Roberts v. Lewis (153 U.S. 367)
On a certificate from the United States circuit court of appeals for the eighth circuit.

This was an action of ejectment, brought June 11, 1887, by Walter F. Lewis against Artemas Roberts, in the circuit court of the United States for the district of Nebraska, to recover possession of six lots in the town of South Lincoln, in the county of Lancaster, and state of Nebraska. The circuit court gave judgment for the plaintiff, and the case was taken by writ of error to the circuit court of appeals for the eighth circuit, which certified to this court the following facts:

On May 10, 1869, Jacob Dawson duly made his last will, which was duly admitted to probate in 1869, after his death, and which, omitting the formal parts, was as follows:

'After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give and bequeath and dispose of as follows, to wit: 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, right and authority to dispose of the same as to her shall seem most meet and proper, so long as she shall remain my widow, upon 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, should go to my surviving children, share and share alike, and in case any of my children should have deceased, leaving issue, then the issue so left to receive the share to which said child would be entitled. I likewise make, constitute, and appoint my said wife, Editha J., to be executrix of this, my last will and testament, hereby revoking all former wills made by me.'

At the time of his death he had a perfect title to the lots in controversy in this suit. On March 15, 1870, Editha J. Dawson conveyed these lots by warranty deed to Paran England, who on December 15, 1871, conveyed them by warranty deed to Roberts, the plaintiff in error. On December 14, 1879, Editha J. Dawson married Henry M. Pickering. On September 15, 1879, the children of Jacob Dawson made a warranty deed of these lots to Hiland H. Wheeler and Lionel C. Burr; and Wheeler and Burr afterwards made a warranty deed thereof to Ezekiel Giles, who, in May, 1887, conveyed them by warranty deed to Lewis, the defendant in error.

While the title in these lots was vested in Giles, as aforesaid, he brought an action, claiming under that title, to recover another lot in the same county, which had belonged to Jacob Dawson at the time of his death, against on Little, who claimed under a deed executed by Editha J. Dawson during her widowhood. That case was brought by writ of error to this court, which held at October term, 1881, that, under the will of Jacob Dawson, his widow only took 'an estate for life in the testator's lands, subject to be diverted on her ceasing to be his widow, with power to convey her qualified life estate only,' and that 'her estate in the land, and that of her grantees, determined on her marriage with Pickering.' Giles v. Little, 104 U.S. 291.

After that decision, but whether before or after the aforesaid deed from Giles to Lewis did not appear, a suit was brought in the district court of Lancaster county, by various grantees of the widow, against Giles, to quiet their title against the title claimed by Giles under the aforesaid deed from the children of Jacob Dawson, and was taken by appeal to the supreme court of Nebraska, which held that the will of Jacob Dawson, under the statutes of the state of Nebraska, enabled his widow, prior to her remarriage, to convey an estate in fee simple in any of the lands whereof her deceased husband had died seised. Little v. Giles, 25 Neb. 313, 41 N. W. 186.

Upon these facts the circuit court of appeals duly certified to this court the following questions or propositions of law:

'First. In determining the nature of the estate that became vested in said Editha J. Dawson under said will of her deceased husband, Jacob Dawson, in and to lands situated in the state of Nebraska, whereof said Jacob Dawson died seised and possessed, should the circuit court of appeals be governed by the decision of the supreme court of the United States in Giles v. Little, 104 U.S. 291, 300, or by the subsequent decision of the supreme court of the state of Nebraska in Little v. Giles, 25 Neb. 313, 334, 41 N. W. 186?

'Second. Did the aforesaid will of Jacob Dawson vest his widow with such an estate in lands whereof the testator died seised, situated in the state of Nebraska, that during her widowhood she could convey to third parties an estate in fee simple therein?

'Third. Should the construction of the will of Jacob Dawson, deceased, which was adopted by the supreme court of the United States in Giles v. Little, 104 U.S. 291, be adhered to by the United States circuit court of appeals for the eighth circuit in determining the right of Walter F. Lewis in and to the property heretofore described, in view of the fact that said Walter F. Lewis purchased said property subsequently to the promulgation of said decision in Giles v. Little, and prior to the decision of the supreme court of the state of Nebraska in the case of Little v. Giles, 25 Neb. 313, 41 N. W. 186?'

N. S. Harwood and John H. Ames, for Roberts.

J. M. Woolworth and Lionel C. Burr, for Lewis.

[Argument of Counsel from pages 369-375 intentionally omitted]

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

Notes
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