1895] 33 U. S. App. 188, 206, 236, 14 C. C. A. 646, and 67 Fed. 790), but also in the Second circuit (Construction Co. v. Young [Dec., 1892] 11 U. S. App. 683, 685, 8 C. C. A. 231, and 59 Fed. 721; Cycle Co. v. Featherstone [Aug., 1893] 14 U. S. App. 632, 655, 6 C. C. A. 487, and 57 Fed. 631; Curtis v. Wheel Co. [Dec., 1893] 20 U. S. App. 146, 7 C. C. A. 493, and 58 Fed. 784; Westinghouse Air-Brake Co. v. New York Air-Brake Co. [Oct., 1894] 26 U. S. App. 248, 358, 11 C. C. A. 528, and 63 Fed. 962; Manufacturing Co. v. Griswold [April, 1895] 35 U. S. App. 246, 15 C. C. A. 161, and 67 Fed. 1017), in the Third circuit (Union Switch & Signal Co. v. Johnson Railroad Signal Co. [May, 1894] 17 U. S. App. 609, 611, 620, 10 C. C. A. 176, and 61 Fed. 940; Erie Rubber Co. v. American Dunlop Tire Co. [July, 1895] 28 U. S. App. 470, 513, 522, 16 C. C. A. 632, and 70 Fed. 58), in the Seventh circuit (Temple Pump Co. v. Goss Pump & Rubber Bucket Manufg Co. [Oct., 1893] 18 U. S. App. 229, 7 C. C. A. 174, and 58 Fed. 196; Repair Co. v. Beckwith's Ex'rs [Oct., 1893] 18 U. S. App. 245, 7 C. C. A. 160, and 58 Fed. 182; Electric Manuf'g Co. v. Edison Electric Light Co. [May, 1894] 18 U. S. App. 637, 643, 10 C. C. A. 106, and 61 Fed. 834; Card v. Colby [Nov., 1894] 24 U. S. App. 460, 480, 486, 12 C. C. A. 319, and 64 Fed. 594; Standard Elevator Co. v. Crane Elevator Co. [Oct., 1896] 46 U. S. App. 411, 22 C. C. A. 549, and 76 Fed. 767), in the Eighth circuit (Lockwood v. Wickes [June, 1896] 40 U. S. App. 136, 21 C. C. A. 257, and 75 Fed. 118, overruling same case [Dec., 1895] 36 U. S. App. 321, 21 C. C. A. 257, and 75 Fed. 118), and in the Ninth circuit ei (Consolidated Piedmont Cable Co. v. Pacific

Cable Ry. Co. [July, 1893] 15 U. S. App. 216, 7 C. C. A. 195, and 58 Fed. 326; *Butte City St. Ry. v. Pacific Cable Ry. Co. [Feb., 1894] 15 U. S. App. 341, 9 C. C. A. 41, and 60 Fed. 410; Vulcan Iron Works v. Smith [May, 1894] 15 U. S. App. 577, 10 C. C. A. 493, and 62 Fed. 444; Wheaton v. Norton [Jan., 1895] 29 U. S. App. 409, and [Oct., 1895] 44 U. S. App. 118, 170, 17 C. C. A. 447, and 70 Fed. 833).

In the Fourth circuit, the question does not appear to have arisen in a patent case. But where, upon a bill in equity to restrain a supervisor of registration from interfering with the right to vote at the election of delegates to a convention to revise the constitution of the state of South Carolina, the circuit court of the United States for the district of South Carolina had, by successive orders, granted and continued a temporary injunction, the circuit court of appeals, upon appeal from these orders, entered a decree, not only reversing the orders, but directing the bill to be dismissed,-the chief justice saying, "Although the appeal is from interlocutory orders, yet, as we entertain no doubt that such a bill cannot be maintained, we are constrained, in reversing these orders, to remand the cause with a direction to dismiss the bill." Green v. Mills (1895) 25 U. S. App. 383, 398, 16 C. C. A. 516, and

69 Fed. 852. An appeal from that decree was dismissed by this court, without touching this question. 159 U. S. 651, 16 Sup. Ct. 132.

That

In the Sixth circuit, on the other hand, in a case in which the circuit court had entered an interlocutory decree sustaining the validity of the patent, adjudging that there was an infringement, ordering an account of damages and profits, and granting an injunction, and had allowed an appeal from so much only of that decree as granted the injunction, and denied an appeal from the rest of the decree, the circuit court of appeals, in an opinion delivered by Mr. Justice Jackson (then circuit judge) with the concurrence of Judge Taft and Judge Hammond, held that the appeal had been properly restricted by the circuit court, and that the circuit court of appeals had no authority, upon this appeal, to hear and fully determine the merits of the case, but that those remained, notwithstanding the appeal, within the jurisdiction and control of the circuit court. decision was made before the second decision in Richmond v. Atwood, above cited, had been reported, and without reference to the practice of courts of chancery elsewhere. And it was said in the opinion: "It would doubtless have been well if, in the creation of this court, the seventh section of the act *had permitted or authorized an appeal from interlocutory decrees sustaining the validity of patents and adjudging their infringement, so as to obviate in many cases the taking of expensive accounts, and the delays incident thereto." Watch Co. v. Robbins (Oct., 1892) 6 U. S. App. 275, 281, 3 C. C. A. 103, and 52 Fed. 337. A certificate thereupon made by the circuit court of appeals, for the purpose of obtaining the instructions of this court, was dismissed by this court, with Mr. Justice Jackson's concurrence, because no question of law was distinctly certified, and because the circuit court of appeals had decided the case before granting the certificate. 148 U. S. 266, 13 Sup. Ct. 594.

That decision was long treated as settling the practice in that circuit on appeals from such interlocutory decrees, and as permitting the questions of validity and infringement to be considered only so far as they affected the granting or refusal of an injunction. Blount v. Société Anonyme (Nov., 1892) 6 U. S. App. 335, 3 C. C. A. 455, and 53 Fed. 98; Watch Co. v. Robbins, (Oct., 1894) 22 U. S. App. 601, 634, 12 C. C. A. 174, and 64 Fed. 384; Duplex Printing-Press Co. v. Campbell Printing-Press & Manuf'g Co. (July, 1895) 37 U. S. App. 250, 16 C. C. A. 220, and 69 Fed. 250; Thompson v. Nelson (Nov., 1895) 37 U. S. App. 478, 18 C. C. A. 137, and 71 Fed. 339; Goshen Sweeper Co. of Grand Rapids v. Bissell Carpet-Sweeper Co. (Dec., 1895, and Feb., 1896) 37 U. S. App. 555, 689, 19 C. C. A. 13, and 72 Fed. 67.

But, at last, the circuit court of appeals of the Sixth circuit, in an able and elaborate

opinion delivered by Judge Lurton, with the concurrence of Judge Taft and Judge Hammond, being a majority of the court which had made the decision in Watch Co. v. Robbins, 6 U. S. App. 275, 3 C. C. A. 103, and 52 Fed. 337, above cited, expressly overruled that decision, and brought the practice in that circuit into harmony with the practice prevailing in other circuits. Bissell CarpetSweeper Co. v. Goshen Sweeper Co. of Grand Rapids (March, 1896) 43 U. S. App. 47, 19 C. C. A. 25, and 73 Fed. 545; Manufacturing Co. v. Robbins (May, 1896) 43 U. S. App. 391, 21 C. C. A. 198, and 75 Fed. 17.

By the practice in equity, as administered in the court of chancery and the house of lords in England, and in the courts of chancery and courts of errors in the states of New York and New Jersey, appeals lay from interlocutory, as well as from final, orders or decrees; and upon an appeal from an interlocutory order or decree the appellate court had the power of examining the merits of the case, and, upon deciding them in favor of the defendant, of dismissing the bill, and thus saving to both parties the needless expense of a further prosecution of the suit. Palmer, H. L. Prac. 1; 2 Daniell, Ch. Prac. (1st Ed.) 1491, 1492; Forgay v. Conrad, 6 How. 201, 205; Le Guen v. Gouverneur, 1 Johns. Cas. 436, 498, 499, 507-509; Bush v. Livingston, 2 Caines, Cas. 66, 86; Newark & N. Y. R. Co. v. City of Newark, 23 N. J. Eq. 515.

But, under the judicial system of the United States, from the beginning until the passage of the act of 1891, establishing circuit courts of appeals, appeals from the circuit courts of the United States in equity or in admiralty, like writs of error at common law, would lie only after final judgment or decree; and an order or decree in a patent cause, whether upon preliminary application or upon final hearing, granting an injunction, and referring the cause to a master for an account of profits and damages, was interlocutory only, and not final, and therefore not reviewable on appeal before the final decree in the cause. Act Sept. 24, 1789, c. 20, §§ 13, 22 (1 Stat. 81, 84); Act March 3, 1803, c. 40 (2 Stat. 244); Rev. St. §§ 691, 692, 699, 701; Forgay v. Conrad, above cited; Barnard v. Gibson, 7 How. 650; Humiston v. Stainthorp, 2 Wall. 106; Iron Co. v. Martin, 132 U. S. 91, 10 Sup. Ct. 32; McGourkey v. Railway Co., 146 U. S. 536, 545, 13 Sup. Ct. 170; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 378, 379, 13 Sup. Ct. 758.

The provision of section 7 of the act of 1891, that where, "upon a hearing in equity," in a circuit court, "an injunction shall be granted or continued by an interlocutory order or decree,” in a cause in which an appeal from a final decree might be taken to the circuit court of appeals, "an appeal may be taken from such interlocutory order or decree granting or continuing such injunc

tion" to that court, authorizes* according to its grammatical construction and natural meaning, an appeal to be taken from the whole of such interlocutory order or decree, and not from that part of it only which grants or continues an injunction.

The manifest intent of this provision, read in the light of the previous practice in the courts of the United States, contrasted with the practice in courts of equity of the highest authority elsewhere, appears to this court to have been, not only to permit the defendant to obtain immediate relief from an injunction, the continuance of which throughout the progress of the cause might seriously affect his interests, but also to save both parties from the expense of further litigation, should the appellate court be of opinion that the plaintiff was not entitled to an injunction because his bill had no equity to support it.

The power of the appellate court over the cause, of which it has acquired jurisdiction by the appeal from the interlocutory decree, is not affected by the authority of the court appealed from, recognized in the last clause of the section, and often exercised by other courts of chancery, to take further proceedings in the cause, unless in its discretion it orders them to be stayed pending the appeal. Hovey v. McDonald, 109 U. S. 150, 160, 161, 3 Sup. Ct. 136; In re Haberman Manuf'g Co., 147 U. S. 525, 13 Sup. Ct. 527; Messonnier v. Kauman, 3 Johns. Ch. 66.

In each of the cases now before the court, therefore, the circuit court of appeals, upon appeal from the interlocutory decree of the circuit court, granting an injunction and ordering an account, had authority to consider and decide the case upon its merits, and thereupon to render or direct a final decree dismissing the bill.

In the second case, it was argued, in support of the petition for a writ of certiorari, that the circuit court, upon receiving the mandate of the circuit court of appeals directing a dismissal of the bill, erred in entering a final decree accordingly, without further hearing, and that the circuit court of appeals erred in dismissing an appeal from that decree. But the rule to show cause did not proceed upon that ground. And the merits of the case, having been once determined by the appellate court in reversing the interlocutory decree, were not open to reconsideration at a later stage of the same case, either in that court or in the court below. In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, and cases there cited; Telegraph Co. v. Burnham, 162 U. S. 339, 16 Sup. Ct. 850. Had the case been heard anew in each court after the first mandate, the only difference in the result would have been an affirmance, instead of a dismissal, upon the second appeal. That difference, not affecting the essential rights of the parties, is no ground upon which this court

should exercise its discretionary power of issuing a writ of certiorari.

It follows that, in the first case, in accordance with the stipulation of the parties, the writ of certiorari heretofore granted is dismissed, and, in the second case, the writ of certiorari is denied.

Judgments accordingly.

(165 U. S. 394)

GLOVER et al. v. PATTEN et al. (February 15, 1897.)

No. 78.

PARTIES IN EQUITY SUIT TO SETTLE ESTATE EQUITY JURISDICTION-LIMITATION OF ACTIONSPAYMENT-LEGACY TO CREDITOR-PRESUMPTIONS -PRIVILEGED COMMUNICATIONS.

1. One P. died intestate, leaving an estate which passed, under the laws of his domicile, one-half to his widow, and one-half to his five daughters. The widow was appointed administratrix and guardian of the daughters, and, as such, held and managed the whole estate, without keeping any regular accounts. Several years after P.'s death, four of the daughters, who were then of age, executed and delivered to their mother an instrument reciting the facts, and agreeing to accept, in full settlement, the sum of $101,600 each, and that their mother's accounts as administratrix and guardian might be settled upon that basis. The fifth daughter, H., adopted this settlement after she became of age. P.'s widow did not then pay the agreed sums, and never settled any accounts. Upon the marriage of one of the daughters, A., some time after the settlement, she delivered to her bonds of the market value of $102,800, and, shortly after, she invested $45,000 for the benefit of the other four daughters, on which they collected the interest. P.'s widow died, without having done anything further towards settling with her daughters, leaving a will, made before the agreement of settlement, by which all her estate, subject to some legacies, was given to the five daughters, who were also appointed executrices. Owing to a defect in its execution, the will was insufficient to pass real estate, and the lands of the widow, constituting the bulk of the estate, passed to the daughters by descent. Subsequently, the four daughters other than A. brought suit in equity against her to establish an indebtedness of their mother's estate to them for the balance of their shares of their father's estate, after deducting the $45,000, and to establish the payment to A. of her share. Held, that the daughter H., who was a minor at the time of the agreement of settlement, having adopted such agreement after coming of age, was properly joined as a complainant.

2. Held, further, that the legatees under the will of P.'s widow were not necessary parties defendant to this suit, brought to establish claims against her estate.

3. Held, further, that, as the indebtedness of P.'s widow to his daughters arose from her receipt of the estate, of which they were entitled to a share, and the agreement of settlement was only an acknowledgment of such indebtedness, and not the basis thereof, the fact that it did not constitute a contract, and did not give a right of action at law, did not prevent the daughters from coming into equity to enforce their claims, which they could not enforce at law because of their position as executrices, and the bill disclosed a good cause of action.

4. Held, further, that the investment of $45.000 by P.'s widow, for her unmarried

daughters, which sum was afterwards paid to them, taken in connection with the presump tion that an advancement by a parent to a child to whom he is indebted is a payment pro tanto, constituted a payment on account of the widow's indebtedness to her daughters, which took their claims out of the statute of limitations.

5. Held, further, that, the suit being between devisees under the will of the widow, communications made by her to her counsel, respecting the execution of the will or the agreement of settlement, were not privileged.

6. Held, further, upon the evidence, in connection with the presumption as to advancements by an indebted parent, that the delivery of the $102,800 in bonds to the daughter A. was a payment of her share of her father's estate.

7. Held, further, that in view of the facts that the bequest to her daughters in the will of P.'s widow was a general bequest of the whole estate, that the will was made before her indebtedness to them was liquidated, and that the claim of the daughter A. had been paid during the widow's life, and after the making of the will, the presumption that a legacy to a creditor is in satisfaction of his debt did not apply, and the claims of the daughters were not extinguished by the provisions of their mother's will.

Appeal from the Court of Appeals of the District of Columbia.

This was a bill in equity filed in the supreme court of the District of Columbia by Mary E. Patten, Josephine A. Patten, Edith Patten, and Helen Patten, against their sister Augusta P. Glover, wife of John M. Glover, in aid of the jurisdiction of the supreme court as an orphans' court to construe the will of their mother, Anastasia Patten, and to charge the estate with certain claims of the complainants prior to a general distribution of the assets.

The facts of the case are substantially as follows: Complainants and defendant, Augusta P. Glover, are the five daughters of Edmund Patten, late of the state of Nevada, deceased, and of Anastasia Patten, who, after her husband's death, took up her residence in Washington, and died September 11, 1888, leaving a will executed in San Francisco December 23, 1879.

Edmund Patten, her husband, died November 16, 1872, intestate, his widow becoming his administratrix, and also the guardian of each of his children, all of whom were then, and for some years continued to be, minors, under the age of 21 years. By the law of Nevada, Mrs. Patten became entitled, upon her husband's death, to one-half his estate, the other half descending to his children. As administratrix and guardian, she took possession of the entire estate, and retained the same down to the time of her death. She made no accounting either as administratrix or guardian, nor did she keep any regular accounts or preserve her vouchers.

In September, 1885, apparently because of a desire on the part of the sureties on her bond, or some of them, to have her accounts settled, Mrs. Patten undertook to adjust her indebtedness to her children. She called in the services of Curtis J. Hillyer, a friend of her husband and herself, and the result was the preparation of the following document, intend

ed to take the place of a formal account and Vouchers:

"Whereas, our mother, Anastasia Patten, as guardian for us, received in the years 1873, ', '5. certain amounts of money, being our portion by inheritance of the estate of our deceased father; and whereas, no special separate investments of the money so received have been made by our said guardian, but the same has been by her kept and safely invested in connection with moneys belonging to her in her own right derived from the said estate; and whereas, our said guardian has up to the present date had entire charge of our maintenance and education, and has during the past thirteen years incurred a large amount of family expenses for our benefit, of which expenses no account has been kept by her; and whereas, we and our said guardian are now desirous of settling the account between us in a just and equitable manner, without attempting to secure technical accuracy in such settlement; and whereas, our said mother and guardian has submitted to us for inspection all accounts and papers in her possession touching or relating to the receipts and disbursements entering into such accounting, and we have personally general knowledge concerning the family expenses during said period; and whereas, from such examination and knowledge, we believe that, by a payment to each of us by our said guardian of the sum of $101,600, an equitable settlement will be made and full justice done to each of us:

"Now, therefore, each of us for herself agrees to accept the said sum of $101,600 in full and complete settlement of all accounts, claims, and demands between us and each of us and our said mother and guardian, and in full satisfaction of all claims and demands of whatever character arising out of or connected with the administration of said estate or the said relation of guardian and ward; and each of us for herself authorizes and requests that, upon presentation of this agreement and a receipt for the above amount, the court having jurisdiction thereof will, without further investigation of accounts so far as they concern either of us, pass the final accounts of our mother as administratrix and guardian, and, by proper decree, discharge those liable as bondsmen for her action in either capacity. "[Signed] Mary Ellen Patten.

"Katherine Augusta Patten. "Josephine Antoinette Patten. "Edith Patten."

This paper was signed by all the complainants except Helen, and by the defendant Augusta. Helen, being then a minor, did not sign it, but subsequently adopted and accepted the adjustment and settlement evidenced by the paper.

This paper was never presented by Mrs. Patten to the proper court, and it was in her possession when she died. She did not at that time pay to her children, or any of them, the sum therein mentioned in settle

ment of her indebtedness to them, but subsequently, and in February, 1887, when her daughter Augusta was on the point of marrying her husband, John M. Glover, she assigned and transferred to her United States government bonds of the par value of $80,000, and the actual value of $102,800, with the benefit of the interest accruing thereon since the preceding 1st day of January. Then Augusta married, and left her mother's home.

Mrs. Patten did not at that time pay or give her other daughters anything on account of her indebtedness to them. In the following autumn, however, namely, on October 15, 1887, she made for them and in their names an investment of the sum of $45,000, being at the rate of $11,250 for each, which the complainants claimed to have been a payment on account of her indebtedness to them. It was undisputed that the interest on this investment, from the time it was made until Mrs. Patten's death and thereafter, was always deposited in bank to the credit of the appellees, and for their account.

Within a year after this transaction, namely, on September 11, 1888, Mrs. Patten died, without having done anything further towards settling her accounts as administratrix or guardian, or paying her indebtedness to the appellees. It was found that she had left a will bearing date December 23, 1879, some seven years after her husband's death, and nearly six years before the preparation and execution of the paper, in September, 1885.

By the terms of this will, Mrs. Patten devised and bequeathed the whole of her estate, subject to $45,000 in legacies, to her five daughters, and named as her executrices such of them as might have attained the age of majority at the time of her death, and who should not be otherwise incapacitated to undertake the trust. By virtue of the lat ter provision, all of the daughters were appointed and qualified in the supreme court of the District of Columbia as executrices, but, as the will was executed in the presence of two witnesses only, it was invalid to pass real estate situate in the District of Columbia, and, as the greater part of Mrs. Patten's estate at the time of her death consisted of such real estate, it descended to her daughters, as though she had died intestate.

The daughters having all qualified as executrices, and having entered upon the discharge of their duties, the appellees, claiming to be creditors of the estate of which they were also executrices, presented to the supreme court of the District of Columbia a petition, wherein, after reciting the indebtedness of Mrs. Patten to all of her daughters, including Mrs. Glover, by reason of her guardianship, they alleged that in September, 1885, the amount of her indebtedness was adjusted, settled, and determined by

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