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creditors extraterritorial vitality resting upon principles of comity.

And in Fisher v. Hyde (1801) 3 Yeates (Pa.) 256, it was held that under the principles of reciprocity the court could not respect the discharge of an insolvent debtor by a New York court under its law, if the courts of New York did not pay regard to discharges given under laws of Pennsylvania by the courts of that state.

So, in Wabash R. Co. v. Fox (1901) 64 Ohio St. 133, 83 Am. St. Rep. 739, 59 N. E. 888, 9 Am. Neg. Rep. 593, it was held that a statute of Indiana, providing that in an action brought by a citizen of that state as an employee of a railroad operating a line in that and another state, to recover for an injury inflicted in such other state, the decisions or statutes of such other state shall not be pleaded or proven as a defense, does not comply with an Ohio statute requiring, as a prerequisite for the entertainment of an action in that state for wrongful death outside of the state, that it be shown that the state where the injury occurred would enforce the statute of Ohio of like character as the Indiana statute for wrongful death. The court said that there was no "ground for saying that our statute (§ 6134a) is satisfied by the mere entertaining by the courts of another state of a cause of action for death occurring in our state. Such is not the language of the law. It is not the entertaining of the suit that is stipulated for, but enforcement of our statute of like character. This means that it is the law of Ohio which the sister state will enforce, not necessarily the law of that state; for, where there is an essential difference, as has already been pointed out, it cannot be said that by enforcing their own law the court of the other state is enforcing our statute. Our statute rests upon the ground of reciprocity, which is based upon the idea of comity, and the very essence of reciprocity implies that each state, as to the subject-matter, shall have and enforce identical laws; not simply provisions which may be in many respects similar, but in all essential particulars the same. It seems to us clear that

the laws of Indiana, while they permit the bringing of actions in the courts of that state to recover for death occurring in another state, require the determination of the rights of the parties by the provisions of their own laws, but do not enforce the laws of the state where the injury was committed."

So, in Re McCoskey (1888) 22 Abb. N. C. 20, 1 N. Y. Supp. 782, it was held that comity between the states does not help a nonresident legatee avoid a tax imposed by a statute of the forum, on legacies passing by will of a resident of the forum, because the state of residents of the legatee does not impose such a tax for comity means, generally, reciprocity, and there is no reciprocal relation on this subject between the forum and the state of the resident of the legatee.

A few cases in recognizing and giving effect to rights acquired under laws of another country or state have been influenced by the recognition accorded by such sovereignty to similar rights acquired under the laws of the forum.

Thus, in Ritchie v. McMullen (1895) 159 U. S. 235, 40 L. ed. 133, 16 Sup. Ct. Rep. 171, in an action on a Canadian judgment, it was held that an answer setting up the same defenses which were pleaded and might have been tried in the trial court, and which attempted to reopen and try anew the whole merits, cannot be allowed, since by the law of England, prevailing in Canada, a judgment of an American court, under like circumstances, would be allowed full and conclusive effect.

So, in Cruz v. O'Boyle (1912; D. C.) 197 Fed. 824, the court, in an action to enforce a Mexican judgment, in holding that the judgment would be enforced, gave as a reason the fact that in Mexico the system of reciprocity was adopted as the governing principle in enforcing judgments of a foreign country.

And see also Alaska Commercial Co. v. Debney (1904) 2 Alaska, 303, where the court based its recognition of a Canadian judgment on the ground of reciprocity (quoting and citing from Hilton and Ritchie Cases).

And in Gallup's Appeal (1904) 76 Conn. 617, 57 Atl. 699, it was held that a statute of Connecticut directing the exaction of a succession tax on personalty within the state, but belonging to a nonresident, added to the force of example the influence of reciprocity by directing the state treasurer not to collect the tax, where the decedent resided in a state which does not collect a transfer or succession tax from personal property therein, belonging to the estates of Connecticut decedents.

There are a number of courts which have expressly refused to make reciprocity a test for their recognition of rights required under foreign laws.

Thus, in Johnston v. Compagnie Generale Transatlantique (1926) 242 N. Y. 381, 46 A.L.R. 435, 152 N. E. 121, the court held that it was not bound by Hilton v. Guyot (1894) 159 U. S. 113, 40 L. ed. 95, 16 Sup. Ct. Rep. 139, supra, but that it would recognize a judgment acquired under foreign laws against the plaintiff in the present action, and the sufficiency of the evidence establishing such judgment, without reference to the rules of evidence laid down by the courts of the United States, since comity, requiring the recognition of such judgments, rests not on the basis of reciprocity, but rather upon the persuasiveness of the foreign judgments.

And in Cowans v. Ticonderoga Pulp & Paper Co. (1927) 219 App. Div. 120, 219 N. Y. Supp. 284, it was held that as a general rule a judgment recovered in a foreign country, when sued upon in the courts of New York, is conclusive, so far as to preclude a retrial of the merits of the case, subject, however, to certain well-recognized exceptions, namely, where the judgment is tainted with fraud, or with an offense against the public policy of the state, or the foreign court had not jurisdiction, and there is no further exception where the foreign court refused to recognize a judgment of another country as prima facie proof of liability only, and a Quebec judgment is, therefore, recognized as conclusive in New York, the court saying that to hold the Quebec judgment as prima facie proof 50 A.L.R.--3.

only would be in conflict with the policy and laws of New York, the court of appeals in Johnston v. Compagnie Generale Transatlantique (N. Y.) supra, having refused to accept the holding of Hilton v. Guyot.

So, in Means v. Hapgood (1837) 19 Pick. (Mass.) 105, it was held that where an assignment of money is made by a citizen of Maine for the benefit of creditors of that state, the assignee has better title than attaching creditors of Massachusetts, even though, in a similar case in Maine, the court decided that a similar assignment made in Massachusetts was invalid, when opposed by an attaching creditor of Maine, for, while "such operation is given to acts done in other jurisdictions as they give to like acts done in ours, upon consideration of comity," yet, "we think it would be carrying this principle too far, to take a single case, decided several years ago,-a case the authority of which, in point of law, has been repeatedly doubted in this state, and consider it as conclusive evidence of the existing law of that state, and thus make it the basis of a decision which would not be adopted if the same act had been done in another state."

Likewise, in Wabash R. Co. v. Hassett (1908) 170 Ind. 370, 83 N. E. 705, it was held that the fact that the courts of Illinois were not permitted to entertain a suit based upon a foreign statute, to recover damages for death by wrongful act, did not affect the jurisdiction of the Indiana court, or control its policy, and that this fact of itself would not compel Indiana courts to adopt a retaliatory procedure, and refuse to enforce a remedy given by the wrongful death statute of Illinois.

And in The Pesaro (1921; D. C.) 277 Fed. 473, where a commercial vessel of the Italian government was arrested in an admiralty court of the United States, Mack, J., who delivered the opinion, said that he did not base his refusal to grant immunity to the vessel on the fact that ships owned and operated for commercial purposes by the United States government would not be exempt from ordinary process un

der Italian law. He assigned as his reason that "retaliation and reprisal are for the executive branches of our government, and not for the courts," and that "the doctrine of reciprocity in Hilton v. Guyot (U. S.) supra, should not be extended to a case involving the very jurisdiction of the court." On a subsequent retrial in (1926; D. C.) 13 F. (2d) 468, the conclusion of Judge Mack was reversed, Judge Augustus N. Hand who delivered the opinion of the court, holding that the admiralty courts of the United States did not have jurisdiction over the Italian ship. Judge Hand seems to have proceeded upon the presumption that Judge Mack based his decision partly on the fact that the Italian government would not extend like immunity to ships of the United States government operated by it for commercial purposes, whereas, as before noted, Judge Mack expressly stated that his decision denying immunity was not by reason of the failure of the Italian government to reciprocate in that regard. The decision of Judge Hand was affirmed by the United States Supreme Court in (1926) 271 U. S. 562, 70 L. ed. 1088, 46 Sup. Ct. Rep. 611, without reference to the question of reciprocity.

In Direction Der Disconto-Gesellschaft v. United States Steel Corp. (1924; D. C.) 300 Fed. 741 (affirmed in (1925) 267 U. S. 22, 69 L. ed. 495, 45 Sup. Ct. Rep. 207), it was held that the doctrine of reciprocity was confined to foreign judgments alone, and that the court would not refuse to recognize the seizure of German-owned stock of a New Jersey corporation in

the United Kingdom by the public trustee, without a showing that the United Kingdom extends a like recognition to seizures made in the United States. The court said: "The point depends upon a misunderstanding of the effect of the case of Hilton v: Guyot (U. S.) supra. Whatever may be thought of that decision, the court certainly did not mean to hold that an American court was to recognize no obligations or duties arising elsewhere until it appeared that the sovereign of the locus reciprocally recognized similar obligations existing here. That doctrine, I am happy to say, is not a part of American jurisprudence. It is true that a judgment creates a debt, and is, indeed, an instance of the general principle. But it is a most especial instance, and no generalizations may properly be drawn from it. A judgment involves the direct action of a court against individuals, and offers more excuse for national jealousy than when the obligation arises from laws of general application. So far as I know, the doctrine of reciprocity has been confined to foreign judgments alone, and has no application to situations of this sort. Moreover, it is a doctrine in supposed protection of the nationals of the forum. On what theory citizens of a foreign state may invoke it, I cannot understand. These plaintiffs are German citizens, and it would scarcely lie in their mouth to complain, even had it affirmatively appeared that the courts of England would not recognize similar captures made of shares under our own statutes. Much less must it be shown that they would so recognize them."

W. S. C.

SUSANNE DE CHARETTE, II, by Guardian ad Litem, et al., Appts.,

V.

ST. MATTHEWS BANK & TRUST COMPANY et al.

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1. The primary purpose of the Declaratory Judgment Act is to relieve

(214 Ky. 400, 283 S. W. 410.)

litigants of the common-law rule that no declaration of rights may be judicially adjudged unless a right has been violated for the violation of which relief may be granted.

[See annotation on this question beginning on page 42.]

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validity

infant

[See 27 R. C. L. 783; 4 R. C. L. Supp. 1766.] Judgment, § 36 not served. 3. A judgment is void as to an infant defendant, though a guardian ad litem be appointed, where no process was served and no warning order issued, under a statute which declares that "no appointment of a guardian ad litem shall be made until the defendant is summoned, or until a person is summoned for him."

[See 14 R. C. L. 285 et seq.; 3 R. C. L. Supp. 207; 4 R. C. L. Supp. 894.] Judgment, § 178 estoppel - person

not party.

4. Creditors of one whose right to land under a will is determined under a Declaratory Judgment Statute cannot claim any right under the judgment to maintain that it was conclusive between the parties thereto, where they were not parties, or privies to parties, to the action, the general rule that estoppels must be mutual being applicable and not changed by the Declaratory Judgment Statute, which provides that no declaration shall prejudice the rights of persons not parties to the proceedings.

[See 15 R. C. L. 956; 4 R. C. L. Supp. 1026; 5 R. C. L. Supp. 860; 6 R. C. L. Supp. 938.]

Judgment, § 178 who are privies.

5. Mortgagees of one claiming an interest in a will are not entitled to the benefit of a judgment subsequently secured by the mortgagor, construing the will in his favor, where they are not parties to the action, since they are not privies of the mortgagor.

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Wills, § 247 devise of life estate. 8. A life estate, and not an estate in fee, is given in the excepted tract by a will devising all testator's real estate in fee, except a farm which is to be held in trust, with direction that the rents and profits should be paid the devisee, or that she should have a right to live thereon and, with the trustees, manage the farm, where there is a provision for its disposition after her death; and the power granted to her to dispose of the farm by will does not convert the life estate into an estate in fee, since the disposition by will can only be made in execution of the power granted.

[See 17 R. C. L. 620, 624; 3 R. C. L. Supp. 714, 715; 4 R. C. L. Supp. 1143; 5 R. C. L. Supp. 953; 6 R. C. L. Supp. 1026; 28 R. C. L. 238, 239; 5 R. C. L. Supp. 1522; 6 R. C. L. Supp. 1713. See also annotation in 36 A.L.R. 1177.] Wills, § 247 effect of power of disposition by will.

9. A power of disposal of property by will conferred upon a life tenant does not create a fee or enlarge the estate of the life tenant.

[See 17 R. C. L. 624; 3 R. C. L. Supp. 715; 4 R. C. L. Supp. 1143; 5 R. C. L. Supp. 953; 6 R. C. L. Supp. 1026; 28 R. C. L. 238; 5 R. C. L. Supp. 1522; 6 R. C. L. Supp. 1713. See also annotation in 36 A.L.R. 1177.] Trusts, § 114 validity with statute effect.

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conflict

10. A will denying a life tenant power to alien, sell, or encumber the property is not invalid under a statute

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APPEAL by certain defendants from a judgment of the Circuit Court for Shelby County in favor of cross petitioner and overruling a demurrer to a petition and amended petition filed for foreclosure of a mortgage and other relief. Reversed.

The facts are stated in the opinion of the court.
Messrs. M. J. Holt, W. W. Jesse, and
Warren T. Godfroy for appellants.

Messrs. W. Pratt Dale and Barret &
Nettelroth for appellees.,

Hobson, C., filed the following opinion:

On August 11, 1923, Sue T. Henning executed to the bank of Shelbyville, and a large number of other creditors named therein, a mortgage on all her property real and personal in consideration of their extending the time of payment of their respective debts, and agreeing to prosecute no action against her before January 1, 1925. One tract of the land, known as Allendale, covered by this mortgage was held by Mrs. Henning under the will of Bettie Meriwether. On April 23, 1924, Sue T. Henning filed her petition in equity in the Henry circuit court, praying a construction of Mrs. Meriwether's will under the Declaratory Judgment Act (Acts 1922, chap. 83). She made defendants to the petition her daughter Marquise de Charette, her granddaughter, Susanne de Charette, the only child of her daughter, and E. B. Beard and J. D. Dick, who were her trustees under Mrs. Meriwether's will. Marquise de Charette

A

filed a demurrer to the petition. The trustees filed answer. The circuit court overruled the demurrer. It was also alleged in the petition that Theodore Allen, etc., contingent remaindermen under Mrs. Meriwether's will, had conveyed their interest in the property to Mrs. Henning. A copy of the deed was filed with the petition. guardian ad litem was appointed for the infant, who lived in France, but no warning order or other process was issued. The guardian ad litem filed answer, and, the case being submitted, the court on April 25, 1924, entered judgment that Sue T. Henning took a fee in Allendale, and discharged the trustees. An appeal was prayed, but none appears to have been prosecuted. On July 1, 1924, Mrs. Henning executed a deed of trust to the St. Matthews Bank & Trust Company for the purpose of securing the payment of $60,000 in bonds; the trustees agreeing to apply the money collected on the bonds to the pro rata satisfaction of the debts of Mrs. Henning. On January 5, 1925, the Bank Shelbyville and the Logan Grocery Company, two of the creditors named in the mortgage

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