother, J. Komoikehuehu, is the third heir. [Here follows a description of certain lands.] Those are the lands I bequeath to him.
“Fourth. My interest in the land of G. Naaihelu, my deceased younger brother, is for his widow Kamealani.
“Fifth. My land [here follows a description of certain lands] is for A. F. Judd, and that is his land that I bequeath to Mm.
“By this will I have appointed and I do hereby appoint J. Komoikehuehu, A. F. Judd, they both to be the executors and guardians of the person and property of my daughter, the first devisee mentioned in this will.
“All the income from the lands that are leased, and all other receipts from all the lands of my daughter, they two alone shall have the sole care of it until she becomes of age or has children of hee own; they shall be the executors during the Ufetime of my daughter and her children in accordance with my wishes as expressed in this will, and they shall shall receive compensation the same as provided by law. * * *
“And the first fruits received from the lands of my daughter, that is, the money received, there shall be taken therefrom ten cents from ■ each dollar which is set apart as an offering to God’s kingdom, the same as I have done. And my executors are to carry out this request of mine.
“And further, if my daughter should die having borne children, then the'*234 property shall descend to her children, and if she should die without having had any children the property shall descend to her own mother, and if she should he dead then the property shall descend to my brother, J. Komoihehuehu.”
This will-is dated the 28th day of April, 1870. The testator died on the 2d day of May, 1870. The daughter, Irene, was then aged about nine months.
“All the income from the lands that are leased, and all other receipts from all the .lands of my daughter, they two alone shall have the sole care of it until she becomes of age or has children of her own; they shall be the executors during the lifetime of my daughter and her children in accordance with my wishes as expressed in this will.”
These words, “or has children of her own,” had been translated) from the original words, “a hanau palia kana mau keiki.” Judge Dole, presiding in the court below, who is himself familiar with the Hawaiian language, did not consider himself bound by the agreed translation of these words, and with the consent of counsel on both sides heardl the testimony of a number of experts in the Hawaiian language as to the meaning of these words, and while several of the experts approved the translation, “or has children of her own,” two of these experts, who appear to have had superior knowledge of the Hawaiian language and its construction, translated the words into English as follows: “And in the event of her giving birth to children.” And a majority of the experts admitted that the words in the relation in which they stood in the paragraphs were capable of such translation, and such a translation was required to make the clause harmonize with the remaining clauses of the paragraph. Judge Dole accordingly found that with the translation, “and in the event of her giving birth to children,” the repugnance and inconsistency in the terms of this clause, taken in connection with the preceding and succeeding clauses of the paragraph, were removed, and the whole paragraph made to harmonize with the obvious and untechnical meaning of the final provision of the will. This translation was therefore accepted. The whole paragraph, with this new translation, reads as follows :
. “All tbe income from tlie lands that are leased, and all other receipts from all the lands of my daughter, they two alone shall have the sole care of it until she becomes of age, and in the event of her giving birth to children they shall be the executors during the lifetime of my daughter and her children ija accordance with my wishes expressed in this will.”
The final provision of the will, referred to by Judge Dole, is as follows :
“And further, if my daughter should die having borne children, then the property shall descend to her children.”
The original translation rendered the whole paragraph contradictory in terms and inconsistent in purpose. By its terms the testator appointed two executors, to have the sole care of the income from the lands devised to the daughter until she should become of age, or al
In view of the,fact that the judge of the court below is himself a Hawaiian scholar, that he heard the expert witnesses, and was able to judge of their knowledge and skill as experts in the use of the Hawaiian language, we shall accept the translation of the clause in question adoptedl by the court below as the correct translation, and' as expressing the true purpose and intent of the testator.
Plainly, if we are to be guided by the provisions of the will we have been considering, it was a life estate; that is to say, she was to have the income from the lands mentioned) in the will during her lifetime, and if she had children then the property should descend to her children, and if she should die without having had any children then the property should descend to her own mother, and if she should be dead then the property should) descend to the testator’s brother. This is the positive direction of the last clause of the will. Now, while the writer of this will had evidently but little technical skill in the construction of its provisions, it is clear that the instrument was intended to provide for the devise of a life estate to Irene, and not an estate in fee simple.
“All my property, both, real and personal, shall descend to my heirs who are mentioned below.”
The word “heirs” as here used is manifestly without legal significance in describing the estate devised. This is apparent from the terms of the other devises. The testator’s wife is designated as his “second heir”; but she is clearly not given an estate in fee simple in land, since the estate is specifically limited by the provision:
“In case my wife marries again the land shall descend to my daughter; she cannot bequeath to any one.”
On the other hand, while A. F. Judd is not .designated jn the body of the will as an “heir,” he is plainly given land in absolute fee simple in the provision:
“My land [describing it] is for A. F. Judd, and that is the land I bequeath to him.”
' Moreover, as pointed out by the court below, the original Hawaiian word “hooilina,” which is translated “heir” in the first, second, and third bequests, is translated “devisee” in the clause appointing the executors and guardians of the daughter, who is referred to as the first “devisee mentioned in the will,” thus making the word “heir” and “devisee” in the translation synonymous. The word “heir” could not, therefore, have been intended as descriptive of the estate devised, but of the person to whom the devise was made; and, being thus indefinite and uncertain as to the estate devised, resort must be had to other portions of the will to ascertain the intention of the testator.
The plaintiff in error cites the late case of Simerson v. Simerson, 20 Hawaii, 57, as declaring a rule of construction applicable to this case. In that case the grant was by deed, and the granting clause was as follows:
“I do make, and by this give, sell, and convey absolutely unto Mary Nanea Simerson aforesaid, and her heirs, forever, that certain piece of land,” etc.
In a subsequent paragraph in the deed it was provided:
“This conveyance is under the conditions mentioned below, viz.: (1) That Mary Nanea Simerson aforesaid cannot sell this land nor mortgage it. (2) She is to pay the mortgage existing upon the said land, and all expenses pertaining to the release of said mortgage. To have and to hold the said piece of land, with all rights and benefits thereon, to Mary Nanea Simerson aforesaid immediately after our death; and after her death the said land is to descend to her child now being * * * and other children- which she may have hereafter, and to their heirs and assigns, forever.”
Here is a deed conveying land absolutely to the grantee and her heirs, forever, in the common-law form of a grant in fee simple. There is nothing uncertain or indefinite about the estate granted. On .the contrary, it is perfectly certain, clear, and definite as the grant' • of an absolute fee-simple title, and if subsequent conditions in the
“This is not a remainder, but an expression of the grantor’s wish or. intention that the inheritance which he had given to his daughter should descend from her to his grandchildren. There is no Hawaiian word which is the exact equivalent, of “condition’; the word ‘kumu,’ translated ‘conditions,’ .used in the version, meaning ‘grounds’ or ‘considerations.’ Moreover, the Hawaiian language does not distinguish between the imperative mood and the future tense. The deed, then, would readily mean to the Hawaiian mind that the grantor gives the land to his daughter absolutely, and to her heirs and assigns, forever, considering that she will [or shall] not sell or mortgage it, and will pay oft its mortgage, and that at her death it will .[or shall] descend to her children.”
What the court did in this case was what the court below did in the present case. It gave a critical examination to the translation of important words, and then, looking at the whole instrument, without reference to formal divisions, ascertained the intention of the testator, following a rule in cases cited by the court in Bodine’s Administrators v. Arthur, 91 Ky. 53, 14 S. W. 904, 34 Am. St. Rep. 162; Beecher v. Hicks, 75 Tenn. 207; Fogarty v. Stack, 86 Tenn. 610, 8 S. W. 846; Horn v. Broyles (Tenn. Ch.) 62 S. W. 297; Prior v. Quackenbuch, 29 Ind. 475; Clapp v. Byrnes, 3 App. Div. 284, 38 N. Y. Supp. 1063; Barnett v. Barnett, 104 Cal. 298, 37 Pac. 1049; Flagg v. Eames, 40 Vt. 16, 94 Am. Dec. 363; Rines v. Mansfield, 96 Mo. 394, 9 S. W. 798. This was the rule followed by the court below in the present case, and is the generally accepted rule in this country, and has been followed in the Hawaiian courts.
In King v. King, 215 Ill. 100, 110, 74 N. E. 89, 92, the question in the construction of a will was almost identical with the question under consideration. The court said:
“If an estate is devised to a person without the use of such words of in1 .heritance, the devisee will take in fee simple, unless a less estate is, limited by express words in a subsequent part of the will, or by construction: or ■operation of law. [Citing cases.] The question then arises whether the fee-simple estate thus devised to the plaintiff in error was reduced to an ■estate less than a fee by any of the clauses of the will following and sub*238 sequent to the first clause. * * * By the use of the words, ‘and in case of the death of daughter, and she left one or more children, then the property goes to them when of age,’ it was clearly the intention of the testator that the daughter, the present plaintiff in error, should have the life estate only in the property, and that the remainder, after the expiration of the life estate, should go to her children.”
Under this rule, supported by numerous authorities in addition to those cited, we are of the opinion that the terms of the will in this case show that it was the intention of the testator to devise the land in question to his daughter, Irene, for life, with the remainder in fee to her children.
It is next contended by the plaintiff in error that this controversy is res judicata; that in two prior.Hawaiian cases—Brown v. Brown,, 11 Hawaii, 47, and Brown v. Brown, 15 Hawaii, 308—the question involved in this case was litigated and determined adversely to the defendants in error.
The first case was a suit in equity brought in the circuit court of the First circuit of the Republic of Hawaii in 1894 by Irene Haalou Ii Brown, a married woman, and George Ii Brown and Francis Hyde Ii Brown, minors, by their next friend, A. D. Judd and A. F. Judd, against Charles Brown, to declare and execute a trust and for an accounting. The bill was signed by “A. F. Judd,” and in the margin were typewritten the names of “Carter & Carter” and “W. A. Kenney” as attorneys for plaintiffs. The suit had its origin in this situation: In the will of John Ii, A. F. Judd and J. Komoikehuehu were named as executors and guardians of the person and property of the daughter, Irene. John Ii died in 1870, leaving a large estate and the daughter surviving. The will was admitted to probate, and Judd and Komoikehuehu appointed executors of the will and guardians of Irene. In 1875 Komoikehuehu resigned, and Sanford B. Dole was appointed in his place, and thereafter performed their duties under the will until- 1886, when Irene married C. A. Brown. Thereupon Judd and Dole applied to the court to be discharged as guardians, on the ground that their powers as guardians of Irene had ceased upon her marriage to Brown. They were, however, never discharged as executors of the will. When Judd was appointed executor and guardian, he received from the court what purported to be a true and correct copy of the will, upon which he states he exclusively relied in' determining his powers and duties. In the the copy of the wili furnished Judd the following words in the Hawaiian language were omitted:
“O laua no na liooko kauoha i ka wa e ola ana kuu kaihamahine, a i kana man keiki.”
These words are translated:
“They shall be the executors during the lifetime of my daughter and her children.”
By the omission of these words it is alleged that Judd and Dole were not fully advised of the true nature and intent of the will, and supposed that no. trust was created by the will that would not terminate when Irene reached her -majority or -fras married. Learning
After proceedings before the circuit court of the Hawaiian Islands, Judge Perry, who at the time was judge of the court, reserved certain questions for the consideration of the Hawaiian Supreme Court. These questions have been set forth in the statement of facts and need not be restated. In briéf, they included the question at issue under the amended bill; that is to say, whether a trust was created by the will of John l'i in the property devised to his daughter, Irene, and, if such a trust was created, was the trust still in force, Irene having married and had issue of the marriage, which still survived ? The questions also included in different forms of statement the question contained in the original bill, and which had been omitted from the amended bill; that is to say, what were the relative rights and interests of the parties plaintiff and defendant in the estate of John li under his will?
“Whenever any question of law shall arise in any trial or other proceeding before a circuit court the presiding judge may reserve the same for the consideration of the Supreme Court.” Laws of 1892-93, c. 57, § 72.
The authority to reserve questions for the consideration of the Supreme Court is limited by this statute to questions of law. It apl
. The next objection relates to the question whether the Supreme Court was legally constituted for the hearing and determination of the case. The Supreme Court of Hawaii, under article 83 of the Constitution of the republic, adopted in 1894, consisted of a Chief Justice and two Associate Justices. When these questions reached the Supreme Court,-it was found that the Chief Justice and one of the Associate Justices were disqualified to sit in the case. The law at that time provided that, if any Justice of the Supreme Court should be disqualified from sitting in any cause pending before the Supreme Court, his place for the trial and determination of such cause should bp filled by one of the circuit judges, who had no connection with said cause, either as counsel or in his official capacity, or by any competent and disinterested member of the bar of the Supreme Court thereunto authorized by the written request of the remaining Justices. In this case, two of the Justices being disqualified, the remaining Jus
It is strenuously objected that this was not a legally constituted court, that at the time the reserved questions were certified to the Supreme Court the law provided for the filling of one vacancy only for the hearing of a cause, and that the addition of a second substituted member was in violation of the statute. The court below did not deem it necessary to pass upon this question, in view of its position on the question as to the authority of the court to reserve the questions it did for the consideration of the Supreme Court. For the same reason we do not deem it necessary for this court to pass upon this question.
In the original bill the prayer was that Judd be reinstated as trustee, his duties and obligations defined and determined, and the relative rights of Irene and her children arid her husband under the will determined. It may be assumed that the interests of all the plaintiffs were in accord with respect to the first two clauses of the prayer of the bill; but it cannot be assumed that they were in accord with respect to the last clause. The relative rights of Irene under the will were manifestly in conflict with those of her children. This bill was not satisfactory to Irene, and she asked that proceedings under it should be discontinued, and the bill dismissed. The reason for such dissatisfaction is not disclosed in the record, unless it is found in the differences in-the framework and'prayers of the original as compared with the amended bill.
- But it may be said that the court could not determine the duties and obligations of the executors during the lifetime of Irene, without ascertaining what her estate was under the will. If this is true, and we are inclined to think it is, it determines conclusively that, in whatever aspect we view the case, the children were entitled to be represented by counsel, and, not having been so represented, they have not had their day in court, and the case is in no sense binding upon them.
Our conclusion with respect to the first case is that neither the circuit nor the Supreme Court of Hawaii had jurisdiction over the defendants in error or the subject-matter in controversy, so far as the same related to or affected their interests in the estate, and that there has been no adjudication with respect to the same.
To this bill Irene Holloway answered, admitting the several allegations of the bill, except the allegation that the said John Ii meant and intended by his said last will that the defendant should have the use and benefit of said property during her lifetime only, and she alleged that by the will she was given the property in fee simple. The defendants Brown and Magoon demurred, the former on general and special grounds — among others, on the ground that there was another suit pending, referring to the first case, and alleging that all necessary proceedings had been taken, save alone the formal entry of a decree, and that.it did not appear that any of the property or estate of the plaintiffs had been conveyed to said corporation, either by the plaintiffs or any person purporting to act in their behalf. The court sustained the demurrer, on the ground that the deed of conveyance referred to in the bill did not convey, or purport to convey, the estate of the plaintiffs in the property conveyed. A decree was accordingly entered, dismissing the bill, but allowing plaintiffs leave to amend.
The bill was thereupon amended, by the addition of. a paragraph to the bill alleging that it was the intention and the declaration of the grantors in said deed of conveyance to convey to trustees for the
The bill a£ amended was demurred to by the defendants Brown and Magoon on substantially the same grounds as before. The court sustained the demurrer in a written opinion, in which the court said:
“The allegations in the amendment do not take the case out of the rules .set out in the former decision rendered in this case upon demurrer to the original bill, unless the bill is now good as a bill quia timet. It has been held that the equity action of quia timet still lies, and that the jurisdiction ■of this action in equity has not been taken away by the statutory action to quiet title. * * * But plaintiffs are not in possession of the land in question; at least, it is not so alleged in the bill, and the allegation of the amendment as to the possibility of waste being committed would lead the court to infer that plaintiffs are out of, and the defendants or their grantees in, possession of the land. The demurrer should have been sustained, as it was, because the bill did not show that plaintiff was in pos■session” — citing the ease of Ahmi v. Ashford, 12 Hawaii, 13.
A decree was thereupon entered dismissing the bill. From the de■cree the plaintiffs appealed to the Supreme Court, where the decree of the circuit court was affirmed. The Supreme Court agreed with the circuit judge that the bill was not maintainable on the ground that it was immaterial whether Irene took only a life estate or an ■estate in fee simple, inasmuch as she and her then husband purported in their deed to convey only the lands belonging to them,-and their right, title, and interest by curtesy, dower, or otherwise in the lands of each other, and did not attempt to convey any lands belonging to their children, the plaintiffs, even if the latter had the remainder in •fee in the lands in question.
The Supreme Court also concurred in the opinion of the circuit judge with respect to the bill as amended, holding that .the amendments to the bill did not alter the result, in so far as the bill might be-, ■considered to declare a trust; and, considered as a bill to..remove a
The court then proceeded to consider whether the suit could be maintained to remove a cloud by reason of the prior decisions. The court held with respect to the constitution of the court that the decision in the first case was by a de facto court, and that a decision of a de facto court was not void, and could n'ot be questioned collaterally ; that, granting that the Supreme Court did not have jurisdiction of reserved questions in equity, still it was not such a defect as rendered the decision absolutely void, and with respect to the jurisdiction of the court to construe the will, after deciding that there was no longer a trust in existence, the court held that the circuit court should have declined to construe the will, after it had decided that there was no trust. “Still,” says the court, “the decision would not be wholly void. * * * If the decision was erroneous in these respects, it was mainly because there was an adequate remedy at law. But that was a matter that could be waived. * * * And this as well as the other alleged defects above mentioned could be waived on behalf of the plaintiffs, notwithstanding- they are minors, at least, so as to preclude a collateral attack by the minors.” The decree of the circuit court was accordingly affirmed.
The fact that no decree was entered in the first case was not mentioned by the Supreme Court in the second case, and the effect of the absence of a decree in the first case was therefore a question, and, as we view it, an important question, not passed upon or in any way adjudicated in the second case. What, the Supreme Court did in the second case was to affirm the decree of the circuit court. That decree had been entered upon the specific grounds set forth in the decree, referring to the “decision in writing herein sustaining the dlemurrers of the defendants.” The decision in writing to whch reference was made sustained the demurrers to the bill of complaint on the ground already stated, that the bill did not state a case entitling the plaintiffs to relief in equity: (1) Because the deed of conveyance-executed by Irene and her husband, referred to in the bill of complaint, did not purport to convey lands belonging to the plaintiffs; and (2) the bill did not show that plaintiffs were in possession of the land in controversy.
These objections went only to the framework of the bill under certain well-known rules of procedure, and not to the merits of the case. • A more imperative rule requires that the merits of a case shall not be sacrificed to formal defects in practice or pleadings, and hence it is that such a decision is limited to the actual questions involved. Where a decree refers to the “opinion of the trial judge in terms that make it clear that the object was to refer to it, to explain what was determined, and the reasons therefor, then such opinion becomes legitimately a part of the record, and must be looked to, to explain what was in issue, and what was determined by the judgment or decree in question.” Legrand v. Rickey’s Adm’r, 83 Va. 862, 877, 3 S. E. 864,
Where a demurrer is sustained for want of equity, .“the estoppel extends only to the precise point presented by the pleadings and decided by the ruling upon the demurrer.” Dennison Mfg. Co. v. Scharf Tag, Label & Box Co., 121 Fed. 313, 318, 57 C. C. A. 9; Wiggins Ferry Co. v. Ohio & Miss. Ry. Co., 142 U. S. 396, 410, 12 Sup. Ct. 188, 35 L. Ed. 1055. A decree sustaining a demurrer is no. bar to subsequent proceedings upon facts and questions of law not litigated or passed upon by such decree. Detrick v. Sharrar, 95 Pa. 521, 525. “If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on*any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” Hughes v. United States, 71 U. S. 232, 237, 18 L. Ed. 303; Converse v. Davis, 90 Tex. 462, 466, 39 S. W. 277.
If the decision of the Supreme Court in the second case be thus limited to the questions considered and determined in the trial court, as it must be so limited under the authority of these cases, what were the questions left open for consideration and determination in any subsequent case? Manifestly, any question involving the merits of the case, and, primarily, whether the absence of a decree in the first case in either the Circuit Court or Supreme Court of Hawaii leaves the questions involved in that case open for adjudication in this case. In considering the record in the first case, we were of the opinion that it did, and, since we find nothing in the second case to change that opinion, we might hold upon this fact alone that plaintiffs’ claims in this case are open to consideration and determination upon the merits; but, the plaintiff in error contending for the bar of the second, case upon the broad grounds that the questions there decided constituted in and of themselves an adjudication upon the questions decided, we will consider briefly the remaining questions in the second case.
In the second case the Supreme Court conceded that the Supreme Court in the first case had no such jurisdiction—citing Booth v. Baker, 10 Hawaii, 543, 546—but held that the defect was not such as to make the decision absolutely void. This decision is clearly not binding upon the federal court. If the Supreme Court had no jurisdiction to answer a reserved question of fact, its answer to such a question was absolutely void. County Commissioners of Hampshire, 140 Mass. 181, 182, 5 N. E. 490; Bearce v. Bowker, 115 Mass. 129;
(2) Whether the Supreme Court in the first case had jurisdiction to construe the will after having decided that there was no longer any trust in existence.
■ The Supreme Court in the second case conceded that the court in the first case, after having decided that there was no longer a trust, should have declined to construe the will. The reason for this concession is not stated. But the only possible reason that could be stated was that the court did not have jurisdiction to decide that question ; but the court held that this was an error that did not make the decision void, and that it “as well as other alleged defects above mentioned,” was a matter that might be waived by the plaintiff minors, so as to preclude a collateral attack by them. The answer to this proposition is the answer to the next question. The third and last question was whether the circuit court or the Supreme Court had jurisdiction over the persons of the plaintiffs, notwithstanding they were not represented by separate counsel in a controversy in which their interests were in conflict with the interests' of their mother Irene. We are of the opinion that neither the Circuit nor Supreme Court obtained jurisdiction over the plaintiffs in the first case, and we do not find from the record that they waived the lack of such jurisdiction.
It therefore appears that in the second case the Supreme Court field that the court in the first case was without jurisdiction to determine the questions involved in the merits of the case. The opinion of the court that this lack of jurisdiction did not render the decision of the court upon those questions absolutely void is not an opinion binding upon the federal courts, and we do not concur in that opinion. If a court “act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no jurisdiction; and all persons concerned in executing such judgments, or sentences, are considered, in law, as trespassers.” Elliott v. Peirsol, 26 U. S. 328, 340, 7 L. Ed. 164; Williamson v. Berry, 8 How. 495, 555, 12 L. Ed. 1170; Lewers & Cooke v. Redhouse, 14 Hawaii, 290, 294.
It follows, from these considerations, that we do not find that there has been an adjudication in either of the Hawaiian cases foreclosing the rights of the plaintiffs in the property condemned in this case; and we do find, as did the court below, that each of the defendants in error under the will of John Ii, deceased, was the owner of an undivided interest in said land in fee simple, and is now entitled to a
The dlecree of the District Court is affirmed
