Roberts v. Lewis (144 U.S. 653)

STATEMENT BY MR. JUSTICE GRAY.

In this action, brought June 11, 1887, by Lewis against Roberts, in the circuit court of the United States for the district of Nebraska, the petition was as follows:

'Comes now the said plaintiff, and shows and represents unto this honorable court that he is a resident of the city of Milwaukee, in the state of Wisconsin, and a citizen of the said state of Wisconsin, and that the defendant is a resident of the city of Lincoln, in the state of Nebraska, and a citizen of the said state of Nebraska, and that the matters and things herein in controversy exceed the sum and value of two thousand dollars, exclusive of interest and costs.

'(2) The plaintiff further complains of the defendant for that plaintiff has a legal estate in and is entitled to the immediate possession of the following described property, to wit, lots number one, two, three, four, five, and six, all in block number forty-one, in Dawson's addition to South Lincoln, in Lancaster county, Nebraska, and that said defendant has, ever since the 11th day of April, 1887, unlawfully kept, and still keeps, the plaintiff out of possession thereof.

'Wherefore the plaintiff prays that he may have judgment for the delivery of the possession of said premises to him, and for the costs of this action.'

The defendant filed the following amended answer:

'(1) The above-named defendant, for an amended answer to the plaintiff's petition, says that for more than ten years prior to the commencement of this action he had been, and still is, in the open, adverse possession of the premises in controversy.

'(2) Defendant, further answering, denies each and every allegation in said petition contained.'

The parties stipulated in writing that the value of the premises in controversy exceeded $5,000; and the case was tried by a jury, who, by direction of the court, returned a special verdict, finding the following facts:

Jacob Dawson died seised in fee of the premises, leaving a widow and five children; and by his last will, dated May 10, 1869, and duly admitted to probate in Lancaster county, Neb., made the following devise and bequest: 'To my beloved wife, Editha J. Dawson, I give and bequeath all my estate, real and personal, of which I may die seised, the same to be and remain hers, with full power, rights, and authority to dispose of the same as to her shall seem meet and proper, so long as she shall remain my widow, upon the express condition, however, that, if she should marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike.' On December 14, 1879, Editha J. Dawson married Henry M. Pickering. The premises were conveyed on March 15, 1870, by warranty deed, by Editha J. Dawson to one England, and by him on December 15, 1871, to the defendant, who has ever since been in the peaceful occupation and control of the same. The premises were conveyed on September 15, 1879, by warranty deed, by Jacob Dawson's children to Wheeler and Burr; by them, on April 27, 1880, to Ezekiel Giles; and by him, in May, 1887, to the plaintiff.

The jury found that, if the court should be of opinion that under the will Editha J. Dawson took only an estate determinable upon her marriage, then the plaintiff, at the commencement of the action, was seised in fee of the premises, and entitled to the immediate possession thereof, and should recover of the defendant nominal damages; but, if the court should be of opinion that under the will Editha J. Dawson took an estate absolutely in fee, then they found for the defendant.

The circuit court gave judgment for the plaintiff upon the special verdict, and the defendant sued out this writ of error.

Nathan S. Harwood and J. H. Ames, for plaintiff in error.

J. M. Woolworth and L. C. Burr, for defendant in error.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.