Argument for Plaintiff in Error.

estate, real and personal, saving to the widow her dower." The court below held that it had jurisdiction in spite of the fact that the plaintiff and one of the defendants were citizens of the same State, and held that the after-acquired property passed to the sister under the will. 33 Fed. Rep. 872. The plaintiff sued out this writ of error.

Mr. Henry B. B. Stapler (with whom was Mr. Henry W. Smith on the brief,) for plaintiff in error.

I. Under the law of Oregon, as it stood at the date of the making of the will, and at the time of Mr. Hardenbergh's death, real estate acquired after the making of a will did not pass thereunder, but descended to the heirs at law.

Oregon was settled by settlers from the older States. They took the rules of the common law with them into their new home.

On June 27, 1844, "the common law of England, not modified by the statutes of Iowa or of this government," was formally declared by the legislature of the provisional government of Oregon to be the law of the land. Laws of Oregon, 1843-1849, 100. This shows the recognition of the common law by the early emigrants to Oregon. Upon the organization of the state government the common law in its entirety, not modified by the statutes of Oregon, became the law of the land.

That the common law is recognized as the law of Oregon in all cases where the same has not been modified by statute, has been held in numerous cases in the Oregon courts. Bileu v. Paisley, 18 Oregon, 47; Wood v. Rayburn, 18 Oregon, 3; Paulson v. Buckman, 9 Oregon, 264; Ford v. Umatilla County, 15 Oregon, 313.

So that the statute of wills of Oregon with the common law rules as to matters not covered by the statute, became the law of the State of Oregon, and so continued so far as the purposes of this case are concerned until after the death of Mr. Hardenbergh, and until nineteen years after the making of his will, when the law of Oregon was changed; and in the

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Argument for Plaintiff in Error.

year 1891 it was declared as a new rule of law, that "any estate or interest in real property acquired by any one after the making of his or her will shall pass thereby, unless it clearly appear therefrom that such was not the intention of the testator." Laws of Oregon, 1891, 99.

By the rule of the common law, under a statute simply giving the power to make a will of the real estate of the testator, real estate acquired after the date of the making of the will did not pass to the devisee, but descended to the heirs at law. Harwood v. Goodkight, 1 Cowp. 87, 90; Brunker v. Cook, 11 Mod. 121; Arthur v. Bokenham, 11 Mod. 148; Wind v. Jekyl, 1 P. Wms. 572; Marwood v. Turner, 3 P. Wms. 163; Jackson v. Blanshen, 3 Johns. 292; S. C. 3 Am. Dec. 485; Jackson v. Halloway, 7 Johns. 394; Jackson v. Potter, 9 Johns. 312; Minuse v. Cox, 5 Johns. Ch. 441; S. C. 9 Am. Dec. 313; Van Kleeck v. Dutch Church of New York, 20 Wend. 457; Pond v. Bergh, 10 Paige, 140; Parker v. Bogardus, 5 N. Y. 309; Quinn v. Hardenbrook, 54 N. Y. 83; Ballard v. Carter, 5 Pick. 112; S. C. 16 Am. Dec. 377; Ewer v. Hobbs, 5 Met. (Mass.) 1; Fay v. Winchester, 4 Met. (Mass.) 513; Hays v. Jackson, 6 Mass. 149; Brigham v. Winchester, 1 Met. (Mass.) 390; Girard v. Philadelphia, 4 Rawle, 323; Johns v. Doe, 33 Maryland, 515; Jones v. Shoemaker, 35 Georgia, 151; Battle v. Speight, 9 Iredell, (Law,) 288; Roberts v. Elliott, 3 T. B. Mon. 395.

This rule of the common law, thus universally recognized, prevailed also in the State of Oregon.

II. It is therefore respectfully submitted that the conclusion arrived at by the learned court below, that at the date of Mr. Hardenbergh's death real estate acquired after the making of his will passed thereunder, is erroneous.

It is to be observed that the court below cites no authority of the State of Oregon, in support of the position that afteracquired lands passed under a will made previous to their acquisition. Indeed, only two cases, Liggat v. Hart, 23 Missouri, 127, and Applegate v. Smith, 31 Missouri, 166, in support of the position of the court on the point in question are cited, over against which stands the vast array of decisions above

Argument for Plaintiff in Error.

referred to, representing the concurring opinions of the courts of the American Union and of England. It is submitted that an examination of these cases shows that they are not authorities which support the position of the court below, but rest upon grounds peculiar to the State of Missouri and not applicable elsewhere.

III. There remains then only to consider the further reasons advanced in the opinion of the court below. The learned court concedes that the common law of England prevailed in Oregon. This concession would necessarily be fatal to the position taken by the court if the rules of the common law as to after-acquired real estate, which had been repeatedly declared under the statute of 32 Henry 8, c. 1, were held to be a part of the common law. This difficulty by the court is overcome by holding, that "the statute of Henry 8 is no part of the common law, and as such did not become a part of the law of the English colonies. It is conceded that the common law of England, as it stood prior to the accession of James 1, together with the statutes passed in aid thereof, was brought to this country by the colonists and became the basis of the law of the land, 1 Kent, 342, 472, Story's Constitution, secs. 147, 157-8. The Statute of Wills, so far from being in aid of the common law, was in derogation of it, and pro tanto superseded it." The court, therefore, holds that "this is not a question of the common law."

It is respectfully submitted that this position is erroneous, and that no distinction can be drawn between the statutes "in aid of" or "in derogation" of the common law, but that that statute of Henry 8, and all other general statutes, together with the common law rules in reference thereto, became the common law of the American colonies.

This was so ruled on an analogous point in the leading case of Bogardus v. Trinity Church, 4 Paige, 178. See also Commonwealth v. Leach, 1 Mass. 59; Commonwealth v. Knowlton, 2 Mass. 530; Sackett v. Sackett, 8 Pick. 309; Girard v. Philadelphia, 4 Rawle, 323.

As the Statute of Wills was enacted in the 32 year of Henry 8, viz. in the year 1547, which antedated the emigration

Opinion of the Court.

to this country from England, it necessarily follows that under the above authorities it and the rules of the common law in relation thereto became a part of the common law of the American Colonies.

If, however, in any view of the matter the statute of wills. of Oregon can be held to have granted the power to a testator to devise after-acquired real estate, it is submitted that an examination of the will of Mr. Hardenbergh shows that under well-settled law no such intention can be gathered therefrom.

The statute of 1785, Virginia, (now suspended,) provided "That every person aged twenty-one years and upwards, being of sound mind, and not a married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title, and interest in possession, reversion, or remainder, which he hath, or at the time of his death shall have, of, in, or to lands," etc. Under this a will which bequeathed the whole of my property was held not to pass after-acquired lands. Smith v. Edrington, 8 Cranch, 66. See also Lynes v. Townsend, 33 N. Y. 558; Quinn v. Hardenbrook, 54 N. Y. 83; Wetmore v. Parker, 52 N. Y. 450.

Mr. John II. Mitchell and Mr. James K. Kelly, for defendants in error, on the question of jurisdiction said:

It is disclosed by the record that a question of jurisdiction was urged by the defendants in the court below, growing out of the citizenship of the parties. And it is now suggested by the defendants in error, without indulging in argument of the question, or doing more than presenting the facts on which it rests, that the court below had no jurisdiction of any of the defendants, and, therefore, if any modification whatever of the judgment of the court below is to be directed by this court, it should be to order a dismissal of the action for want of jurisdiction. As this action was commenced and issues joined prior to the act of March 3, 1887, 24 Stat. 552, c. 373, the question of jurisdiction must be determined by the laws then in force.

MR. JUSTICE JACKSON delivered the opinion of the court.

Opinion of the Court.

The principal questions presented by the record in this case are, first, whether by the laws of Oregon, in force in 1872, a testator was authorized or empowered to devise after-acquired real property; and, second, whether, if such power existed, the after-acquired real estate in controversy passed by the testator's will in the present case.

The facts which give rise to these questions are as follows: Peter De Witt Hardenbergh, unmarried and without children, a citizen of Portland, Oregon, died in 1886, leaving a will executed by him May 15, 1872, which was duly probated and remains in full force and effect. By the first clause of the will the testator devised to several nephews, named therein, a certain farm in Ulster County, New York; by the second clause he devised to his sister, Catherine L. Tremper, all his right, title, and interest in and to all other lands in that county and State; and by the third and last clause he gave and bequeathed to his sister, Ellen E. Ray, "all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the State of Oregon, or elsewhere, except as aforesaid; also all my personal property and estate of whatsoever kind and nature."

At the date of the will the testator owned certain real property in Portland, Oregon, and in January, 1882, some ten years after the will was executed, he purchased, and at the time of his death owned, a parcel of land in the city of Portland, valued at $30,000, which is the subject of controversy in this suit.

Ellen E. Ray, the devisee under the third clause of the will, died intestate in 1873, leaving as her heirs Thomas L. Ray, Rachel L. Ray, Hylah E. Ray, and Mary E. Arbuckle, citizens of Oregon; John De Witt Ray, a citizen of Illinois; and Sarah A. Ray, a citizen of New York. Upon the death of the testator these heirs of Ellen E. Ray, who, under the laws of Oregon, (§ 3077, Hill's Anno. Laws of Oregon,) succeeded to her rights as devisee, took possession of the premises in controversy, as well as other real property in Oregon, owned by the testator at the time the will was executed.

Herman R. Hardenbergh, a brother of the testator, claimed