But, if such a statute would be constitutional, the requirement of a continuance of similar conditions for a time before the statute long enough to make twenty continuous years when taken with the five years following it was a pure advantage to the plaintiff, a further condition which did him only good. It was not argued that the statute was invalid because a less time was allowed to persons in the plaintiff's position than to those whose twenty years should begin to run after the statute went into effect. Similar provisions are common and seem to have been before the court in Terry v. Anderson and Turner v. New York, supra, and in Koshkonong v. Burton, 104 U. S. 668.

Some objection was made to the effect given to a tax deed in the first part of the section. But that is not before us. We see nothing to indicate an intent to go beyond the law. Marx v. Hanthorn, 148 U. S. 172. As to the possibility that the taxes may have been assessed unlawfully, or the recorded deed under which the defendant claims forged, it is admitted that such matters might be proved. As they are public facts, give color to the overt acts done upon the land and must be accompanied by a necessarily conscious omission of the plaintiff to pay taxes or do any acts of ownership, we see nothing to hinder the legislature making them sufficient, prima facie at least, to set the statute running and to put the former owners to a suit.

The act as we construe it does not infringe the Fourteenth Amendment. We understand our construction to agree with that adopted by the Supreme Judicial Court of the State. That court says of the statute, "it is not only not retrospective, but is distinctly made prospective only in its operation, and the reasonable period of five years after the date of the enactment is allowed during which all controversies respecting such titles might be adjusted according to 'the principles and the nature of those facts by means of which those titles had existed' before the passage of the act." Of course if the statute as construed by the state court is constitutional we follow its

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Argument for Appellant.

construction. Tampa Water Works Co. v. Tampa, 199 U. S. 241, 243. We have made some little analysis of the words simply because the state court went into no detail.

Judgment affirmed.

RODRIGUEZ v. VIVONI.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF PORTO RICO.

No. 209. Argued March 14, 1906.-Decided April 2, 1906.

Remote explanations as to the use and meaning of a word will be rejected when the will offers upon its face a different and more obvious one. The words sucesion legitima in the will of a Porto Rican held to mean "issue," and not "lawful heirs."

This court will not consider a claim which was not set up in the bill or in the court below, nor suggested until after the argument in this court.

THE facts are stated in the opinion.

Mr. Fritz v. Briesen, with whom were Mr. Charles M. Boerman and Mr. Stephen M. Hoye on the brief, for appellant: The real point in issue, in determining the proper construction of the will, is whether the words "sucesion legitima" used in the thirteenth, the residuary clause of the will, mean "legal issue" or "legal heirs." If the former, this appeal must fail; if the latter, the complainant is entitled to take as the legal heir of her daughter, Felipa Benecia.

The primary and technical meaning of the words "sucesion legitima" is "legal heirs."

As used in the Spanish Codes and law dictionaries the words "sucesion legitima" have a meaning which may be most nearly expressed by the English words "intestate succession." Escriche, Diccionario Razonado de Legislacion y Jurisprudencia, Paris, 1852, tit. "Sucesion legitima;" Pothier, 8 Euvres (Edited by Bugnet), Paris, 1890, Traité des Succesions, 1;

Argument for Appellant.

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Code of Civil Procedure of 1889 (War Dept. Translation), Art. 912.

See also Civil Code of Porto Rico, 1902 (in Revised Statutes of Porto Rico), §§ 664-666, 886. This Code makes a distinction between legitimate succession, which is that which the law has established in favor of the nearest relatives of the deceased (§ 666 v.) and irregular succession which is that established in favor of certain persons or of the people of Porto Rico in the absence of legal heirs or those instituted by will.

See also Code of Louisiana, New Orleans, 1861, Arts. 871875, where the same distinction is drawn.

It is a peculiar provision of the civil law that, in view of the fact that an heir is liable for all or a share of the debts of the deceased, he may refuse the inheritance altogether. In such a case, he is considered as not being an heir, and as never having been an heir.

Thus by collocation of ideas the words "sucesion legitima" are used to designate those of the nearest relatives who take the inheritance. See Resolution of June 25, 1895, in Alcubilla, Diccionario de la Administration Española, Madrid, Appendix Volume for 1895, page 795, Tit. "Jurisprudencia Hipotecaria y Notarial." The case is also printed in full in Scaevola, 3 Jurisprudencia del Codigo Civil, Madrid, 1901, page 213. See also Century Dictionary, "Succession."

The words "sucesion legitima" are never used in the Code to designate legitimate issue, except in so far as the "sucesion legitima" goes first to the descendants (Art. 930), and, in the absence of descendants, or of their refusal to take, to the ascendants, and in their absence or refusal to take, to the collateral relatives. If, therefore, a deed or will provides that the property is to go to the "sucesion legitima," then, if there are children, it necessarily means the children. But, if there be no children, it means ascendants; and if there be no ascendants, then it means the collateral relatives.

We have an analogous use of the word "heirs" in our law,

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Argument for Appellant.

See Ide v. Ide, 5 Massachusetts, 500; Gifford v. Choate, 100 Massachusetts, 345; Heath v. Hewitt, 127 N. Y. 166.

It is the general rule of the Spanish law that wills are to be construed exactly as they read, unless such construction be a ridiculous one. Law 5, Title 33, Partida 7, of the Laws of Las Siete Partidas. This law has been reënacted in the Civil Code, Art. 675.

The law has been construed in a number of decisions of the Supreme Court of Spain, reported in the Jurisprudencia Civil. Sentence of December 20, 1862, vol. 7, No. 315, p. 787; Sentence of December 11, 1865, vol. 12, No. 439, p. 461; Decision of June 21, 1872, vol. 26, No. 204, pp. 15, 16; Sentence of March 3, 1873, vol. 27, No. 108, p. 395.

The same provisions are found in our law of the construction of wills. The plain meaning of the words used in a will is always presumed to be their meaning, and the burden of proof that they are used in another sense is upon the party claiming so. See Aspden's Estate, Fed. Cas. No. 589; Daley v. James, 8 Wheat. 534; Osborne v. Shrieve, 3 Mason, 391.

It is also invariably so held in the States where the civil law similar to that of Porto Rico is in force, as, for example, in Louisiana and California. Norris v. Hensley, 27 California, 439, 450; Sharpe v. Kleinberter, 7 La. Ann. 264.

In construing a will, the words are to be construed according to their natural import, unless the context evidently points out that in the particular instance there should be some other construction. Sheriff v. Brown, 5 Mackey, 172; In re Hallet, 8 Paige, 378; Puryear v. Edmonson, 4 Heisk, 51. A testator must be presumed to have used words in their ordinary primary sense or meaning. In re Woodward, 117 N. Y. 522. All doubts are to be resolved in favor of the testator's having said exactly what he meant. Cady v. Bunn, 46 N. J. Eq. 131. Where the provisions of the will are clear and simple, no reason exists for taking the testator's words in any other than their natural sense. Wiley v. Lockwood, 86 N. Y. 301; Lovett v. Buloid, 3 Barb. Ch. 137. The question in expounding a

Argument for Appellees.

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will is, not what the testator meant, but what is the meaning of the words used by him. Barrow's Appeal (Pa.), 8 Cent. Rep. 132; Bates v. Woodruff, 123 Illinois, 205.

Provisions relating to fideicommissary substitutions are to be liberally construed, so as to prevent the taking place of the substitution. Pothier, "Traité des Substitution," Works, Paris, 1890, edited by Bugnet, vol. 8, p. 477.

The construction of the words "sucesion legitima” as legal heirs is the one intended by the testator. The will was drawn by a notary public, an officer held in high respect in Porto Rico. and appointed for his knowledge of the law of conveyancing and drafting of wills. The words were therefore used in their technical legal sense.

Mr. N. B. K. Pettingill, for appellees, submitted:

Under both the Spanish and American systems the courts will so construe wills, irrespective of the technical meanings of the words used, as to determine and carry out the real intention of a testator. The rule in our own law is firmly fixed. Robinson v. Portland Asylum, 123 U. S. 707; Kenaday v. Sinnott, 179 U. S. 616.

There are numerous decisions of the Supreme Court of Spain in which almost the same language is used. Cayetano Codina v. Felipe Codina, Sentence of June 30, 1866, Jurisprudencia Civil, vol. 14, p. 237; Romero v. Romero, Sentence of Dec. 10, 1866, Juris. Civ., vol. 14, p. 793.

For meaning of "sucesion legitima" see Dictionary Royal Spanish Academy, p. 932; Lopez, Spanish-English Dictionary, p. 577; Sentence, vol. 61, p. 10, Juris Civ.; Sentence, vol. 51, p. 422, Juris. Civ.

See the American decisions which hold that where the word "heirs" is used by a testator it often.is shown by the context to mean "issue" or "descendants." Randolph v. Randolph, 40 N. J. Eq. 77; Canfield v. Canfield, 118 Fed. Rep. 1 (C. C. A.); Abbott v. Essex Co., 18 How. 202; Barber v. Pittsburg Ry. Co., 166 U. S. 83.