Newberry v. Blatchford

Mr. Chief Justice Scott delivered the opinion of the Court: The question whether this court has jurisdiction in the first instance to hear the appeal in this case has been fully considered. A majority of the court are of opinion a freehold is involved in the case, and therefore the appeal lies directly from the circuit court to this court. In that conclusion the writer does not concur, being of opinion the case is one involving only the construction of a will, and that no freehold is involved. No discussion of either position taken will be attempted. It is deemed sufficient to state the conclusion reached by the majority of the court after mature consideration. This case now comes before this court on a second appeal. The substance of the original bill, and the questions of law there determined concerning the matters in contention, are fully stated in the opinion of the court then delivered. (Blatchford v. Newberry, 99 Ill. 11.) Reference is made to that case for a statement of the facts necessary to an understanding of the questions of -law discussed. As there stated, it is a case involving the construction of a will, and the clause construed has relation to the time of the division and distribution of the estate of Walter L. Newberry, deceased. It was determined it was the plain purpose of the testator, as expressed in his will, no division or distribution of his estate should be made until after the termination of the three lives mentioned, and only at a time after the whole estate should have fallen into the trustees, under his will, disincumbered of all further uses for the daughters of the testator, or his widow. The conclusion, reached after mature consideration, was, that by a correct reading of that paragraph of the will the period for the division and distribution of the testator’s estate had not arrived, and would not arrive until the death of his widow, who had survived both of his daughters, and was still living. The circuit court had construed the will differently, and decreed a division and distribution of the estate, and on account of that error its decree was reversed, and the cause remanded for further “proceedings in conformity” with the opinion of this court. On a petition filed for that purpose, conforming to the rules of this court in such matters, a rehearing was allowed, and the cause placed back on the docket for re-argument. But after another full and exhaustive discussion of the questions presented by the record, a majority of the court adhered to the conclusion reached on the former hearing, and caused the opinion then delivered to be refiled, as containing a full expression of the views entertained by a majority of the court. On the remittitur from this court being filed, had the circuit court conformed to the practice, as stated by this court in Wadhams v. Gay, 83 Ill. 250, and had it proceeded in conformity with the opinion of this court, as it was directed to do, it would seem nothing remained for it to do but to dismiss the bill. What other proceeding would conform to the opinion of this court in that behalf ? The construction there given to the will, holding the period of distribution had not yet arrived, was a final decision of the case on its merits, and it is not perceived under what authority any amendment could thereafter be made to the bill. But this branch of the case will be further remarked upon as the discussion goes on. After the mandate of this court was filed in the circuit court, complainants obtained leave from the court to amend their bill, which was done. There is some difficulty in ascertaining what new matter was introduced into the bill other than making the Attorney General of the State a defendant, for the reason the amended bill took the form of a restatement of the entire case. Giving to the amended bill a careful consideration, it is not discovered any new matter is introduced other than stating more fully facts concerning the personal history of the testator, and the situation and character of his property, which it was thought might aid in ascertaining the true interpretation of that clause of the will' the court was asked to construe. What are called new facts, alleged in the amended bill, throw no light on the principal question involved, viz., the construction of the will. Notwithstanding the amendment to the bill, it is in all material respects the same record that was before the court on a former appeal. A restatement of his case by a complainant, after the merits of the controversy have been determined against him hy a court of last resort, although his amended bill might contain some new matter that would not have been impertinent in his original bill, will not give a party any such standing in court as would enable him to demand another adjudication of his cause on a second appeal. That would enable a party to experiment with the court, and would certainly introduce a most pernicious practice, not heretofore tolerated in this State. It will be noticed, on inspection, that both the original and amended hills present only that clause of the testator’s will relating to the final period of distribution of his estate, for construction. The division of the estate the trustees were asked to make between the heirs of the testator and the donees of the library fund, was a mere incident to the principal relief sought. It would be allowed or denied, as a matter of course, as the will shall be construed one way or the other. It is apparent, then, as respects the question presented by the amended bill, it is identical with that determined by the court' in its opinion on the original bill, when it was before this court on the first appeal. A definite construction was then given to that clause of the will about which the whole controversy hinges. As has been seen, it was then determined it was the plain purpose of the testator, as expressed in his will, the final distribution of his estate should not be made until after the death of his widow, in case she should survive his daughters, and that any other construction of his will would be to make a new will for him, instead of construing the one he had made. That decision covered the whole ground, and left nothing further to decide, either on the original or amended bill. It is obvious that construction of the testator’s will is conclusive on complainants in the original bill. It is a decision of a court of last resort, having jurisdiction of the parties and the subject matter of litigation—definitive in its character, comprehending the whole merits of the controversy, and under the known rule of law such a decision is obligatory upon and conclusive as to the same parties everywhere, and in this court as well as in all other courts. It is not necessary to look elsewhere than to the decisions of this court for authorities declaring this doctrine. They are full to the point a second appeal in the same case, where the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down. Hollowbush v. McConnel, 12 Ill. 203; Reed v. West, 70 id. 479; Smith v. Brittenham, 94 id. 624. It has often been held, as in Rising v. Carr, 70 Ill. 596, this court has no power to review its previous decisions except on petition for rehearing, presented in conformity with the rules of this court, and that has been done once in this case. It is now useless to ask this court to re-open the discussion of the same questions previously determined, on the application of the same parties, and especially so in view of the fact no new or different questions are presented, so far, at least, as complainants in the original bill are concerned. As to them the discussion must be regarded as forever closed, and the decision adverse to them must stand. The reason for the rule adopted on this subject is well and forcibly stated in Hollowbush v. McConnel, where it is said: “There must he an end of litigation somewhere, and there would be none if parties were at liberty, after a case has received a final determination of a court of last resort, to litigate the same matter anew, and bring it again and again before the court for its decision. ” The principle of that case, and the language in which it is expressed, has often been approved in more recent decisions of this court, and notably in Cook v. Norton, 61 Illl. 285, and in Ogden v. Larrabee, 70 id. 510. This court will not enter again upon the consideration of the merits of the case, as presented by complainants’ bill. This would imply a right in this court to review its previous decision in the same case on a second appeal—a right it distinctly disclaims. Complainants have had their day in court, and they can not, with any show of reason, ask to have another. The law forbids it, to the salutary end all litigation may be confined within certain limits, beyond which parties may not go. The insistence, the question of res judicata, if made at all, must be presented by plea in a case like this, has so little in its support, either .in reason or authority, the point made is not considered of sufficient gravity to require discussion. It would be singular, indeed, if a court could not discover the same record on a second appeal, presented the precise same question it did on the first appeal, to the same court. Another branch of the case will now be considered. Defendants have assigned cross-errors, upon which they ask the judgment of the court. First, the court below erred in not dismissing complainants’ bill, on the motion of defendants, made on filing in that court the mandate of the Supreme Court after its former decision; and, second, in allowing amendments to the bill after such mandate was filed in that court. As respects the first cross-error assigned, it would seem to be sufficient to say, as the fact is, the court did dismiss the original and amended bills, although it was not done until the final hearing, and defendants would hardly have any just cause for complaint on that score, as a dismissal of complainants’ bills was all their motion contemplated. The complications in the ease all arise out of the action of the court, after the mandate of this court was made known to it, in allowing amendments to the bill. The rule governing the practice in such cases would seem to be as well settled in Wadhams v. Gay, as any rule can be. It is as stated in that ease, where a cause in chancery has been determined by a court of last resort upon its merits, the court finding there is no equity in the bill, and the cause is remanded for further proceedings in conformity with its opinion, it is the duty of the court, on receiving the mandate of the Supreme Court, to dismiss the bill for want of equity, that there may be an end to the matter in litigation,—otherwise there would be a ceaseless round of litigation, lasting as long as the parties would be able to bear the expenses attendant thereon. The repose of society forbids the adoption of any policy that would lead to such results. In the case cited, it was held it was not in conformity with the opinion of the court finding there was no equity in the bill, to permit complainants to dismiss their bill without prejudice, and on account of that error the decree of the circuit court was again reversed. An obvious reason for the decision in that case is, it would permit a renewal of the litigation by the same parties in that or another forum, which would be against the policy of the law. Conforming to this rule, it would seem to have been the duty of the circuit court to have dismissed complainants’ bill on receiving the mandate of the Supreme Court to proceed in conformity with its opinion finding the bill had no equity. But the court permitted an amendment of the original bill in matters of statement, and by making a new party defendant, viz., the Attorney General of the State, and after-wards, on demurrer, dismissed the original and amended bills of complainants, and also the cross-bill of the Attorney General, filed on behalf of the People of the State. That decision, both complainants and the Attorney General insist was error. It is not perceived on what ground complainants may find fault with the decision of the circuit court dismissing their own bill and the cross-bill on behalf of the People of the State. As has been considered, so far as they are concerned their rights had been conclusively determined by the Supreme Court on their first appeal. The general doctrine running through all the books on this subject, that when a cause has been once determined by a court of last resort, in a decision covering the merits of the case, the unsuccessful party can not have another hearing on a second appeal as to the same matters, is not questioned by counsel for complainants; but in some way, because the Attorney General, as is now said, was a necessary party to their bill, in order to the efficient protection of the rights of the People of the State in a public and munificent charity, and was not made a party, it is insisted the whole case will again be opened as to all questions made, not only to hear the cause of the People, but as to complainants also. The position taken is assumed by complainants for the first time on this their second appeal. No suggestion was made by either party on the first appeal as to the want of proper parties, either as complainants or defendants. But if it be assumed the name of the Attorney General was inadvertently omitted as a defendant to the original bill by accident or mere oversight, the difficulty does not lie in ascertaining the rule of law on this subject, but in its application. The doctrine no doubt is, that in all bills asking the advice or direction of court of equity as to the administration of a public charity, and especially where waste or mismanagement is apprehended, or where the decree would affect the interests of the cestuis que trust, the Attorney General, or other public officer whose duty it may be to have a care in such matters, is a proper party, either as complainant or defendant, and courts not infrequently hesitate to decree concerning a public charity unless the general law officer representing the donees is a party in some way. Exceptional cases are, where the charity or bounty is in the hands of trustees charged by the donor specifically with its management for the cestuis que trust. There is much subtle learning in the books on this subject, but it is not deemed necessary to restate it, as it would tend in no considerable degree to enlighten the present inquiry. What application the doctrine contended for by counsel can have to the ease before the court is not understood. Neither by their original or amended bill do complainants ask any advice of the court as to the adminis.tration or management of the bounty of the testator to the People of the State. It was a matter in which they had no rightful authority to intermeddle, nor did they assume to do so. All they desired was a division of the trust fund between the library fund and themselves, as devisees under the will: The- trust fund was then in the hands of trustees under the will of the donor, and who were specifically charged with its management. There was no intimation, either in the original or cross-bill, the trustees were in any manner misappropriating or wasting the fund over which they had been given control,' and there was therefore no necessity for the watchful interference by the law officer of the People of the State. Had it appeared the trustees were misappropriating the trust fund, it would no doubt have been the duty of the Attorney General to interpose for its preservation. It is only where the parties having charge of the fund unite in an abuse of their trust, and there is no one having a right to sue in his own name concerning it, as is the ease with regard to a public charity, the suit must, ex necessitate rei, be instituted by the Attorney General. In this case the trustees having charge of the trust under the will of the testator were before the court, and had anything been necessary, either to the management or preservation of the fund, the court would have compelled them to adopt suitable measures to that end. Following closely what was said by the Chancellor in Monill v. Lawson, 4 Viner, 500, Pl. 11, Mr. Daniell, in his work on Chancery Practice, formulates the rule in such cases with as much accuracy as is attainable in such matters, where he says: “It seems that there is a distinction where trustees of the charity are appointed by the donor and where no trustees are appointed, but there is a devise immediately to charitable uses. In the latter case there can be no decree unless the Attorney General be made a party, but otherwise where trustees are appointed by the donor. Therefore, where a bill was filed to establish a will, and to perform several trusts, some of them relating to charities in which some of the trustees were' plaintiffs, and other trustees and several of the cestuis que trust were defendants, an objection because the Attorney General was not made defendant was overruled, it being considered that some of the trustees of the charity being defendants, there might be a decree to compel the execution of the trusts relating to these charities. ” The facts of the case now before the court seem to bring it exactly within the rule stated, and as the same is declared in cases that might be cited from courts entitled to the highest consideration. It is to be observed the relief asked by complainants was personal as to themselves, and was to ascertain whether the period for the division and distribution of the estate of the testator had arrived. Had it been determined it had arrived, the division of the estate between the devisees and the donees of the library fund the trustees were desired to make, would have followed as a matter of course, as an incident to the principal relief granted. No advice or direction was asked by complainants as to the administration or management of the library fund. How, then, the Attorney General'. was either a proper or indispensable party to their bill is not apprehended. That which complainants by their bill asked to be done could not, by any possibility, affect the testator’s bounty to the public in any manner that made his defence necessary. But conceding the Attorney General was a proper party to the bill,"it would be as co-complainant, and not as defendant. Complainants and the Attorney General all desired to have the same thing done, viz., a construction of the will of the testator, holding that the period for the division and distribution of his estate had arrived. Although no imperative rule of law required it, there would have been no impropriety in joining the Attorney General as a co-complainant in the original bill. Yet no necessity existed for adopting that course, as the very interest he would have represented was necessarily involved in the same interest represented by counsel for complainant, and it may be added it was argued and illustrated with unusual ability. It was not possible to separate the subject matter of the suit into distinct and separate interests, so as to make one decree for the devisees under the will and another and different one for the donees of the library fund. It is said to be a principle underlying our system of jurisprudence worthy to be constantly observed, that the rights of no one are to be barred or cut off by a decree until he has had his day in court. An application of that doctrine is sought to be made on behalf of the omitted party in this case. Should it be conceded the cestnis que trust represented by the Attorney General are not barred by the former decree because they have had no day in court, and should he file a bill in their behalf to ascertain whether the time for the division of his estate, by the terms of the testator’s will, had arrived, what would be the result ? Assuredly it would be said that precise question was before this court in Newberry et al. v. Blatchford et al. 99 Ill. 11, and it was there decided the period for the division and distribution of the estate had not arrived, and would not arrive until after the death of the testator’s widow, who had survived both of his daughters, and was still living. As the former decision must stand as to complainants in that case, it will be conclusive as to the same question of law when presented by another party interested in the same fund under the same written instrument. It would involve a palpable absurdity it would be desirable to avoid, should it be held that, as to the devisees named by the testator to take a moiety of his estate, the period of distribution would be at the death of his widow, and as to the donees of the library fund the time for a division of the estate would be at the termination of the widow’s life estate. As was said in the former opinion of the court, “there was to be no piece-meal distribution of the estate,—there was to be one final, complete division and distribution of the entire estate at once. ” On being made a defendant, the Attorney General'filed an answer, in which most of the principal allegations of the bill were admitted to be true, and as to such allegations as were not admitted or denied, he disclaimed having any knowledge concerning them. What office such an answer could perform is not quite clear, unless it was deemed necessary that defendant might have the same decree for himself that complainants asked for themselves. It may be it was thought the answer of the Attorney General would give him a standing in court that would enable him to maintain a cross-bill. With that view it was wholly unavailing. It will be seen the cross-bill was filed in violation of the well established chancery practice. A definition of a cross-bill, contemporaneous with its origin, is, it is a mode of defence. One object to be attained by its use is, to discover evidence to defend against that which is alleged against the defendant, and another is to secure affirmative relief not attainable on his answer touching the matters in the original bill. The cross-bill in this case was for no purpose the law permits such a bill to be used. No discovery was sought and no relief was asked that was not attainable, if at all, on his answer. This is stating no new rule of practice. It was decided by this court, as long ago as in Morgan v. Smith, 11 Ill. 194, a defendant will not be permitted to file a cross-bill when his rights are fully disclosed in his answer in response to the allegations of the bill, and might be fully protected by the court on the hearing of the original bill, and the cross-bill of defendant was held to have been properly stricken out of the record, because it was in violation of proper practice. That is precisely the case here. Whatever rights the cestuis que trust had in the library fund were fully disclosed by the answer the Attorney General made to the original bill, and could be as well protected in that way by the court as in any other. A cross-bill was wholly unnecessary for that purpose. There is another mode, equally satisfactory, by -which the same conclusion may be reached. It will be perceived the cross-bill of the Attorney General asked the same thing—a particular construction of the testator’s will—to be done as did the original bill against him, and nothing more. It is not understood the practice in chancery will permit a defendant to file a cross-bill praying the same thing may be done as is sought to be accomplished by the original bill. A demurrer would lie to such a cross-bill, or it might be dismissed on' motion, as was done in Morgan v. Smith. It is for the reason the law abhors a useless thing or proceeding. The relief would be granted to defendant, if at all, upon his answer admitting the bill to be true, for the relief complainants seek is exactly what he desires shall be granted. It would be extreme folly for the court to decree the same thing a second time on a cross-bill. But the decision may be placed on a yet broader ground— one having nothing in it savoring of technical objection, and going directly to the merits of the whole case as presented by the Attorney General, without regard to the form in which the case comes before this court. The most favorable view that can be taken of the cross-bill exhibited by the Attorney General is to treat it as an original bill in the nature of a bill for review, for error appearing on the face of the record, by one who was not a party, and therefore not bound by the decree. Even in that view it would be sufficient to refer to the former opinion of the court as being conclusive of the same question of law arising on the same clause of a written instrument, and concerning the same identical interests. This court will not stultify itself by giving a construction to the will of the testator against the view taken by complainants in their bill, and then giving an exactly opposite and contrary construction to the same clause of the will on the bill. of another party, when both parties bear the same relation to the matter in suit. Such a decision would lack that stability that should characterize all judicial proceedings. There is no error in the record, and the decree of the circuit court will be affirmed. Decree affirmed. Separate opinion by Mr. Justice Walker : I still hold, ks I have ever done, that the time for distribution arrived at the death of the last daughter of the testator. But a majority of the court held, when the case was first argued, and again on re-argument, that distribution could not be had until the death of Mrs. Newberry. I think a proper respect for the majority requires of me that I accept that decision as final and irrevocable, and to cease struggling for my views, and to regard the decision as stare decisis. That Newberry had the right to give his property to whom he chose can not be denied, and it is not, nor can it be, questioned that in doing so he could impose such terms, conditions and limitations as he saw proper. When he gave this fund for the founding of a library, he imposed terms and conditions that must be complied with before it can be applied to the purpose designated, and this court has more than once held that the time has not arrived for its application, nor can it be made until after Mrs. Newberry’s death. He had the right to select the agents of the public to hold and control the fund, under such restrictions as he chose to impose, and this he did. He did not confer a particle of power on the Attorney General to intermeddle with or control this fund, nor did he authorize the public to interfere, nor did he give them the slightest present interest in the fund. Their interest is contingent on the death of Mrs. Newberry. It can not, or will not, become a public fund before her death, and certainly the public or its officers can have no control over it before that time, if then. Newberry selected the agents or trustees for the public, as he had the undoubted right to do, and he imposed the management of the fund on them, and the court has no power to deprive them of it until the period of distribution shall arrive, unless they shall abuse the trust or endanger the safety of the fund by malconduct or threatened misapplication. No such misconduct being charged, the Attorney General has no legal right to interfere. The will is to them, and to all others, the law by and under which they must act and be controlled. It is urged that the public have not been represented in this litigation, and it is therefore proper that the Attorney General should be a party to represent the interest of the public. The testator appointed these trustees as the agents of and to represent the imblic, and they are parties to the suit, and have been heard in the interest of the public. When the court announces a rule of law on a given state of facts, the same rule is always applied to future cases involving the same facts, whether the parties are the same or not, and notwithstanding the parties were not before the court on the former trial. This is the uniform rule of all courts. This question has been twice decided by the majority of the court, and the Attorney General must be governed by the rule, as he presents precisely the same facts for adjudication.