(dissenting in No. 2342). Pursuant to mandate of this court, a decree was entered in the court below on April 28, 1922, construing Davis’ will, codicil, and deed of trust, as creating a resulting trust for his next of kin in the residue of his estate. 275 P. 513. That decree stands unmodified, unreversed, but unobeyed for 7 years. It is res adjudieata of this controversy. In important aspects, the question in this case is whether valid decrees of the federal courts are enforceable in this circuit.
The admission to probate, 11 years after Davis’ death of the deed of trust as part of his will, made no difference in the construction of the three instruments, taken together. The legal construction of the deed (probated) is precisely the same as when this court construed it in 1921. The ninth clause of his will simply added the residue of the testamentary estate to the trust fund, all of whieh was subject to the donor’s control as to revocation or modification, in .any manner he chose, not merely (as' the majority of the Rhode. Island court held) in testamentary fashion.
In the majority opinion it is stated that the probate of the deed as part of the will created a new state of facts “calling for the application of other and different principles of law.” What “other and different principles of law” are thus made applicable is not stated. None can be stated. The primary rule of construction of. any written instrument is to determine, from the language used, the purpose of the maker of the instrument. The mere admission to probate of an instrument makes no difference whatsoever in that problem. This court and the Court of Appeals in the Second Circuit determined that Davis’ purpose in reserving power to revoke or modify the trust deed was to retain full control of the entire trust estate during his life, without regard to the Statute of Wills. That purpose was not changed by the action of the Rhode Island court in admitting the deed to probate. It remains the clearly stated purpose of the creator of this trust. The probate of the deed as a part of his will is an utterly immaterial change in the facts bearing on the construction of the three instruments.
The reasoning of our decision in 275 F. 513, and the like reasoning of the Court of Appeals in the Second Circuit in Boal v. Metropolitan Museum, 298 F. 894, remain unaffected, either by the probate of the deed as part of the Davis will (Merrill v. Boal, 47 R. I. 274, 132 A. 721, 45 A. L. R. 830), or by the subsequent construction of the same three instruments by a bare majority of the Supreme Court of Rhode Island in Merrill v. Atwood, 48 R. I. 72) 135 A. 402.
The fatal defect in the reasoning of the opinion of my Associates is that it confuses probate jurisdiction with equity jurisdiction, in whieh this court had, and exercised, jurisdiction, long prior to that of the Rhode Island court, to construe the same instruments. Calling a deed part of a will, and admitting it to probate, does not affect the problem of its construction or cut down the power of change therein to conform,to the Statute of Wills. The dissenting opinions of. Judge Sweeney (concurred in by Judge Stearns) are a sufficient commentary on the proceedings of the Rhode Island court, in whieh a bare majority overruled probate court and superior court — four state judges to three, besides overruling a prior decision of that court, holding the three instruments not to constitute a will. Davis v. Mahson (R. I.) 102 A. 714; Merrill v. R. I. H. T. Co., 45 R. I. 276, 120 A. 748, 750.
Federal courts have always exercised, in equity, jurisdiction to construe wills and enforce rights of nonresidents as against funds in the hands of executors and administrators. If their jurisdiction is the one first assumed over a controversy arising out of the construction of a will, their decree's are final and enforceable. Cornue v. Ingersoll (C. C. A.) 176 F. 194, and cases cited. Compare Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599; Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Yonley v. Lavender, 21 Wall. 276, 22 L. Ed. 536; Byers v. McAuley, 149 U. S. 608, 13 S. Ct. 906, 37 L. Ed. 867; Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80.
The decree of April 28, 1922, construing the will, codicil, and deed of trust, so long as it stands unmodified and unreversed, must be enforced, even if it were -wrong. Deposit Bank v. Frankfort, 191 U. S. 499, 24 S. Ct. 154, 48 L. Ed. 276. But (I repeat) that decree stands as correct under the decision of this court and the like decision of the Court of Appeals in the Second Circuit in Boal v. Metropolitan Museum, supra.
The decree is, as held by this court in Cornue v. Ingersoll, supra, a ptoeeeding quasi in rem and enforceable against the possessor of the estate. Subsequent intervention of the appellants in the Rhode Island probate pro*25eeedings has no bearing on their rights under the unreversed and unmodified deeree of April 28, 1922. The doctrine that a court in possession of the res always has exclusive jurisdiction as to the disposition of that res was emphatically negatived by the Supreme •Court in a unanimous decision as late as April 9, 1929, in the ease of Riehle, Receiver, v. Margolies, 49 S. Ct. 319, 73 L. Ed.-. In that case, Mr. Justice Brandéis states the doctrine as follows: “The establishment of a claim constituting the basis of the right to participate -in the distribution of property in the possession of one court is often conclusively determined by a judgment obtained in another court. Thus, a judgment of a Federal epurt may establish conclusively the fact which entitles one to share in a decedent’s estate in course of administration in a State court. Yonley v. Lavender, 21 Wall. 276, 22 L. Ed. 536; Hess v. Reynolds, 113 U. S. 73, 5 S. Ct. 377, 28 L. Ed. 927; Byers v. McAnley, 149 U. S. 698, 629, 13 S. Ct. 906, 37 L. Ed. 867; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 39 S. Ct. 19, 54 L. Ed. 89.”
It follows that the deeree of distribution, made without regard to the outstanding unreversed and unmodified deeree of the federal court, was nothing but defiance of the Federal courts — a plain ease of contempt.
In the majority opinion it is stated that the decision of this court of October 24,1921, “was premature,” and that “it has since appeared that this court was in error and there is no principle of equity jurisprudence which would eompel us to enforce an unjust and inequitable deeree based upon an erroneous state of facts.”
Construed in the light of the historie facts, nothing could be more plainly wrong. Davis died on February 23, 1915. His will and codicil were duly probated on April 5, 1915. In 1919 Mrs. Atwood, a resident of Massachusetts, brought her suit to establish her rights to a resulting trust in the residue of Davis’ testamentary estate, obtaining a final decision in her favor in October, 1921. Her right to resort to the federal court for the enforcement of her rights was absolute. The duty of the court below, and of this court, to entertain her suit‘was mandatory. The jurisdiction was not taken “in error,” nor was the decree “unjust and inequitable.” It was the necessary legal construction of the three instruments. As pointed out by the Court of Appeals for the Second Circuit in Boal v. Metropolitan Museum, 298 F. 894, 991: “The courts have no power to make a will for him [Davis], and they have no right to divert his estate from the channels in which the statute of distributions prescribes that it shall go.” Rights under statutes of distribution are based on recognition of the family as the most important unit of our society. The right to cut off heirs by will has apparently always been limited in communities deriving their codes from the civil law. Garcia v. Fantauzzi (C. C. A.) 29 F.(2d) 524, and statutes and eases cited. The statutory right to make a will cutting off the testator’s whole family, except his wife, is peculiar to common-law communities. It is not a right to be extended by strained construction. Compare General Laws of Massachusetts, c. 117, §§ 6-12, providing that kindred shall be bound to support their poor relatives.