fact. On the other hand, to a certain ex-| believed that when she came to explain her tent, not to be exactly defined, but depend- will she would not have explained it with ing on judgment and tact, the primary im- reference to the extraordinary contingency port of isolated words may be held to be upon which she made it depend instead of modified and controlled by the dominant going on to give a reason which, on the face intention, to be gathered from the instru- of it, has reference to an unconditioned gift. ment as a whole. Bearing these opposing It is to be noticed that in the leading considerations in mind, the court is of opin-case cited for the opposite conclusion from ion that the will should be admitted to that which we reach (Parsons v. Lanoe), proof. Lord Hardwicke emphasizes the proposition that under the circumstances of that case no court of equity would give any latitude

gan "in case I should die before I return from the journey I intend, God willing, shortly to undertake for Ireland." The testator then was married but had no children. He afterwards returned from Ireland and had several children. If the will stood, the children would be disinherited; and that was the circumstance which led the Lord Chancellor to say what we have mentioned, and to add that courts would take hold of any words they could to make the will conditional and contingent. Ambler, 561; 1 Ves. Sr. 192. It is to be noticed further that in the more important of the other cases relied on by the appellees the language or circumstances confirmed the absoluteness of the condition. For instance, "my wish, desire, and intention now is that if I should not return (which I will, no preventing Providence"). Todd's Will, 2 Watts. & S. 145. There the language in the clearest way showed the alternative of returning to have been present to the testator's mind when the condition was written, and the will was limited further by the word "now." Somewhat similar was Porter's Goods, L. R. 2 Prob. & Div. 22, where Lord Penzance said, if we correctly understand him, that if the only words adverse to the will had been "should anything unfortunately happen to me while abroad," he would not have held the will conditional. See Mayd's Goods, L R. 6 Prob. Div. 17, 19.

"Courts do not incline to regard a will as conditional where it can be reasonably held that the testator was merely express- to support such a will. There the will being his inducement to make it, however inaccurate his use of language might be, if strictly construed." Damon v. Damon, 8 Allen, 192, 197. Lord Penzance puts the same proposition perhaps even more strongly in Porter's Goods, L. R. 2 Prob. & Div. 22, 23; and it is almost a commonplace. In the case at bar we have an illiterate woman writing her own will. Obviously the first sentence, "I am going on a journey and may not ever return," expresses the fact which was on her mind as the occasion and inducement for writing it. If that had been the only reference to the journey the sentence would have had no further meaning. Cody v. Conly, 27 Gratt. 313. But with that thought before her, it was natural to an uneducated mind to express the general contingency of death in the concrete form in which just then it was presented to her imagination. She was thinking of the possibility of death or she would not have made a will. But that possibility at that moment took the specific shape of not returning from her journey, and so she wrote "if I do not return," before giving her last commands. We need not consider whether, if the will had nothing to qualify these words, it would be impossible to get away from the condition. But the two gifts are both of a kind that indicates an abiding and unconditioned intent,—one to a church, the other to a person whom she called her adopted son. The unlikelihood of such a condition being attached to such gifts may be considered. Skipwith v. Cabell, 19 Gratt. 758, 783. And then she goes on to say that all that she has is her own hard earnings and that she proposes to leave it to whom she pleases. This last sentence of self-justification evidently is correlated to and imports an unqualified disposition of property; not a disposition having reference to a special state of facts by which alone it is justified and to which it is confined. If her failure to return from the journey had been the condition of her bounty,-an hypothesis which is to the last degree improbable in the absence of explanation,-it is not to be

On the other hand, we may cite the following cases as strongly favoring the view which we adopt. It hardly is worth while to state them at length, as each case must stand so much on its own circumstances and words. The latest English decisions which we have seen qualify the tendency of some of the earlier ones. Mayd's Goods, L. R. 6 Prob. Div. 17; Dobson's Goods, L. R. 1 Prob. & Div. 88; Thorne's Goods, 4 Swabey & T. 36; Likefield v. Likefield, 82 Ky. 589, 56 Am. Rep. 908; Bradford v. Bradford, 4 Ky. L. Rep. 947; Skipwith v. Cabell, 19 Gratt. 758, 782-784; French v. French, 14 W. Va. 458, 502.

Decree reversed.

THOMAS F. WALSH.

Appeal-direct review of circuit court decree in Federal Supreme Court-case involving construction or application of the Federal Constitution.

1.

The record, and not a certificate of the trial judge, furnishes the basis for determinthe construction or application of the Constitution of the United States, within the meaning of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, authorizing

ing whether the sult is one which involves

be

COMPANY, | shall do any business in this state without having one or more known places of business, and an authorized agent or agents in the same upon whom process may served." The statutes of the state required that before a foreign corporation should be permitted to do any business in Colorado it should make a certificate, signed by its president and secretary, duly acknowledged, and file the same with the secretary of state and in the office of the recorder of deeds in each county in which business was to be carried on, designating the principal place where the business of such corporation was to be conducted in the state, and also naming an authorized agent or agents in the state, residing in the principal place of business of the corporation, upon whom process might be served. Mills' Anno. Stat. § 499. In compliance with the foregoing requirements the mining company filed on February 10, 1886, a certificate in the office of the secretary of state of Colorado and in the office of each of the recorders of Ouray and Cumberland counties, designating the county of Ouray as the principal place where the business of the corporation was to be car. ried on, and naming J. M. Jardine as the

the taking of appeals or writs of error in such cases from district or circuit courts of

the United States direct to the Supreme

Court.

of law, does not make the suit one involv

2. The contention by a foreign corporation that the rendition of certain judgments in the state courts, sought to be introduced in evidence against it, was without due process ing the construction or application of the Federal Constitution, within the meaning of the provisions of the judiciary act of March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, for a direct review of a Federal circuit court judg-agent upon whom process might be served.

ment in the Supreme Court, where this claim is based solely upon the theory that, under the circumstances, the service of process in the suits in the state courts upon the corporation's designated agent was unauthorized either by the state Constitution and laws or

the principles of general jurisprudence.

[No. 134.]

In the months of April and May, 1895, actions were brought in the county court of Ouray county by the A. W. Begole Mercantile Company, John Ashenfelter, P. H. Fennell, and William C. Fulton, to recover from the mining company sums aggregating about $1,250, alleged to be due for labor performed and merchandise furnished to the mining company in the state of Colorado in the

Argued January 20, 21, 1904. Decided years 1893 and 1894. In each complaint it

IN

March 21, 1904.

IN ERROR to the Circuit Court of the United States for the District of Colorado to review a judgment entered on a verdict directed for defendant in a suit to recover possession of real property. Dis missed for want of jurisdiction.

was alleged that the mining company was a corporation "duly incorporated and organized under and by virtue of the laws of the state of Maine, with its principal office in the state of Colorado, in the city of Ouray, in said Ouray county." The Begole action was first instituted, and an attachment was issued and levied upon the real property of the mining company in Ouray county, being Statement by Mr. Justice White: the mining claims heretofore referred to. The Cosmopolitan Mining Company was In the complaints in the Ashenfelter and incorporated under the laws of the state of Fennell actions the fact of the levy of an Maine in June, 1884, for the purposes of attachment in the Begole case was recited, "buying, selling, leasing, working, develop- and the court was asked to make Ashenfeling, and improving gold, silver, copper, or ter and Fennell parties plaintiff in that acother mines, and purchasing and holding tion, and to give them like remedies against such other property as may be necessary or the mining company "as the law gives to convenient." Soon after such incorporation the original plaintiff in said action." Writs the mining company-as we shall hereafter of attachment were also issued in the Ashcall the plaintiff in error-became the owner enfelter and Fennell actions, and were levof mining claims, consisting of lodes and ied in the same manner as was the writ of millsites, situated in the county of Ouray, attachment in the Begole case. In each of Colorado. the three actions last referred to a copy of The Constitution of Colorado (art. 15, § the writ of attachment and of the summons 10) provided that "no foreign corporation' and complaint were served in San Miguel

*462

461

*463

county, Colorado, upon J. M. Jardine, de- | Fennell actions were set forth, as also the scribed in the return of the sheriff as the acquisition by Walsh under the same title "duly authorized agent for the within- to the property in question. It was averred named company" (the Cosmopolitan Mining that the defendants claimed an interest in Company). The complaint in the Fulton the property and it was prayed that they case contained no reference to the levy of might be required to set up such claims, and an attachment in the Begole action, and the that it might be adjudged that the defendplaintiff did not ask to be made a party to ants did not have any interest in the propaction. Although a writ of attachment was erty. Return was made of service of the issued in the Fulton case, it was not shown summons and complaint on Jardine individto have been levied. A copy, however, of ually, and on the mining company, "by dethe writ, as also of the summons and com-livering to John M. Jardine, the duly auplaint, was served upon Jardine, described thorized agent of the defendant company, as in the returns in the other cases.

*465

in dispute was claimed to be vested in Walsh. | cess of law and in violation of the ConstituThe judgment rendered in the action to tion of the United States. The offer of the quiet title was also specially pleaded, and judgment record in the action to quiet title there were averments of facts alleged to con- was also objected to because it was not stitute estoppel. A replication and amend-shown that the company was doing business ed replication were filed to this answer. It in Colorado at the time of service of Jarwas alleged in substance that prior to the dine, and therefore the service on him was service made upon Jardine, in the actions void; and further, because the court in its referred to in the answer of Walsh, the min-judgment or decree did not purport to direct ing company was not doing business in the a conveyance, but simply attempted, by such state of Colorado, and that in those actions judgment or decree, to establish title. no service of process had been made upon Treating the actions in the county court as it, hence the Colorado courts acted without being in personam, and not in rem, the objurisdiction, and consequently "the plaintiff jections were finally overruled by the trial has been and is being deprived of its prop-judge, and all the judgment records were erty, viz., the property sought to be recov-admitted in evidence except the record in ered in this action, without notice, hearing, the Fulton case. The judgment records in opportunity to be heard, or due process of the county court actions were admitted on law, and in violation of the 14th Amend- the ground that it sufficiently appeared ment to the Constitution of the United States."

from the records that the mining corpora tion at the time the actions were brought was doing business in the state of Colorado. The record in the Fulton case was excluded because of a deficiency in this particular. The court admitted the records in the ac tion to quiet title because it appeared that the mining company was alleged in the complaint not only to have been authorized to carry on business in the state of Colorado, but to have been formed for that purpose, and its appointment of a statutory agent was a consent to be served through such agent.

The action was tried to a jury. The case in chief for the mining company consisted of documentary evidence, exhibiting title in the mining company to the property in controversy at the date of the alleged ouster. The evidence for the defendant consisted of a certified copy of the statutory designation of Jardine as agent of the mining company, the judgment records in the various actions relied upon, tax deeds covering two of the millsites enumerated in the complaint, and oral testimony. Objection was made to the admission in evidence of the judgment rec- Following the introduction of these records substantially upon the following ords, and in support of the defense of estop. grounds: 1. That the records of the judg-pel, evidence was offered on behalf of the ments in the county court actions did not defendant tending to show the expenditure on their face show the appointment of Jar-made by him in connection with the propdine as the agent of the mining company, erty subsequent to his acquisition of title, and therefore there was nothing in the rec-but the court held the same to be inadmissi ords to show that service had been made ble. upon a proper agent of the corporation. 2. In rebuttal, the plaintiff offered in eviThat even if the fact of the statutory des- dence from the record in the Begole action ignation by the corporation of Jardine as its a writing signed by Jardine, in effect noti agent could be incorporated into the records fying the court that he did not reside in and considered, as it was not shown that at Ouray county, and disclaiming being an the time of the service the corporation was agent of the mining company, and also ask. doing business in the state, jurisdiction over ing the court to quash the service made on the company was not acquired by the service him of the summons and writ of attach. upon Jardine. 3. That in any event, as the ment. The paper was not admitted in evi service of process in the county court ac- dence and an exception was taken to its extions had been had upon Jardine in another clusion. Two witnesses were next examined county than the one mentioned in the stat- on behalf of the mining company for the purutory appointment as the place of residence pose of establishing that the company mainof Jardine, the service was void. 4. That tained no office and was not doing business as there was then no evidence of personal in the county of Ouray at the time of the service on the corporation through its service of process in the actions referred to agent, the mere levy of a writ of attachment in the answer. No attempt, however, was was insufficient to confer jurisdiction and made to prove that there had been an exto authorize the court to enter judgment press revocation of the statutory designaand direct a sale of the attached property. tion of Jardine as agent to receive service of These objections, it was insisted, established process. The testimony of the two witness. that the judgments recovered against the es above referred to tended to show that the corporation were rendered without due pro-mining company had never any established

*467

1

$468

office in Ouray other than that of its stat- | all, depends on that clause of § 5 of the judiutory agent, while he resided in Ouray; ciary act of 1891 [26 Stat. at L. 826, chap. that the mines of the company were situated some six or seven miles from Ouray, and had been worked up to a short time before the bringing of the actions which resulted in a sale of the property. But one witness the sheriff of the county-testified concerning the operation of the mines, and he was not shown to possess definite knowledge as to when operations ceased. No testimony was introduced to show whether the suspension of operations, if entire, was intended to be permanent or was merely temporary. The court overruled a motion on behalf of the defendant to strike out the testimony of these witnesses, but in doing so observed that it would instruct in view of the testimony.

Thereupon counsel for the plaintiff asked the court to direct the jury to find for the plaintiff except as to two millsites which were covered by tax deeds to Walsh, and to the overruling of this motion the mining company excepted. The court then, of its own motion, instructed the jury as follows: "Gentlemen of the jury: In the view the court takes of this case, it becomes a question of law, and the court will instruct you to find a verdict in favor of the defendant, and that the defendant is entitled to possession of the demanded premises."

517, U. S. Comp. Stat. 1901, p. 549], which authorizes the taking of appeals or writs of error from district or circuit courts direct to this court "in any case that involves the construction or application of the Constitu tion of the United States." Of course, if the case at bar does not really involve the construction or application of the Constitution of the United States, in the sense in which that phrase is employed in the judiciary act of 1891, we are precluded from examining the merits upon this writ of error. In order to determine whether the case is one which should have gone to the circuit court of appeals, and not have been brought directly to this court, we must look into the record, without regard to the certificate given by the trial judge. Indeed, we know of no authority for the making of such certificate.

Before coming to the record, however, we shall briefly advert to the legal principles which must control.

In Carey v. Houston & T. C. R. Co. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. Ct. Rep. 63, the record exhibited the following controversy: Stockholders of the railway company filed a bill in equity in a circuit court of the United States, praying, among other relief, the setting aside of a certain decree of foreclosure and sale, basing the claim upon the grounds of collusion and fraud and want of jurisdiction in the court which had entered the decree. A final decree was entered in the cause dismissing the bill and appeals were allowed, both to the circuit court of appeals and to this court. The ap

On the verdict, and after overruling a motion for a new trial, judgment was entered. A writ of error from this court was thereupon allowed by the trial judge, who made and signed a certificate reciting "that in the pleadings in this action as well as in the rulings of this court in admitting and refusing to admit evidence and in giving and re-peal to this court was based upon the confusing to give instructions to the jury, as set forth in the assignment of errors hereto annexed, there were involved the application and construction of the Constitution of the United States, viz., of the part of the 14th Amendment to the same which provides for due process of law."

Messrs. Carlton M. Bliss, William H. Moody, John A. Perry, George C. Preston, and Hurlburt, Jones, & Cabot for plaintiff in error.

Messrs. Charles S. Thomas, Charles J. Hughes, Jr., Gerald Hughes, William H. Bryant, Harry H. Lee, William Story, and William Story, Jr. for defendant in er

ror.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

We are asked in this case to review directly the judgment of a circuit court of the United States, and our right to do so, if at

tention that the cause involved not only the question of the jurisdiction of the court below, but also the question of the construction or application of the Constitution of the United States. The appeal was dismissed, and in the course of the opinion, speaking through Mr. Chief Justice Fuller, it was said (pp. 179, 181, L. ed. pp. 1043, 1044, Sup. Ct. Rep. pp. 65, 66):

"The judiciary act of March 3, 1891, in distributing the appellate jurisdiction of the national judicial system between the Supreme Court and the circuit court of appeals therein established, designated the classes of cases in respect of which each of these courts was to have final jurisdiction (the judgments of the latter being subject to the supervisory power of this court through the writ of certiorari as provided), and the act has uniformly been so construed and applied as to promote its general and manifest purpose of lessening the burden of litigation in this court.

*469