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clearly the differences on which it rests. An assertion that it does exist is not enough, nor is the argument advanced by a repetition of such assertion, even though made in confident and emphatic terms. What is the rule wherewith we are to determine when a given public use is of a character to warrant the exercise of one power and not the other ? What is the principle to be applied ? No one will contend that the power of eminent domain, and the taxing power, though similar, are in all respects identical, but all agree that neither can be exercised except for a public end. Which is the higher power, or, in other words, which requires the greater public exigency to call it forth? What is the nature of those objects which lie on one side of the line, and what of those upon the other side ? Where is the line to be drawn and what are the reasons that determine its location? These are some of the questions not to be evaded, or met with much speech and ingenious ratiocination, but to be answered fairly and clearly, before a court can say that the legislature have beyond all reasonable doubt transcended their constitutional powers in declaring that a use which is of such character, that is, public in such sense that private property may be taken and appropriated in its behalf, is also a public use in such sense that taxes may be levied in its behalf.

In those cases to which we have been referred by plaintiffs' counsel, where an attempt to do this is made, it does appear to me the failure has been rendered only more conspicuous by the eminent ability of those who have undertaken the task; and after a most careful examination of those cases, if we were to hold that a railroad, being a public use for which the land of individuals may be taken against the owner's consent, is not a public purpose for which taxes may be imposed, I should be utterly at loss what sound reason to give for the distinction, or in what terms to frame a rule to govern the future action of the legislature in cases of a like description.

Unless the court are to stand between the people and their representatives, and declare when the latter have misjudged in their deliberations, and set up limits to the legislative powers of the general court not found in the organic law of the state, it is clear to my mind that this law cannot be annulled by a judicial sentence or decree.

Smith and RAND, JJ., delivered opinions in concurrence.

Supreme Court of the United States.

MUTUAL BENEFIT LIFE INSURANCE CO. v. IIATTIE B. TISDALE.

In a suit by an executor or administrator, the letters testamentary are admissible in evidence and are conclusive of his right to sue.

But in an action between strangers, such letters are not admissible as evidence of the death of the decedent.

In an action by a wife upon a policy of insurance on the husband's life in her faror, letters of administration to her upon his estate are not evidence of the husband's death.

In error to the Circuit Court of the United States for the District of Iowa.

This action was brought upon a policy of insurance, issued to Mrs. Tisdale upon the life of her husband. Evidence was given tending to show the death of Mr. Tisdale on the 24th of September 1866. This evidence consisted chiefly in the sudden and mysterious disappearance of Mr. Tisdale, under circumstances making probable his death by violence. Evidence was given by the defendant tending to show that he had been seen alive some months after the date of his supposed death.

To sustain her case the plaintiff offered in evidence letters of administration upon the estate of her husband, issued to her by the county court of Dubuque county, Iowa. The defendant objected to the admission of this evidence. The objection was overruled and the letters were read in evidence, to which the defendant excepted.

In the charge of the judge, he said: “The real question is whether Edgar Tisdale was dead at the time of issuing the letters of adıninistration. It is incumbent on the plaintiff to prove that fact. She has shown as evidence of that fact letters of administration issued to her as administratrix by the probate judge. It is the duty of the court to instruct you that this makes a primâ facie case for the plaintiff, and changes the burden of proof from the plaintiff to the defendant. *** Without contradictory evidence, these (the letters of administration) give the plaintiff the right to recover." To the charge in this respect the defendant excepted.

The opinion of the court was delivered by

IIUNT, J.-In an action brought, not as administrator, but in an individual character, to recover an individual debt, where the right of action depends upon the death of a third party, to wit, an insurance upon his life, do letters of administration upon the estate of such person, issued by the proper probate court, afford legal evidence of his death? This is the question we are called upon to decide. It is presented sharply, and is the only question in

the case.

The authority in favor of the admission of the letters as evidence of the death of the party, in a suit between strangers, is a general statement to that effect in 1 Greenl. Evid., $ 550. The cases cited by the writer in support of the proposition are Thompson v. Donaldson, 3 Esp. 64; French v. French, Dickens 268; Hamblin's Case, 3 Rob. La. Rep. 130; Jeffers v. Radcliff, 10 N. H. 245. In the case first cited the authority does not support Mr. Greenleaf's statement. It was held tbat the letters did not afford sufficient proof of death, and, no further evidence being given, the verdict was against the claimant. In French v. French the court held in terms against the theory that the letters were evidence of death, “but under all the circumstances admitted the probate as evidence of death.” This case was that of a bill filed by an heir against one in possession of the estate, and in that case Mr. Greenleaf hardly contends that the letters are evidence of death. In Tisdale v. Con. Life Ins. Co., 26 Iowa 177, and in the same case in 28 Iowa 12, cited by the defendant in error, the law was beld as claimed by her. The other cases cited by the defendant in error, including Hamblin's Case, are those where the administrator or executor was a party to the suit in his representative capacity, in relation to which a different rule prevails.

In the New Hampshire case above cited there was evidence to sustain the ruling independently of the letters, and the case concedes that the law is otherwise in England, and bases itself upon the peculiar organization of the courts of that state.

On the other hand, the text-writers-Phillips on Evidence, vol. 2, p. 93, m, ed. 1868; Tamlyn, 48 Law Library 154, referring to Moons v. Des Barnalles ; Hubback on Succession, 51 Law Library 162-concur against the rule laid down by Mr. Greenleaf.

In Moon: v. Des Barnalles, 1 Russell 307, it was held that letters of administration were not primâ facie evidence of death, and the defect was supplied by other evidence. Lord Eldon says, in Clayton v. Graham, 10 Ves. 288, that it is the constant practice to require proof of death, and that probate is not sufficient. In Leach v. Leach, 8 Jur. 211, Sir Knight Bruce refused to order the payment of money upon letters alone, but required other evi. dence. In Blackhan's Care, 1 Salk. 290, it was held that the sentence of the spiritual court in granting letters is not evidence upon any collateral matter which would have prevented the issuing of the letters.

In speaking of judgments in rem, and where the judgment may be evidence against one not a party or privy to it, Mr. Starkie says: “This class comprehends cases relating to marriage and bastardy where the Ordinary has certified sentences relating to marriage and testamentary matters in the spiritual court :" 1 Starkie on Evid. 372, m. What is meant by this is explained at a subsequent place, where he says: “The grant of a probate in the spiritual court is conclusive evidence against all as to the title to personalty, and to all rights incident to the character of an executor or administrator :" p. 374, m. He cites in support of this statement the case of Allen v. Dundas, 3 Term Rep. 125, that payment of money to an executor who has obtained probate of a forged will is a discharge to the debtor. The grant is conclusive in all business transacted as executor, and concerning the duties of the executor, that it was properly made.

This accords with the principle hereafter laid down.

The chief ground of argument to admit letters testamentary as evidence of the death of the party, is that the order of the probate court issuing them, is an order or judgment in rem. But a judgment in rem is not primâ facie evidence; it is conclusive of the point adjudicated unless impeached for fraud: 1 Starkie on Evid. 372, m; Freeman, infra. If admissible on this principle, the letters were conclusive evidence of the death of Tisdale. But this is not claimed by any argument.

Again, the probate court has never adjudicated that Tisdale was dead. Death was not the res presented to it. Shall Mrs. Tisdale receive letters testamentary? was the res, and upon that only has there been an adjudication : Hubback, supra, 162, m.

The letters testamentary issued to an administrator by a probate court, as a general rule, are evidence only of their own existence. They prove, that is to say, that the authority incident to that office or duty has been devolved upon the person therein named; that he has been appointed, and that he is executor or administrator of the party therein assumed to have departed this life. Different states have different provisions as to who may be executor or ad

ministrator, excluding some persons and preferring others, in the order and manner in their statutes specified. Thus, persons convicted of infamous crime are excluded from this office, and persons of notoriously evil lives may be passed by, in the discretion of the probate court. Sons or daughters or widows are entitled to take in preference to others; unmarried women are entitled in preference to married women. Certain notices may be, and usually are, required to be given of the proceedings to obtain letters testamentary. On all this class of subjects the letters are the evidence that the proceedings have been regularly taken, and that the person or persons therein named are those by law entitled to the office. Upon these points the court has adjudicated. No proof to the contrary can be admitted in an action brought by the executor as such. Parties wishing to contest that point, must do it before the probate court, at the time application is made for issuance of the letters, or upon subsequent application, as the case may require.

In an action brought by such executor or administrator touching the collection and settlement of the estate of the deceased, they are conclusive evidence of his right to sue for and receive whatever was due to the deceased. The letters are conclusive evidence of the probate of the will. It cannot be avoided collaterally by showing that it is a forgery or that there is a subsequent will. The determination of the probate court is upon these precise points and is conclusive: 2 Smith's Lead. Cas., 6th Am. ed., 669; Vanderpool v. Van Valkenberg, 6 N. Y. 190; Collins v. Ro88, 2 Paige 396 ; Freeman on Judgments 507, citing numerous cases.

If the present suit were brought by the plaintiff as executor or administrator to collect a debt due to her deceased husband or to establish a claim arising under a will, of which probate had been inade by her, she would have been within these rules. The letters testamentary would not only have been competent evidence, but they would have been conclusive of her right to maintain the action, and unimpeachable except for fraud.

Such, however, is not the case before us. The suit is by the plaintiff as an individual, to recover a debt alleged to be due to her as an individual. It is a distinct and separate proceeding, in which the question of the death of the husband comes up collaterally.

The books abound in cases which show that a judgment upon the precise point in controversy cannot be given in evidence in

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