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{to enforce or entertain an action upon 191, 2 L.R.A. 779, 14 Am. St. Rep. 344, a judgment rendered under a penal 16 Atl. 651, held that an action would statute of the latter, that is, a statute not lie in Maryland to enforce a judg. which is penal in the international ment recovered in New York under a sense. Although, as already stated, statute which the Maryland court that was not a case in which an action characterized

penal statute. was brought in one state to enforce a While the judgment in this case was judgment recovered in another, but

reversed by the United States Supreme was a suit originally brought in the

Court in (1892) 146 U. S. 657, 36 L. United States Supreme Court by the

ed. 1123, 13 Sup. Ct. Rep. 224, the restate of Wisconsin against a foreign versal was upon the ground that the corporation, to enforce a Wisconsin

New York statute under which the judgment, the argument by which

judgment involved in that case was the court sustained its decision that

rendered was not a penal statute in it would not entertain the action be

the international sense and within the cause the judgment was founded on a

general principle above stated. The penal statute was, in statement at

court clearly assumed throughout least, specifically applied to an action

that the Maryland court would not in one state to enforce a judgment

have been bound to entertain the acrendered in another; and the opinion expressly declares that "the applica

tion upon the judgment if the statute

under which it was rendered had been tion of the rule (that the courts of

a penal one in the international sense. one state or country will not enforce

The passage above quoted from the the penalties of another] to the courts

Pelican Case, beginning, “The applicaof other states and of the United States is not affected by the provisions

tion of the rule," etc., is quoted in the of the Constitution and the act of Con

opinion in the Huntington Case as one

of the principal propositions affirmed gress, by which the judgments of the

in the Pelican Case. That the court in courts of any state are to have such

the Huntington Case did not deny, but, faith and credit given to them in every court within the United States as they

on the other hand, recognized the prin

ciple that a court of one state is not have by law or usage in the state in

bound to enforce a judgment rendered which they were rendered." The court further stated that the only placed beyond a doubt by the follow

under a penal statute of another, is cases cited in the argument which

ing quotation from the opinion: "If a tended to support the view that the courts of one state will maintain an

suit to enforce a judgment rendered

in one state, and which has not action upon a judgment rendered in

changed the essential nature of the another state for a penalty incurred

liability, is brought in the courts of by a violation of her municipal laws are Spencer v. Brockway (1821) 1

another state, this court, in order to deOhio, 259, 13 Am. Dec. 615; Healy v.

termine, on writ of error, whether the Root (1833) 11 Pick. (Mass.) 389; and

highest court of the latter state has Indiana ex rel. Stone v. Helmer (1866)

given full faith and credit to the judg.

ment, must determine for itself wheth21 Iowa, 370; and added that the de

er the original cause of action is penal cision in each of these cases appears

in the international sense.” This view to have been mainly based upon the

of the Huntington Case is further sussupposed effect of the provisions of

tained by the fact that the opinion dethe Constitution and act of Congress clares in effect that the criterion as to the faith and credit due to a

adopted by it as to penal laws in an judgment rendered in another state, international sense would be binding which had not then received a full

upon a Federal court even though the exposition from the United States Su

action was based, not upon a judgment, preme Court.

but immediately upon the statute of Upon the authority of the Pelican the other state; though conceding that Case the Maryland court of appeals it would not be binding upon the state in Attrill v. Huntington (1889) 70 Md. court in such case, it being binding

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upon the state court only when the ac- to the exception that the judgment tion is brought upon a judgment of sued upon in the sister state may be the other state.

inquired into for the purpose of asIn Andrews V. Andrews (1903) 188 certaining whether the tribunal in U. S. 14, 47 L. ed. 366, 23 Sup. Ct. which it was obtained had jurisdicRep. 237, a case on its facts not with- tion, and whether it was obtained in the scope of the note, the court, re- through the enforcement of a penal ferring to the Pelican Case, said: law of the other state; observing fur"This court having concluded that or- ther that it had been held also that its dinarily a penalty imposed by the laws enforcement in a sister state depended of one state could have no extraterri- upon whether the law upon which it torial operation, came then to consider was obtained was repugnant to justice whether, under the due faith and cred- or good morals, or offended the policy it clause of the Constitution, a judg- of the state in which it was sought ment rendered upon a penal statute to be enforced, or was calculated to was entitled to recognition outside of injure such state or its citizens. the state in which it had been ren- In Roller v. Murray (1912) 71 W. Va. dered because the character of the 161, L.R.A.1915F, 984, 76 S. E. 172, cause of action had been merged in the Ann. Cas. 1914B, 1139, also the court judgment as such. In declining to en- assumed obiter that the Pelican Case force a Wisconsin judgment, and in had established an exception in case deciding that, notwithstanding the of a judgment under a statute penal judgment and due faith and credit in the international sense within the clause of the Constitution, the power criterion adopted in Huntington v. Atexisted to look back of the judgment trill (1892) 146 U. S. 657, 36 L. ed. and ascertain whether the claim 1123, 13 Sup. Ct. Rep. 224, supra. which had entered into it was one In Re Neidnig (1908) 123 App. Div. susceptible of being enforced in an- 894, 108 N. Y. Supp. 478, the court deother state, the court, speaking

court, speaking clares generally that there is a wellthrough Mr. Justice Gray, said: [Here recognized exception to the rule that follows the passage already quoted requires full faith and credit to be from the Pelican Case, beginning, "The given to foreign judgments; and that application of the rule,' etc.]"

when the judgment is in the nature of Upon the authority of the Pelican a police regulation of the country Case and the Huntington Case, it was wherein it was made, it has no extraheld in Arkansas v. Bowen (1894) 3 territorial force as a judgment. The App. D. C. 537, that a court of the Dis- judgment in this case, however, was trict of Columbia was not bound, un- rendered in another country, and not der the full faith and credit provision, in another state, so that the full faith to entertain an action upon a judg- and credit clause of the Federal Conment recovered in Arkansas under a stitution did not apply to it. penal statute.

Aside from the earlier cases already The case of Interstate Sav. & T. Co. cited, which were disapproved in the v. Wyatt (1915) 27 Colo. App. 217, Pelican Case, apparently the only case 147 Pac. 444, resembles the Hunting- which has expressly held that a court ton Case, as the court, while holding of one state was bound to enforce a that the statute under which the judg- judgment rendered under a penal statment in question was recovered in the ute of another is Schuler v. Schuler other state was not penal in the sense (1904) 209 Ill. 522, 71 N. E. 16, where of the principle that a court of one the court declared that when a court state or country will not enforce the of a sister state having jurisdiction penal laws of another, and therefore of the persons and of the subject-matthat the action could be maintained on ter has taken cognizance and renderea the judgment, declared generally that a judgment in a sum of money for the the rule that the judgment of one state penalty prescribed or the amound promust be given full faith and credit vided for under a penal statute, a when sued upon in another is subject judgment so rendered is entitled to full faith and credit in every other state, giving to the other party the state, and an action may be main- results of prohibited and criminal acts tained thereon in another state. The

done in another state, is not entitled court does not discuss the question, to be enforced in the state whose laws but cites 2 Black on Judgments, 2d ed. have been violated." $$ 870, 871, which do not appear to Although the question as to what support the decision in its broad

laws are penal in the international scope.

sense and within the principle that The prevailing opinion by Mr. Jus

such laws will not be enforced in an. tice Holmes in Fauntleroy v. Lum

other state or country is not within (1908) 210 U. S. 230, 52 L. ed. 1039, 28 Sup. Ct. Rep. 641, however, not only

the scope of this note, it may be obthrows some doubt upon the Pelican

served that the strict criterion of peCase as authority for the general prin

nal laws adopted by the United States ciple that a court of one state, when

Supreme Court in Huntington v. Atcalled upon to enforce a judgment

trill (U. S.) supra, which makes the of another, may go behind the face character of a law in this regard deof the judgment to ascertain if it was pend upon the question "whether its rendered upon a cause of action the purpose is to punish an offense against enforcement of which would have the public justice of the state, or to been contrary to the public policy of afford a private remedy to a person the former, but also upon its specific injured by wrongful acts,” operates application of that principle to judg- practically to confine within somewhat ments rendered under penal statutes. narrow limits the principle that a He called attention to the fact, already court of one state may decline to enalluded to, that the Pelican Case did

tertain an action upon a judgment renot involve an action in one state upon covered under a penal statute in a judgment recovered in another, but

another, even assuming that that prinwas an original action in the United

ciple has not been impaired by the States Supreme Court by the state of majority opinion in the Fauntleroy Wisconsin upon a judgment recovered

Case; since, as pointed out in the against a foreign corporation for a

Huntington Case, that criterion, alfine or penalty imposed by the Wis

though not binding upon the state consin statute upon corporations do- courts when the action is based iming business within the state and fail

mediately upon the statute, is binding ing to make certain returns, and that

upon the state courts when called upthe ground of the decision was that on, under the full faith and credit prothe original jurisdiction given to the vision of the Federal Constitution, to Supreme Court was confined to "con- recognize or enforce a judgment of troversies of a civil nature,” which the another state. judgment in suit was not; and he Another limitation is imposed upon characterized all that was said on the the principle by the statement in the point in the Pelican Case as a dic- Pelican Case itself: "It is true that if tum.

the prosecution in the courts of one The dissenting opinion of Mr. Jus- country for a violation of its municitice White in Fauntleroy v. Lum, how- pal law is in rem, to obtain a forfeiture ever, apparently assumes that the of specific property within its jurisdicprinciple under discussion with ref- tion, a judgment of forfeiture, renerence to judgments under penal stat- dered after due notice, and vesting utes was established by the Pelican the title of the property in the state, Case, and it is not even overthrown will be recognized and upheld in the by the majority opinion in the case courts of any other country in which at bar. He said in this connection: the title to the property is brought in "If a judgment for a penalty in money, issue [citing cases]. But the recognirendered in one state, may not be en- tion of a vested title in property is forced in another, by the same prin- quite different from the enforcement ciples a judgment rendered in one of a claim for a pecuniary penalty. In the one case, a complete title in the pel the payment by the defendant to property has been acquired by the the plaintiff of money in which the foreign judgment; in the other, fur- plaintiff has not as yet acquired any ther judicial action is sought to com-specific right."

G. H. P.



Illinois Supreme Court - April 15, 1919.

(288 Ill. 91, 123 N. E. 306.)

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Witness - prefacing testimony by "I think."

1. A witness who prefaces his testimony by the words "I think” is taken as testifying to what he remembers.

[See note on this question beginning on page 979.] Evidence will contest who pre- Appeal directing verdict reverspared instrument.

ible error. 2. Evidence of the attesting wit- 5. It is reversible error to exclude nesses as to who prepared the will is all the evidence and direct a verdict in admissible in a proceeding to contest a will contest where there is evidence the instrument.

tending to establish undue influence on Will undue influence fiduciary

the part of the beneficiary. relation.

Evidence letters to show friendship. 3. That a fiduciary relation exists between testator and the chief beneficiary

6. Letters written by testator to the of a will, who prepared and drew the

contestant of his will, six or eight years instrument, establishes undue influ

before testator's death, are not admisence on the part of the beneficiary.

sible in evidence to show a friendly reTrust - fiduciary relation.

lation existing between the parties at 4. Any relation existing between

the time the will was prepared. parties to a transaction wherein one

[See 10 R. C. L. 1147–1149.] of the parties is in duty bound to use letters to destroy will. the utmost good faith for the benefit 7. Letters of a testator are not as a of the other is a confidential or fiduci- rule admissible for the purpose of ary relation.

destroying or invalidating his will.

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APPEAL by complainant from a decree of the Superior Court for Cook County (Sullivan, J.) dismissing a bill filed to set aside the will of his deceased brother. Reversed.

The facts are stated in the opinion of the court.

Messrs. Edwin F. Abbott and C. Hel- only ground upon which appellant mer Johnson for appellant.

relied in the court below, and is reMr. James H. Wilkerson for appel- lying on here, is that the execution lees.

of the will was procured through Duncan, Ch. J., delivered the the undue influence of Frank L. opinion of the court:

Shepard, who was made a benefiThis appeal is prosecuted by Ed- ciary and one of the executors and win F. Abbott, complainant below, trustees in the will. in a bill to set aside the will of his The testator left property valued brother, George B. Abbott, from a at approximately $16,000. One decree dismissing the bill and sus- thousand dollars of his property was taining the will of the testator. The personal property, and the remainder was real estate. By his will he mind and of a strong mentality. bequeathed to Frank L. Shepard all There is no evidence of his being in of his Sons of Veterans and Masonic an enfeebled condition, either menbadges, jewels, decorations, and med- tally or physically. Six years prior als, and all pictures, books, clothes, to the execution of his will he was papers, jewelry, furniture, and per- divorced from his wife, but the recsonal effects. The remainder of the ord does not show that that incident estate, real, personal, and mixed, he affected him in any way whatever. devised and bequeathed to his execu- He was a practising physician, and tors, William T. Church and Frank in 1888 was elected commander in L. Shepard, with directions to con- chief of the Sons of Veterans, and vert the same into money within two served two years. He afterwards years after his death. He then di- spent a few years in Honduras, and rected (1) that they pay to George returned to the United States in Abbott Buckley the sum of $500; 1897. In 1898 Frank L. Shepard (2) that they pay to his brother, Ed- was elected commander in chief of win F. Abbott, "one fourth of the the Sons of Veterans, and the testaremainder of my said estate, less tor was made his national secretary. the sum of $2,000;" (3) that they William T. Church was at this time then divide the residue into three commander of the Illinois division equal parts, and that they pay one of the Sons of Veterans. The three such part each to Mrs. Margaret Ab- had offices in the Tacoma Building, bott Walker, William T. Church, and and, being engaged in the same work Frank L. Shepard, and, in case of in said organization, their assothe death of any one or more of ciation ripened into very strong said three persons, then in such case friendships, which continued until her, his, or their share should pass the death of the testator, June 14, to the heirs at law of such deceased 1917. In 1902 Shepard and Church person or persons. Neither execu- became partners in the law firm of tor was required to give any bond Barker, Church, & Shepard. Church or security as executor. The will and Shepard became partners largewas executed April 8, 1911.

ly through the influence and perThe bill alleged, in substance, suasion of the testator, who therethat the testator at the time of after had a desk in their office, and making his will was ill, and by used the office as it suited his conreason of domestic troubles and of venience, received his mail there, his illness was easily influenced; kept an account with them, and that the will was prepared by Wil- deposited with them his rents, and liam T. Church and Frank L. Shep- sometimes his salary, and this acard, and under their advice and di

count and deposit continued with rection; that they were practising them up to his death. They renlaw as partners in Chicago at the dered a great deal of service for him time the will was executed, and were until the time of his death,-kept his the legal and confidential advisers

accounts, took charge of his money, of the testator, and that they took

received his rents, took care of his advantage of the confidence he re

property, superintended the rebuildposed in them and by undue influ- ing of his houses in 1914, and made ence procured the alleged will to be contracts and paid the bills. Shepexecuted and whereby they were ard was his attorney in 1905 in the made the principal beneficiaries divorce proceedings. One Haynes thereunder. All charges of undue in- represented him in a suit in the fluence were denied in the answer United States court; Church and of appellees.

Shepard being therein consulted as It is disclosed by the evidence that friends, but not as lawyers, as

, at the time the will of the testator Church in his testimony put it. was executed he was fifty-five years They helped him secure his bond in of age, and was possessed of a sound that suit. Shepard and Church rep

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