KINGSBURY V. BUCKNER, 134 U. S. 650 (1890)

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U.S. Supreme Court

Kingsbury v. Buckner, 134 U.S. 650 (1890)

Kingsbury v. Buckner

No. 176

Argued January 8-9, 1890

Decided April 7, 1890

134 U.S. 650


In Illinois, a decree against a minor is subject to attack, by an original bill, for error apparent on the record, for want of jurisdiction, or for fraud.

In Illinois, the rule is that a decree against an infant is absolute in the first instance, subject to the right to attack it by original bill, but until so attacked, and set aside or reversed, on error or appeal, it is binding to the same extent as any other decree or judgment. The right to so attack it may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may prosecute a writ of error for the reversal of such decree.

A decree is subject to attack by original bill for fraud, even after judgment in the appellate court; but a party, whether an infant or adult, against whom a decree is rendered by direction of the appellate court, cannot impeach it, by bill filed in the court of first instance, merely for errors apparent on the record, that do not involve the jurisdiction of either court.

An infant, by his prochein amy, having elected to prosecute an appeal to the Supreme Court of Illinois from the decree rendered in the original suit brought by him, and having appeared by guardian ad litem to the appeal of the cross-plaintiffs in the same suit, is as much bound by the action

Page 134 U. S. 651

of that court in respect to mere errors of law, not involving jurisdiction, as if he had been an adult when the appeal was taken.

In Illinois, a cross-bill is regarded as an adjunct or part of the original suit, the whole together constituting one case, and process against the plaintiff is not necessary upon a cross-bill, even where he is an infant.

The plaintiff, by his bill, claimed to own certain real estate, by inheritance from his father, to whom the defendants had conveyed it by deed, absolute in form, and prayed for a decree confirming and establishing his title. The defendants, by cross-bill, alleged that the deed was made and accepted for the purpose of placing the title in trust for the benefit of one of the defendants, and asked a decree to that effect. Held that the subject matter of the cross-bill was germane to that of the original bill.

The statutes of Illinois relating to suits by infants are not to be interpreted to mean that no suit in the name of an infant by next friend can be entertained unless such next friend is selected by the infant. Nor does the right to bring such a suit depend upon the execution by the next friend of a bond for costs, though he may be required to give such bond before the suit proceeds to final judgment and execution.

While a guardian ad litem or prochein amy of an infant cannot, by admissions or stipulations in a suit in equity, surrender substantial rights of the infant, he may by stipulation assent to arrangements which will facilitate the trial and determination of the cause in which such rights are involved, and the infant will he bound thereby.

Appeals and writs of error may be taken to the Supreme Court of Illinois held in the Grand Division in which the case is decided, or, by consent of the parties, to any other Grand Division. A guardian ad litem or next friend of an infant may consent that the case in which the infant is a party be heard in some other Grand Division than the one in which it was decided or at a term of the Supreme Court earlier than such appeal or writ of error would be ordinarily heard, and may waive the execution of an appeal bond by the opposite party.

An appeal bond is not essential to the jurisdiction of the Supreme Court of Illinois, any more than in this Court, where the appeal is allowed and a transcript of the record is filed in due time, although the appeal may be dismissed if such bond is not executed in accordance with the rules or the order of the court.

Case stated in which a husband is held not to be an incompetent witness under the statutes of Illinois in support of his wife's claim to property.

Various charges of fraud and collusion upon the part of a guardian ad litem examined and held not to be sustained.

This suit involves the title to real estate of considerable value in the City of Chicago, of the possession of which the

Page 134 U. S. 652

appellant, who was the plaintiff below, claims to have been deprived by certain proceedings in the courts of Illinois to which Simon B. Buckner, his wife, and others were parties. The relief sought is a decree declaring those proceedings to have been erroneous, fraudulent, and void as to the plaintiff and adjudging not only that such estate be restored to him, but that Buckner and wife be held as trustees ex maleficio, with liability to account for the income of the property.

The history of the plaintiff's claim to the property, as well as of the proceedings in the state courts the integrity and legal effect of which are assailed in the present suit, must be given before examining the grounds on which he seeks a reversal of the decree.

Major Julius J. B. Kingsbury, of the United States army, died intestate on or about the 25th of June, 1856, seised of lots designated five and six in block thirty-five on the original map of the Town of Chicago, and also of that part of the east half of the northwest quarter of section nine in township thirty-nine north of range fourteen east of the third principal meridian, which lies east of the North branch of the Chicago River and south of the center of Ontario Street, in Cook County, excepting, however, a small portion of the last-named tract previously conveyed by him to Buckner.

The intestate left surviving him his widow, Jane C. Kingsbury, and two children, Mrs. Buckner and Henry W. Kingsbury, the father of the appellant. These children were his only heirs at law.

By deed duly executed and acknowledged on the 15th of May, 1861, Buckner and wife, "in consideration of the sum of one dollar, and of the natural love and affection" of the grantors for the grantee, conveyed to Henry W. Kingsbury, the brother of Mrs. Buckner and at that time a lieutenant in the United States army, one undivided half of the above lots five and six, and all their right, title, and interest in the "Kingsbury Tract," containing thirty-five acres, more or less, being the south half of what then remained of the northwest quarter of section nine, township thirty-nine, range 14, in Cook County, after deducting therefrom the Town of Wabansia,

Page 134 U. S. 653

to have and to hold the same to the grantee, his heirs and assigns, forever, the grantors covenanting that they would warrant the property conveyed. The deed recited that the other undivided half of the land and tenements formerly owned by Major Kingsbury belonged to the grantee as one of his heirs, and that the entire property was subject to the dower rights of his widow.

On the 25th of March, 1862, the plaintiff's father executed an instrument which, upon proof that it was wholly in his handwriting and signed by him, was ordered by the Corporation Court of the City of Alexandria, Virginia, to be recorded as his last will and testament, and under an order of that court, passed May 10, 1870, Ambrose E. Burnside qualified as his executor. On the 11th of July, 1870, that writing, with the proof thereof, was presented by Burnside, as executor, to the County Court of Cook County, Illinois, for record, and by the latter court it was ordered

"that the said will, and proof thereof, certified as aforesaid, be recorded, and that the same be treated and considered as good and available in law, in like manner as wills executed in this state."

The writing referred to is as follows:

"Expecting soon to start upon a military expedition where death may overtake me, I leave this as a record of my wishes respecting the disposition of my property:"

"To my mother, Jane C. Kingsbury, I leave twenty thousand dollars, or so much of my Chicago property as, upon fair appraisal, may be valued at that amount."

"To my sister, Mary J. Buckner, I leave as much of the Chicago property held in my name as shall amount to one-third of the property in the City of Chicago, Illinois, held by my father, Julius J. B. Kingsbury, deceased."

"To my cousin, John J. D. Kingsbury, I leave my property at Waterbury, Conn. and in addition thereto five thousand dollars. I trust he will expend it in completing his education."

"The remainder of my property, of every description I leave to my devoted wife, Eva. I desire, moreover, that the

Page 134 U. S. 654

provisions of this will be so carried out that the yearly income of my wife for her own personal support shall never be less than two thousand dollars."

"As executors, I name Ambrose E. Burnside, of Rhode Island, and Capt. John Taylor, Commissary Department, U.S. army."

"Signed at Fortress Monroe, Va., March 25, 1862."


"First Lieutenant 5th Regiment Artillery, U.S. Army"

Lieutenant Kingsbury was killed at the battle of Antietam, on the 17th of September, 1862.

On the 18th of July, 1870, the plaintiff herein, suing by Corydon Beckwith, his next friend, instituted an action in the Circuit Court of Cook County, sitting in equity, against Simon B. Buckner, Mrs. Buckner, Ambrose E. Burnside, Jane C. Kingsbury, John J. D. Kingsbury, Albert G. Lawrence, and Eva Lawrence. The last-named defendant, as Eva Taylor, intermarried with Lieutenant Kingsbury on the 4th of December, 1861. The only child of that marriage was the plaintiff, who was born December 16, 1862, after the death of his father. His mother subsequently, September 26, 1865, intermarried with Albert G. Lawrence.

It was alleged in that bill that the plaintiff's father died intestate, seized in fee simple of the estate conveyed by the above deed of May 15, 1861, and that upon his death it passed to the plaintiff, subject only to the dower rights of his mother and grandmother, and to certain encumbrances outstanding against the property or some portions of it, and that by a decree rendered in a suit instituted in 1868 by Jane C. Kingsbury in the same court against Eva Lawrence, Albert G. Lawrence, himself, and one David J. Lake (who assumed to act as the plaintiff's guardian), John Woodbridge was appointed receiver of the entire income of the premises, accruing and to accrue, with power to lease and manage the property under the orders of the court, and with direction to pay out of such income to his grandmother, Jane C. Kingsbury, and to his mother, the sums to which they were respectively entitled;

Page 134 U. S. 655

to provide for the maintenance and support of the plaintiff, and to pay the interest upon certain mortgages upon the property, as well as other expenses incident to its care and management.

Referring to the writing executed at Fortress Monroe, Virginia, on the 25th of March, 1862, the bill alleged that it was delivered to John McLean Taylor for safekeeping; that neither at the time of his death, nor at any time thereafter, was his father an inhabitant or resident of Virginia, nor did he have any property in that state; that the Corporation Court of the City of Alexandria had no jurisdiction to admit said will to probate or record; that neither of the proceedings in that court nor of those in the County Court of Cook County, Illinois, had Jane C. Kingsbury, Eva Lawrence, John McLean Taylor, or himself any notice that the plaintiff's father did not sign said paper in the presence of any attesting witness, nor was the same attested by any witness in his presence; that it was not executed with the requisite forms and solemnities to make the same available for the granting and conveying of the property therein mentioned according to the laws of Connecticut, the place of his domicile, or of Maryland, where he died, or of the state in which any of his property was situated; that it was not entitled to probate in Illinois; that nevertheless Burnside, combining with the other defendants in that suit, alleged and pretended that it was a valid will for passing the title to property in Illinois, and said Jane C. Kingsbury, Mary J. Buckner, John J. D. Kingsbury, and Eva Lawrence, named in said pretended will as devisees or legatees, claim under it, but without right, some interest in the said estate of the plaintiff.

The prayer for relief was that said instrument be declared invalid and of no legal force and effect as a last will and testament; that the proceedings relating to it in the county court of Cook County be reversed and set aside, or declared to be null and void, as constituting a cloud upon plaintiff's title to the real estate hereinbefore described; that his right and title by inheritance to that estate as the posthumous son and only heir at law of the said Henry W. Kingsbury, deceased, be

Page 134 U. S. 656

confirmed and established; that in the meantime Burnside, Buckner and wife, and John J. D. Kingsbury be enjoined and restrained from intermeddling with the said estate or with the rents, issues, or profits thereof and from attempting in any way to obstruct or interfere with Woodbridge in the performance of his duties as receiver, and that on the final hearing of the cause the injunction be made perpetual.

On the 31st of October, 1870, Buckner and wife filed their joint and several answer to the bill. Answers were also filed by Jane C. Kingsbury, Burnside, and John J. D. Kingsbury, which put in issue all the material allegations of the bill.

Buckner and wife also filed, October 31, 1870, a cross-bill against the plaintiff and their codefendants Eva Lawrence, Albert G. Lawrence, and Jane C. Kingsbury, which, after setting out all the material averments both of the bill and of their answer, alleged that the real estate of which Major Kingsbury died seised included all the lands described in the original bill; that while the legal title to the strip along the east branch of the North branch of the Chicago River, seventy feet in width for the full length of the tract, was vested in Simon B. Buckner by deed of January 22, 1855, he had no beneficial interest therein, and Major Kingsbury was at his death its real owner; that the title to the real estate of which the later died seised descended to and vested in Mrs. Buckner and her brother, subject to the widow's right of dower and to the encumbrances thereon; that the defendants were married when Major Kingsbury died, and in 1858 had issue to their marriage, a daughter, who was then living, by reason whereof defendant Simon B. Buckner became vested with a life estate as tenant by the curtesy initiate in the property vested in his wife, and that at the death of her father, he (the defendant Buckner) had the full control and management of the real estate left by him, and retained such control until it was placed under the management of Ambrose E. Burnside, sometime in December, 1860.

In respect to the deed of May 15, 1861, by Buckner and wife to Lieutenant Kingsbury, the cross-bill showed that the value of the property covered by it was $500,000, and, except an undivided half of certain real estate of

Page 134 U. S. 657

small value in Connecticut, was the only property held by Mrs. Buckner, her brother being the owner of the other undivided half of the property described in that deed; that said deed was executed without the knowledge of the grantee, who was ignorant of its existence until several weeks after its execution, when he was informed of the facts in the premises; that it was sent by Buckner to his agent in Chicago with directions to file it for record, which was done on the 17th of May, 1861, and that constituted the only delivery of it ever made to the grantee, and that it was made without any consideration, contract, arrangement, bargain, or promise whatever, and was not acknowledged in accordance with the laws of Illinois.

The cross-bill also alleged that the sole purpose of the deed of 1861 was to vest the title of the property thereby conveyed in the grantee, as naked trustee, and not to make to him a gift; that it was the intention of the cross-plaintiff Simon B. Buckner to waive all claim to it, to allow his wife the sole use and enjoyment thereof, and to place the control of it in her own family, but he claimed all his legal and equitable rights in the premises, and asked that the trust be enforced so as to enable him to carry his intention into effect, to which end he would assent to any decree conferring the sole control and benefit of the property upon his wife, her heirs and assigns; that in the month of December, 1860, the deceased and Simon B. Buckner, for themselves, Jane C. Kingsbury, and Mrs. Buckner, made an arrangement with Ambrose E. Burnside, then residing in Chicago, to take charge of and manage the property for all the parties, and that Lieutenant Kingsbury never exercised any acts of ownership over or asserted any interest in the property inconsistent with said trust, and if he had lived would have recognized the equitable and just claim of the cross-plaintiffs, and reconveyed the same upon request.

The cross-bill then referred to the will of March 25, 1862, and alleged that the only property in Chicago vested in the testator at that date was the real estate left by his father, which descended to him and his sister, Mrs. Buckner, and that the only conveyance ever made to him of property in

Page 134 U. S. 658

that city, and the only property there held in his name for the use of any person was that described in the deed of Buckner and wife of May 15, 1861; that prior to the making of that will, the Chicago property had been used solely to receive the rents and profits, the testator, his mother and sister, being treated as if each had been entitled to one-third; that the testator, who was only twenty-three years of age, recently from West Point, without business experience, and unacquainted with the rules of law, and acting under the impression that Mrs. Buckner was the owner of only one-third, made the provision in his will for Mrs. Buckner, with the purpose to declare said trust, and to restore to the control of his sister all the property described in the above deed; that therefore the will is a sufficient declaration in writing of the trust to take it out of the statute of frauds, if it was a trust within its provision, and that said will was legally admitted to probate by the laws of Virginia, by a court having jurisdiction in such matters, and was certified and admitted to record in Illinois in conformity with its laws.

It further alleged:

"And your orators further show that the said Henry W. Kingsbury, on the 23d day of October, 1861, wrote with his own hand a letter to his mother, Jane C. Kingsbury, and signed the same by his signature, 'Henry,' in which, among other things, he wrote:"

" I spent all the morning with Burnside yesterday. He stated, as I told you, that Simon had made over all the Chicago property that was held in his name to me. A new power of attorney is therefore necessary from you and myself. We made one out. I signed it. Burnside will send it to you."

"And they aver that the reference in said letter by the words 'as I told you' was to a conversation between the said Henry W. Kingsbury and his mother, had in their last personal interview before the date of said letter, in which the said Henry W. Kingsbury expressly admitted that he held all the property of your orator, Nary K. Buckner, inherited from her father, in trust for a short time, and said that he would restore it all to her whenever she desired. And your orators show that the only delivery of said deed bearing date Nay 15, 1861, ever made was

Page 134 U. S. 659

the filing of the same for record by the said Simon B. Buckner as hereinbefore set forth."

The relief asked in the cross-bill was that the deed of May 15, 1861, be declared null and void as to Mrs. Buckner; that it be declared a deed of trust to the father of the plaintiff for the use and benefit of the grantors or one of them; that the plaintiff be adjudged to hold the property described in it as a trustee in like manner and required to reconvey to the cross plaintiffs, or to one of them, as may be determined by the court; that an account be taken of the receipts and disbursements from and about the property by the defendants; that the dower rights of Jane C. Kingsbury and Eva Lawrence be ascertained and fixed, and partition made of said real estate, and the property owned by the cross-plaintiffs restored to them as they might be severally entitled thereto, and that they have such other and further relief as was just and equitable.

By an order made November 25, 1870, Corydon Beckwith -- no service of process having been made upon the infant -- was appointed guardian ad litem for Henry W. Kingsbury on the cross-bill. The infant, by him, filed an answer, which distinctly put in issue the material allegations of the cross-bill and restated substantially all that was set out in the original bill. Answers to the cross-bill were also filed by Lawrence and wife. To these answers replications were filed by Buckner and wife.

On the 31st of December, 1870, the cause being heard, it was adjudged that both the original and cross-suits be dismissed without prejudice. It was further ordered that the decree be entered as of the 24th of December, 1870. At the same time, there was filed in the cause a certificate of all the evidence used on the final hearing in the circuit court.

Each party prosecuted an appeal. The case was heard in the supreme court of the state at its January term, 1871, and on the 5th of October, 1871, that court reversed the decree of the circuit court, and remanded the cause, with special directions as to the decree to be entered and for further proceedings. Kingsbury v. Burnside, 58 Ill. 310, 337.

Page 134 U. S. 660

The following extract from the opinion of the court shows the grounds, as well as the extent, of the reversal:

"The late Henry W. Kingsbury was, as this case shows, not only a trustee of the property for his sister, but he was an honest trustee. By the last act of his life in this respect he designed to and did admit the existence of the trust, and endeavored to execute it. Immediately after his death, his widow, one of the defendants, in a letter to the mother of her deceased husband, recognized and admitted the trust, so far as she was concerned, in the most express terms, and seemed distressed at the suggestion of any obstacle to its immediate execution. Though her relations in life and to the cestui que trust became afterwards changed by another marriage, yet it is incredible that if she has been cognizant of the efforts which have been made to conceal the most important item of evidence of her former husband's relation to this vast property, and to wrest it from its proper channel, she can view them otherwise than with feelings of sorrow and regret. Her conduct has been the subject of severe criticism by counsel, but we are inclined to believe that she, like the unconscious infant whose name appears as plaintiff in the original bill, is but the involuntary instrument in the hands of designing men who stand in no such relation to the memory of the deceased trustee as does Eva Lawrence."

"The trust being sufficiently manifested and proved by writings signed by the party who was, by law, enabled to declare it, it must be executed."

"This conclusion renders unnecessary any discussion of the question, made by appellants in the cross-bill, as to the sufficiency of the acknowledgment of the deed by Mary J. Buckner, or of the question made by appellant in the original bill as to the execution and probate of the will, because if properly executed and admitted to probate, the will would be governed by the laws of this state, where the property is situated, and the posthumous birth of the infant Henry W. Kingsbury would, by those laws, operate as an abatement of all devises of property so situated. Gross' Statutes, p. 800, sec. 16, Wills. Besides, the testator was incapable of divesting the property

Page 134 U. S. 661

held in his name for the use of Mary J. Buckner by any devise he could make."

"The decree of the court below dismissing both bills without prejudice must therefore be reversed, and the causes remanded with directions to that court to dismiss the original bill absolutely and to grant the relief prayed in the cross-bill by a decree establishing the equitable title in Mary J. Buckner to her proper share of the real estate described in the deed of May 15, 1861, declaring the trust, and requiring the proper conveyance of the legal title to her, divested of any life estate in her husband, (he having renounced the same), and of all right of dower in Eva Lawrence; that an account be taken between said Mary J. Buckner and all other partes interested in the estate of Julius J. B. Kingsbury, deceased, according to the rules and practice of the court of chancery in such cases, and it be decreed accordingly."

The cause was redocketed in the Circuit Court of Cook County, and on the 13th of November, 1871, in pursuance of the special directions of the Supreme Court of Illinois in its mandate and opinion, the original bill was dismissed for want of equity. It was also ordered and adjudged pursuant to such mandate and opinion that the master in chancery make, execute, acknowledge, and deliver a deed conveying, for Henry W. Kingsbury, the infant defendant to the cross-bill, to Mrs. Buckner, the real estate and premises conveyed by the deed of May 15, 1861, divested of any life estate in her husband.

It was further ordered and adjudged that partition be made between Henry W. Kingsbury and Mrs. Buckner, as tenants in common, of the real estate inherited from Major Kingsbury, one undivided half of which was owned by each, the share of the lots or lands assigned to the former to be subject to the dower rights of Jane C. Kingsbury and Eva Lawrence and the share assigned to Mrs. Buckner to be subject to the dower rights of June C. Kingsbury. It was further adjudged that Eva Lawrence be enjoined from asserting any claim for dower in the property assigned to Mrs. Buckner. The accounting between the parties to the cross-bill, and the costs, and the question in regard to the dower of Mrs. Kingsbury were reserved for the further order of the court.

Page 134 U. S. 662

The commissioners appointed to make partition made their report on the 22d of January, 1872, and the same was confirmed February 12, 1872, except as to that part of the premises known as the "Spencer Tract," in respect to which objections had been filed in behalf of Kingsbury by his guardian ad litem. Under writs of assistance issued in favor of Mrs. Buckner on the 29th of January, 1872, she was placed in possession of the property assigned and confirmed to her. On the 26th of March, 1872, the court sustained a motion for leave to the receiver to pay Mrs. Buckner one-half of all moneys collected by him on policies of insurance. From that order the infant, by his guardian ad litem, prayed and was allowed an appeal to the supreme court of the state. It is stated that the exceptions filed for the infant to the reports were overruled on the second of August, 1872, and a decree entered confirming those parts of them to which exception had been taken and declaring the parties vested with the title to the lands respectively set off and allotted to them, and from that decree the infant, by his guardian ad litem, prayed and was allowed an appeal.

The case was again carried to the supreme court of the state upon the infant's appeal, by his then guardian ad litem (a new one having been appointed), who assigned numerous errors in that court, among which were the following: that the court erred in rendering the decree of November 13, 1871, that it was rendered without proof against the infant and was contrary to law, and that it was not in accordance with the mandate of the court, and was without jurisdiction in the Cook Circuit Court. The remaining assignments related principally to alleged errors in reference to the partition, the report of the commissioners, the distribution of insurance money, and the apportionment of the encumbrances. Upon the hearing of this last appeal, the solicitor representing the infant and his guardian ad litem urged numerous objections to the proceedings in the circuit court, among which were these: that the circuit court had no jurisdiction over the infant to render the decree of November 13, 1871, on the cross-bill of Buckner and wife, and that such decree was rendered without

Page 134 U. S. 663

sufficient proof, was collusively obtained against the infant, and was manifestly unjust. In connection with these general objections, the solicitor of the infant presented many specifications of fraud alleged to have been practiced by the former guardian ad litem of the infant in and about the proceedings culminating in the decree of November 13, 1871. Most of these specifications are again presented in the present suit, and will be hereafter examined.

At the September term, 1872, of the Supreme Court of Illinois, the last decree was reversed, mainly upon the ground that Mrs. Buckner had no interest in what was called the "Spencer Tract." Kingsbury v. Buckner, 70 Ill. 514. In reference to the attempt made upon that appeal to reopen the questions decided on the first appeal, the court said:

"A labored argument has been made to prove the error of the former decision of the court, and it is charged that fraud and collusion were practiced, and incompetent testimony adduced, to obtain it. If this were true, we cannot determine questions so grave upon ex parte affidavits. If there have been fraud and collusion, the proper remedy would be in chancery, and then the parties assailed could have an opportunity of making a defense; or, if the decree is directed by the court of final resort, by an application for a rehearing."

"Upon the former hearing, after full argument, this Court decided that Henry W. Kingsbury held the property conveyed by the deed from Mrs. Buckner and husband to him, as trustee, that the trust had been manifested by a writing, and that she had an equitable title to a share in the estate. The cause was remanded to ascertain her share, and not to determine the trust. The latter had been established by the declaration of this Court. This appeal is prosecuted from the decree making partition, and can bring before us no other question except questions incident to the order for partition. We cannot examine as to the merits of the original case, but only as to proceedings subsequent sequent to the decision at the former hearing. . . . The trust relation between the parties was established by the former decision, and the court has not the power to reverse it. "

Page 134 U. S. 664

A rehearing was granted, and at the September term, 1873, of the supreme court of the state, the following opinion was delivered:

"Per Curiam. A rehearing was ordered in this cause upon the present appeal not for the purpose of reconsidering the case upon the merits or to change or in any substantial sense to modify our former decision, but to render the opinion of the court more explicit and prevent misconception of its meaning. This seems demanded by the peculiar state of the record, which was inadvertently overlooked, and the language employed in the opinion, to which our attention has been called by the application for a rehearing."

"When the cause was before us upon a former occasion, the principal questions involved were definitely settled. The decree of the court below dismissing both the original and cross-bills was reversed and the cause remanded with directions to grant the relief prayed by Mrs. Buckner's cross-bill. 58 Ill. 310. In pursuance of those directions, a decree was entered in the circuit court, November 13, 1871. This decree established the principal rights of the parties, and the court proceeded to carry them into effect, which involved the necessity of entering three subsequent decretal orders, and on August 2, 1872, another and final decree. This decree disposed of a controversy arising between the parties upon proceedings for partition, involving a claim by Mrs. Buckner to a share in what is called the 'Spencer Tract' as a part of her father's estate, and by that decree her claim was allowed, from which an appeal was taken on behalf of the infant, Henry W. Kingsbury, to this court. No appeal was taken from the decree of November 13, 1871, but appeals were taken from some of the decretal orders intervening that and the final decree of August 2, 1872."

"Upon these appeals, the whole record was brought to this Court and errors assigned questioning the propriety of the decree of November 13, 1871, entered in conformity with the directions of this court, some of the intervening orders, and the final decree of August 2, 1872. The questions raised and attempted to be raised were all carefully considered, and the

Page 134 U. S. 665

conclusion arrived at was that no error could be assigned upon the first decree, entered in pursuance of the directions of this court; that the points made upon the intervening orders were not well taken; but that the decree of August 2, 1872, was erroneous, and ought to be reversed, for the reasons given in the opinion. These views, however, are not clearly announced in the former opinion, and it follows also that the directions contained in the opinion which have no relation to the matters involved in the decree of August 2, 1872, are wholly inappropriate, and may be considered as withdrawn from the opinion."

"The judgment which we intended to enter was that the several decrees and decretal orders antecedent to the final decree of August 2, 1872, and upon which error was assigned, be affirmed, but that the decree of August 2, 1872, concerning Mrs. Buckner's claim in the Spencer tract be reversed, and the cause remanded for further proceedings in conformity with the former opinion, as herein explained and modified, and that each party pay half of the costs in this court."

It should be here stated that the present transcript does not contain the decree of August 2, 1872.

On the 7th of March, 1877, the death of Mrs. Buckner was suggested in the circuit court, and her daughter, Lily Buckner, was substituted in her place as a co-complainant in the cross-bill, and on the same day a decree was rendered in conformity with the opinion and judgment of the supreme court of the state annulling so much of the deed executed by the master to Mrs. Buckner as conveyed to her one undivided half of the Spencer tract, and directing a conveyance of that tract to the infant, Henry W. Kingsbury.

The present suit was brought in the Circuit Court of Cook County, Illinois, on the 11th day of August, 1873, for Henry W. Kingsbury, by Eva Lawrence, his next friend, against Simon B. Buckner, Mrs. Buckner, Jane C. Kingsbury, John J. D. Kingsbury, Ambrose E. Burnside, and Corydon Beckwith. As already stated, its object was to obtain a decree declaring the proceedings above referred to to be erroneous, fraudulent, and void as to him, and restoring him to the possession and ownership of

Page 134 U. S. 666

the property embraced by the deed executed May 15, 1861, by Buckner and wife to his father. The bill is lengthy, setting forth substantially all the above steps taken in the suit in the state courts and going very much into detail in respect to the various grounds upon which he bases his claim to relief.

Shortly after this bill was filed, Beckwith, Buckner and wife, and Burnside filed general demurrers, but no further steps were taken in the cause until April 16, 1877, when it was dismissed for want of prosecution. The order of dismissal was, however, set aside, and Buckner and Burnside, having obtained leave to withdraw their demurrers, filed May 17, 1877 (Mrs. Buckner having died), a plea in bar, based upon the bill, cross-bill, pleadings, proceedings, and decrees in the former case. They also filed a joint and several answer. The cause was removed upon the petition of the plaintiff to the Circuit Court of the United States for the Northern District of Illinois, where, upon final hearing, and after replications were filed in behalf of the infant to both the plea an the answer of Buckner and wife, the suit was ordered to be abated as to Mrs. Buckner, the demurrers of Beckwith and Mrs. Kingsbury were sustained, and the bill dismissed for want of equity. This is the decree which has been brought here for review.

Page 134 U. S. 669

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