#### HANNAH S. CRANE ET AL. *v.*THE UNITED STATES.

[No. 28078.

Decided February 15, 1909.]

*On the Proofs.*

In 1850 the legislature of California passes an act creating an estate in community in the property of husbands and wives; and in 1855 the supreme court of California holds, when construing the statute, that one-half of the estate of a husband or wife vests in fee simple in the survivor and is not subject *325to testamentary disposition. After tlie enactment but before tbe decision a husband dies, and bis executor sells bis real property in California, conveying tbe whole estate and paying the purchase money to the widow, she being devisee under the will, all parties being in ignorance of the law as subsequently declared by the supreme court of the State. Notwithstanding the Government paid the full value of-the estate and that the widow received and accepted the purchase money and rested twelve years without disavowing the sale and conveyance by the executor, and notwithstanding the fact that her grantee paid to the widow only $100 for the conveyance of her communal estate, Congress, in 1905, enact that if this court “ *shall find that said parties acquired a valid title to said real property as claimed, said court shall award the said parties the market value of the undivided one-siwth of said property at the time possession was taken of it by the United States."*The principal questions involved are whether this court must regard as *stare decisis*a decision of the supreme court of California, holding that the will of the testator did not dispose of his widow’s one-half interest in the communal property, and whether the claimant’s grantor acquired a valid title from the widow to her communal estate by or under her conveyance to one King in 1865.

I. A judgment in ejectment against the custodian of public property is not a judgment against the United States. The Government will not be concluded by such a judgment and may proceed by a bill in chancery to quiet its title or may bring an action of ejectment, in which its title may be judicially determined.

XI. Where. an executor conveyed all the estate in real property in California though a moiety of it was in law the community estate of the widow, and she, being also devisee under the will, received the purchase money and rested twelve years without objection or action, all parties having acted in ignorance of law and in the belief that the entire estate was subject to testamentary devise, it must be held that she ratified the act of the executor and that her grantee did not acquire a valid title to her community estate in the property within the intent of the *Jurisdictional Act February %5, 1905*(33 Stat. L„ p. S15).

*The Reporters'*statement of the case:

The following are the facts of the case as found by the court:

I. Under the authority of the act of Congress approved July 3, 1852 (10 Stat. L., 11), entitled “An act to establish *326a branch of the mint of the United States in California,” section 10, page 13, provides:

*“And be it further enacted,*That before the Secretary of the Treasury shall procure or erect the buildings provided for in the second section of this act, or commence operations under any of the provisions of the same, at San Francisco, State of California, it shall first be his duty to make a contract, or contracts, for the erection of said buildings, and procuring the machinery necessary for the operations of said mint, at a sum or sums which shall not, in the whole, exceed the sum of three hundred thousand dollars, which said contract or contracts shall be secured by good and sufficient sureties, to the satisfaction of the said Secretary of the Treasury and the President of the United States.”

One William A. Barton was the accepted bidder for the contract, but assigned his rights therein to Joseph It. Curtis, with whom the following contract was made:

*‘•‘•Contract between James Guthrie, Secretary of the Treas*ury., *for and on account of the United States, of the first part, and Joseph B. Gurtis, of San Francisco, California, assignee of William A. Barton, the lowest bidder, and to whom was awarded the building of the mint at San Francisco, in accordance with the law and the advertisement of the department, of the second part.*

“ The said party of the second part contracts and agrees with the party of the first part to erect, finish, and complete in San Francisco, California, for account of the United. States, a suitable building, and to furnish all the requisite machinery, fixtures, and tools essential for the branch mint in conformity to the act of Congress on the subject.' The said building to be erected and finished throughout agreeably to the plans submitted by the party of the second part, and accepted by the party of the first part, numbered 1, 2, 3, 4, .5, and 6, with the detailed specifications engrossed on number 1, and which are hereby substituted for the plans designated in the advertisement.

“ The party of the second part agrees to furnish all the necessary machinery for a mint to be capable of coining $30,000,000 of gold per annum in a fair proportion of pieces from $1 to $20, together with all necessary fixtures, tools, implements, &c., required for the same. A detailed specification of this machinery, &c., to accompany this contract,' and in order to identify the said specifications, and also the plans, Nos. 1 to 6 referred to above, with this contract, the said specifications of machinery, &c., and plans and specifications *327of building are to be signed in duplicate by the parties of the first and second part, and are to be considered a part of this contract and equally binding as if incorporated therewith.

“And the party of the. second part further agrees to complete the said building and furnish and put up the said machinery, tools, and fixtures, and deliver the same in complete working order, on or before the 1st of February, 1854, together with a deed conveying to the United States a good and valid title to the lot of land upon which the building is erected.

“ The said building, machinery, fixtures, and tools are to be approved and accepted by such person as may be appointed by the Secretary of the Treasury on behalf of the United States, and upon such approval and acceptance, and the delivery of the aforesaid deed to the party of the first part, the said party of the first part agrees to pay, at the Treasury in the city of Washington, to the said party of the second part, or to his heirs, executors, or assigns, the sum of $289,900, which is to be compensation in full for the said lot, building, and machinery.

“ It is agreed that all the machinery and implements for coining shall be of the very best quality, and equal in all respects to new machinery and implements of like kind in the mint at Philadelphia; and if there should lack in the schedule of necessary -and proper machinery, implements, or furniture for a branch mint of the capacity to coin $30,000,000 of gold per annum in pieces of from $1 to $20, that the party of the second part will also furnish them, of the best quality, and have the mint and all the machinery, implements, and tools ready and in complete working order for the business of coining that quantity on or before the first day of February, 1854, aforesaid. -

“ It is agreed that the lot on which the mint is situated fronts 40 feet on a public street of San Francisco and extends back 60 feet, and that the party of the second part will forthwith submit the title of said lot to the attorney of the United States for the eastern district of California, and that he shall report the same to the Attorney-General of the United States for his opinion, and that if the title be not valid it shall be made so within nine months from the date hereof, to the satisfaction of the Attorney-General, and the party of the second part shall not be entitled to any part of the consideration until this provision is complied with and all the other stipulations of this contract.

“ It is also further agreed and understood that the party of the second part may purchase the adjoining 20 feet of ground on the west side of said lot, if the same can be *328obtained at a price which the party of the second part shall approve, and that on the conveyance of the same, together with the lot, mint, &c., contracted for, that the party of the first part will also pay the agreed sum for said 20 feet of additional ground.

“ It is also covenanted, agreed, and understood that no Member of Congress shall be admitted to any interest in this contract.

“ In witness whereof the said James Guthrie, Secretary of the Treasury as aforesaid, for and in behalf of the United States as aforesaid, hath hereunto subscribed his name and caused the seal of the Treasury Department to be hereunto affixed, and the said Joseph É. Curtis, assignee of W. A. Barton, as aforesaid, hath hereunto subscribed his name and affixed his seal this fifteenth day of April, A. D. 1853.

“ James ' GuthRie.

“ Jos. B. CURTIS.

“ Witness:

“ P. G. WASHINGTON.

“ Annie B. Young.”

A larger lot being found to be necessary, the Secretary of the Treasury made a supplemental contract with said Curtis on July 6, 1853, for the purchase and improvement of an adjoining lot.

The lot named in the original contract, above set forth, had on it a substantial brick building, erected in the year 1851, which was prior to April 15, 1853, used as an assaying-office, and was authorized, under the provisions of the act of September 30, 1850 (9 Stat. L., top of p. 531), to assay gold and form the same into bars, and also coined and issued gold coins, being the principal assaying office on the Pacific coast. Under said contract of April 15, 1853, and the supplemental contract of July 6, 1853, the required alterations and improvements were made and the building accepted by the Secretary of the Treasury for the branch mint of the United States. The machinery and fixtures‘formerly in use in the assaying office were transferred to the new mint, with some additional machinery required to fit it up for that purpose.

On May 2, 1854, said Joseph It. Curtis made and executed 'a deed conveying both lots to the United States. The At-. torney-General approved the title and the said deed.

*329The sum 'of $239,900 was paid to said Curtis as a total compensation for both said original lot and the improvements required to be placed thereon by said original contract, and he was also paid the sums named in the said supplemental contract for the value of said adjoining lot and the improvements placed thereon.

The United States forthwith went into possession, and used the property as the branch mint of the United States, and has been in possession ever since.

II. Prior to the time of the making of the contract first above set forth, April 15, 1853, the lot named in the original contract had been owned in fee simple by, and was in possession of, Curtis, Perry & Ward, a firm composed of the afore•said Joseph P. Curtis, Philo H. Perry, and Samuel H. Ward.

On the 22d day of March, 1853, Samuel H. Ward died at sea, while on a voyage to the Sandwich Islands. His death, however, was not known at San Francisco till the 21st of April, 1853. At the time, therefore, when Curtis entered into the contract of April 15, 1853, he did not know of his partner’s death, and as he was dealing with partnership property made the contract for the benefit of the firm.

Ward left a will appointing his partners, Joseph R. Curtis and Philo PI. Perry, his executors. Said will was proved and allowed in the probate court of the city and county of San Francisco, and Philo H. Perry alone qualified as executor thereunder.

After the said will was probated, to wit, on the 23d day of August, 1853, the estate of said Ward was appraised by a duly constituted board of appraisers, and the value of the whole lot named in said contract of April 15, 1853, was fixed by them at $40,000.

After said appraisement, to wit, on the 29th day of August, 1853, said Perry, as such executor, made and executed a deed purporting to convey to said Curtis all the interest in said lot named in contract of April 15, 1853, of which said Ward had died seized and possessed, and received in payment therefor the sum of $13,333.33.

By the terms of the said will of said Ward nine-tenths of his estate was bequeathed to his wife, Emily H. S. Ward, and her proportion of the above-named $13,333.33 was duly *330paid to her by the said «executor, and accepted by her with full knowledge of the said sale of Perry, as executor, to Curtis, but in ignorance of the extent of her estate in the land dispute, as shown by the decision of the supreme court. (50 Cal., 358; 61 Cal., 221.) The conveyance made by said Perry and Curtis was in pursuance of the power and authority granted to said Perry, executor aforesaid, by the terms and provisions of the last will and testament of said Ward. -

On the 18th day of March, 1854, Emily H. S. Ward, together with her colegatees under the will of Samuel H. Ward, filed in the District Court of the United States for the Northern District of California a bill in equity against the said Curtis and Perry, the material parts of which are as follows

. “And your orator and oratrixes further show that besides other real and personal estate of great value the testator died seized and possessed in fee, as tenant in common with the de- • fendants, Joseph 11. Curtis and Philo PI. Perry, of a certain piece or parcel of ground in the city of San Francisco, situate on Commercial street, with a frontage of 40 feet on said street, and a depth of 49 feet 9 inches parallel with Montgomery street; which said real estate with the buildings and improvements thereon, together with the machinery, implements, tools, furniture, and fixtures in and of said building, was occupied and used by the defendants, Joseph II. Curtis and Philo PI. Perry, and the testator in the business in which they were engaged as copartners in the lifetime of the testator of melting and assaying gold under a certain contract with the United States and on their private account; and that the premises aforesaid, the lot, building, and machinery, tools, implements, furniture, and fixtures as aforesaid, were the partnership property of Curtis, Perry *&*Ward, of which the testator was at the time of his death an equal partner in interest with the defendants, Joseph E. Curtis and Philo PI. Perry, the survivors thereof.”

The contract with the United States is here alleged.

“And your orator and oratrixes further show that the said contract'for building the said branch mint whereby a sale was made of the premises aforesaid to the United States, though made in the name of the defendant Joseph E. Curtis, was in truth and- in fact for the benefit of the copartnership firm of Curtis, Perry & Ward; and they charge and allege that the said Joseph E. Curtis had a distinct understanding with his copartners to that effect, and held their power of *331attorney authorizing him, in their name and name of said copartnership, to make such a contract, and that the same was not taken in the name of said copartnership, as was the understanding and agreement, because of some alleged informality in said power of attorney, whereby the said Joseph E. Curtis was comjjelled to contract in his own name and as trustee for the copartnership aforesaid.

“And your orator and oratrixes further show that on or about the 27th day of August, 1853, the defendant Philo PI. Perry, as executor of the testator’s estate, caused the same to be appraised and returned an inventory and appraisement thereof to the Probate Court aforesaid, wherein the lot and building known as the ‘ United States assay office ’ was appraised at $40,000. and the machinery, implements, tools, furniture, and fixtures in said establishment are appraised at $15,150, or thereabout, as will more fully appear on the production of said inventory and appraisement in this honorable court, and to which leave is craved to refer.

“And your orator and oratrixes further show that the defendant Philo H. Perry, as sole executor of the testator aforesaid, on or about the 29th of August, 1853, conveyed the testator’s interest-in the lot and building aforesaid for the sum of $13,333 to the defendant Joseph E. Curtis, and at or about the same time sold and delivered to the same defendant the testator’s interest in the machinery, tools, implements, furniture, and fixtures as aforesaid, at or about the appraised value thereof. And your orator and oratrixes charge that the sale of the testator’s interest in said property by the said executor was made at private sale, without any authority therefor from the Court of Probate, and that the same was for the joint benefit of the defendants as copartners in interest in the contract for the sale of the premises known as the ‘ United States assay office,’ and the conversion of the same into a branch mint as aforesaid.

“And your orator and oratrixes further charge that the object and intent of the said sale by his surviving partners and the sole executor, the defendant Philo pi. Perry, to the defendant Joseph E. Curtis, the other surviving partner of the testator, were to deprive the legatees under the testator’s will of their just and legal right to participate s the. profits of the sale to the United States, as aforesaid; and they further charge that the transaction aforesaid was in violation of the trust and confidence reposed by the testator in hi's surviving partners and executor aforesaid, and in fraud of his said legatees; that the sum paid for said property by the defendant Joseph E. Curtis, who purchased for the joint benefit of the defendant Philo H. Perry and himself, was *332greatly under the value thereof, in view of the profits arising from the sale of the same property to the United States as aforesaid; and that by virtue of said pretended sale by the defendant Philo H. Perry to the defendant Joseph E. Curtis the said defendants have dealt with the partnership property of Curtis, Perry & Ward for their individual gain and advantage, and are, and have been since the death of the testator, confederating, combining, and colluding to defraud your orator and oratrixes of their just share and proportion of the purchase money arising from the sale of the property aforesaid to the United States as aforesaid.

“And your orator, and oratrixes further show that the alterations and additions in and to the building and premises aforesaid, and the additions to the machinery, etc., to adapt the same to the use and purpose of a branch mint, are nearly complete, and that the same will soon be delivered and accepted by the United States, and your orator and oratrixes charge that the said defendants, in the name of the defendant Joseph E. Curtis, have obtained from the United States an advance of $100,000 under the said contract, which has been used and applied in making the alterations and additions to the premises known as the ‘ United States assay office,’ required by said contract; that said advance so made as aforesaid will, as they verily believe, cover the entire cost of making the alterations in and additions to said premises, and the cost of the additional machinery, etc., also, and that the premises aforesaid are mortgaged to the United States as the condition of the said advance of money, to secure the same in the contingency of the nonperformance of the contract aforesaid, or the refusal of the Secretary of the Treasury, for any cause, to accept the premises designed for a •branch mint as aforesaid, when the same shall be tendered for his acceptance.

“And your orator and oratrixes further charge that the said defendants, if they are permitted to retain the same for their sole benefit, will make a profit, after paying all the costs of adapting the premises aforesaid for the use and purpose of a branch mint, of more than $100,000 over and above the value of the said premises, and the machinery, etc., thereto belonging, as fixed by the appraisement under which the defendants collusively and fradulently took the said property for their own exclusive use and benefit, all of which acts, doings, and pretenses of the defendants, so in confederation and collusion as aforesaid, are in violation of trust and confidence, contrary to equity and good conscience, and to the manifest injury, oppression, and fraud of your orator and oratrixes, and only cognizable in a court of equity, with*333out the interposition of which thej^ would be wholly remediless.”

On March 81, 1854, the said Emily H. S. Ward, through her counsel of record, notified the Secretary of the Treasury of the filing of said bill by letter, inclosing copy of same. This bill was in June, 1854, dismissed by complainants’ counsel'of record.

Prior to the receipt of this letter the United States had already paid said Curtis the sum of $100,000, and on May 4, 1854, they paid him $150,000, and on June 13,1854, they paid him $33,929.10 upon the contracts hereinbefore described.

III. “ Whereas Philo H. Perry, esq., executor of the last will and testament of Samuel H. Ward, esq., late of San-Francisco, deceased, having heretofore paid me, the undersigned, Grace T. Starr, at Middletown, Conn., at sundry times, the aggregate sum of $37,914.58, for and on account of the trust created by said will in favor of Emily H. S. Ward, has this day completed the payment of the balance of the said trust fund, amounting to the sum of $18,893.54, the said payment being made to me as trustee, under the decree and order of the Supreme Court of the State of New York, at a special term held at the court-house in Eiverhead on the 20th day of May, A. D. 1855, upon the petition of Philo H. Perry, Grace T. Starr, Emily II. S. Ward, and others, reference being had to the records of said court for all particulars, and the said payment having been made partly in cash and partly in securities, I hereby, in pursuance of the said order o’f said court, and by authority thereof, do acknowledge the receipt of the sums above mentioned from the said Philo H. Perry, in full acquittance and discharge of him, the said Perry, of and from the trust above referred to created by said will.

“ Witness my hand and seal this 10th day of July, A. X). 1855.

“ [seal.] Grace T. Starr,

“ *Trustee.*

“ In presence of — ■

“ Clara C. Pratt.”

“ Eeceived of Philo PI. Perry, executor of the last will and testament of Samuel IP. Ward, late of San Francisco, deceased, $2,913.48, being balance in full of the legacy and distributive share of Maria N. Yerner and James D. Verner, her husband, under the will of the said Samuel H. Ward, and in full of all demands against him to this date.

*334“And whereas a suit is now pending in the Northern District of California, the same James D. and Maria N. Verner against the said Philo PI. Perry, as executor, and the said Philo PI. Perry and -Joseph P. Curtis, individually, for certain claims growing out of the erection of the branch mint at San Francisco, now, therefore, in pursuance of the annexed power, I do hereby authorize the discontinuance of the said suit without costs to the plaintiff, each party paying their own costs. And I do further, by virtue of said power, hereby release and discharge the said Philo H. Perry as executor, as aforesaid, and the said Perry and Curtis, individually, from all claims, debts, dues, or demands due to the said James D. Verner and Maria N. Verner, by reason of said contract or under said will, or any other matter or thing, to the date of these presents.

“ In witness whereof I have hereunto set my hand and seal this twelfth day of July, 1855.

“[seal.] James D. Verner,

“ By Leeeert G. Wilken, *Attorney.*

“[seal.] Maria N. Verner,

“ By Lefeert G. Wilken, *Attorney.*

*“*Witness present:

“ Sam’l Elxm.”

*“To the Justices of. the Su,preme Gourt of the State of New Yorlc:*

“ The petition of Philo PI. Perry, sole acting executor of the last will and testament of Samuel PI. Ward, late of San Francisco, in the State of California, Emily H. S. Ward, widow of Samuel H. Ward, Grace T. Starr, Elihu W. A. Starr, Eben T. Starr, IPenry W. Starr, Frederick B. Starr, Hamilton Brewer, and Mary E., his wife, and Grace *A.*Dyer, all of Middletown, in the State of Connecticut, except said Eben T. Starr, who is of the city of New York.

“ Eespectfully showeth: That the said Samuel PI. Ward departed this life on or about the 21st day of March, A. D. 1853, at sea, on his passage from San Francisco, which was then his place of residence, to the Sandwich Islands, having theretofore made a last will and testament, which will was duly proved in the month of August thereafter, in the Probate Court of San Francisco, aforesaid, and a copy of which is hereto annexed.

“ -That your petitioner, Philo PI. Perry, took upon himself the sole execution of said will.

“ That said Samuel PI. Ward, in his lifetime, was a member of the firm of Curtis, Perry & Ward, in which the said Philo IP. Perry was also a partner.

*335“ That a large proportion of the .property and estate of the said testator consisted of his interest in the real estate in which the said partners were tenants in common and the personal effects in which they were jointly interested. That said executor has received into his hands the principal part of said estate, amounting in all to this time to the sum of $69,957.04.

“And that the amount paid out in the settlement of the same and executor’s commissions to this time is $6,836.92.

“And your petitioners further show that, under and by virtue of the provisions of said will, the said Philo H. Perry, as executor, as aforesaid, has paid to the said Grace T. Starr, as trustee of the said Emily IT. S. Ward, under the provisions of said will, the sum of $37,914.58, and that there is a balance of cash and securities in his hands belonging to said trust fund of $18,893.54.

“And your petitioners further show that your petitioner, Grace T. Starr, is the mother of your petitioner, Emily H. S. Ward, who is now a widow without living issue; and that the said Elilm W. N. Starr, Eben T. Starr, Henry W. Starr, Frederick B. Starr, Mary E., wife of Hamilton-Brewer, and Grace A. Dyer are the only brothers and sisters of the said Emily IT. S. Ward, all of whom are of full age, and, in case of her death, are her only present heirs at law.

“ And your petitioners further show that your petitioner, Philo II. Perry, has left the State of California, and is now a'resident of the State of New York, and the whole of said fund belonging to the said trust created for the-benefit of the said Emily H. S. Ward, except a portion of that portion paid to the said Grace T. Starr, is now either on deposit or invested in the city and county of New York.

“And that the said petitioner, Philo H. Perry, is desirous of paying over the whole balance of said trust fund to the said'Grace T. Starr-, under the direction and authority of this court, and to receive a discharge and acquittance for the same, as ■well as for the amount already paid to her.

“ Your petitioner, who rex>resents all the parties interested in said fund, whether as trustees or *cestui que*trust, therefore pray that the said Philo IT. Perry may be discharged from the trust created by said will for the benefit of the said Emily IT. S. Ward, and that the said Grace T. Starr may be appointed the trustee for the same, to receive and invest the same according to the provisions of said will.

“And upon receipt of the same, to discharge the said Perry from his liabilities therefor by reason of said trust, and that the said Grace T. Starr, for the faithful execution of said trust, may give for her sureties the several petitioners, or *336some of them, except the said Philo H. Perry, and may have such other or further relief as may be proper.

“ Pi-iilo H. Perry.

“ Emily H. S. WaRd.

“ Eben T. StaeR.

“ Henry W. Starr.

“ Mary C. Brewer.

“ Grade T. Starr.

“ E. W. N. Starr.

“F. B. Starr.

“ Hamilton Brewer.

“ G. A. Dyer.”

“ State oe Connecticut, *ss:*

“ On this 24th day of March, A. D. 1855, before me came Grace T. Starr, Emily H. S. Ward, E. W. N. Starr, F. B. Starr, Hamilton Brewer, Mary E. Brewer, and G. A. Dyer, all of the city of Middletown, in said county above named, to me known to be the persons described in, and who signed the written petition, who, being by me severally sworn, depose and say that the within petition is true of their own knowledge, except as to such matters as are therein stated to be upon information and belief; and as to those matters, they believe it to be true.

“ Before me, Jonathan Barnes, a commissioner for the State of New York, duly appointed by the governor thereof to take acknowledgment and proof of deeds, and to administer oaths, etc., to be used or recorded in said State of New York.

“ In testimony whereof, I have hereto set my hand and my official seal, in said city of Middletown, on the day and year first aforesaid.

“ [seal.] Jonathan Barnes,

*“A Commissioner for the State of New*York, *dwelling in the city of*Middletown.”

Here follows a copy of the will of Samuel H. Ward.

“ State oe New York,

“ *City and County of New*York, *ss:*

“ Be it remembered that on the 27th day of March, 1855, before me personally came Philo H. Perry, Eben T. Starr, and Henry Starr, to me known to be three of the persons described in, and who subscribed the foregoing written petition, who, being by me severally duly sworn and each for himself, say that the said written petition is true to their own knowledge, except as to such matters as are therein *337stated on information and belief, and as to those matters they believe it to be true. ;

“ Sylvester Lay,

*“Commissioner of*Deeds.”

“At a special term of the Supreme Court, held for the State of New York at the court-house in Biverhead, in the county of Suffolk, on the 30th day of May, A. D. 1855. . Present: Hon. S. B. Strong, Justice.

*“In the matter of the estate of Samuel E.*Ward, *deceased:*

“ On reading and filing the petition of Philo H. Perry, executor of the last will and testament of Samuel H. Ward, late of San Francisco, in the State of California, setting forth among other things that said testator departed this life on the 21st day of March, 1853, leaving a last will and testament, a copy of which is annexed to said petition. That the petitioner took upon himself the sole execution of said will. That he had received into his hands as such executor $69,957.04 and paid out in.the settlement of said estate the sum of $6,836.94.

“ That under said will said testator has paid to Grace T. Starr, as trustee of Emily IT. S. Ward, the sum of $37,914.58, and that there is a balance of cash and securities in his hands belonging to said fund of $18,893.54.

“ That the petitioner, Philo H. Perry, is now a resident of the State of New York, and that said fund is now in this State, and that all the *cestui due trusts*under said will are of full age and join in said petition; and that said Perry is desirous of paying over the whole of said balance under the direction and authority of this court. “

“ On motion of Mr. Ayon, of counsel for the petitioners, it is ordered that it be referred to John W. Mills, esq., to take an account of the acts and doings of the said Philo H. Perry, as executor and trustee aforesaid, and of his accounts as such; and that the said Philo H. Perry, upon the coming in of said report establishing the balance in cash and securities in his hands belonging to said trust funds created by said will, be discharged from his trust by paying over said balance in cash or securities to Grace T. Starr, who is hereby appointed trustee of the said fund, upon her filing her bond to the *cestui que trust*with the clerk of the county of West-chester, with the several persons named in said petition as her sureties, except the petitioners Henry W. Starr and Hamilton Brewer, and that Mary E. Brewer join in said bond.in the place of the said Hamilton Brewer; and it is further ordered that upon such payment and delivery the said Grace T. Starr be authorized to receipt for the same to the said Philo H. Perry, in full acquittance and discharge *338of the trust created by the will above referred to; and upon filing said receipt and discharge it is hereby ordered that the said Philo H. Perry b'e discharged from - said trust and all liability thereof or. by reason thereof.

“(Indorsed:) Clerk of Westchester, enter this order.

“ James B. Cooper, *Clerk.*

“ Enter this order on report.

“ S. B. S.”

“ Supreme Court: In the matter of the last will and testament of Samuel H. Ward, deceased.

“ *To the Justices of the Supreme Court:*

“ I,- John W. Mills, to whom this matter was referred by an order of this court, bearing date the 1st day of June, A. D. 1855, do certify and report that Samuel H. Ward, late of San Francisco, in the State of California, departed this life, leaving a last will and testament, as stated in the petition in this matter; that in' and by said will he created a trust of nine-tenths of the net proceeds of his estate for the benefit of his widow, Emily H. S. Ward, for her life, to be divided among the lawful heirs of the said Emily at her death.

“ That the said Emily is now unmarried, and without issue; that all the persons that would be her lawful heirs in the event of her death at this time have joined in said petition, and are of lawful age, and have stated and settled the account of the said Philo H. Perry, as executor under said will, and assented to the correctness of the same.

“And I do further report that the said whole amount received by the said Philo H. Perry of said trust fund, from the estate of said Samuel H. Ward, is the sum of $56,808.09; that the said Perry has paid to the said Grace T. Starr, as directed by said will, the sum of $31,914.58; and that there is a balance in his hands belonging to said estate of $18,898.55, besides interest upon the sum of $18,000, invested on mortgage, from the first day of November last past, at seven (I) per cent, to pay over to said Grace T. Starr, as aforesaid; and I do further report that $18,000 of said sum is well invested upon bond mortgage upon unincumbered real estate in the city of New York. All of which is respectfully submitted.

“ JoHN W. Mills, *Referee.*

“ Dated June 6th, 1865.

“(Indorsed:) Moved and confirmed in open court, June 6th, 1855.

“ RobeRT R. Oakley, *Clerk.*

*-*“ Filed December 9th, 1872.

“ By Robert McKee, *D. G.*

“ War. IIarkey, *Clerk”*

*339IV. In the year 1867 one James L. King instituted an action of ejectment in the District Court of the .fifteenth judicial district of the State of California, in and for the city and county of San Francisco, .against Robert B. Swain to recover possession of one undivided sixth part of the lot named in said first contract.

Said Swain, the defendant in the action, was superintendent of the United States branch mint at San Francisco, and was in possession of the lot and building in that capacity only, claiming no title in himself.

He remained such superintendent, and in possession of the property for some considerable time afterwards, and until his death, and the suit being still pending at his death, on suggestion thereof and on motion of the plaintiff, the suit was continued by order of the court against his- successor, O. H. La Grange, who, as such superintendent, took possession of and occupied the premises for and on behalf of the United States. " ■

The title upon which said King based his claim was the following deed of Emily H. S. Ward to him:

“ This indenture, made the 25th day of October, 1865, between Emily H. S. Ward (widow of Samuel Ward, deceased), of New ITaven, Connecticut, formerly of Middle-town, Connecticut, of the first part, and James L. King, of the city of San Francisco, in the State of California, of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of $100, lawful money of the United States, to her in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, and sold, and by these presents doth grant, bargain, and sell unto the said party of the second part, and to his heirs and assigns,'forever, all that certain lot, piece, or parcel of land lying, being, and situate in the city and county of San Francisco, State of California, bounded and described as follows, viz

The land in dispute.

“Also all the estate, right, title, and interest of the party of the first part of, in, and to lands in the city and county of San Francisco, oí elsewhere in the State of California, whereof her former husband, Samuel H. Ward, died seized or possessed, excepting 50 vara lots Nos. 250 and 251, Avhich she has conveyed to M. J. Dooly, of Stockton, California, by. *340deed dated September 30, 1865. Also all her interest in the rents, back rents,'' issues, and profits of any real estate in California, whereof her said husband died seized and possessed, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof.

“And also all the estate, right, title, interest, property possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above-described premises, and every part and parcel thereof, with the appurtenances.

“ To have and to hold, all and singular, the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns forever.

“ In witness whereof the said party of the first part hath hereunto set her hand and seal the day and year first above written, by Henry W. Starr, her attorney in fact thereunto duly authorized.

“ Emily II. S. Ward,

“ [seal.] By H. W. StaRR,

*“Attfy in Fact.*

“ Signed, sealed, and delivered in the presence of—

“ J. B. Nones.

“ A. H. Nones.

“[Stamped.]”

“ United States oe America,

“ State oe New York,

*“City and County of New York, ss:*

“ By this public instrument be it remembered that on this 19th day of March, A. D. 1866, before me, the subscriber, Joseph B. Nones, a commissioner in and for the State of New York, appointed by the governor of the State of California to take proof and acknowledgment of deeds, mortgages, letters of attorney, or any other instrument to be used or recorded in the said State of California, and to administer oaths and affirmations, take depositions, &c., &c., personally appeared Henry W. Starr, attorney in fact of Emily H. S. Ward, by power of attorney duly executed and to me produced, the person described in and who executed the annexed instrument, and acknowledged to me that he executed the annexed instrument, and acknowledged to me that he executed the same voluntarily and freely, for the uses and purposes therein stated, as the free act and deed of said Emily H. S. Ward.

*341“And I further certify that I know the person who made the said acknowledgment to be the identical person described in and who executed the said annexed instrument.

“ In testimony whereof I have hereunto subscribed my name and affixed my official seal the year, month, and day first before written.,

“[seal.] _ _ J.B. NoNes,

_ _ “ *Commissioner of the State of California for the State of New York*aforesaid, *No. £68*Broadway.”

Throughout the suit the United.States district attorney, by direction of the Secretary of the Treasury and the Attorney-General, appeared on behalf of the United States for the defendant and conducted the defense.

The litigation was protracted through a number of years.

On the 15th of August, 1818, said court entered judgment in favor of the plaintiff for the recovery of one undivided sixth part of said lot, together with costs.

From this judgment an appeal was taken to the Supreme Court of the State of California.

Said court, on the 15th day of August, 1882, rendered its judgment, affirming the judgment of the court below in favor of the plaintiff.

A writ of error was then obtained from the Supreme Court of the United States to said Supreme Court of California, but said writ of error was on the 5th day of May, 1884, dismissed by said Supreme Court of the United States.

Y. The claimants, Hannah S. Crane, Mary Ives Crocker, and Kate Dillon (the latter a minor appearing by her guardian, Kate Dillon Casey), as devisees and legatees of Kate D. McLaughlin, deceased, and James T. Boyd, claim the interest of Emily IT. S. Ward, widow of Samuel Ward, by virtue of the following conveyances and proceedings:

“ *James L. King to Chas. BPLaughlin.*

“ This indenture, made the 9th day of September, in the year of our Lord 1819, between James L. King, of the city and county of San Francisco, State of California, the party of the first part, and Charles McLaughlin, of the same place, the party of the second part, witnesseth, that the said party of the first part, for and in consideration of the sum of 5 ($5) dollars gold coin of the United States of America, to him in *342hand paid by the said party of the second part, and other good and. valuable considerations, the receipt of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey unto the said party of the second part, and to his' heirs and assigns forever, all his right, title, and interest in and to all that certain piece, parcel, or tract of land situate, lying, and being in the city and county of San Francisco, State of California, described as follows, to wit:

■ “ Commencing at a point on the northerly line of Commercial street, distant 60 (60) feet, westerly from the northwestern corner of Montgomery and Commercial streets, running thence westerly along said northerly line of Commercial street 57 feet and 6 inches (57^) and running thence at right angles northerly 59 feet and 9 inches (59x9a), running thence at right angles easterly 57 feet and 6 inches (57t%) and running thence at right angles southerly 59 feet and 9 inches (59-&-) to the place of beginning.

“ The same being a part of the Curtis, Perry, and Ward lot and any other lands owned by party of the first part or any interest therein in the city and county of San Francisco, State of California.

“ Together with all and singular the tenements, heredit-aments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and also all the’ estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the'first part, of, in, or to the said premises and every part and parcel.thereof with the appurtenances.

“ To have and to hold all and singular the said premises, together with the appurtenances, unto the said party of the second part, his heirs and assigns, forever.

“ In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above.

“ James L. Kino, [seal.]

“ Signed, sealed, and delivered in presence of—

“ Saml. S. Mttreey.” "

Charles McLaughlin died testate, his wife, Kate D. McLaughlin, being his sole residuary legatee and devisee. Before any distribution of the estate was had the said Kate D. McLaughlin also died testate, devising all her property to Mary Virginia Ives, then a femme sole, now Mary Ives Crocker, and Kate May Dillon, then a femme sole, now Kate *343May Dillon Winsbip. This devise became perfected by the vestiture, under proper legal proceedings, of title in the de-visees on May 23, 1890.

“ State oe Calieoenia,

“ *City and county of San*Francisco, *ss:*

*“*On this 9th (9th) day of September, A. D. 1879, before me, Sami. S. Murfey, a notary public in and for the said' city and county, residing therein, duly commissioned and sivorn, personally appeared James L. King, known to me to be the person described in and who executed and whose name is subscribed to the within and annexed instrument, and he acknowledged to me that he executed the same.

“ In witness whereof I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

“[seal.] Sáml. S. Mueeey, *Notary Public.'1'1*

“,This indenture, made the seventh day of November, in the year of our Lord one thousand eight hundred and sixty-seven, between'James L. King, of the city of New York, formerly of the city of San Francisco, California,- of the first part, and William W. Crane, jr., and James T. Boyd, of the city of San Francisco, the party of the second part, Avitness-eth, that the said party of the first part, for and in consideration of the sum of ten dollars, gold coin of the United States of America, to him in hand paid by the said parties of the second part, the receipt Avhereof is hereby acknowl--edged, hath granted, bargained, sold, and conveyed, and by these presents doth grant, bargain, sell, and convey, unto the said parties of the second part, and to’their heirs and assigns forever, all of the one undivided third part of all the estate, real and personal, which was conveyed to the said party of the first part by Emily H. S. Ward, widow of Samuel H. Ward, deceased, in and by that certain conveyance bearing date the 25th day of October, A. D. 1865, and recorded in the county recorder’s office of the city arid county of San Francisco,"in liber No. 324 of deeds, at page 127, excepting the lot of land in said deed particularly described being a portion of the lot number (91) ninety-one of the hundred vara lot survey of said city, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand AAmatsoeA'er, as well in law as in equity, of the said party of the first part, of, in, or to the *344said premises, and every part and parcel thereof, with the appurtenances.

“ To have and to hold, all and singular, the said premises, together with the appurtenances, unto the said parties of the second part, their heirs and assigns, forever.

“ In witness whereof the said party of the first part' hath hereunto set his hand and seal the day and year first above written by his duly authorized attorney in fact, F. J. Thi-bault.

“ James L. King, [seal.]

“ By his attorney in fact, F. J. Thibault.

“ Signed, sealed, and delivered in presence of—

“ Henry Haigiit.

“ [Cancel 50-cent lilt. Rev. stamp.] ”

“ State oe California,

“ *City and comity of San*Francisco, *ss:*

“ On this 8th day of November, A. D. 1867, before me, Henry Haight, a notary public in and for said city and county, duly commissioned and sworn, personally appeared F. J. Thibault, personally known to me to be the same person who executed by power of attorney the annexed instrument as tiie attorney in fact of James L. King, said James L. King being named in the annexed instrument as party thereto, and therein described as the party executing the same by his said attorney; and the said F. J. Thibault acknowledged to me that he executed the same freely and voluntarily, as and for the act and deed of the said James L. King, and for the uses and purposes therein mentioned.

“ In witness whereof I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written.

“ [seal.] Henry Haight, *Notary PublicF*

“ In the superior court of the county of Alameda, State of California, in the matter of the estate of Wm. W. Crane, jr., deceased.

“Hannah S. Crane, executrix of the last will and testament of Wm. W. Crane, jr., deceased, having heretofore, to wit, on the 21st day of January, A. D. 1885, filed an account of her administration of said estate, as and for a final settlement thereof, and having also on said day filed with said account her petition for a distribution of said estate, and this court having-thereupon on said day last aforesaid made an order fixing Monday, the 9th day of February, A. D. 1885, at ten o’clock a. m. of said day, as the time for the hearing and settlement of said account and the hearing of *345said petition for distribution, and directing the clerk to give notice thereof by causing notices to be posted in at least three public places in the county of Alameda, State of California, at least ten days before said day of settlement and distribution, and on'Paid 9tíi day of February, A. D., 1885, at said hour of ten o’clock a. m., said account and said petition for distribution coming on regularly to be heard and proof being made to the satisfaction of this court that the clerk of this court had caused notice to be given of said hearing of said account, and of said petition for distribution, in all respects as required by law and said order of this court directing the same, and this court-having examined the records, files, and papers in the matter of said estate, and it being shown to the satisfaction of this court- from such examination and the proofs adduced that by the administration had upon the estate of said Wm. W. Crane, jr., deceased, all the debts that have been presented and allowed against said estate have been.fully paid.

* * * * *

“ That in and by the last will and testament of said Wm. W. Crane, jr., deceased, on file and of record in this court, the whole of the estate of said Wm. W. Crane, jr., deceased, was given, devised, and bequeathed unto Hannah S. Crane, the surviving -wife of said deceased, and the executrix of the estate of said deceased above named.

“ Now, therefore, on motion of John H. Boalt, esquire, attorney for said executrix, and no objections having been made or filed to said account or to any item thereof, or to said petition for distribution, and the written consent of Mary Nancy Crane Hussey, the daughter of said deceased, and the only heir at law of said deceased besides said petitioner, and also the consent of Horace Potter Hussey, husband of said Mary Nancy Crane Hussey, to the entry of said decree of distribution being filed herein.

“ It is hereby ordered, adjudged, and decireed:

“ That all the acts and proceedings of said executrix be, and the same are hereby, approved and confirmed. That the account of said executrix be, and the same is hereby, settled, approved, and confirmed as rendered.

“ That the following-described real estate now in the hands of said executrix and belonging to the estate of said deceased, to wit:

* * * * *

“ Fourth. All that certain lot, piece, or parcel of land situate, lying, and being in the city and county of San Francisco, State of California, and bounded and particularly *346described as follows, to wit: Commencing at a point on tlie southwesterly line of Tenth street, distant one hundred and ninety-five (195) feet northwesterly from the corner formed by the intersection of said southwesterly line of Tenth street with the northwesterly line of Mission street; thence running northwesterly along said southwesterly line of Tenth street fifty-five (55) feet; thence at right angles southwesterly parallel with Mission street one hundred (100) feet; thence at right angles southeasterly parallel with Tenth street fifty-five (55) feet, and thence at right angles northeasterly parallel with said Mission street one hundred (100) feet to the point of beginning.

“ Fifth. All that certain lot, piece, or parcel of land situate, lying and being in the city and county of San Francisco, State of California, bounded and particularly described as follows, to wit: Commencing at a point on the northerly line of Fifteenth street, distant eighty-seven (8T) feet and three (3) inches easterly from the corner formed by the intersection of the easterly line of Guerrero street with the said northerly line of Fifteenth (15th) street, and thence running easterly along said northerly line of Fifteenth street four hundred and seventy-two (472) feet and nine (9) inches to the corner formed by the intersection of said northerly line of Fifteenth street with the westerly line of Valencia street; thence northerly along said westerly line of Valencia street sixty-five (65) feet; thence at right angles westerly and parallel with Fifteenth street four hundred and sixty-four (464) feet; thence southwesterly in a straight line to the point of commencement on the said northerly line of Fifteenth street.

“ Sixth. All that certain lot, piece, or parcel of land situate, lying, and being in the city and county of San Francisco, State of California, bounded and particularly described as follows, to wit: Commencing at a point on the northerly line of Fulton street distant one hundred and ten (110) feet westerly from the corner formed by the intersection of the said northerly line of Fulton street with the westerly line of Webster street; thence running westerly along said northerly line of Fulton street twenty-seven (27) feet and six (6) inches; thence at right angles northerly and parallel with said Webster street one hundred (100) feet; thence at right angles easterly and parallel with Fulton street twenty-seven (27) feet and six (6) inches, and thence at right angles southerly and parallel with said Webster street one hundred (100) feet to the point of beginning.

“ Seventh. The undivided one-half of all that certain lot, piece, or parcel of land situate, lying, and being in the city *347and county of San Francisco, State of California, to wit: The undivided one-half of lot number fourteen hundred and fifty-two (1452) of the fifty (50) vara lot survey of the city of San Francisco be, and the same is hereby, assigned, transferred, and distributed to the said Hannah S. Crane, the surviving wife of said deceased, and sole devisee under the will of said deceased, for her own benefit, use, and behoof forever.

“ It is further ordered, adjudged, and decreed that any and all other property, real, personal, or mixed, and wheresoever situate, of which said Wm. W. Crane, jr., deceased, died seized or possessed, or in or to which he had any right, title, or interest, or in or to which the estate of said deceased had or has since acquired any right, title, interest, or estate whatsoever, be, and the same is hereby, assigned, transferred, and distributed to said Hannah S. Crane.

“ It is hereby further ordered, adjudged, and decreed that the said Hannah S. Crane, executrix as aforesaid, be, and she is hereby, fully and finally discharged from her trust as such executrix.

“ Done in open court this ninth day of February, A. D. 1885.

“ N. Hamilton, *Judge.*

“(Endorsed:) Filed Feb. 9, 1885. Charles T. Boardman, county clerk. By Frank J. Krauth, deputy clerk.”

YI. “ *Record in the Prohate Oourt of San Francisco*County, *Cal.*

“ Probate Court. In the matter of the last will and testament of Samuel H. Ward, dec’d.

“ San FeancisCO Co., *ss:*

“ George B. Ward, George K. Gluyas, and Moses E. Flanagan, being duly sworn, each for himself, deposes and says, that he will truly, honestly, and impartially appraise the property which shall be exhibited to them by Philo H. Perry, executor of said last will and testament, according to the best of his knowledge and ability.

“ Geo. B. Ward.

“ M. E. ■ Flanagan.

“ Geo. K. Gluyas.

“ Subscribed and sworn this 23rd day of August, 1853, before me.

“[seal.] F. T. Lynch, *Not. PuhP*

*348“ Probate Court. In the matter of the last will and testament of Samuel H. Ward, dec’d. Inventory indorsed. Filed Aug. 26, ’53, Bailey, D. C.

“ The executor amends the foregoing inventory by stating that the dec’d died at sea on the 22d day of March, 1853; that intelligence of his death was received in San Francisco on the 21st day of April, following, but that, for convenience, his interest in the firm of Curtis, Perry & Ward is continued to the 30th April, on which day the value of said interest in the personal property is inventoried and appraised, and by adding the following item, inadvertently omitted from said inventory, viz:

“An interest of one-third (1) in the rent of said U. S. apar., lot, and building from tire 1st day of May, 1853, to the 29th August following, 3 mos., 29 days, at $1,250 per month, $5,000; -J, 1,666.66.

“ San Francisco, October 31st, 1853.

“ Geo. E. WARD,

“ Geo. K. Gluyas,

“ M. E. Flanagan,

*“Appraisers*

“ Probate Court. In the matter of the last will and testament of Sam’l H. Ward, dec’d. Additional inventory.

Filed Dec. 9th, 1853.

“ Office of tiie CouNty Cleric

*uOf the City and County of San*Francisco, *ss;*

“ I, Wm. J. Blattner, county clerk of the city and county of San Francisco, and *ex officio*clerk of the Superior Court 'thereof, do hereby certify the foregoing to be a full, true, and correct copy of the inventory and the additional inventory in the matter of the estate of Samuel PI. Ward, deceased, now on file and of record in my office.

“ Witness my hand and the seal of said court this 21st day of March, A. D. 1892.

“ [seal.] Wm. J. BlattNer, Cleric,

“ By D. S. Garwood, *Deputy Cleric.*

“(Indorsed:) Certified copies inventories of estate of Samuel H. Ward. Crane *v.*The U. S. Claimants’ Exhibit No. 4. Deposition of John IPeuston, jr. June 8th, 1892. J. S. Manley, commissioner.

“ Filed March 2, 1896.

“ A true copy.

“ Test this 4th day of April, 1896.

“ [seal.] Joi-iN Randolph,

*“Assistant Cleric Court of Claims.”**349YII. The value of the undivided one-sixth interest of Emily H. S. Ward, widow of Samuel H. Ward, in the property in suit was .at the time possession was taken by thq United States $6,666.66.

*Mr. George A. King*for the claimant. *Messrs. Geo. A.*and *Wm. B. King*were on the brief:

It is an elementary principle that on all questions of state law, the courts of the United States will follow the decisions of the state courts. This rule is especially applicable where real property is concerned, in regard to which the decisions of the state courts are absolutely conclusive. *{GlarJce*v. GlarJce, 118 U. S., 186.)

Community property between husband and wife is unknown to the common law and prevails only in States which have adopted it by statute, or have derived it from the Homan civil law.

The rule that the federal courts follow state decisions on such questions was applied with specific reference to a question of community property in *Warburton*v. *WJiite*(116 U. S., 484), where the court answering an argument similar to the one now presented on behalf of the United States that it should construe the laws relating to the subject for itself said (p. 496) :

“ That where state decisions have interpreted state laws governing real property or controlling relations which are essentially of a domestic and state nature; in other words, where the state decisions establish a rule of property, this court when called upon to interpret the state law will, if it is possible to do so, in the discharge of its duty, adopt and follow the settled rule of construction affixed by the state court of last resort to the statutes of the State, and thus conform to the rule of property within the State. It is undoubted that this rule obtains, even although the decisions of the state court, from which the rule of property arises, may have been for the first timé announced subsequent to the period when a particular contract was entered into. *(Burgess*v. *Seligman,*107 U. S., 20, 34; *Miller*v. Ammon, 145 U. S., 421, 423.)

“Applying the principle just stated to the case before us, we feel no hesitation in construing the contract of purchase, which is here in question, in accordance with the nature *350and extent of community property, as settled by’the deck sions of the Supreme Court of Washington, interpreting . the laws which were in existence when the purchase was 'made. Obviously, the reasoning of the plaintiff in error, upon which the assumption that community property bought during the existence of the act of 1873 was solely the property of the husband, involves not only a contradiction in terms but invokes at the hands of this court, in order to overthrow the rule of property in the State of Washington, an interpretation of the statutes of that State which is not only confusing, but self-destructive.”

It needs nothing but an application of the exact terms of this ruling to the case now before the court to lead to a denial of the argument now advanced on behalf of the United States.

There is a special reason which operates in this case to render the plea advanced by the Government an inequitable one. The suit was throughout against the superintendent of the branch mint. As the individual who held that office was from time to time changed, the successor was substituted for the predecessor. The action was at all times defended by a special United States attorney acting under the direction of the Attorney-General. After the Supreme Court of California had given its decision, the Government carried the case on writ of error to the Supreme Court of the United States. Here, shortly after the announcement of the decision of the Supreme Court in the famous case of the Arlington estate, *United States*v. *Lee*(106 U. S., 196), the Attorney-General, representing the Government, entered a voluntary dismissal of the writ of error on the part of the Government. The plaintiffs in the ejectment suit thus had the right to the issuance, of a writ of possession to carry out the judgment of the court. Instead of doing so, they sought.the more peaceable means, as did the heir of General Robert E. Lee, of an appeal to Congress for compensation for property desired by the Government. The heir of General Lee received that compensation and so should this claimant.

*Mr. Frederick, De C.*Faust, with whom was *Mr. Assistant Attorney-General John Q.*Thompson, for the defendants.

*351Booth, J.,

delivered the opinion of the court:

This is a case under a special jurisdictional statute. The claimants, Hannah S. Crane and others, contend for a one-sixtli interest in a certain lot Or parcel of real estate purchased by the Government, and upon which it located the branch mint at San Francisco, Cal. The property in question originally belonged to Joseph B. Curtis, Philo H. Perry, and Samuel PI. Ward, copartners doing business under the firm name of Curtis, Perry & Ward. The partnership was organized for and engaged in the business of assaying gold, forming the same into bars, and under the act of September 30,1850 (9 Stat. L., 581), coined and issued gold coins. The Congress on July 3, 1852, passed an act (10 Stat. L., 11) to establish a branch mint of the United States in California. In pursuance of said legislation the proper officers of the Treasury Department entered into a contract with Joseph R.

Curtis for the purpose of securing a suitable building and .proper furnishings and equipments to carry into execution the provisions of the above law. This contract, made on the 15th day of April, 1853, was, notwithstanding its personal character, indisputably made- for and on behalf of the co-partnership of Curtis, Perry & Ward. Samuel PI. Ward, the junior partner just named, died at sea while on a voyage to the Sandwich Islands on March 22, 1853, some time previous to the execution of the above contract. This fact was unknown to his copartners at the time of the execution of the contract, and was not brought home to them until April 21, 1853. The unknown and unexpected death of said Ward furnishes the complications out of which this controversy arises. Said Ward died testate, leaving to his widow, Emily II. S. Ward, nine-tenths of his entire estate, both real and personal, and the remaining one-tenth to a near relative; his copartners, Joseph R. Curtis and Philo PI. Perry, were appointed his executors and given full power and authority to manage, sell, dispose of, and control all his estate, real, personal, and mixed.

The contract made with Curtis, as before observed, called for the sale to the Government of the lot and building, together with its furnishings and equipment, belonging to the copartnership. Ward’s will was admitted to probate, and *352Philo H. Perry alone qualified as executor of his estate. All of Ward’s estate, including all the property covered by the Curtis contract, was duly inventoried and appraised, the appraisers fixing the value of the property here in suit at $40,000, one-third of which, $13,333.33, belonged to Ward’s estate. Perry, as executor aforesaid, with full power and authority so to do, conveyed, or at least attempted to convey, to Curtis all of Ward’s interest in said partnership property, paying the full consideration mentioned by the board of appraisers, nine-tenths of which amount was paid to Emily H. S. Ward, which she receNed with full knowledge of the whole transaction and without the slightest protest or objection. In 1850 the legislature of California passed an act changing the law of property as respects husband and wife by creating an estate in community. (Laws of 1850, p. 255, sec. 11.) The statute of 1850 creating the community estate was first construed by the Supreme Court of California in 1855 *(Beard*v. Knox, 5 Cal., 252), wherein the court held that immediately upon the death of one communal owner one-half of the community estate vested in fee simple in the survivor, and was not subject to testamentary disposition, notwithstanding the fee-simple title of the whole originally stood in the name of the decedent. In March, 1854, Emily IT. S. Ward and her co-legatees under the will of her husband filed a bill in equity in the District Court for the Northern District of California against said Curtis and Perry, surviving partners of her late husband. The allegations of the bill contain a full recital of all the transactions between Curtis and Perry and between Curtis and the Government. It is replete with charges of fraud and circumvention as between the surviving partners and the complainants, but nowhere repudiates, disaffirms, or seeks to annul the sale of said premises to the defendants. The bill concludes with a prayer for an accounting and seeks a division of alleged profits supposed to have been earned by reason of the aforesaid Curtis contract with the defendants. The Secretary of the Treasury was notified of the filing of this bill, because, under the Curtis contract and before the filing of said bill, Curtis had received $100,000 on his con*353tract from said officer. The case was never brought to trial and subsequently dismissed by complainants.

In October, 1865, Emily Ií. S. Ward conveyed all her alleged interest in the property here in suit to James L. King, the consideration expressed in the deed being- $100. In 1867 King commenced an action of ejectment in the District Court for the Fifteenth Judicial District of California against the superintendent of said branch mint, who was in possession of and operating the same for the Government. This suit was decided adversely to complainant’s contention in the trial court, but subsequently reversed and remanded by the Supreme Court of California. *(King*v. *La*Grange, 50 Cal., 328.) The case again reached the Supreme Court of the State on its second trial, and was finally determined in favor of the plaintiff, in effect holding that the will of said Samuel IT. Ward disposed of only such an estate as he could by law devise, which did not include his widow’s one-half interest in the communal property, and that she had performed no act, nor acquiesced in the performance of any, which constituted a ratification of the alleged disposition of her communal interest .in her husband’s property since his death, fully sustaining King’s contention and upholding his assertion to an undivided interest in the undivided one-sixth interest formerly belonging to his grantor, Mrs. Ward.

The various transfers by which the claimants claim title 'to the property are set forth in the findings; they are not challenged in any way, and require no comment. It does appear, however, and is a fact to which we shall hereafter refer, that subsequent to Ward’s death his widow returned East, and Perry, the executor of Ward’s will, removed to New York, where he filed in the Supreme Court of said State a petition for final discharge as such executor, to which Mrs. Ward was a party and to which she did not object.

The jurisdictional act (33 Stat. L., 815) provides as follows:

> ■“AN ACT Referring the claim of Hannah S. Crane and others to the Court of Claims.

> *“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That jurisdiction be, and the same is hereby, conferred on *354the Court of Claims to hear the claim of Hannah S. Crane and others for the value of certain real property in the city of San Francisco, in the State of California, in -which they claim an undivided one-sixth interest, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said real property as claimed, said court shall award the said parties the market value of the undivided one-sixth of said property at the time possession was taken of it by the United States. And before receiving the same, all of said parties shall execute a.release to the United States for all right, title, and interest whatsoever in and to the said property, and any defense, set-off, or counter-claim ma-y be pleaded by the United States, as defendants, as in cases within the general jurisdiction of the court, and either party shall have the same right of appeal as in such cases.”

Claimants’ case, viewed from any aspect, is devoid of equitable consideration. If the preference given is to be sustained at all, it must rest upon a strict adherence to legal construction as decided by the Supreme Court of California in the two cases heretofore cited. The cases relied upon as *stare decisis*were between parties strangers to this record, and if decisive of this case limit the court to what the Congress might well have done without any reference to the court, paid the claim in full, for it was possessed of all the information previously certified under a Bowman Act reference in 1896. The case of *United States*v. *Lee*(106 U. S., 196), settled the question of the right of the plaintiffs to maintain in the courts of California the suits which they instituted respecting the title to the land in controversy as between the parties thereto; but it has never been held, so far as we are able to ascertain (certainly no authority has been cited in the brief of counsel for claimants), that any such judgment concluded the United States or in anywise estopped it from asserting its rights in the premises. In *United States*v. *Lee*(p. 222) Mr. Justice Miller, speaking for the court, said: “ * * the Government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights. Hence,- taking the present case as an illustration, the

*355United States may proceed by a bill in chancery to quiet its title, in aid of which, if a proper case is made, a writ of injunction may be obtained. Or it may bring an action of ejectment, in which, on a direct issue between the United States as plaintiff and the present plaintiff as defendant, the title of the United States could be judicially determined.” The above quotation from the Lee case, *supra,*is the court’s affirmance of the decision of the same court in *Carr*v. *United States*(98 U. S., 433). In the latter case the question of the conclusiveness of a judgment of a court of competent jurisdiction-in an ejectment suit brought by an alleged owner of the real estate against agents of the Government in possession, and claiming the right of same in virtue of such agency, was squarely decided, the court holding that the United States could not be estopped from the assertion of its rights by proceedings against its tenants or agents. It will be observed that the Carr case was a bill in equity filed by the United States to quiet the title to certain property in San Francisco, Cal., claimed by the Government, and as to which the state courts had previously rendered decisions adversely to the Government’s contention in direct proceedings against its own agents in possesion by its authority and consent. Three suits, at least two of which went directly to validity of title, and in one of which the United States district attorney appeared for and on behalf of the defendants, were decided in favor of the plaintiff. The case is strikingly similar to the one at bar, and while it is true that the decisions just mentioned were by the lower courts, it is nevertheless true that the question of title was fully gone into, and in so far as the parties thereto are concerned is *res adjudicata.*

The Government is not suable except by its own consent, and until such consent is given by appropriate legislation no judgment or decree of any court concludes its right to assert its defenses or prefer its claims. *(United States*v. Lee, 106 U. S., 196; *Carr*v. *United*States, 98 U. S., 433; *Scranton*v. *Wheeler,*57 Fed., 807.)

The jurisdictional statute under which we are now proceeding refutes by its terms the contention of claimants herein. If the court is estopped from entering into the merits of the controversy and determining for itself the *356validity of the title to the property in suit, then the reference of the claim was an idle proceeding. It would indeed be a travesty upon justice to refer to the Government’s tribunal a claim as to which the court had nothing to do except indulge in mathematical calculation and enter judgment accordingly. The act would simply resolve itself into legislation designed to revive and pay a claim previously litigated to conclusion, but lost to settlement by lapse of time. The Congress never so intended in the act of jurisdiction. We are charged with according full probative effect to the evidence already filed in the case, and permitted to consider “ such additional legal evidence as may be hereafter presented on either side.” The proceedings are to be in all respects, except as specifically modified, in accord with the general jurisdiction of this tribunal, and expressly reserving to the defendants the right of *any defense*available.

The Congress neither recognized the validity of the claim nor the validity of claimants’ title to the land in question. It did recognize the right to assert a claim and provided a forum wherein the respective rights of both parties to the case might be judicially determined and set at rest.

This court,, by entering into the merits of the claim as presented by the jurisdictiona], statute, does not in anywise contravene the well-established doctrine as laid down in *Clarke*v. *Clarke*(178 U. S., 186) and *Wharton*v. *White*(176 U. S., 484). These two cases establish beyond controversy that the Supreme Court will, in so far as it is possible to do so, conform to the rule of property as established by the supreme tribunal of a State respecting controversies concerning such property. In other words, where the decisions of the highest court of a State have definitely and conclusively established a rule of property the Supreme Court in interpreting the state law will follow, if possible, the decisions of the state court. The decision herein does not invade a settled rule of property as established by the Supreme Court of California; it in no wise ignores or contradicts the legal existence of a communal estate as between husband and wife; nor disregards settled law as to power of testamentary disposition over the same. It simply grants to the defendants their day in court, a right paramount in extent, the *357denial of which is fatal to all judgments or decrees rendered either against the person or property of one not a party to the record. The defendants are not concluded by the decisions of the state court of California from resorting to a bill to quiet title or fropi commencing a suit in ejectment wherein the “ title of the United States could be judicially determined.” *(Lee case, supra.) t*

The defendants are now, and for the first time, asserting a direct proceeding that the facts and circumstances surrounding the transaction *as now presented*do not bring the same within the decisions of the Supreme Court of California rendered many years ago.

We have amended the findings; we have considered new testimony; and in all respects treated the case as pending-under the general jurisdiction of the court, as modified by the jurisdictional statute.

The findings disclose that claimants’ grantor, Mrs. Ward, was, at the time of "the conveyance from Perry to Curtis, fully, acquainted with the situation and in possession of the facts attendant thereon. It is true that she was ignorant of the extent of her estate in the land in question, and that the conveyance aforesaid did not, standing alone without ratification, transfer her undivided one-half interest in the communal property of her deceased husband. There can be no doubt that Ward intended to devise all the property here in suit; his devisees so understood it; his executors so understood it; and Mrs. Ward accepted without protest the value of the entire lot, including her communal interest therein, as fixed by the board of appraisers. In 1854, about one year subsequent to the above transfer, Mrs. Ward and her coleg-atees, evidently believing that the surviving partners of her deceased husband were attempting to or did overreach them in the sale to the United States of the partnership property, filed the bill in chancery heretofore mentioned. The United States was not a party to said proceeding, neither was any of its officers or agents mentioned as defendants therein. The gravamen of the complaint was fraud and deceit upon the part of Curtis and Perry, the only defendants to the bill, setting out in *luee verbce*the contract between Curtis and the United States. Not a word of com*358plaint respecting the loss of title to her communal interest in the property, seeking only an accounting as between the parties to the transaction and an equitable and conscionable distribution of the profits arising from the conveyance aforesaid. The bill itself was subsequently dismissed *by the complainants.*

In 1855 the case of *Beard*v. *Knox,*supra, was decided by the supreme court of California. Under this decision Mrs. Ward became for the first time acquainted with the extent of her interest in the estate of her deceased husband and her title to the property in question. Remedies were then immediately available for the correction of this alleged injury. The courts of California were open to Mrs. Ward for the assertion of her claim, and suits to quiet title or. in ejectment were clearly maintainable. *(Carr*v. *United*States, *supra.)*No such proceedings were commenced by Mrs. Ward, but ten years thereafter, to wit, on October 25, 1865, as the findings show, she conveyed for a nominal consideration all her interest in the premises in question to one James L. King. In 1867 King asserts his claim of title with the successful result heretofore mentioned. *(King*v. *La*Grange, *supra.)*It is worthy of notice, however, that notwithstanding the judgment in favor of King, no attempt was ever made by him to enforce said judgment or recover possession of the disputed premises. On the contrary, King conveys to McLaughlin in 1879 for a recited consideration of $5 in gold, and to Crane and Boyd in 1867 for a recited consideration of $10 in gold.

It is indeed a strange proceeding, certainly inequitable, to now permit Mrs. Ward’s grantees to assert against- the defendants a claim which she permitted to repose for ten years without ever resorting to any established legal remedy, and which was notoriously open to disaffirmance or repudiation during this long period of time. There is absolutely nothing in the record which even hints at a repudiation of Perry’s acts in conveying all the estate of both Mr. and Mrs. Ward in the partnership property to Curtis. There is nothing to show that Mrs. Ward was dissatisfied with the transfer in question or sought to annul the same at any time subsequent to its execution. In 1855, prior to said conveyance to King, *359Perry filed in the Supreme Court of New York a petition in which Mrs. Ward and all other *cestui que trusts*of Ward’s will joined, setting forth in detail his management of Ward’s estate, including the disposition of all the real estate here involved, with copy of Ward’s will annexed, which after reference to a referee for authentication was fully approved and said executor discharged without objection or protest.

As was said in *Lafitte*v. *Godchaux*(35 La. Ann., p. 161), a case cited in defendants’ brief, “ The genius of our law does not favor the claims of those who have long slept, upon their rights and who, after years of inertia, conveying an assurance of acquiescence in a given state of things suddenly wake up at the welcome vision of an unexpected advantage and invoke the aid of courts for relief under the operation of a newly discovered technical error in some ancient transaction or settlement.”

' If the facts found in this case do not constitute a ratification of an act done by one without authority to act in the first instance, it is difficult to perceive how the doctrine of ratification can be sustained.

This case was once before Congress upon findings of fact under the act of March 3,1883, commonly known as the Bowman Act. The findings so reported have been amended and some new findings made, but the action of the court under the Bowman Act as respects the findings then made has not been disturbed. The jurisdictional act admits of additional testimony and the new findings made are in strict accord with the new facts in the record.

The petition is dismissed.