of the court as to all matters contained in a
certain bill in equity brought by them and
filed in the Circuit Court of the United States
for the district of New Hampshire on March
May 2, 1911, Charles B. Barker
6, 1911.
filed a motion in the superior court asking
that the special appearances be stricken off,
that the parties so appearing be required to
appear generally, and that a hearing be had
A
upon the questions raised by the bills.

and that the same may be applied in due course of administration, that it may be determined what bonds or other security shall be given by each of them in accordance with the terms of the will, and that their respective shares in the estate may be ascertained. The defendant Hiram H. Barker claims that, if the construction of the will by the court of this state is conclusive, nevertheless he is entitled on distribution of the estate in the hands of the trustee to one-hearing was had upon the motion, and the dehalf of the remainder, as surviving father of Hiram E., Mary E., and Louis H. Barker, who died without issue. This contention is denied by Charles B. Barker.

The superior court made the following rulings: (1) That the trustee should continue to administer the trust during the pendency of these proceedings under the direction of the court. To this ruling neither party excepted. (2) That the trustee may pay the defendant Eda F. Barker the sum of $3,000, she having reached the age of 21 years, as provided in subdivision 5 of article 8. To this ruling the plaintiff Charles B. Barker excepted. (3) That the time for the distribution of the estate as provided in and contemplated by the will has not arrived, as, among other reasons, there may yet be born grandchildren of the testator, children of Hiram H. Barker. To this ruling the plaintiff Charles B. Barker and all the defendants in Eastman's bill, except Clara Barker Berry, excepted. (4) That on the distribution of the remainder of the estate in the hands of the trustee Hiram H. Barker does not take one-half as surviving father of the deceased grandchildren. To this ruling Hiram H. Barker excepted. (5) That the distribution of the remainder of the estate in the hands of the trustee, when the respective rights of the parties shall have been determined by the court having jurisdiction thereof, shall be under orders of the probate court for Strafford county, or the superior court of New Hampshire.

Streeter, Demond & Woodworth, for Charles B. Barker. Robert Doe and Kivel & Hughes, for Clara Barker Berry. Eastman, Scammon & Gardner, for Edwin G. Eastman, trustee.. Alfred S. Hayes, for all the other defendants.

BINGHAM, J. The first proceeding is a bill in equity brought by Charles B. Barker, a beneficiary under the trust created by article 8 of the will of Hiram Barker, against Eastman, the trustee, and all the other beneficiaries thereunder, and filed in the superior court March 21, 1911. The second proceeding is a bill in equity brought by the trustee against all the beneficiaries and filed in the superior court April 1, 1911. After service had been had upon all the defendants in both proceedings, the defendants Hiram H., Ella M., Will T., and Eda F. Barker appeared specially therein, stating that they reserved all their rights to object to the jurisdiction

fendants in question were ordered to appear generally and answer on or before May 25, 1911. In compliance with this order, they appeared generally in both proceedings and filed an answer to the bill brought by the trustee; but to the bill of Charles B. Barker they filed a motion to dismiss the proceeding as to them, stating that a prior action was pending in the Circuit Court of the United States for the district of New Hampshire, in which they were plaintiffs and Eastman, trustee, was defendant, involving the same matters so far as they were concerned, and that the United States court had prior and exclusive jurisdiction of the matters as to them. In this proceeding they also filed what they were pleased to term a demurrer, but which in fact and in law was nothing more than a motion to dismiss, based upon the pendency of the suit in the United States court. The motion to dismiss was denied. Answers were filed by the trustee and Clara Barker Berry to the bill of Charles B. Barker, and also by Charles B. Barker and Clara Barker Berry, as well as by the other defendants, to the bill of the trustee. proceedings were then consolidated, a hearing of all the parties was had, the facts set out in the reserved case were found, and the jurisdictional question and all other questions of law were transferred to this court. No exception was taken to the denial of the motion to dismiss; but, as it seems to have been agreed that the jurisdictional question should be considered with the other questions raised, we proceed to consider it.

The

[1] It has been held in the Circuit Court of the United States for this circuit that the state court, although exercising concurrent jurisdiction with the federal court in this district, is not a domestic, but a foreign, court, and that a plea in abatement setting forth the pendency of a prior suit in the state court between the same parties, involving the same subject-matter, and asking for the same relief, will not abate the suit in Hughes v. Elsher (C. C.) the federal court.

5 Fed. 263; Latham v. Chafee (C. C.) 7 Fed. 520; Lynch v. Insurance Co. (C. C.) 17 Fed. 627, 628; Coe v. Aiken (C. C.) 50 Fed. 640. Such seems to be the holding of the federal courts in most of the circuits (Marshall v. Otto [C. C.] 59 Fed. 249; Shaw v. Lyman [C. C.] 79 Fed. 2; Bunker Hill, etc., Co. v. Company, 109 Fed. 504, 508, 47 C. C. A. 200), although in some a different rule prevails. Radford v. Folsom (C. C.) 14 Fed. 97, 99–102

See, also, Wilson v. Milliken, 103 Ky. 165, 44 S. W. 660, 42 L. R. A. 449, note, 82 Am. St. Rep. 578.

In this state, in the case of Smith v. Insurance Co., 22 N. H. 21, 25, it was said that the state court and the Circuit Court for this district were domestic courts, and that the pendency of a prior action for the same cause and between the same parties in one of the courts would be sufficient, if well pleaded, to abate the subsequent suit, if the court in which the prior action was pending had jurisdiction of the cause. But what is there said was not essential to a disposition of the case, as the question upon which it was finally disposed of was that the plea was defective, in that it did not sufficiently disclose that the court in which the prior action was pending had jurisdiction. So here it is not essential to a disposition of these cases that the question should be decided; for, if we assume that the state court and the circuit court for this district are domestic courts, the defendants' motion cannot be sustained as a valid plea in abatement. According to the ancient rule, a plea of a prior action pending, to be a good plea in abatement, had not only to set out the identity of the cause of action and of the parties, but the record of the prior action had to be enrolled. This is now the rule in this state. Ladd v. Stratton, 59 N. H. 200; Smith v. Insurance Co., supra. A plea in abatement is a dilatory plea, and because of this the strict requirements of this ancient rule have not been relaxed. As late as 1878, this court in discussing the subject said: "Dilatory pleas not being favored, the highest degree of accuracy is required of the defendant who relies upon such a defense instead of the merits of his We do not feel called upon to disturb the ancient practice in this respect, in favor of this class of pleas, although the practice may have become absolete in other pleadings." Messer v. Smythe, 58 N. H. 312, 313.

case.

*

conclusion of law can be drawn. Charles B. Barker did not bring the proceeding in the federal court, and has not been made a party to it in any way. Eastman, the trustee, did not bring the federal proceeding; and, while he has been made a party defendant therein, vexatiousness as a conclusion of law cannot be drawn from this circumstance. "The authorities all seem to require that, not only must the cause of action be the same, but the plaintiffs also must be the same." Bennett v. Chase, 21 N. H. 570, 584. And it would seem that this must be so; vexatiousness being a conclusion of law, and not of fact.

[3] It was further suggested by counsel at the argument that the motion to dismiss might be regarded as a request to stay these proceedings until the main questions raised in the federal bill were determined in the Circuit Court, and that the state court, in the exercise of its discretion and as a matter of comity, might grant the request. If this is the question sought to be raised by the defendants' motion, the answer is that it presents no question of law; and, the motion having been denied in the superior court, the question of discretion has been determined against them. Driscoll v. Railway, 71 N. H. 619, 51 Atl. 898.

[4] Moreover, we think the question of discretion was rightly decided. In the federal bill, the plaintiffs, among other things, pray for an accounting by the trustee, and that their shares in the trust estate and the security they shall be required to give to insure the payment of the life annuities provided for in the will shall be determined. They also assert the claim in that bill that Hiram H. Barker, as father of the three deceased grandchildren of the testator, should receive upon distribution of the trust estate what would have been their shares had they lived, or one half of the estate, and that the other half should be divided equally among the three surviving grandchildren, of whom [2] But, if we further assume that the Charles B. Barker is one. It is apparent record of the prior action was properly en- that Charles B. Barker is a necessary party rolled, the motion to dismiss cannot be sus- to a final determination of all these questained as a plea in abatement. This ancient tions; that, upon the question of accounting doctrine is founded upon the supposition that by the trustee, his position is necessarily adthe second suit is oppressive and vexatious; verse to that of the trustee (2 Per. Tr. [6th but "upon a plea of a former action pending Ed.] § 882); that upon the question of sevexatiousness is a conclusion of law drawn curity, its character and amount, his position from the fact of two suits brought by one is adverse to that of the life annuitants to person against another, for one cause, and whom he and the other remaindermen must pending at one time, and is not a matter of give security for the payment of the annuifact depending upon the question whether the ties before distribution can be had; and that first action was defective, * * or wheth- upon the question of his share in the remainer, upon some special ground, it is der-whether he shall receive one-sixth as equitable that the second should be com- Hiram contends, or one-third as he contends menced while the first is pending." Gamsby-his position is adverse to that of Hiram. v. Ray, 52 N. H. 513, 516. This being the The subject-matter of the federal bill does case, it is apparent that the motion and the record of the federal suit do not disclose the fact of two suits brought by one person against another, for one cause, and pending at one time, from which vexatiousness as a

*

4

not present a separable controversy in which those who have been made parties to it are alone interested. A decision of the questions raised in that proceeding would not be binding upon Charles B. Barker, but would be

open to further litigation in the proceeding | N. H. 447, 448, 31 Atl. 902 (28 L. R. A. 328). brought by him and in which all parties in That "during the intended continuance of interest have been joined. In this situation the trust * * * the remainder should it was therefore at least doubtful whether vest in no one but the trustees." 66 N. H. the federal court would undertake to pass 464, 465, 31 Atl. 911 (28 L. R. A. 328). (2) upon the questions raised in the federal bill That for the purpose of fixing the time of without Charles B. Barker having been made vesting and distribution the testator used a party defendant; and, if he were made a the word "children," in article 8, subdiviparty defendant, it is practically certain that sion 5, of the will, in its limited sense, as the federal court would decline to pass upon meaning the sons and daughters of C. and them, as the diversity of citizenship upon H.; but for the purpose of fixing the perwhich its jurisdiction is based would be sons who were to make up the class to whom wanting. For these reasons and others that distribution was to be made he used the might be mentioned, the superior court, hav- word and intended it should include the ising all the parties before it in a proceeding sue of those children who might die after in which all these questions could be deter- the will was made. 66 N. H. 450, 451, 31 mined and in which full and adequate relief Atl. 903 (28 L. R. A. 328). (3) That it was could be had, was clearly warranted in de- unnecessary to determine who during the nying the defendants' motion and in proceed- lives of C. and H. would be the youngest of ing to hear and determine the questions pre- the children. That it would be assumed, sented by the bills. without considering the question, that during their lives the remainder would not vest in their issue. 66 N. H. 451, 31 Atl. 904 (28 L. R. A. 328). (4) That the general devise to trustees vested the legal title in them, and was a good devise for the valid uses (including the interests absolute and conditional of C. and H.) for which the trustees were directed to hold the property during the lives of C. and H. That during their lives the trust, for these valid uses, would not infringe any rule of law. 66 N. H. 464, 31 Atl. 911 (28 L. R. A. 328). (5) That, if the time appointed in the will for the remainder to pass from the trustees to the grandchildren were a mere nullity, the consequence would be that the remainder would pass at the termination of the life interests of C. and H., whose lives were intended to be the only lives in being that should be taken into consideration in determining the period during which vesting and distribution were to be postponed. 66 N. H. 465, 31 Atl. 911 (28 L. R. A. 328). (6) That beyond the time of the termination of the life interests of C. and H. the validity of the trust depended upon the question whether on this point the will is a mere nullity, or whether the testator's intent that the remainder shall pass at a period more distant than the law allows is carried into effect as nearly as it can be-that is, at the most remote legal time. 66 N. H. 465, 31 Atl. 911 (28 L. R. A. 328). (7) That the testator's primary intent was that his grandchildren should have the bulk of his estate, and that his children should not; that the time when they should have it was secondary; that inability to carry into effect the secondary or subordinate intention would not be allowed to defeat the primary or general intention; and that, applying the doctrine of cy pres in pursuance of his implied intent to throw out what is against law and let the rest stand, the last 19 of the 40 years in the devise to the grandchildren are too remote, while in the rest of the time and the rest of the will there is

[5] The main question in the case is whether the time has arrived for terminating the trust and distributing the estate among the remaindermen. It is conceded in the various pleadings of the parties that the grandchildren are of good habits and business capacity, that they are ready to furnish the security required by the will as a condition precedent to distribution, and that Eda F. Barker, the youngest living grandchild, is now 21 years of age. Counsel for Charles B. Barker contend that under the will, as construed in Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900, 28 L. R. A. 328, the time for vesting and distributing the estate among the remaindermen arrived when Eda became 21 years old. Counsel for Clara Barker Berry apparently concede that the title to the estate vested in the remaindermen when Eda became 21, but contend that the time for distribution has not arrived, as by the terms of the will distribution is not to take place until the youngest grandchild reaches 40; that, while it was decided in Edgerly v. Barker that the time for vesting should be out down from 40 to 21 years, to comply with the implied intention of the testator to reject what was against law and let the rest stand, it was not decided that the time fixed for distribution should also be cut down; that it was not necessary to so hold, as it was the time fixed for vesting and not for distribution that infringed upon the rule against perpetuities. It is therefore necessary for us to ascertain what was considered and decided in Edgerly v. Barker, and to determine to what extent these contentions are sound.

After a careful study of that case, the following propositions seemed to be deducible from the decision: (1) That the testator intended the estate devised to trustees should vest in and be distributed among the grandchildren when the trust terminated, and that it should not vest in them so that they could sell and dispose of their interests

N. H.)

HOCHSTEIN v. JAMES W. HILL CO.

171

L. R. A. 328). (8) That by the testator's gen- the remainder during their lives, that the eral approximating purpose, which is a part testator contemplated that the remainder of the will, the testator's intention that the should vest and be distributed among the grandchildren shall not have the remainder grandchildren during the lives of C. and H., till the youngest arrives at the age of 40 is if during that period the youngest grandchild modified by his intent that they shall have of those then in being reached the age of it, and that the will shall take effect as far 40, and that, unless this contingency happenas possible. The 40 years are reduced to ed during their lives, the remainder should 21. 66 N. H. 475, 31 Atl. 916 (28 L. R. A. not vest and be distributed until after C. and H. were dead and the youngest grand328). From the foregoing summary of the opin- child reached 40, cut down, according to Edion, it appears that the court did not under-gerly v. Barker, to 21. This conclusion is take to decide whether the testator had pro- not rendered less certain when the provisions vided in his will for a vesting and distribu- of the will are considered with reference to tion of the remainder among the grandchil- the situation confronting the testator at the dren upon the happening of a contingency time he made his will and the codicils. The that should take place during the lives of C. codicils antedate his death but a short time. and H., for it is there assumed, without Hiram was then about 35 years old and had passing upon the question, that no such in- five children. Clara was about 47, and was unmarried. Before any of the children,. tent was expressed in the will. This course was pursued so that the court might consid- whether then living or subsequently born, er the bald question whether the provision could reach the age of 40, Hiram, if living, for postponing the vesting and distribution would be from 62 to 75 or more years old, of the remainder, after the expiration of the and Clara would be from 74 to 87 or more. lives of C. and H., to such a time as the It is reasonably probable that under these circumstances the testator concluded that, if youngest grandchild reached 40, was predicated upon a contingency so remote that it Clara and Hiram lived to such an advanced could not be sustained. It was upon this age as that the youngest grandchild then in proposition that the court, applying the tes- being was 40 years old, the class made up as of that time would include all whom he tator's general approximate purpose, held desired to make the objects of his bounty. that the 40 years should be reduced to 21. It follows, therefore, that, as the youngest The question therefore remains whether the living grandchild has not reached 40, the will discloses an intention on the part of the time for vesting and distributing the remaintestator that the remainder should vest and der during the lives of C. and H. has not arbe distributed among the grandchildren during the lives of C. and H., when the youngest reaches 40.

In subdivision 5 of article 8 of the will the testator, among other things, provides: "When the youngest of said children [of C. and H.] shall arrive at the age of forty years, then all my estate shall be theirs to have and to hold the same to them and their heirs, those of them of good and regular habits and of capacity to do business and manage property, to take care of and manage as trustees the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity; but before said property shall vest in and be theirs, proper, suitable, and sufficient bonds or other security must be given by them for the payment of said sum or sums [the life annuities previously provided for] to my said daughter, if living, so long as she shall live, to my said son's widow, if she shall then be living, so long as she lives and remains his widow, and also for the good and sufficient support of my said son so long as he shall live." It seems reasonably certain from the general language of the will, and especially from the provisions quoted calling for security to insure the payment of the annuities to C. and H. as a condition precedent to the vesting and distribution of

rived.

Under these circumstances, it is conceded by the parties that Eda, having attained the age of 21 years, is entitled to be paid the sum of $3,000 called for by subdivision 5, article 8, of the will, and the trustee is advised to pay her that sum. It is unnecessary to answer or decide the other questions presented by the case, as a decision of them would be material only in case the time of distribution had arrived.

Case discharged. All concurred.

(76 N. H. 293)

HOCHSTEIN 7. JAMES W. HILL CO.

(Supreme Court of New Hampshire. Hills

borough. Jan. 2, 1912.)

1. JUDGMENT ($818*)-FOREIGN PERSONAL JUDGMENTS-VALIDITY-JURISDICTION.

Whether, in suit thereon, a foreign personal judgment is conclusive against defendant, depends upon whether a foreign court acquired jurisdiction of him in that proceeding; a judgment not supported by legal service being a nullity.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1458; Dec. Dig. § 818.*] 2. JUDGMENT (§ 815*) — FOREIGN PERSONAL JUDGMENTS-VALIDITY.

That a personal judgment obtained by default in a foreign state is valid under the practice there relating to service of process does

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

not necessarily make it valid in another statement is a nullity. Thurber v. Blackbourne, 1 in a suit on it. N. H. 242; Downer v. Shaw, 22 N. H. 277; [Ed. Note. For other cases, see Judgment, Wright v. Boynton, 37 N. H. 9, 72 Am. Dec. Dec. Dig. § 815.*] 319; Wilbur v. Abbot, 60 N. H. 40, 51; Eastman v. Dearborn, 63 N. H. 364.

state. Judgment by default was entered in the New York action, and the question wheth-clusion (156 U. S. 521, 522, 15 Sup. Ct. 561, er this action of debt can be maintained upon that judgment was transferred without a ruling.