Dissenting Opinion: Shiras, J., Fuller, C. J.

istrator, as filed in the orphans' court, was approved and confirmed without change by the master.

But out of the decree recommended by the majority opinion all kinds of confusion and uncertainty may arise. The state courts may take a different view of the will of the decedent, and decline to find in it a valid declaration of a trust. In that event the amount of the estate would be increased by the proceeds of the sale of the real estate thus added to the fund for distribution. The citizens of States other than Pennsylvania, the extent of whose rights to participate in the fund had already been determined, and, perhaps satisfied, under the decree of the Circuit Court, could not avail themselves of such action of the state courts. Consequently the first cousins resident in Pennsylvania would receive larger shares of the estate than those received by the first cousins in other States, and thus inequality would arise.

Again, if the state courts should happen to change their views as to the proper construction of the intestate law, and hold that second cousins were entitled to participate equally with first cousins, then the second cousins who were citizens of other States would, under the decree of the Federal court binding upon them, receive nothing, while the second cousins living in Pennsylvania would participate. So, too, it is entirely possible, under the division of jurisdiction recommended by the majority opinion, that all of the first cousins might be citizens of other States, and second cousins only be residents of Pennsylvania. Then, as the decree of the Circuit Court gave the estate only to first cousins, and as such decree would be forthwith enforceable, it might result that, when the state court reached an adjudication in favor of the second cousins, there would be nothing left in which they could participate. Many other absurd consequences, not far fetched, but likely to occur, could be readily suggested, if the novel proposition of dividing jurisdiction should prevail.

I submit that the error in the reasoning of the majority opinion is found in the latent assumption that the citizens of Pennsylvania have no rights in the Federal courts in Pennsylvania. The latter are treated as if they were courts only

Dissenting Opinion: Shiras, J., Fuller, C. J.

intended for the advantage of citizens of other States. Yet we know that, admittedly, citizens of Pennsylvania have the right to resort, as parties complainant, to the Federal courts to enforce important rights and interests—such as arise, for instance, out of the patent laws. So, too, as I understand it, when citizens of Pennsylvania have been brought into the Circuit Court of the United States, as parties defendant to a suit by citizens of another State, they have a right and interest in the decree of the court in their favor. The right of the foreign citizens is not to have the Federal court decide in their favor, but merely to have the controversy heard and determined by the Federal tribunal. The citizens of Pennsylvania who have been brought into the Federal court have a right and interest in the decision, which, as it would have been conclusive if against them, so it must be conclusive if in their favor. The "Home for the Friendless" and the "Home for Aged Protestant Women" should not, after a decision has been made in their favor, in a suit where all concerned were parties, be turned out of the Federal court to wage, in another tribunal, with the same parties, the same question. Nor should the second cousins, resident in Pennsylvania, after having consented to submit their claims to adjudication in the Circuit Court, be permitted, as against the same parties, to try a second fall in the state court.

The apprehension is expressed in the opinion of the majority that the principles upon which the court below proceeded, in adjudicating finally upon the parties and questions before it, would lead to a conflict between the courts, Federal and state, and subject the administrator to a divided duty.

If the previous reasoning is not altogether wrong, it will be readily seen that, on the contrary, a conflict between the State and Federal courts will be brought about by an attempt to divide between them the jurisdiction and decision of the same subjects of litigation, and that the "divided duty" which will perplex the administrator will be that of having to obey two courts instead of one.

To conclude: either the plea of the administrator, setting up the jurisdiction of the orphans' court, as having already

Dissenting Opinion: Shiras, J., Fuller, C. J.

attached, and as being, therefore, exclusive, ought to have been sustained, or the course of the court below, in dealing with the subjects and parties before it, by a final decree, not to be interfered with or thwarted, as between the same parties, by any other court, should be affirmed.

Jurisdiction has been defined by this court, in United States v. Arredondo, 6 Pet. 691, 709, to be "the power to hear and determine a cause." In Ober v. Gallagher, 93 U. S. 199, 206, it was said that a Circuit Court "having obtained rightful jurisdiction of the parties and the subject matter of the action for one purpose, the court will make its jurisdiction effectual for complete relief."

"Jurisdictio est potestas de publico introducta cum necessi tate jurisdicendi." 10 Rep. 73. Jurisdiction is the power introduced for the public good, with the necessity of expounding the law.

"Juris effectus in executione consistit." Co. Litt. 289. The effect of law consists in execution.

I am unable to give my adhesion to a doctrine under which, in the distribution of the estate of a decedent, parties bearing the same relation to it shall or may receive different treatment as they may happen to be citizens of one State or another in our Federal Union. The rights of all parties should be measured by the same yard stick. And when, as in the present case, all persons concerned in the distribution of an estate have been duly made parties to a suit in equity in the Circuit Court of the United States by a bill bringing into adjudication all the questions between such persons, and their several contentions have been heard and considered, the decree of such court ought to operate as a decision final between the parties and as to the matters in controversy.

I think the decree of the court below ought to be affirmed, and am authorized to say that the Chief Justice concurs in that conclusion, and in this dissent.

MR. JUSTICE JACKSON, not having heard the argument, did not take part in the decision.

Statement of the Case.

McCOMB v. FRINK.

FRINK v. McCOMB.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF DELAWARE.

Nos. 215, 216. Argued April 25, 26, 1893. — Decided May 15, 1893.

M. subscribed to the capital stock of a company about to be formed a large sum on his own account, and $60,000 as trustee. B., who was the cestui que trust, subsequently asked him to acknowledge that he held it in trust for S. who had purchased it of B. M. thereupon wrote under date of November 22, 1869, To whom it may concern: I hereby acknowledge to hold in the Southern Railroad Association as trustee for S. under an arrangement with B. an original subscription of $60,000, on which 70 per cent has been paid. This motion is in conformity with an arrangement made some two months ago between B., S. and myself. (Signed) M." In 1875 S. commenced an action at law against M. in a state court of Massachusetts to recover on an alleged contract by M. to invest for S. the sum of $45,000 then in M.'s hands, in the stock of that association, and such proceedings were had that it was finally determined there that no such contract as charged existed, or if it existed, was broken. Subsequently facts were disclosed which showed a breach of trust by M., his administrator and administratrix filed this bill. Held,

(1) That the paper given by M. to S. in 1869 was an absolute and unqualified declaration of trust, for the amount of the subscription so far as it had been paid;

(2) That one essential to an estoppel by judgment is identity of cause of action, and that an examination of the pleadings and proceedings in the case in Massachusetts showed that the cause of action there was not identical with the cause of action here;

(3) That in view of the fact that M. when called as a witness in the action at law testified that the stock stood as it always had stood, and of the further fact that no breach of trust was discovered until just before the commencement of this suit, the plaintiff's had not been guilty of laches; (4) That in view of the circumstances detailed in the opinion of the court the decree of the court below awarding a return of the amount for which M. acknowledged himself as trustee with interest reached, as nearly as possible, what justice demanded.

ON June 30, 1868, the Southern Railroad Association, an unincorporated association, was organized by certain parties

Statement of the Case.

for the purpose of leasing and operating the Mississippi Central Railroad, of which Henry S. McComb had previously obtained a lease for himself and his associates. The capital of this association was $1,500,000, of which Henry S. McComb subscribed $415,000 personally, and also $60,000 as trustee; Josiah Bardwell, $100,000; the balance being taken by ten associates. On January 14, 1869, this association became incorporated, under a special act of the legislature of Tennessee, and to this corporation the voluntary association, on January 22, 1869, transferred its property. On January 21, 1869, such action was taken by this incorporated company that the capital stock named in its charter, to wit, $2,000,000, was issued to the subscribers of the original unincorporated association in proportion to the amounts of their subscriptions. In this way the subscription in the name of Henry S. McComb, trustee, was enlarged from $60,000 to $80,000, and represented 800 shares of stock, for which eight certificates of one hundred shares each, and numbered from 157 to 164, inclusive, were formally issued by the incorporated company on October 6, 1870, to Henry S. McComb, trustee, and so remained on the books of the company at the time of his death, December 30, 1881. It is undisputed that the subscription was taken originally by McComb as trustee for Josiah Bardwell. In the fall of 1869 this correspondence took place between Bardwell and McComb :

"MY DEAR MCCOMB: Will you please acknowledge that you hold in 'the Southern Ass'n,' as trustee for (the benefit) or rather for C. B. Snyder, that am't of stock wh. you held as for me, Mr. Snyder having two months since pd. me its costs and interest.

"Yours, truly,

"Boston, Nov. 12, 1869."

J. BARDWELL.

"OFFICE OF H. S. McCOMB, "WILMINGTON, DEL., Nov. 22, 1869.

"Josiah Bardwell, Esq., care of F. Skinner & Co., Boston. "DEAR SIR: I send this (acknowledgment as trustee) the first leisure moment after the receipt of your letter, and if it