# Clarke v. Clarke

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United States Supreme Court
178 U.S. 186
Clarke v. Clarke
Argued: April 9, 10, 1900. --- Decided: May 21, 1900
This writ of error was procured for the purpose of obtaining the reversal of a judgment of the supreme court of errors of the state of Connecticut, which, as respected real estate situated in the state of Connecticut, refused to follow and apply a judgment of the supreme court of South Carolina interpreting and construing the will of Julia H. Clarke.
The facts from which the legal questions presented arise are as follows:
Henry P. Clarke and Julia Hurd intermarried in New York in 1886, and immediately thereafter went to South Carolina, where they afterwards continuously resided. Mrs. Clarke died on February 10, 1894, owning real and personal property in South Carolina, and also real estate situated in Connecticut. Two daughters survived, one Nancy B., aged five years, the other, Julia, aged about two months.
A will and codicil executed by Mrs. Clarke were duly established in the court of probate for Richland county, in the state of South Carolina. The will contained the following provisions:
'Fifth. The rest, residue, and remainder of my estate, real and personal, of whatever description or wheresoever situated, I give, devise, and bequeath as follows: One half thereof to my husband, Henry P. Clarke, and one half thereof to my said husband in trust for my daughter, Nancy, until she becomes twenty-five years of age, and then to pay the whole sum over to her. But if she shall marry before that age with the consent and approval of her father, or, in case of his death, with the consent and approval of her then guardian, then I direct that one half of her share shall be paid to her upon her marriage and the other half when she becomes twenty-five.
'In case I shall leave surviving me one or more children beside my daughter Nancy, then I direct that the said rest, residue, and remainder of my estate shall be divided equally among my said husband and all of my children, share and share alike, my husband and my children sharing per capita, and the shares of said children to be held in trust as above provided in the case of Nancy as being the only one.
'And I give, devise, and bequeath the said rest, residue, and remainder as aforesaid, to each and to their heirs and each of them forever.'
The infant daughter Julia died shortly after her mother, in the month of May, 1894, owning no property in Connecticut except such as had devolved on her under the will of her mother.
Henry P. Clarke, as executor of the last will and testament of his wife, Julia H. Clarke, and trustee of the estate of Nancy B. Clarke, his infant daughter, brought suit in June, 1895, against said Nancy B. Clarke, in the circuit court for the fifth judicial circuit of South Carolina, praying for the 'judgment and direction of the court in regard to the true construction of said will, and especially the fifth and residuary paragraph thereof, and as to his powers and duties as such executor and trustee under said will in the premises and for such further relief as may be just and proper.' A guardian ad litem was appointed for the infant defendant, who duly answered, and, after hearing, the court decreed that the will of the testatrix, Julia H. Clarke, worked an equitable conversion into personalty at the time of her death of all her real estate of whatsoever description and wheresoever situated; that the plaintiff as executor should receive, administer, and account for the same as personalty; that he was, by the said will, authorized and empowered to sell and convey the same for the purpose of executing the will, and leave was given to apply for further orders and directions upon the foot of the decree. This judgment was, upon appeal, affirmed by the supreme court of South Carolina. 46 S.C.. 230, 24 S. E. 202.
The controversy in the courts of Connecticut was commenced by the filing, in the probate court for the district of Bridgeport, of a petition on behalf of Henry P. Clarke as administrator of the estate of his deceased daughter Julia Clarke, he having been appointed such administrator by the proper court in Connecticut. In the petition it was recited that Julia had died intestate, leaving real estate in the district, and that divers persons claimed to be entitled to have the said real estate set apart and distributed to them, and the court was asked to hear the claims of said parties and ascertain to whom the estate should be apportioned. A guardian ad litem having been appointed by the court for Nancy B. Clarke, the application was heard, and a decree was entered finding that she was the sole heir and distributee of her deceased sister Julia. The Connecticut law, which devolved on Nancy the whole of the real estate of Julia, differed from the law of South Carolina, by which the estate of Julia, both real and personal, passed equally to the father and to Nancy the surviving sister.
Henry P. Clarke, individually, appealed from the decision of the probate court to the superior court of the county of Fairfield. That court filed its findings stating the facts concerning the controversy, and reserved the resulting questions of law to the supreme court of errors of the state, which court recommended that the decree of the probate court be affirmed. 70 Conn. 195, 39 Atl. 155. Thereupon the superior court of Fairfield county entered a decree in conformity to the mandate to it directed. In the body of the decree the court referred to the contention between the parties, and stated the one pertinent to the issue now before us, as follows:
'Upon the facts aforesaid the appellant claimed and contended that the decision and decree of the circuit court for the fifth judicial circuit of the state of South Carolina, being the court of common pleas and general sessions for Richland county, affirmed by the supreme court of said state (46 S.C.. 230, 24 S. E. 202), in the case of Henry P. Clarke, executor and trustee, against Nancy B. Clarke, in its interpretation and construction of the will of the said Julia H. Clarke, to the effect that said will worked an equitable conversion into personalty at the time of her deathof all the real estate of the testatrix, wherever situated, was binding and conclusive on the courts of this state in his favor in this proceeding, and that to hold otherwise would be to deny full faith and credit to the judicial proceedings and judgment of the state of South Carolina, and would be in contravention of section 1, article 4, of the Constitution of the United States.'
An appeal was taken from the decree of the superior court. The supreme court of errors of Connecticut, although it remarked that the appeal was unnecessary, as its prior judgment had settled the controversy between the parties, yet entertained the appeal, and affirmed the decree below. 70 Conn. 483, 40 Atl. 111.
Messrs. S. F. Phillips, L. F. Youmans, and F. D. McKenney for plaintiff in error.
Messrs. John H. Perry and Winthrop H. Perry for defendants in error.
Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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