BUFORD v. KERR, 90 F. 513

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. The general question to be determined upon this record is whether this court is bound by the construction placed upon the will of Jacob Johnston, deceased, in Brown v. Rogers, 125 Mo. 392, 28 S.

W. 630, or may express an independent judgment upon the merits of the controversy; and the decision of the latter question turns upon the further inquiry whether, in construing the language of the will, the supreme court of the state acted in accordance with a line of decisions in that state which are sufficient to establish a rule of property binding upon the federal courts.

It is well settled that the federal courts will adopt the local law of real property, as ascertained by the decisions of the state courts, whether those decisions are grounded upon the construction of the statutes of the state, or form a part of its unwritten law. Therefore, when it appears that, by a course of decision in the courts of a state, certain language found in a deed, will, or other muniment of title is there held to create a certain estate, or to confer certain rights, the federal courts will give to such language the effect to which it is entitled by the local law. Jackson v.

Chew, 12 Wheat. 153, 167, 168; Suydam v. Williamson, 24 How. 427; Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. 974; Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10; Swift v. Tyson, 16 Pet. 1; Roberts v. Lewis, 153 U. S. 367, 14 Sup. Ct. 945. In the case of Farrar v.

Christy’s Adm’rs, 24 Mo. 453, decided in 1857, a deed was made by one Christy to his two sons, Edmund and Howard, Whereby two lots were conveyed by metes and bounds to each son, to be held by them respectively and their heirs, forever, upon condition, however, that, should either son die without leaving legal heirs of his body, the survivor should inherit the whole of the four lots conveyed.

It was held, in substance, that at common law each son would have taken an estate tail in the two lots conveyed to him, but that by virtue of the operation of a statute abolishing entails, which was enacted in Missouri in 1825 (now

section 8836, Rev. St Mo. 1889, quoted below), each son took merely an estate for life in the lots conveyed to Mm, and that each son had a remainder in fee in the lots conveyed to his brother, which vested immediately upon the execution of the deed, and was subject to be defeated only by the birth of issue to him who held the life estate. In the case of Harbison v. Swan, 58 Mo. 147, decided in 1874, the instrument under consideration was a will, which contained provisions substantially like those found in the will of Jacob Johnston, deceased, now under consideration.

The testator had devised one parcel of land to his daughter Harriet, and another parcel to his daughter Juliet, upon condition that, if either daughter died without issue, the parcel devised to her should vest in the survivor, and that, in the event of the death of both without issue, the said parcels of land should vest in the heirs of his daughters Mary and Clarissa, to be equally divided among them when they became of age. It was held, following the decision in Farrar v.

Christy’s Adm’rs, supra, that the effect of the devise was to give to each daughter an estate for life in the lands devised to her, and a remainder therein in fee simple to her sister, which remainder was subject to be defeated only by the birth of issue to her who held the life estate; and that inasmuch as Harriet, one of the devisees, died childless, the remainder which vested in her sister Juliet was never devested, but descended on the death of Juliet to her heirs, and not to the heirs of Harriet. In this latter case the rule which was applied in Farrar v.

Christy’s Adm'rs, supra, was severely criticised by counsel, and the court was asked to ignore it because it tended to defeat the manifest intention of the testator. The court adhered, however, to the construction of the statute abolishing entails, that had been adopted in Farrar v. Christy’s Adm’rs, saying, in substance, that it was the duty of the court to give full effect to the purpose of the statute, even though the result would be to defeat the purpose of the testator. In the case of Thompson v.

Craig, 64 Mo. 312, decided in 1876, which involved the construction of a will like the one under consideration in Harbison v. Swan, supra, the same construction of the will was adopted that had been approved in the previous cases, and Harbison v. Swan and Farrar v. Christy’s Adm’rs were cited as controlling authority. In Brown v. Rogers, 125 Mo. 392, 399, 28 S.

W. 630, the supreme court of the state decided, in substance, that the statute of Missouri barring entails operated upon the will of Jacob Johnston, deceased, and had the effect of vesting'a life estate in Clarinda Johnston and Mary Jane Johnston to the laud respectively devised to them, with remainder in fee simple to their respective heirs; that, as both of said devisees died without issue, the land devised to them vested absolutely in their collateral heirs as tenants in common, and, after the death of Clarinda and Mary Jane Johnston, was clearly subject to partition.

It resulted from this view that the defendant had a good title by virtue of the statute of limitations. The decision was in accordance with the doctrine announced in the three previous cases heretofore cited. We think that these cases are sufficient to establish a rule of property which the federal courts are bound to follow in adjudicating upon the title to land situated in that state. Moreover, the decisions contained an exposition of the meaning and effect of a local statute, from which the federal courts are not authorized to depart in cases originating in that state. Travelers’ Ins. Co. v. Oswego Tp., 19 U.

S. App. 321, 7 C. C. A. 669, and 59 Fed. 58; Railroad Co. v. Hogan, 27 U. S. App. 184, 11 C. C. A. 51, and 63 Fed. 102; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156; Brown v. Furniture Co., 16 U. S. App. 221, 7 C. C. A. 225, and 58 Fed. 286. It results from these views that we are not at liberty to consider and determine upon independent investigation whether the will of Jacob Johnston, deceased, created an executory devise, and saved the title to land in controversy to the plaintiff in error, as his counsel very earnestly contends.

We are precluded from entering upon that inquiry by a course of decision in the courts of the state, which we are constrained to hold is conclusive upon the point at issue. The judgment of the circuit court is therefore affirmed.

Section 8836: “In cases where by the common or statute law of England any person might become seized in fee-tail of any lands by virtue of any devise, gift, grant, or other conveyance, or by any other means whatever, such person, instead of being seized thereof in fee-tail, shall be deemed and adjudged to be and shall become seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person to whom the estate-tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance.”