812

.FEDERAL REPORTER. HARDENBERG

'V.

RAY et

at

(Circuit Court, D. Oregon.

January 23, 1888.)

1.

WILLS-REsIDUARY LEGAOy-AFTER-AcQUIRED PROPERTY.

A residuary devise of real property, under the Oregon statute of wills, (sec·· tion 1,) may and will pass after-acquired property. if such appears to have been the intention of the testator.

2. SAME.

H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ra.LY all the rest of. his lands wherever situate and. all his property and estate of whatever 1l:ind or nature," after. which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will.· Held, that the intention of the testator to make his sister Ellen his resiq.uary devisee was manifest, and that she took the after-acquired property under the devise in the will. . .

(81/llabu8 by the Court.)

At Law. Action to recover possession of real property. F. A · .E. 8tarr and Benton Killin, for plaintiff. Jarnes K. Kelly, O. E. 8. Wood, George H. Willia'l1l8, and Robert L. McKee, for defendants. . DEADY, J. This action is brought to recover possession of the south half·of lots numbered 2 and 7, in block 39, of Portland, according to the plat thereof, alleged to be worth over $5,000. The plaintiff is a citizen of the state of New York. The action was brought against Charles Sliter, J. C. Miller, and W. H. West, the persons in the possession of the premises, who answered that they were in possession only as tenants of Thomas L. Ray, Rachel L. Ray, H. E. Ray, Mary E. Arbuckle, John De Witt Ray, and Sarah A. Ray, giving their residence, and asking that they might be substituted as defendants in the action. A defendant may answer that he is in possession only as the tenant of another, naming him and his place of residence, but it is both impertinent and improper to go further and ask that such person be made defendant. When he declines the controversy, as he may do, he should not further meddle with it. See McDonald v. Oooper, 32 Fed. Rep. 745. These parties were afterwards made defendants, in place of the tenants, on their own motion, and answered, admitting they were all citizens of Oregon, excepting John De Witt Ray, who is a citizen of Illinois, and Sarah A. Ray, who is a citizen of New York. ,!tis alleged in the complaint that the plaintiff is the owner in fee-simple of an undividedone-third0f the premises, and entitled to the immediate possession thereof. The answer contains a'denial of the plaintiff's ownership of any interest in the premises, or his right to the possession thereofj and also a defense to the effect that the defendants are the own-

HARDENBERG V. RAY.

818

ers in fee-simple of the premises. ,The reply contains a denial of the defendant's ownership of the premises except the undivided one-sixth thereof. By a stipulation duly filed the parties consented that the cause might be tried by the court without the intervention of a jury. It was also stipulated that a certain agreed statement might be used on the trial as evidence, from which the following facts appear: On May 15, 1872, Peter De Witt Hardenberg made and published his last will and testament, whereby he devised and bequeathed (1) to Thomas H. and Jacob H. Tremper, of Ulster county, New York, and Thomas L. and John De Witt Ray, of Belvidere. Illinois, all his interest in a certain farm in said county; (2) to Catherine L. Tremper, of said <.lounty, all his lands lying therein; and (3) to Ellen E. Ray, of said 1,3elvidere, "all my right, title, and interest in and to aU 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 estate of whatever kind or nature." After the death of the testator-the time of whicn is not stated--,.this will was dulyadrnitted to probate, and, as such, is now in full force and effect. On January 9, 1882, the testator purchased and became the owner in fee-simple of the premises in controversy, and so continued until his death. At his death: the testator left the following heirs: T. Rutzen, Herman and Philip L. Hardenberg, his brothers; Catherine L. Tremper, his sister; Mary E. Arbuckle, Samuel A., Hylah E., Rachel L., Thomas L. and John De Witt Ray, the children and only heirs of Ellen E. Ray, ',Joresaid, who died in December, 1873; and Rachel F. Lefevre, the laughter and only heir of a sister of the testator's, before that time de-eased. When this action was commenced the defendants Mary E. Arbuckle; Thomas L., Rachel L., and Hylah E. Ray were citizens of the state of Oregon, the defendant, John De Witt Ray was a citizen of Illinois, and Sarah A. Ray was a citizen of New York. On the trial, the plaintiff proved that, prior to the commencement of the action, he demanded of the defendants to be let into possession with them, which they refused; and that, on September 24, 1885, Rachel F; Lefevre, for the consideration of one dollar, conveyed and assigned all ber interest in ;the estate of the deceased to Herman R. Hardenberg, the plaintiff, while the defendants proved that said Rachel F., on November 3, 1886, in consideration of $200, released and quitclaimed to them all her interest in the premises in controversy. It was also proved that the testator owned other valuable real property in Portland, at the time of making the will,of which he died seized. It is objected in limine, that the court is without jurisdiction :ease,because two of the present defendants-John De Witt Ray .andSarah A. Ray-are not citizens of Oregon, but of Illinois and New York, respectively. If this objection is well taken, it only goes to the jurisdic-

814

i'EDERAL REPORTER.

tion onheco1.1,rt \lver two defendants. The tenants in common ofthe property, the plaintiff has a Sf2paratecause of action against each of them, in respect to the ouster or deprivation of possession,on which he may sue them separately or jointly. Code Civil Proc. §91. ,Prior to the judiciary act of March 3, 1887, (24 St. .552,) a person could only be sued in a circuit court in the district whereof he was an inhabitant; or in which he might be found at the commencement of the action. But it has always been held that tbis exemption-is the personal privilege of the defendant,which he may waive and doeswaive by a voluntary appearance. Dunlap v. Stetaon, 4 M;ason, 360; Toland v. Sprague, 12 Pet. 331; Kendall v. U. S.,Id. 623; Herndon v. Ridgway, 17 How. 425. a person may in a circuit court in the By the act of tricOn which he or the plaintiff resides; but be can no longer be sued in any district in which he may be found. But I see no reason why ,the. old rule of construction should not apply, so that if a party defendant voluntarily appears in an action brought in a district other than that in Which he or the plaintiff resides, he may do sq, and the court thereby acquire jurisdiqtion ofhis person! In such case,tb e plaintiff and John De Witt Ray, being of different states and the latter having vol\1nta:rily appeared i.Q the action, tbe court would acquire jurisdiction. But,laB to Sarah A.. Ray.this suggestion is not applicable. She is a citizen of the same state with tbe plaintiff, and the court bas not and cannot acquire. jurisdi(ltion over a controversy between· such .parties. Whe,re the jurisdiction of the court depends on tbe diverse of the partieEl, and such diversity does not exist, consent cannot confel," it. aut I do not think this objection well taken as to either of these parties on another ground. " When the summons in this action was served on the original defendants,-Sliter, Miller, and West,-the persons in possession, the court aqquiredjurisdiction of the controversy and the parties to the action, and no SU1>sequent change in the citizenship or personnel thereof can affect jurisdiction. As was said by. Mr. Chief Justice MARSHALl. in Mollan v. Torrance. 9 Wheat. 539: "Thejurisdiction of the court depends on t,he state of things at the time of the action brought, and, after vesting, it cannot. be ousted by subsequent events." To the same effect is the ruling of the court in Dunn v. Olarke, 8 Pet. 1; Clarke ,V. Mathewsort, 12 Pet. 164; Whyte v. QiPbes, 20 How. 542. For instance, it is held in Clarke v. MatMwson, ItUPrlf, that where, the plaintiff. a citizen of Connecticut, in the circuit, cQurtfor the District of Rbode Island died pending a against of the latteJ; state, hjs administrator, also a citjzen of Jl.hode Isll,\Qd, could the suit. In delivering the. opinion ofthe STRONG said:
"The. to the were citizens of' 'different·.states,an<l the jurisdiction of the court comp!etely attached to thecoittroversy; haVing so attacbed, it'coUld not be divested by any subsequent events, and the court had a rightful l(utnority to proceed to' a llnal determination of it. If,after the t\Qmmencement of the suit, the original.plaintiff had removed into. and be-

RARDENBERGV. RAY.

815

come a citizen of, Rhode Island, the jurisdiction over the cause would not have been divested by such change of domicile." The change of parties. defendant in this case is allowed for the benefit of the landlord, the present defendants, and was made at their instance. The jurisdiction of the court had completely attached before they were for the original defendants, and so far as the question of jurisdiction is concerned, the parties to the action are not changed, and they stand in it as the mere representatives or substitutes of such defendants, the same as an administrator is of his intestate. The objection to the jurisdiction is not sustained. The next question in the case is whether the property in controversy, having beE.'n acquired by the testator after the making of his will, passes thereby to the residuary devisee or descends to his heirs. The contention of the plaintiff is that, under the Oregon statute, the will speaks from the making thereof, and not from the. death of the testator, and,; therefore, as to after-acquired property, he is deemed to die intestate, and the same goes to his heh·s; and even admitting that the testator had the power under the statute to devise' all the lands of which he migbtdieseized by a will anterior in date to the acquisition thereof, such after-acquired estate would not pass thereby, unless the intention tb.at it should was plainly expressed in the will. On the contrary, the'defendants contend' that the devise to their ancestdt Ellen E. 'Ray should be held to speak from the death of the testator, and thus include all the property not otherwise disposed'>f, whereof he died seized; and that it is manifest from the language of the devise and the cir<lumstances of the testator that such was his intention. , The Oregon statute of wills was passed at the first session of the terrion September 26, 1849 j (Hamilton Laws, 274, 1850-1;) and was' taken from the Revised Statutes of Missouri. Thetl'oommissioliers to prepare a code of laws for the territory," appointed under the acto£; January 12, 1858, (Sess,' Laws 57,) reported the same for: adoption, with some unimportant alterations, and it was thusre-enacted on December 15, 1853,(Code 1853-4, p. 354,) and took effect May 1, 1854. By the repealing act, supplemental to the Code of Civil Procedure, pa.ssed Ootober 17,1862, (Seas. Laws 124,) certain se(}o tionsofthe l\Otrelating ,to 'procedure, namely, sections 6, 15 to 23, and 27, to' 34 inclusive, and 49 and 52, were repealed, because the matter was inCluded in said Code, then just passed. Section 1··of the act gives the power to make a will. It reads as follows: "That every person: of twenty-one years of age and upwards, of' sound mind, may, by last will, devise all his estate, real and personal, saVing llotbe widow'herdower. . ,: . . Taecblonists on tb Atlantic coast· brought with them from England the cdmmonlaw,a:nd, with some modifications, mostly political,adopted Has the basis of their social fabrioand jurisprudence. Two hundred .years l11ter' their descendants brought this ('Code of matured ethics and .enlarg6d(Civil wisdom" (1.Kent. Comm. 342.) across the plains to Oregon, where, on June 27, 1844, it was formally declared by the legiSlature Clf

816

FEDERAL REPORTER.

the provisional government to be "the law of the land," with the qualifications following: "All the statute laws of Iowa territory, passed at the first session of the legislative assembly of said territory. and not of a local character, and r.ot incompatible with the condition and circumstances of this Ciountry, shall be the of law of this government. unless otherwise modified; and the common England, and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles. shall constiLlte a part of the law of the land." Laws 1843-49, p. 100. At common law no greater estate in lands, than for a term of years, which was regarded as personal pI.'operty, could pass or Le conveyed by will. In time, however; the law was evaded by making a feofment to the use of the feofor's last will, and he being considered seized ..o f the use and not the land, could, in effect,. devise-it by devising the use. But the statute of uses (27 Hen. VIII.) by uniting the land to the USe made tbis device of no further avail. . And this led, within five years, to the enactfamous statute of wills, (82 Hen. VIII.) by which any person "having" land held in80aage might dispose of the same by will, or, if held by knight's service, might in like manner dispose,of two parts of the same.. 1 Jarm. Wills, 58; 1 Redf. Wills, 2; 4 Kent. Comm. 501i 2 Bl. Comm. 374. A devise of lands under this statute was held by the English courts/to bea.species of conveyance; and as a person could not at common law convey what he did not then have".it followed, as a matter of course, that lands acquired by the testator after the making of his will could not pass thereby . The .fact that the English statute only conferred this testamentary power on persons "having" lands also influenced the result. By implication the statute was construed as if it read, "No person can devise land unless he has it at the time of makinghi,s will." This conclusion was doubtless promoted and strengthened by the prevailing sentimentof the country, that regarded the testamentary disposition of real property 8S a species of injustice to the heir, whose right to the possession on the death of the ancestor was considered equal to that· of the ancestor himself. This continued to be the law of England until the passage of the act nf 1 Viet. c. 26\ (1837,) by which (section 3) any person was authorized to dispose of by will all real property to which he. was entitled "at the time of his death;" and (section 24) itwas provided that every will shall be con:ftruedwith reference to such. property, "to speak and tll-ke effect" as at the death of the testator, "unless a contrary intention .shall appear by the will;" . In my judgment the statute of Henry VIII. is no part of the common law, arid, 'as: such, did, not bllcomea part of the law of the English 0010nies.l1! -is:conceded that the common law of England., as it stood prior ito the accession of James, I., together with the statutes passed in aid :thereof, was to this country by the colonists, and became the ,basis of.thelaw of the land. 1 Kent. Comm. 342, 472; Story, Comm. §§ 147, 157, 158.

HARDENBERG

v.

RAY.

817

The statute of wills, so far from being in aid of the common law" was in derogation ,of it, and pro tanto superseded it. But the statute was a step in advance in the direction of the political renaissance that was then awakening the civilized world, and it was specially or substantially adopted in most of the colonies, but with it the construction put thereon by the English courts. Soon after,the Revolution, in obedience to the growing sentiment in favor of limiting and reducing restraints on the disposition of real property, the legislatures of the several states began to enlarge the power of testamentary disposition of the same. Virginia led off in 1785. By an act passed' that year it was expres!lly provided that anyone might devise any interest in lands which he might have at the time of his death. Smith v. Edrington, 8 Cranch, 66. And, now, either by statute or judicial conl"ltruction. the rule is established in most of the American states, in accordance with that prescribed in the English statute of Victoria 1., that a will is deemed to speak from the death of the testatpr, and shall operate on all his estate at that time, so far as its terms are applicable, unless his intention appears to have been otherwise. 1 Redf. Wills, 379, note 2. But in a number of the states,inQluding Massachusetts and New York, while tJ;1e power is given in express terms to devise after-acquired property. the same does not pass thereby unless it appears that it was the intention of the testator that it should. 3 Jarm. Wills, (5th Amer. Ed.) 742, note 5. In the brief of plaintiff it is stated that the statutes of the states of Orecounsel for gon, Louisiana, and Arkansas, are the only ones that contain no provision of after-acquired propeny, nor the time when a will is on the But:in the note to 3 Jarman, just cited, Oregon is deemed classeq.among the states in which after-acquired real property passes by devise, without any qualification as to the intent of the testator. And, now, as to the power of testamentary disposition conferred, by the Oregon statute. Reading it without the prejudice or prepossession arising from the,l;lct of, Henry VIIL, and the ruling of the' English courts thereon, there is nothing to indicate that it was the intention of the legislature to limit the disposing power of the testator in any respect. He is authorized to devise all his (lstate, real and personal, saving to the widow her dower. Apparently real and personal property are put on the same footing, and there never was any question but, that a bequest of perBonal prppertycarried with it subsequent acquisitions, unless a contJ'ary intention appeared. It is common learning, and the popular .impression, that,a will takese;ffect only on the death of the testator; and dispose of all his property in that way, when.a persol,l is. the reasonable and fair implication is. tbat he may and can so frame his will as to; q.ispose of all the ,property he may have when it takes effect tbat he may die seized or possessed of. Unlike the statute of Henry VIII., the Oregon act-contains no word indicating that thedisposing,power thereby conferred was limited to land which the testatoJ; . might have or be seized of at the time of making' his will. Neitheds this statute,to be construed, as that was, in subordinav.33F.no.14-52

818

FEDERAL REPORTER.

tion to's; rule or principle, then vital in the common law, that no one could or should convey land of which he was not seized or possessed at the time. ' Since May 1, 1854, a statute 'of this state has declared that a anceof lands in the actual, adverse possession of another shall not, for that reason, be held void. 2 Or. Laws, §3009. 'And, in Taggart v. ley, 4 Or. 235,1t was held that a conveyance of specific land by a deed of grant;ba,rgain, and sale, from which it appeared that it was the intentiori' olthe grantors to dispose of the land in question,and not merely 'their'interest therein, passed an after-acquired estate in the premises, or 'estopPed the grantors from setting it up, as against the grantees. See, aIM; Lamb v. Davenport, 1 Sawy. 609. " This is not a question of law. The power to, dispose oC real property by will exists with us by statute,and any aevise thereof must be 'measured and tested by the statute under which it'is made. '.,' the this statute to th? su thereof, 'OOrd.mg tathe' spmt and tendency of the age In, whIch It was passed and WEdiV'e, and theanaIogies of the'existing law on .the subject of assurances ofreal propertY,as well as the manifest convenience and utility of the'matter, iIi my judgment it conferred on the testator 'power to devise lUI property of which he died As has been stated this statute was borrowed from Missouri-taken from the Revised Statutes of 1.hatstate of 1835 or 18M>; some copies of which were brought to theterritoryby tlieearly emigrants from that state. Sinoe the adoption of the statute here, the oourts of Missouri nave held, in'Liggat v. Hart, 23 Mo. and Appligatey. Sntith,"31 Mo. 166, (1860,) that it confetted the power to devist':lafter-acquired propertY'. The'opinion of Mr. Justice LEONARD, in LifJgatv. Hart,ls both able and interesting, and I tl,link its'reasoning sound .and the conclusion correct. ,'Th'estatute confers tlie' unqualified power of disposing of real and personill proj)el'tyby iVilljand a willmadeuridet it may and: will pass an after-acquired interest in the land, if such appears to have been the in·tention ofthe'testator. . " 'I' !Counselforthe plaintiff'cites an inCkJulson v. Holmes, '5 Sawy. 281, to the effect that real property acquired after the making of alwiU' does not pasS thereby. ',' " 'lih(r question decided in :the case that a conveyance of property by deed' supersedes the pdor disposition of it, by: wUl;and therefore the property-went 'to the and, not the devisee'.' The' remark was made 'bY' Wayof'argument or ill usttatibn; from tlie stand-point oltha'common laiV oonstruction 'of the statute-of' Henry VIII., and without any speCial;referenceto the'statute of Oregon; ," , and has 110 to a will made'un, This is der the Oregon statute. , ; ,, , ,Admitting 'that the hadtlie "power to dispose of the property incoritroversy by this will, the'next question is, has he done so? ' ThiEds a question of intention; to be deCidedotrthe language of the wiU;'theciTcumstances oftl:ietestatorjanathe taaeo,nable inference tnat
!,

HA.:lUlENBERG V. RA.Y.

819

when a will purports to dispose of all the testator's property it was his intention to dispose of all that he might die seized or possessed of, unless something appears to the contrary. Cushing v. Aylwin, 12 Mete. 175. In this case the testator, after disposing-of specific interests in lands elsewhere than in Oregon, devises and bequeaths to his slster, the ancestor of the defendants, all his "lots, lands, and real estate" in the state of Oregon, or elsewhere; also all his "personal property and estate of whatever kind or nature." This language clearly indicates that the testator did not intend to die intestate as to auy of his property, but that he intended to make his sister Ellen E. Ray his residuarY devisee and legatee, fOl'l'easons satisfactory to himself. Mr. Redfield says, (1 Redf. Wills, 385:) "General devises' and bequests"seem to have been universally construed to include all which it was in the power of the testator to dispose of, which, as the law now in most of the American states, will embrace all the testator's estate, whether real or personal, at the time of his decease." Indeed, the power being admitted, the intention to devise the property seems too plain for argument. The ,testator, "Peter Hardenberg,"was well known in Portland, where he lived from 1850 to his death. His property was the fruit of his own industry arid economy. He had nofamily, and it is very improbable that he intended to die intestate as to this valuable property. worth probably $30,000, and thus allow those whom he had ,deliberately exduded bt his will from in his estate, as it then stood, to share the same with his sister, E. Ray or her crildren. We are not here to consider the propriety of this devise, which was a matter solely for the testator, but the probahility of it. If he did not intend property of such value to pass under the residuary devise to his sister, the language of which he knew fully embraced it, he would most naturally have made another will or added a codicil to this. But he evidently rested satisfied on the impression that, having devised all his lands ,wherever situate, and all his "estate of whatever kind or nature," to his sis!Elr, she would get all he died seized and possessed ojj and, had these latter words been insetted in the will, as they should have beeti. the' intE:ntwould .have been demonstrated beyond a peradventure. Tbe purchase of this property probably diminished by that much the personal estate which otherwise would have come to the defendants under the will. In making the exchange or investment the testator would nattiral,lj act on theiriipression that he was simply converting the money he1intended for his sister into real property for her benefit at his death; This conclusion makes it unnecessary to consider the effect of tbe deeds :RachelF. Lefevre to the parties plaintiff and defendaut. ,She, had ' . : no li1terest in the property to convey. There must be a finding of fact for the defendants, as indicated in this opiniQri. .

820

FEDERAL REPORTER.

FLINT

et al. v.

.

(Oircuit Oourt, S. D. New York. February 18, 1888.)
1.

WITNESS-ExAMINATION-REFERENCE TO MEMORANDA.

In an action for the price of goods sold and delivered, plaintiffs' agent testified that when taking the order"he had made a memorandum of the items and prices of the goods, which, in a few days afterwards, he rewrote upon a ticket, from which in turn plaintiffs' order clerk entered the items in an orderbook. When the goods were delivered, he had checked each item in the order-book, and thereby knew that the'order-book contained a true copy of the order. Held, that the witness having examined the entries in the order-book the transaction was recent, he could refer to them upon the trial for the purpose of refreshing his memory, although they were made by another person.

2.

EVIDENCE-SECONDARy-CONTRACT BY TELEGRAM AND LETTER.

·In an action for the price of goods sold and delivered, plaintiffs' agent testified that he had received an order fr9m defendant by telegram, which was replied to by letter, and a person sent to take necessary meaaurements. The telegraph company had destroyed all 'llUJmoranda in its possession relating to telegrams of the date of the transaction in question. Plaintiff had not preserved defendant's original telell;ram, nor any copy of the letter in reply, but 'th'e witness who took the measurements 'testified that he saw and conversed with defendant upon the subject of the order. Held that, in the light of his secondary evidence of the contents of the telegram was admissible, although direct proof of the sending of it could not be given. evidence of the contents of a letter sent by plaintiffs to defendant was objected to upon ,the ground that the letter was not shown to have been mailed. Plaintiffs' agent had testified that he knew it was sent. Held, in the absence of any proof to the contrary, or any further inquiry as to the mode of sending, the testimony that the letter was sent must be understood to mean that it was mailed in the usual manner.

8.

SAME-PRESUMPTION-PROOF.

At Law. On motion for new trial. Abram Kling, for plaintiffs. Wm. D. Guthrie, for defendant. SHIPMAN, J. This is a motion by the defendant for a new trial of an atlaw upon the ground of admission of testimony. The action was to recover the sum chtimed to be due from the defendant merchandise, consisting mainly of furfor a large quantity of goods niture, which had been delivered to him by the plaintiffs. The defense was that the amount for which the goods were contracted to be furnished hadbee,n substantially paid. Thep,oint in was whether the in certain rooms upon the first floor of the, defendant's house was included in the original ap.d verbal contract for articles to be furIl:price,not tp exceed a specified sum, which contract was made by Mr. Scott, the plaintiffs' agent, with the defendant, at Corpus Christi, and was not included Texas, ,or; .VI:'as SUbsequently, o.rdered by in the original order and estimate of prices.' The latter was the plaintiffs' theory of the case. It being important to show the items of the . original order, Scott, the plaintifls' witness, testified that he made a
I

See note at end of case.