tion as to where fee to street rests; Rhinehart v. Harrison, 1 Bald. 187, F. C. 11,840, affirming rule laid down by State courts, that by direction in will to convert real property into money, it is thereby made personal property and vests in representatives of legatee upon his death; Thompson v. Phillips, 1 Bald. 284, F. C. 13,974, charging jury as to effect of State decisions construing statute limiting lien of judgments; Boyle v. Arledge, Hemp. 623, F. C. 1,758, applying principle to construction of statute limiting actions generally by nonresidents; Derby v. Jacques, 1 Cliff. 438, F. C. 3,817, construing State statute abolishing writ of right; Hiller v. Shattuck, 1 Flipp, 274, F. C. 6,504, following State statute in allowing defendant in ejectment a new trial on payment of costs; In re Zug, 30 Fed. Cas. 948, holding that in determining what were distributable assets in bankruptcy proceedings under a national act, Federal courts would be governed by decisions of courts in State where property was situated; Fidelity, etc., Co. v. Shenandoah Iron Co., 42 Fed. 376, following decisions of State courts in declaring unconstitutional a law giving materialmen priority over mortgage bonds; McClaskey v. Barr, 62 Fed. 211, adopting State law relating to compensation for improvements on land made in good faith; Cockrill v. Woodson, 70 Fed. 754, following State decisions to effect that transfer by husband to wife created in her an equitable estate in the land to her separate use; Independent District v. Beard, 83 Fed. 14, 15, following State courts in determining what constitutes special trust; Buford v. Kerr, 90 Fed. 514, in determining nature of estate taken by will; Hempstead v. Reed, 6 Conn. 487, applying principle in holding certificate of discharge in insolvency, legally obtained in one State, available as discharge in any other State; McClure v. Owen, 26 Iowa, 254, refusing to follow Federal decision which disregarded settled construction placed by State courts upon State statute; Hammond v. Coleman, 4 Mo. App. 218, as instance where Supreme Court recognized right of States to regulate descents; Shirley v. Sugar Refinery, 2 Edw. Ch. 513, as instance where Federal court followed rule established by State courts; Smith v. Power, 23 Tex. 33, applying doctrine of stare decisis in case involving validity of public land grants. See also dissenting opinion, Williamson v. Berry, 8 How. 559, 12 L. 1197, attempting to apply the rule in construing a private statute. Cited, arguendo, in Strother v. Lucas, 12 Pet. 437, 9 L. 1147. Referred to without comment in Burgess v. Seligman, 107 U. S. 34, 27 L. 365, 2 S. Ct. 22. Cited approvingly, but without particular application of the rule, in Hart v. Burnett, 15 Cal. 603, 605, in general discussion of subject of stare decisis.

Distinguished in Marlatt v. Silk, 11 Pet. 22, 9 L. 617, holding rule inapplicable to construction of compact between two States regarding public lands; Lane v. Vick, 3 How. 476, 11 L. 687, refusing to follow a single construction of will under State statute not sufficiently acquiesced in to have become a rule of property (but see

dissenting opinion, p. 482, 11 L. 690); Foxcroft v. Mallett, 4 How. 879, 11 L. 1020, where decision of State court construing deed by rules of common law held not binding upon Supreme Court; Railroad Co. v. National Bank, 102 U. S. 53, 26 L. 75, refusing to be bound by decisions of State court upon question of general commercial law; Barber v. Pittsburg, etc., R. R. Co., 166 U. S. 99, 41 L. 933, 17 S. Ct. 491, where State decision relied upon was the only adjudication upon point at issue; Edwards v. Davenport, 4 McCrary, 43, 20 Fed. 762, holding decision of State court as to effect of contract entered into by person of unsound mind not to constitute rule of property, and so not binding upon Federal court; Lauriat v. Stratton, 6 Sawy. 347, 11 Fed. 114, declining to follow single decision of State court evidently made upon misapprehension of statute; Ryan v. Staples, 76 Fed. 727, 40 U. S. App. 427, refusing to be guided by single decision rendered after right in question had become vested; Franklin v. Twogood, 25 Iowa, 533, 96 Am. Dec. 82, refusing to construe contract according to lex loci contractus, where question at issue involved application of common-law rules.

Devises and legacies. In New York a devise over to a survivor on failure of issue is deemed to be on a definite and not an indefinite failure of issue, and so is good as an executory devise, and does not create an estate tail by implication, but a fee simple defeasible by death without issue in the lifetime of the survivor, pp. 165, 167.

This rule has been applied in Waring v. Jackson, 1 Pet. 571, 7 L. 267, a case involving the same state of facts; Abbott v. Essex Co., 2 Curt. 134, 140, F. C. 11, holding such to be the rule in Massachusetts; Crane v. Cowell, 2 Curt. 186, F. C. 3,353, in Rhode Island; Summers v. Smith, 127 Ill. 650, 21 N. E. 192, showing application of rule in Illinois. See also note, 3 Am. Dec. 344. Cited approvingly, but without particular application of the rule, in Moody v. Walker, 3 Ark. 203, discussing subject of executory devises; Russ v. Russ, 9 Fla. 142, collecting and reviewing cases on subject of executory devises.

Criticised in Chester v. Greer, 5 Humph. 32, and contrary rule held to obtain in Tennessee; to the same effect is Bramlet v. Bates, 1 Sneed, 574.

12 Wheat. 169–176, 6 L. 589, ARMSTRONG v. LEAR.

Wills.- Testamentary paper executed in a foreign country cannot be made the foundation of a suit for a legacy here, until probated by a court of competent jurisdiction, p. 176.

This rule has been cited and the principle applied in the following cases: Armstrong v. Lear, 8 Pet. 71, 8 L. 870, where same cause, upon coming later to Supreme Court, was remanded, bill not having alleged that document in question was a valid will according to law of place where executed; Tompkins v. Tompkins, 1 Story, 553, F. C.

14,091, holding probate of will by proper court conclusive upon validity of will to pass real estate involved in action of ejectment; Langdon v. Goddard, 2 Story, 276, F. C. 8,060, dismissing bill setting out will, but relying for title upon codicil not alluded to in bill as having been proved; Mellus v. Thompson, 1 Cliff. 128, F. C. 9,405, holding that executor deriving authority solely from one State cannot sue in another, without appointment in latter; Bartlett v. Rogers, 3 Sawy. 63, 64, F. C. 1,079, denying right of executor to maintain suit to collect assets without probate of will in State where suit brought; Baldwin v. Wylie, 30 Fed. Cas. 958, holding unprobated will made in Mexico inoperative to control funds here; Shepherd v. Nabors, 6 Ala. 637, refusing to entertain action for recovery of legacy where will not shown to have been probated; Moore v. Lewis, 21 Ala. 581, affirming decree dismissing bill for recovery of legacy where foreign will, though proved where made, had not been proved where suit brought; also in Wood v. Mathews, 53 Ala. 4, 5, dismissing bill to compel distribution of estate under similar facts; McDaniel v. Pattison, 98 Cal. 97, 27 Pac. 653, reversing judgment vesting title under will alleged to have been destroyed and never admitted to probate; Belton v. Sumner, 31 Fla. 146, 12 So. 373, 21 L. R. A. 15, and n., probate by proper court prima facie evidence of executor's title to land under will; Davis v. Smith, 5 Ga. 296, 48 Am. Dec. 295, denying liability of administrator to suit for failure to defend suit in jurisdiction where will had not been probated nor administration granted; Sneed v. Ewing, 5 J. J. Marsh. 467, 22 Am. Dec. 48, and Van Gieson v. Banta, 40 N. J. Eq. 19, holding foreign will inoperative to pass title unless recorded as provided by statute; Pettit v. Black, 13 Neb. 152, 12 N. W. 845, holding will not admissible as evidence of title unless probated; Pelletreau v. Rathbone, 1 N. J. Eq. 334, 336, dismissing bill filed by executor under foreign will in absence of express averment that will had been probated; Olney v. Angell, 5 R. I. 204, 73 Am. Dec. 65, dismissing bill for account of assets of estate where will not filed for record as prescribed by statute; Gause v. Gause, 4 McCord, 386, extending rule and holding will not admissible to probate if not made in conformity with State statute, although valid where executed; Missionary Society v. Eells, 68 Vt. 511, 35 Atl. 468, denying jurisdiction of equity to establish destroyed or spoliated will, statute having vested probate courts with exclusive jurisdiction in probate matters. Cited approvingly, but without particular application of rule, in Campbell v. Porter. 162 U. S. 484, 40 L. 1046, 16 S. Ct. 873; Southworth v. Adams, 9 Biss. 523, 4 Fed. 3; In re Foley, 80 Fed. 951; Corrie's Case, 2 Bland Ch. 499; Randall v. Hodges, 3 Bland Ch. 481, discussing law relating to probate generally; Williams v. Saunders, 5 Cold. 78.

Distinguished in Tarver v. Tarver, 9 Pet. 179, 9 L. 93, holding that where complainant sets out in bill an instrument purporting to be a foreign will, and denies its validity because it is executed con

ditionally, defendant is not bound to prove probate. Modified in Gaines v. Chew, 2 How. 646, 11 L. 413, holding that although will must be proved before title can be set up under it, equity may compel defendants to answer touching will alleged to have been spoliated. Distinguished in United States v. Union Pacific R. R. Co., 11 Blatchf. 390, F. C. 16,598, under statute; Melvin v. Lyons, 10 Smedes & M. 80, holding it error to refuse to admit copy of will duly probated in another State.

Miscellaneous citations. Cited in Brendel v. Charch, 82 Fed. 262, on point that equity has jurisdiction over suit to recover a legacy; Latine v. Clements, 3 Ga. 432, on point that will properly made and solemnized according to law of testator's domicile is sufficient to pass personal property in whatever county it is situated; Bonati v. Welsch, 24 N. Y. 164, on point that law of testator's domicile at time of death controls testamentary disposition of his property.

12 Wheat. 177-180, 6 L. 592, RANKIN v. SCOTT.

Lien.- A prior judgment lien, during the time fixed by law for its existence, cannot be displaced by delay in execution and a levy under a subsequent judgment lien, p. 179.

The extent to which this rule has been applied is shown by the following citing cases: The N. W. Thomas, 1 Biss. 218, F. C. 10,386, and The Henrietta, Newb. 287, F. C. 6,121, holding that sale of vessel under State statute cannot divest prior admiralty lien; Rockhill v. Hanna, 4 McLean, 559, F. C. 11,980, holding that where several judgments are rendered upon the same day, the liens thus created are equal, and sale under one does not affect the others; White v. Keller, 68 Fed. 801, 30 U. S. App. 275, citing principal case as authority for holding that subsequent probate of unregistered will will not be effective as against innocent purchaser from heir; Dudley's Case, 7 Fed. Cas. 1155, holding that property of petitioner in bankruptcy is not divested until decree rendered and property is subject to execution until that time; Darrington v. Borland, 3 Port. 35, applying principle in holding charge upon property by will for payment of testator's debts not defeasible by devastavit on part of executor; McMahan v. Green, 12 Ala. 74, 46 Am. Dec. 244, holding where lien has attached on personal property which is, during continuance of lien, removed from State and sold, it may be levied upon under alias execution if again brought into State; De Vendell v. Hamilton, 27 Ala. 165, holding that lien cannot be lost or impaired by laches in issuing execution, provided judgment has not become dormant; Trapnall v. Richardson, 13 Ark. 551, 58 Am. Dec. 344, setting aside decree of foreclosure where land mortgaged was subject to prior judgment lien; Watkins v. Wassell, 15 Ark. 88, holding that judgment lien cannot be displaced in favor of subsequent liens, by mere delay in levying execution; Shall v. Biscoe, 18 Ark. 156, applying principle in holding that vendor's lien for purchase price cannot

be displaced by purchase from vendee; Lawson v. Jordan, 19 Ark. 305, 70 Am. Dec. 601, holding judgment lien not waived by return of process thereon by order of judgment creditor; Littlefield v. Nichols, 42 Cal. 374, affirming sale under mortgage as against subsequently acquired judgment lien; Lick v. Ray, 43 Cal. 90, and Porter v. Pico, 55 Cal. 173, holding attachment lien to be superior to subsequent judgment lien, although such judgment was obtained before the judgment in proceedings in which attachment issued; Moseley v. Edwards, 2 Fla. 434, 438, holding real property levied upon and sold under junior judgment, still subject to lien of older judgment; Kimball v. Jenkins, 11 Fla. 123, 89 Am. Dec. 240, holding lien of judgment obtained during lifetime of defendant not impaired by his death, and entitled to proper rank in administration of estate: Forsyth v. Marbury, Charlt. (Ga.) 327, enforcing judgment lien against property in hands of vendee of judgment debtor; Newton v. Nunnally, 4 Ga. 357, denying right of plaintiff, having two liens on money in hands of sheriff, to apply fund to either lien at option, and holding that older lien must be first satisfied; Harrison v. McHenry, 9 Ga. 170, 52 Am. Dec. 441, reversing judgment holding that sale under junior fi. fa. defeated lien of older judgment on same property; McNair v. Bateman, 27 Ga. 184, holding that lien of execution issued from Federal court attaches to money in hands of State court; Rogers v. Dickey, 1 Gilm. 645, 41 Am. Dec. 210, and Whitney v. Rightclaim, 6 Blackf. 325, setting aside execution sale under junior judgment; Hopping v. Burnham, 2 G. Greene, 53, holding judgment lien superior to prior unrecorded deed, in absence of actual notice; Duvall v. Speed, 1 Md. Ch. 236, holding judgment creditor not bound to seek payment out of proceeds of sale of property subject to lien, but may enforce lien against property in hands of purchaser; Denison v. Shuler, 47 Mich. 602, 41 Am. Rep. 736, 11 N. W. 402, giving vendor's lien preference over mechanic's lien for repairs subsequently made at purchaser's request; Andrews v. Wilkes, 6 How. (Miss.) 565, 38 Am. Dec. 453, holding that docketing of judgment first rendered is notice to all junior judgment creditors of lien created by older judgment; Fonte v. Campbell, 7 How. (Miss.) 383, holding that stay of execution which expires before recovery of subsequent judgment against same defendant does not impair lien of older judgment; Halyburton v. Greenlee, 72 N. C. 320, holding that purchaser under junior judgment buys only an equity of redemption and gets legal title only upon satisfying prior liens. The dissenting opinion in Bank v. Anderson, 14 Iowa, 560, cites the principal case upon this point in disputing the majority, holding that second mortgagee has superior equity over assignee of first mortgage, which has been satisfied by payment to wrong party. Cited, arguendo, in The Alida, Abb. Adm. 172, F. C. 199; Love v. Williams, 4 Fla. 136; Sellers v. Corwin, 5 Ohio, 403, 24 Am. Dec. 304; Wells, Fargo & Co. v. Smith, 2 Utah, 50. See also dissenting opinion, Ex