been given on grounds which that section does not make cause for error, as well as on ground which it does so make; Caperton v. Bowyer, 14 Wall. 237, 20 L. 885, and Dewey v. Des Moines, 173 U. S. 199, 200, 19 S. Ct. 381, reaffirm the rule.

Corporations.- Franchises are legal estates, and not mere naked powers conferred on corporations, p. 638.

Reaffirmed in Spring Valley W. W. Co. v. Schottler, 62 Cal. 110, and dissenting opinion in Charlotte, etc., R. R. v. Gibbes. 27 S. C. 404, 4 S. E. 57.

Taxation.— Franchises of private corporations are legitimate subjects of taxation, p. 638.

Cited and principle applied in Ashley v. Ryan, 153 U. S. 445, 38 L. 778, 14 S. Ct. 868, and Hooper v. California, 155 U. S. 652, 39 L. 299, 15 S. Ct. 209, where authorities are collected, and holding State may impose any license tax it deems proper, on a private foreign corporation, the payment of which is a prerequisite to doing business within State; Spring Valley Co. v. Schottler, 62 Cal. 112, reaffirms rule and holds further as to mode for ascertaining value. Cited, arguendo, to this effect, in Farrington v. Tennessee, 95 U. S. 687, 24 L. 560, and Covington Bridge Co. v. Kentucky, 154 U. S. 210, 38 L. 966, 14 S. Ct. 1089. Approved in City of Newton v. Atchison, 31 Kan. 153, 47 Am. Rep. 487, 1 Pac. 289, where statute imposing occupation tax was held valid.

Taxation.- Power of State to tax extends to all objects within sovereign power of State, except the instruments and means of the Federal government, p. 639.

Cited and principle applied in Day v. Buffinton, 3 Cliff. 387, 393, F. C. 3,675, in holding Congress has no power to tax the salary of a State judge. Reaffirmed, arguendo, in North Mo. Ry. Co. v. Maguire, 20 Wall. 62, 22 L. 294. Cited, arguendo, in Sweatt v. Boston, etc., Ry. Co., 3 Cliff. 353, F. C. 13,684, holding railroad corporations not among means of State government over which Congress has no power or jurisdiction.

Distinguished in Dewey v. Des Moines, 173 U. S. 204, 19 S. Ct. 883, holding State's power of taxation is limited to persons, property and business within State, and it cannot make a non-resident personally liable for non-payment of taxes.

Taxation.— Massachusetts statute, requiring corporations having capital stock divided into shares to pay a tax of a certain percentage upon excess of market value thereof over value of its real estate and machinery, imposes a valid franchise tax, p. 641.

Cited and relied on in Home Ins. Co. v. New York, 134 U. S. 605, 33 L. 1031, 10 S. Ct. 597, affirming S. C., 92 N. Y. 341, 343, 345, where State statute, imposing tax on corporation franchises, the same to be measured by the dividends of corporation in each year, was held

valid; Colte v. Mut. Ins. Co., 36 Conn. 527, 528, holding tax on cash capital belonging to mutual insurance companies, was upon company's franchise, not its property; Ryan v. Leavenworth County, 30 Kan. 189, 2 Pac. 160, holding the assessment of tangible property of a corporation does not relieve stockholders from liability to pay taxes on the excess of valuation of entire stock over valuation of tangible property; State v. Telegraph Co., 73 Me. 529, where act for taxation of telegraph companies was held to impose tax on use of property and not on property itself; to same effect, State v. Maine Central Ry. Co., 74 Me. 384, where similar statute, imposing tax on railroad companies, was construed in same manner. Cited, arguendo, in Pollock v. Farmers' Loan Co., 157 U. S. 576, 39 L. 817, 15 S. Ct. 688, and Bartlett v. Carter, 59 N. H. 105, no special application; Pingree v. Auditor-General, Mich. 78 N. W. 1029, 44 L. R. A. 686, in discussing difference between franchise and property tax; St. Charles St. Ry. Co. v. Board, 51 La. Ann. 461, 25 So. 91, as laying down rule for ascertaining value of a franchise.

Distinguished in State v. Stonewall Ins. Co., 89 Ala. 337, 7 So. 753, where a tax on the capital stock of a private corporation was held to be a tax on its property.

6 Wall. 642-719, 18 L. 950, GAINES v. NEW ORLEANS.

Courts. When a will is duly probated by a State court of competent jurisdiction, that probate is conclusive of validity and contents of will in Federal Supreme Court, p. 703.

Cited and relied on in Ellis v. Davis, 4 Woods, 14, F. C. 4,402, holding United States Circuit Court has not original jurisdiction of bill filed by heirs-at-law of testator, to set aside a decree of State Probate Court, admitting a will to probate and record, and recognizing legatee therein named as testator's sole legatee. Cited in collection of authorities in Southworth v. Adams, 9 Biss. 523, 4 Fed. 3, where court held a suit to establish a lost will might be maintained in Circuit Court, the parties being residents of different States. See note, 73 Am. Dec. 55.

Distinguished in Gaines v. Fuentes, 92 U. S. 21, 23 L. 529, holding, where suit to annul a will as a muniment of title, and to restrain the enforcement of a decree admitting it to probate, may be maintained in State court, it may be maintained in Federal court having jurisdiction of parties; Fuentes v. Gaines, 1 Woods, 116, 117, F. C. 5,145, where it is said the above rule was dicta and is not true with regard to wills of realty in many States.

Wills. Probate of will of later date, by mere fact of its probate, annuls a prior will, so far as provisions of the two are inconsistent, and so far as estate was not legally administered under the earlier, p. 704.

Cited, arguendo, in Amory v. Amory, 1 Fed. Cas. 778.

Marriage. Fact of marriage being proved, presumptions of law are all in favor of good faith, p. 707.

Cited, arguendo, in dissenting opinion, in Arnold v. Chesebrough, 58 Fed. 840, 20 U. S. App. 87, and Vincent's Appeal, 60 Pa. St. 245, in discussion as to presumptions of marriage arising from cohabitation and assumption of marital relations.

Marriage.-In Louisiana, if a man bona fide believe a woman free to marry him on account of invalidity of a former marriage, and with such belief marries her, such marriage has its civil effects, and children born of it are legitimate, p. 708.

See note, 46 Am. Dec. 133.

Bastards. A will, made a short time before testator's death, acknowledging a child as his legitimate and only daughter, is strong evidence of her legitimacy, p. 710.

Approved in Metheny v. Bohn, 160 Ill. 268, 43 N. E. 381, in holding parental recognition of child raises presumption of parentage.

Executors and administrators.— Under Louisiana law, in force from 1811 to 1820, executor's sale, made after expiration of year from his appointment, where no order of court was shown, was a nullity and passed no title, p. 712.

Cited for this rule in Gaines v. Lizardi, 1 Woods, 62, F. C. 5,174. Cited, arguendo, in Waggener v. Lyles, 29 Ark. 52, holding, where court has no jurisdiction over subject-matter, all proceedings had thereunder are void and may be impeached collaterally.

Executors and administrators.- It is no defense to a suit to set aside an illegal sale by an executor, that testator's estate was insolvent, p. 713.

Cited in Pulliam v. Pulliam, 10 Fed. 45, F. C. 11,463a, in holding executor cannot protect himself against a breach of trust by showing creditors had remedies against the trust which they did not set up.

Executors and administrators.— Purchaser from executor not having power by law to sell, takes with notice of executor's disability, and cannot be considered a purchaser in good faith of what he supposed was a legal title, p. 717.

Reaffirmed in Gaines v. Agnelly, 1 Woods, 244, F. C. 5,173, Gaines V. New Orleans, 4 Woods, 225, 17 Fed. 23, and Gaines v. Lizardi, 3 Woods, 93, F. C. 5,175, cases growing out of same facts as principal case.

Executors and administrators.- Deed of a sole instituted heir, under Louisiana law, gives no title as against the real and paramount heir, p. 713.

Cited, arguendo, in Hughes v. Burriss, 85 Mo. 667, holding conveyance of land by legatee under will passes no title where will is

subsequently set aside in formal contest; Steele v. Renn, 50 Tex. 481, 32 Am. Rep. 687, holding purchaser in good faith from devisee under a will admitted to probate, gets good title, although will is subsequently annulled as a forgery.

Executor's sale, void by law of State where made, cannot be made valid by subsequent order of Probate Court, p. 714.

Cited, arguendo, in Moore v. Jeffers, 53 Iowa, 208, 4 N. W. 1089, holding judgment of Federal court, authorizing sale of land without providing for redemption in accordance with State statute, is erroneous, not vold. See note, 29 Am. St. Rep. 498.

Estoppel. Where two parties claim adverse titles from same person, neither is at liberty to deny that such person had title, p. 715.

Reaffirmed and followed in Mickey v. Stratton, 5 Sawy. 479, F. C. 9,530, Semple v. Bank, 5 Sawy. 398, F. C. 12,660, and Shepherd v. Northwestern Ins. Co., 40 Fed. 351, where both parties are claiming title under same act of Congress, neither can deny that act applied to land in question; Carson v. Dundas, 39 Neb. 510, 58 N. W. 144, and Dolph v. Barney, 5 Or. 213. Cited, arguendo, in Mooney v. Olsen, 21 Kan. 696, without special application. See monographic note on claimants under common source of title, 47 Am. St. Rep. 75, 76.

Miscellaneous. Referred to incidentally in Gaines v. De La Croix, 6 Wall. 720, 18 L. 967, Davis v. Gaines, 104 U. S. 403, 406, 26 L. 763, 764, Gaines v. Lizardi, 154 U. S. 555, 18 L. 967, 14 S. Ct. 1202, Gaines v. Lizardi, 1 Woods, 57, F. C. 5,174, Fuentes v. Gaines, 1 Woods, 115, F. C. 5,145, Gaines v. Mausseaux, 1 Woods, 118, 121, F. C. 5,176, and Gaines v. New Orleans, 4 Woods, 230, 231, 232, 234, 17 Fed. 26, 27, 28, all cases growing out of same facts as principal case. Erroneously cited in United States v. New Orleans, 17 Fed. 485, 487, Spencer v. Lewis, 39 La. Ann. 317, 1 So. 672, and Louisville, etc., Ry. Co. v. State, 8 Heisk. 788. Cited in Routh v. Routh, 57 Tex. 602, and Morgan v. Morgan, 1 Tex. Civ. App. 318, 21 S. W. 155, in discussion as to rights of wife in community property.

6 Wall. 719-723, 18 L. 965, GAINES v. DE LA CROIX.

Executors and administrators.- Under Louisiana law of 1813, executors could only sell at public auction after due advertisement of property; therefore, sale of testator's property made at private sale was invalid, p. 720.

Executors and administrators.- Purchaser from executor under a will who has strong reasons to believe that a later will, with different executor and making different disposition of property, has been executed, cannot be considered a bona fide purchaser, p. 723.

Distinguished in Davis v, Gaines, 104 U. S. 393, 401, 402, 403, 406, 26 L. 760, 763, 764, where purchase was made under proper order of Probate Court and without knowledge of any facts which would cause one to believe that the will under which sale was made was invalid; Steele v. Renn, 50 Tex. 481, 32 Am. Rep. 607, holding bona fide purchaser under forged will acquires good title.

Miscellaneous.- Cited incidentally in Gaines v. Lizardi, 1 Woods, 57, F. C. 5,174, and Gaines v. Lizardi, 3 Woods, 91, F. C. 5,175, cases growing out of same facts.

6 Wall. 723-739, 18 L. 967, WILLIAMSON v. SUYDAM.

Courts. Decision of New York Court of Appeals on a title to land, involving the legality of a trust, is a rule of property binding on Federal courts, pp. 736, 738.

Cited and relied on in Myers v. Reed, 9 Sawy. 137, 17 Fed. 404, for rule that Federal courts are conclusively bound by decisions of highest court of State in regard to law of real property therein. See note, Burgess v. Seligman, 107 U. S. 34, 27 L 365, 2 S. Ct. 22.

Trusts.—A statute authorizing a court of equity to discharge trustees named in a will and appoint new ones, is valid where passed with knowledge and at request of original trustees, p. 738.

Cited with approval in Tindal v. Drake, 60 Ala. 179, where private act, appointing trustee to execute trust created by deed, was held not to be an invasion of judicial power by legislature. Followed in Williamson v. Moore, 154 U. S. 557, 38 L. 1088, 14 S. Ct. 1216, a case said to present same facts. See monographic note, 19 Am. St. Rep. 272.

6 Wall. 739-741, 18 L. 845, CRAWSHAY v. SOUTTER.

Mortgages.- Where bondholders under a land grant mortgage surrender their bonds to trustees and take other stock and bonds, they cannot be heard to interpose any objection to the confirmation of the sale under the mortgage, p. 741.

Mortgages. Where order of confirmation of sale under mortgage is made subject to payment of bondholder of his bonds, bondholder cannot object to order, p. 741.

No citations.

6 Wall. 742-747, 18 L. 856, MINNESOTA RY. CO. v. ST. PAUL CO.

Railroads.- Mortgage given on a particular division of a railroad, and upon rolling stock of road, held to include all rolling stock of road, not merely such as is used on particular division, p. 745.