Snell v. Chicago is a pivotal United States Supreme Court case decided on March 5, 1894. The case revolves around the legal boundaries of corporate authority in transferring franchises and the implications of such transfers on heirs and personal representatives. The primary parties involved are the plaintiffs in error, representing the heirs and executors of Amos J. Snell, and the defendants in error, associated with the Chicago Northwestern Plank Road Company. The core issue addressed by the court was whether the franchising rights transferred to Snell were inheritable, thereby challenging the state’s authority over corporate franchise dispositions.

The U.S. Supreme Court upheld the decision of the Supreme Court of Illinois, dismissing the plaintiffs' claim. The lower court had ruled that the Chicago Northwestern Plank Road Company's conveyance of its franchises to Amos J. Snell constituted only a life estate, not transferring ownership rights to his heirs. Consequently, upon Snell's death, the franchises did not pass to his heirs, affirming that the corporation's authority to dispose of its franchises was limited by the statute under which it operated. The Supreme Court emphasized that the transfer did not violate federal constitutional protections, as there was no deprivation of life, liberty, or property without due process, nor any impairment of contractual obligations as per the Fourteenth Amendment.

The judgment extensively referenced several key precedents to support its conclusions:

• Memphis R.R. Co. v. Commissioners, 112 U.S. 609 (1884): Established that the franchise to exist as a corporation cannot be transferred without explicit legislative authorization.
• Coe v. The Columbus P. I.R.R. Co., 10 Ohio St. 372: Emphasized that certain corporate franchises are inalienable unless specifically permitted by law.
• Stormfeltz v. The Manor Turnpike Co., 13 Penn. St. 555: Highlighted the strict construction of statutes favoring the public in franchise transfers.
• THOMAS v. RAILROAD CO., 101 U.S. 71 (1880); Pennsylvania Railroad Co. v. St. Louis, Alton & Railroad Co., 118 U.S. 290 (1886); Oregon Railway v. Oregonian Railway, 130 U.S. 1 (1889); and Central Transportation Co. v. Pullman Car Co., 139 U.S. 24 (1891): These cases collectively underscored the non-transferability of certain corporate franchises absent explicit legislative or corporate authorization.

These precedents were instrumental in shaping the Court’s understanding of corporate franchise capabilities and limitations, reinforcing the principle that franchises are typically inalienable unless expressly permitted by statute.

The Court's legal reasoning centered on interpreting the statutory authority granted to the Chicago Northwestern Plank Road Company. It dissected the nature of the franchise rights, distinguishing between the corporation’s perpetual succession and the specific powers to transfer franchises. The key points of reasoning included:

• Nature of the Franchise: The Court distinguished between the franchise to be a perpetually existing corporation and the specific franchise to operate a toll road. The former is inherently incommunicable, while the latter, though transferable, was subject to statutory limitations.
• Statutory Authority: Analyzing the 1865 act, the Court concluded that the company's authority to sell its franchises was limited to granting a life estate rather than transferring full ownership that could be inherited.
• Intent of Legislation: The Court inferred that the legislature intended to restrict the perpetuity of franchise transfers to prevent undesired long-term private ownership of public franchises.
• Strict Construction of Favor Public: Upholding the principle that in cases of ambiguity, statutes are construed in favor of public interest, thereby limiting private alienation of public franchises.

Ultimately, the Court determined that the transfer to Snell did not convey full proprietorship but only a life estate, meaning the franchise rights ceased upon Snell's death and did not extend to his heirs.

The decision in Snell v. Chicago has significant implications for corporate franchise law and the interaction between state statutes and corporate powers. The key impacts include:

• Clarification of Franchise Transfer Limits: The ruling clearly delineates the boundaries within which corporations can transfer franchise rights, preventing indefinite or hereditary private control over public franchises.
• Strengthening Public Interest Protections: By restricting the transferability of franchises, the decision serves to protect public interests from potential monopolistic or heritage-based private ownership.
• Influence on Future Legislation: Legislatures may use this precedent to craft more precise statutes governing franchise transfers, ensuring clarity and adherence to public policy objectives.
• Guidance for Corporate Governance: Corporations are guided to seek explicit legislative authorization when intending to transfer significant franchise rights, thereby avoiding legal disputes.

Overall, the judgment reinforces the principle that corporate powers are fundamentally constrained by statutory directives, especially when public interests are at stake.

Franchise: In this context, a franchise refers to the official authorization granted by a government to a corporation to operate a particular service, such as a toll road.

Life Estate: A life estate is a form of property ownership that lasts for the duration of an individual's life. Upon their death, the property reverts to another party or is otherwise disposed of.

Perpetual Succession: This is the capability of a corporation to continue its existence indefinitely, beyond the lifespans of its members or shareholders.

Demurrer: A legal response to a complaint, arguing that even if the facts presented are true, there is no legal basis for a lawsuit.

Writ of Error: A legal procedure for bringing a decision of a lower court into question before a higher court.

Alienation: The transfer of property rights from one party to another.

Snell v. Chicago stands as a fundamental case in understanding the extent of corporate authority in transferring franchises. By affirming that such transfers can be limited to life estates without inheritable rights, the Supreme Court underscored the supremacy of statutory limitations over corporate powers. This decision not only protects public interests by preventing perpetual private ownership of public franchises but also ensures that corporations operate within the bounds of legislative intent. The case serves as a precedent that influences both judicial interpretations and legislative frameworks governing corporate franchises, ensuring a balanced relationship between private entities and public governance.

Case Details

SNELL v. CHICAGO.YEAR: 1894 COURT: U.S. SUPREME COURT

Judge(s)

David Josiah Brewer

Attorney(S)

Mr. Frank J. Crawford and Mr. Sidney Smith for plaintiffs in error. Mr. Harry Rubens and Mr. Edward Roby for defendants in error.

May 25, 2018 

Toll roads cause great irritation with motorists across the country and in Illinois. Proponents argue that the roads are largely self-sufficient and paid for by those who use them, while opponents complain of the high tolls and the restrictions on freedom of movement. One interesting Illinois Supreme Court case in the nineteenth century concerned the inheritance of a Milwaukee Avenue toll road.

Amos J. Snell was a wealthy Chicago landlord with thousands of tenants. In 1870, he purchased the Northwestern Plank-Road toll road. The road was built by the Northwestern Plank-Road Company under an 1849 grant by the state of Illinois. Plank roads were so rough they were also known as corduroy roads, but they were an improvement over rutty dirt roads that instantly turned to mud after a good rain. The state authorized the company to finance the road with toll gates. Toll roads could not operate in the City of Chicago, but the beginning of the toll road — at Fullerton and Milwaukee — was not in the city limits at the time. The toll portion of the road ran all the way to the boundary of Lake and Cook counties, near Wheeling. When Snell bought the road, he improved it with gravel but also erected more toll gates, much to the public's anger.

By the 1880s, Snell was a millionaire with the toll road his most lucrative investment. On February 9, 1888, Snell was awakened by a burglar and murdered in his home. No one was ever charged for the murder, which made the national news, although many suspected Willie Tascott, who disappeared forever. Snell did not leave a will, and his heirs moved to secure his estate, particularly the valuable toll road.

After Snell's death, the city of Chicago, which had extended its boundaries into areas containing parts of the road, began to tear down the toll gates because toll roads were not permissible in the city. Snell’s heirs sued the City of Chicago to prevent the city from removing the gates. Snell's heirs contended that they had the right to operate the toll road because when Snell bought the road, the right to charge tolls was part of the agreement and noted in the sale contract. 

The Superior Court of Chicago ruled for the city, and the Snell heirs appealed to the Illinois Supreme Court, 133 Ill. 413 (1890). Justice Benjamin Magruder, writing for the Court, agreed with the Superior Court judgment, noting that the authority granted by the state to the old company was held by Snell as a life estate and the right to collect tolls could not be passed along forever to Snell's descendants despite what the sales agreement said. The continued authority to charge tolls was contrary to public policy and the ''free and untrammeled use [of roads] belongs to the public.'' Snell’s heirs then appealed to the U.S. Supreme Court, 152 U.S. 191 (1894), which upheld the decision. The Court admitted that Snell might have secured the right to collect tolls perpetually if he had incorporated his business under the law. Failing to do that, he had nothing to pass on after his lifetime.

Milwaukee Avenue has been a “free and untrammeled” road ever since.

Source

This was a suit brought in a state court by Henrietta Snell and Albert J. Stone, administrators of the estate of Amos J. Snell, deceased, and others, to enjoin the city of Chicago and the commissioner of the department of public works thereof from removing a tollgate or interfering with plaintiffs' collection of tolls thereat. The court dismissed the bill, and, plaintiffs having appealed to the supreme court of the state, the decree was there affirmed. 24 N. E. 532. They then sued out this writ of error.

Statement by Mr. Justice BREWER: [152 U.S. 191, 192]   This case is before us on error to the supreme court of the state of Illinois. The record discloses these facts: On December 21, 1888, the plaintiffs in error, as plaintiffs, filed in the office of the clerk of the superior court, of Cook county their bill of complaint, seeking to enjoin the defendants, their officers, agents, and servants, from removing, or attempting to remove, a certain tollgate on Milwaukee avenue, in the city of Chicago, and from interfering with the plaintiffs' collection of tolls thereat. The bill sets forth that on February 10, 1849, the general assembly of the state of Illinois passed an act to incorporate the Chicago Northwestern Plank-Road Company, certain sections of which were quoted. It is unnecessary to refer to these sections in detail; it is enough to say that they provided for the incorporation of a company to construct a plank road, and described the various powers and privileges given to such corporation. The bill then refers to an act of the general assembly dated February 12, 1849, entitled 'An act to construct a plank road,' etc., the twenty-first and twenty-second sections of which, quoted in the bill, purport to incorporate the Northwestern Plank-Road Company, the incorporators of which, as appears from section 21, had a license from the county commissioners' court of Cook county to construct a plank road from the city of Chicago to Oak Ridge, and from thence to Wheeling and the north line of said county. It then quotes the act of the general assembly of the state of Illinois of date March 1, 1854, entitled 'An act to incorporate the Northwestern Plank-Road Company.' This act commences with a preamble which, referring to the act of February 12, 1849, says that doubts exist as to whether, by the twenty-first, twenty-second, [152 U.S. 191, 193]  and twenty-third sections of said act, the Northwestern Plank-Road Company was duly incorporated, and therefore, in the first section, in terms incorporates the Northwestern Plank-Road Company, and by the second section grants to it the powers and privileges, rights, and duties, contained in the sections quoted from the earlier act of 1849. The allegation is that, by virtue of these several acts, the Northwestern Plank-Road Company became duly incorporated and organized as a corporation, and proceeded to, and did, prosecute and complete the construction of the road under the powers and franchises granted. The bill further sets forth that on February 15, 1865, another act was passed by the general assembly of the state of Illinois, which act is set forth in full, and the material sections of which are as follows:

'Sec. 3. The president, by the advice and direction of a majority of the stockholders, may sell to the county of Cook the franchise, the property, and immunities of said company, or to any other party or parties, and thus dissolve said company, and divide the avails amongst the stockholders.'Sec. 4. And be it further enacted, that the board of supervisors of Cook county may purchase such franchise, property, and immunities, and, upon the order of said board, the clerk of said county shall proceed to purchase and receive the deed of title to the same, and should said county fail to purchase the same, any person or persons may purchase the same, and thereby make the same private property.'Sec. 5. The deed of the president of said company to the said county of Cook, or to any other party purchasing, shall be a good and lawful title to the same; provided, always, that all the debts and liabilities of said company shall be paid; provided, further, that the purchaser or purchasers of said franchise and road shall be bound by all the obligations said Northwestern Plank-Road Company is by its charter, and shall enjoy all the rights and privileges enjoyed by said company, and no more.'

On August 5, 1870, the Northwestern Plank-Road Company made a deed to Amos J. Snell. This deed, after reciting the [152 U.S. 191, 194]   incorporation under the act of March 1, 1854, quoting sections 3 and 5 of the act of February 15, 1865, and reciting a meeting of the stockholders on January 5, 1866, closes with this resolution, passed at such meeting, and this granting clause:

'Resolved, by the stockholders of this company, that Thomas Richmond, president, be authorized to sell the plank road, tollhouses, and other property belonging to the company, with the franchise and all its rights and privileges, and give a deed of the same to the purchaser for such sum, and upon such conditions, as he shall deem advisable.'And whereas the said plank-road company is entirely free from debt, now, therefore, I, Thomas Richmond, president of the Northwestern Plank- Road Company, for and in consideration of the sum of twenty thousand dollars ($20,000) to me in hand paid by Amos J. Snell, of Jefferson, in the county of Cook and state of Illinois, do hereby sell, transfer, convey, and set over to the said Amos J. Snell, his heirs, executors, administrators, and assigns, 'all the property of said company, consisting of the charter and its amendments and franchises, the right of way, the grading, the planking, ditches, bridges, and drainages, the tollhouses, gates, teams, implements of work, and being the plank from the old city limits of Chicago aforesaid to the nine-mile post, together with all the property, goods, and chattels of said company, of whatsoever nature or description.''To have and to hold unto the said Amos J. Snell, his heirs, executors, administrators, and assigns, forever.'In witness whereof the said Thomas Richmond, as president, has hereunto signed his name, and affixed the seal of the said Northwestern Plank-Road Company, this fifth day of August, A. D. 1870.'[Corporate seal of the Northw. P. R. R. Co.]

Thomas Richmond,

'Prest. N. W. P. R. R. Co.'

This deed was duly recorded. The bill also alleges that, from that time until his death, Snell continued in the owner- [152 U.S. 191, 195]   ship of said property, and in the actual and exclusive possession, control, and enjoyment thereof, and the undisturbed exercise of all the franchises, rights, and powers which were conferred upon the corporation by said enactments. At this time the plank road, or so much thereof as was constructed, was outside of the corporate limits of the city of Chicago, and during such time Snell erected a tollgate and tollhouse on the southeast corner of Milwaukee avenue and Fullerton avenue, at which place the tolls were collected. It is further averred that on February 8, 1888, Snell died; that the present plaintiffs are his personal representatives and heirs; that on December 10, 1888, the defendants commenced proceedings for the purpose of removing such tollgate, the territorial limits of the city having been duly extended so as to include a part at least of the tollroad, and the part on which the tollgate was situated.

To this bill a demurrer was filed, which on February 6, 1890, was sustained, and, the plaintiffs electing to stand by the bill, a decree of dismissal was entered. On appeal to the supreme court of the state the decision of the superior court was, on the 14th day of May, 1890, sustained, and the decree of dismissal affirmed. 133 Ill. 413, 24 N. E. 532.

Framk J. Crawford, for plaintiffs in error.

Edward Roby, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

By this writ of error we are called upon to review the decision of the supreme court of the state of Illinois; and it is insisted that that decision is in conflict with the clause of the first section of the fourteenth amendment to the national constitution, which declares that 'no state shall deprive any person of life, liberty, or property without due process of law,' and of the tenth section of the first article of that constitution, [152 U.S. 191, 196]  which prohibits a state from passing any law impairing the obligations of contracts.

It is the settled law of this court that to give it jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a rederal question was presented to that court for decision, but also that the decision of the question was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the federal laws or constitution, or that the judgment, as rendered, could not have been given without such decision. Miller's Ex'rs v. Swann, 150 U.S. 132 , 14 Sup. Ct. 52; Eustis v. Bolles, 150 U.S. 361 , 14 Sup. Ct. 131, and cases cited therein.

Guided by the rule thus laid down and long established, we turn to the record, including therein the opinion of the supreme court of the state, to see what in fact was decided. From such inspection it is obvious that there was no decision adverse to the rights vested in the Northwestern Plank-Road Company by its charter. On the contrary, the clear concession in the opinion of the supreme court was that that company had, by its charter, a valid and exclusive franchise in respect to the tollroad, including therein the right to take tolls, and to erect and maintain a tollgate therefor. All the contract rights which it can be claimed passed by the charter to the plank-road company were conceded to have passed to it; and the matter which was determined by that court, and upon which its decision rested, was that the franchises thus vested in the corporation did not pass, by the deed made under the authority of the act of 1865, to Snell and his heirs in perpetuity. It was not denied that those franchises passed to Snell by the deed of August 5, 1870; but the ruling was that such conveyance did not vest in the grantee the franchises as a matter of private property, to pass by inheritance to his heirs.

In order that there may be no misunderstanding of the rulings of the supreme court, we quote at length from its opinion:

'By the act of 1854, Gray, Filkins, Richmond, and their associates became a corporate body, with the right of perpetual succession, etc. This was the franchise of the corpo- [152 U.S. 191, 197]   rators. By the same act the corporate body received the right to construct and maintain a tollroad, and to build tollhouses, and collect tolls. These were the franchises of the corporation. The former franchise-that is to say, the franchise to be a corporation-cannot be transferred without express provision of law pointing out the mode in which the transfer is to be made. Coe v. Railroad Co., 10 Ohio St. 372; Railroad Co. v. Berry, supra, [5 Sup. Ct. 299.] The act of 1865 authorizes the sale of 'the franchise, the property, and immunities' of the plank-road company, and specifies that such transfer is to be made by deed of the president. If the word 'franchise,' as here used, is broad enough to include the franchise to be a corporation, with the power of perpetual seccession, even then Snell was not thereby made a corporation under the old charter. He was merely vested with the 'right to organize as a corporation,' ( Railroad Co. v. Berry, supra;) but such organization never took place. Neither he nor his heirs or representatives are claiming as the corporate successors of the plank-road company. The appellants are claiming as the heirs of Snell, the individual."The franchise of becoming and being a corporation in its nature is incommunicable by the act of the parties, and incapable of passing by assignment.' Railroad Co. v. Berry, supra. If Snell, in his lifetime, was the owner of such franchise by express legislative grant, he could not assign it, and it could not descend to his heirs. He failed to use it for the purpose of effecting any corporate organization, and it died with him. Even if this were not so, his failure to effect said organization within ten days after the constitution of 1870 went into effect rendered it impossible, under section 2 of article 11 of that constitution, to give any validity to an organization made after the lapse of such period of ten days.'If the franchises designated as those which belong to the corporation, as distinguished from the corporators, passed to Snell by the transfer, and if he had the right to maintain the tollhouses transferred to him and to collect the tolls therefrom, did such franchises and right pass to the appellants at his death? The second proviso of section 5 of the act of 1865 [152 U.S. 191, 198]   is as follows: 'Provided further, that the purchaser or purchasers of said franchise and road shall be bound by all the obligations said Northwestern Plank-Road Company is by its charter, and shall enjoy all the rights and privileges enjoyed by said company and no more.' This provision is to be strictly construed in favor of the public, and against the grantee of the privileges in question. Ang. & D. Highw. 357; 1 Mor. Priv. Corp. 323; Stormfeltz v. Turnpike Co., 13 Pa. St. 555. The person who is to 'enjoy all the rights and privileges enjoyed by said company' is stated to be the purchaser of the franchise and road. It is not stated that the purchaser and his heirs and assigns shall enjoy such rights and privileges. If it had been the intention of the legislature that the heirs of the purchaser should succeed to the privilege of collecting tolls and maintaining tollgates, it would have been so specified.'The dissolution of the corporation did away with the right of perpetual succession which attached to the corporate body. By neglecting to organize a corporation with such privilege of perpetual succession, if the power to do so passed to him, Snell failed to preserve the element of perpetuity; but if the right to collect tolls and maintain tollhouses descended to his heirs, and by consequence became inheritable by the heirs of such heirs, then there was a continuation of the perpetuity, which has been abrogated by the dissolution of the corporation. It is true that the deed made by the president of the corporation to Snell conveys to him, 'his heirs, executors, administrators, and assigns;' but the question is not what the language of the deed was, but what the legislature authorized to be put into the deed.'

There can be no mistake as to the scope of this decision. It is that the franchises vested in the plank-road corporation, though passing to Snell by the deed, passed to him, and not to him and his heirs, and that he took by such deed only a life estate. But in this is presented no question of a federal nature, but only of the extent of an authority to dispose of its franchises given by a statute to a corporation. It is assumed that the charter was a valid and binding contract, and [152 U.S. 191, 199]   that by it certain franchises were vested in the Northwestern Plank-Road Company as its absolute property, beyond the power of the state to arbitrarily retake. After the grant of this charter, and after the full investiture of the corporation with these franchises, an act was passed, giving it authority to dispose of them, and the matter which was determined by the supreme court was as to the extent of the authority thus conferred. But in this there is no matter of contract. The state never contracted with the plank-road company that it should have the power to transfer its franchises, nor with these plaintiffs that their intestate and ancestor should acquire an absolute title to these franchises, with an indefeasible estate of inheritance. The mere grant of franchises to a corporation carries with it no power of alienation; on the contrary, the general rule is that, in the absence of express authority, they are incapable of alienation; and many cases have arisen in which an attempted alienation by the corporation has been declared by the courts to be void, as divesting it of the power to discharge the duties imposed by the charter. Thomas v. Railroad Co., 101 U.S. 71 ; Pennsylvania R. Co. v. St. Louis, etc., R. Co., 118 U.S. 290 , 6 Sup. Ct. 1094; Oregon, etc., Nav. Co. v. Oregonian Ry. Co., 130 U.S. 1 , 9 Sup. Ct. 409; Central Transp. Co. v. Pullman's Palace-Car Co., 139 U.S. 24 , 11 Sup. Ct. 478. In the original act of incorporation, no power of alienation was given to the plank-road company. The only authority is found in the act of 1865, and that is a mere grant of a permission to sell. Determining the extent of that permission determines no question of contract, and presents no other matter of a federal nature. If it be true, as decided by the supreme court, that only a life estate passed to Snell, then the plaintiffs have no interest in the franchises, and the demurrer to the bill was properly sustained. This, therefore, is a pivotal question; and having been decided adversely to the plaintiffs, and in it there being no matter of a federal nature, it follows that this court has no jurisdiction, and the case must be dismissed.

Source:

Syllabus

The decision by the highest court of a state that the conveyance by a corporation existing under the laws of the state (and acting in this respect under a statute of the State) to an individual, his heirs, executors, administrators, and assigns, of "all the property of said company,

Page 152 U. S. 192

consisting of the charter and its amendments and franchises," and other enumerated property, and "all the property, goods, and chattels of said company of whatsoever nature or description," passed to him only a life estate in the franchises of the corporation, and that these did not pass to his heirs, presents no question of a federal nature, but only one as to the extent of an authority given by statute to a corporation to dispose of its franchises.

This case is before us on error to the Supreme Court of the State of Illinois. The record discloses these facts: on December 21, 1888, the plaintiffs in error, as plaintiffs, filed in the office of the clerk of the Superior Court, of Cook County their bill of complaint seeking to enjoin the defendants, their officers, agents, and servants, from removing or attempting to remove a certain toll gate on Milwaukee Avenue in the City of Chicago, and from interfering with the plaintiffs' collection of tolls thereat. The bill sets forth that on February 10, 1849, the General Assembly of the State of Illinois passed an act to incorporate the Chicago Northwestern Plank Road Company, certain sections of which were quoted. It is unnecessary to refer to these sections in detail; it is enough to say that they provided for the incorporation of a company to construct a plank road, and described the various powers and privileges given to such corporation. The bill then refers to an act of the General Assembly dated February 12, 1849, entitled "An act to construct a plank road," etc., the twenty-first and twenty-second sections of which, quoted in the bill, purport to incorporate the Northwestern Plank Road Company, the incorporators of which, as appears from section 21, had a license from the County Commissioners' Court of Cook County to construct a plank road from the City of Chicago to Oak Ridge, and from thence to Wheeling and the north line of said county. It then quotes the act of the General Assembly of the State of Illinois of date March 1, 1854, entitled "An act to incorporate the Northwestern Plank Road Company." This act commences with a preamble which, referring to the Act of February 12, 1849, says that doubts exist as to whether, by the twenty-first, twenty-second,

Page 152 U. S. 193

and twenty-third sections of said act, the Northwestern Plank Road Company was duly incorporated, and therefore, in the first section, in terms incorporates the Northwestern Plank Road Company, and by the second section grants to it the powers and privileges, rights, and duties contained in the sections quoted from the earlier act of 1849. The allegation is that by virtue of these several acts, the Northwestern Plank Road Company became duly incorporated and organized as a corporation, and proceeded to, and did, prosecute and complete the construction of the road under the powers and franchises granted. The bill further sets forth that on February 15, 1865, another act was passed by the General Assembly of the State of Illinois, which act is set forth in full, and the material sections of which are as follows:

"SEC. 3. The president, by the advice and direction of a majority of the stockholders, may sell to the County of Cook the franchise, the property, and immunities of said company, or to any other party or parties, and thus dissolve said company, and divide the avails amongst the stockholders."

"SEC. 4. That the Board of Supervisors of Cook County may purchase such franchise, property, and immunities, and, upon the order of said board, the clerk of said county shall proceed to purchase and receive the deed of title to the same, and should said county fail to purchase the same, any person or persons may purchase the same, and thereby make the same private property."

"SEC. 5. The deed of the president of said company to the said County of Cook, or to any other party purchasing, shall be a good and lawful title to the same provided always that all the debts and liabilities of said company shall be paid; provided further that the purchaser or purchasers of said franchise and road shall be bound by all the obligations said Northwestern Plank Road Company is by its charter, and shall enjoy all the rights and privileges enjoyed by said company, and no more."

On August 5, 1870, the Northwestern Plank Road Company made a deed to Amos J. Snell. This deed, after reciting the

Page 152 U. S. 194

incorporation under the Act of March 1, 1854, quoting sections 3 and 5 of the Act of February 15, 1865, and reciting a meeting of the stockholders on January 5, 1866, closes with this resolution, passed at such meeting, and this granting clause:

"Resolved, by the stockholders of this company, that Thomas Richmond, president, be authorized to sell the plank road, tollhouses, and other property belonging to the company, with the franchise and all its rights and privileges, and give a deed of the same to the purchaser for such sum, and upon such conditions, as he shall deem advisable."

"And whereas the said plank road company is entirely free from debt, now therefore I, Thomas Richmond, president of the Northwestern Plank Road Company, for and in consideration of the sum of twenty thousand dollars ($20,000) to me in hand paid by Amos J. Snell, of Jefferson, in the County of Cook and State of Illinois, do hereby sell, transfer, convey, and set over to the said Amos J. Snell, his heirs, executors, administrators, and assigns,"

"all the property of said company, consisting of the charter and its amendments and franchises, the right of way, the grading, the planking, ditches, bridges, and drainages, the tollhouses, gates, teams, implements of work, and being the plank from the old city limits of Chicago aforesaid to the nine-mile post together with all the property, goods, and chattels of said company, of whatsoever nature or description."

"To have and to hold unto the said Amos J. Snell, his heirs, executors, administrators, and assigns, forever."

"In witness whereof the said Thomas Richmond, as president, has hereunto signed his name and affixed the seal of the said Northwestern Plank Road Company this fifth day of August, A.D. 1870."

"[Corporate seal of the Northw. P.R.R. Co.]"

"Thomas Richmond"

"Pres't N.W.P.R.R. Co."

This deed was duly recorded. The bill also alleges that from that time until his death, Snell continued in the ownership

Page 152 U. S. 195

of said property, and in the actual and exclusive possession, control, and enjoyment thereof and the undisturbed exercise of all the franchises, rights, and powers which were conferred upon the corporation by said enactments. At this time, the plank road, or so much thereof as was constructed, was outside of the corporate limits of the City of Chicago, and during such time Snell erected a toll gate and tollhouse on the southeast corner of Milwaukee Avenue and Fullerton Avenue at which place the tolls were collected. It is further averred that on February 8, 1888, Snell died; that the present plaintiffs are his personal representatives and heirs; that on December 10, 1888, the defendants commenced proceedings for the purpose of removing such toll gate, the territorial limits of the city having been duly extended so as to include a part at least of the toll road, and the part on which the toll gate was situated.

To this bill a demurrer was filed, which on February 6, 1890, was sustained, and, the plaintiffs electing to stand by the bill, a decree of dismissal was entered. On appeal to the supreme court of the state, the decision of the superior court was, on the 14th day of May, 1890, sustained, and the decree of dismissal affirmed. 133 Ill. 413.

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Mr. Justice Ricks

delivered the opinion of the court:

On April 16, 1900, the appellants, Mary Snell Stone and Albert J. Stone, her husband, filed a bill in the circuit court of Cook county to set aside the will of Henrietta Snell, deceased. The bill alleges that appellant Mary Snell Stone is a daughter and heir-at-law of Henrietta Snell, and after designating the other heirs-at-law and setting out the will and alleging that the same was duly exhibited in the probate court and letters thereon issued to the executrix and trustees under the will and the trust accepted by them, charg'es that the attesting witnesses did not sign the said will at the request of the testatrix or in her presence or in the presence of each other; that the testatrix did not sign said will in the presence of said attesting witnesses and did not know the nature of the instrument she signed at the time of executing the same, and that at said time the testatrix was not of sound and disposing mind and memory. The bill further alleges that Albert J. Snell, a son of the tes*58tatrix and one of the legatees and devisees under the will, and Frank L. Salisbury, his attorney, who is appointed executor of said will and who drafted the same, used and exercised many undue arts and fraudulent practices and resorted to falsehood and misrepresentation to induce the testatrix to sign said instrument; that the testatrix never read said will or knew its contents, and at the time of the execution thereof was under the improper restraint and undue influence of said Albert J. Snell and Frank L.* Salisbury and was a victim of fraud and compulsion, and that said will is not the will of the testatrix; that subsequently to the signing of said will many erasures and interlineations were made therein; that after said erasures and interlineations were made the said will was not signed by anybody. The prayer of said bill is that said instrument in writing, and the probate thereof, may be set aside and declared null and void and not the last will and testament of said Henrietta Snell; that the said estate of the said Henrietta Snell be distributed among her heirs-at-law, (naming them,) and naming appellant Mary Snell Stone as one of them.

Appellees, Albert W. Adcock, Homer M. Thomas and Frank L. Salisbury, executors and trustees under the will, filed their answer, in which they deny that Mary Snell Stone is the daughter of Henrietta Snell, and deny that she is interested in the estate of said Henrietta Snell or interested in the question of whether the writing produced and admitted to probate is or is not the last will and testament of said Henrietta Snell; deny that any undue influence had been exercised by Frank L. Salisbury and Albert Jerome Snell, and deny all other charges of fraud and misrepresentation alleged in the bill; deny that erasures were made after the will was executed and that the testatrix was of unsound mind, and deny that the appellant Mary Snell Stone is an heir-át-law and a legal representative and daughter of the said Henrietta Snell. The other defendants answered, denying the charges of *59fraud and imposition, and denying that the will in question was-not the true, last will of the testatrix, but neither confessing nor denying the allegation of the bill that appellant Mary Snell Stone is a daughter and heir-at-law of the testatrix, but calling for strict proof in that regard.

To these answers replications were filed and the cause was submitted to trial before a jury. The court, of his own motion, formulated and presented to the jury two issues to be passed upon by them. The first issue submitted was, “Is Mary Snell Stone the daughter of Henrietta Snell?” The second was, “Is the writing" produced in evidence, purporting to be the last will and testament of Henrietta Snell, deceased, the true, last will and testament of said Henrietta Snell, deceased?”

When the case was submitted to the jury for consideration, and at the request of the appellant Mary Snell Stone, four special interrogatories were also submitted to the jury, which, with the answers thereto as found by the jury, were as follows:

1. “Is complainant Mary Snell Stone the daughter of Henrietta Snell, deceased?—No.

2. “Was there any undue influence exercised by Albert J. Snell over .Henrietta Snell, connected with or operating upon and influencing her at the time of the alleged execution of the will in question?—No.

3. “Was there any undue influence exercised by Prank L. Salisbury over Henrietta Snell, connected with or operating upon and influencing her at the time of the alleged execution of the will in question?—No.

4. “Was the said Henrietta Snell, at the time of the execution and attestation of said writing read in evidence, purporting to be the last will and testament of said Henrietta Snell, capable of intelligently comprehending the extent of her property, the disposition she was making of her property thereby, the nature of the claims of others upon her and the effect of the provisions of said alleged will?—Yes.”

*60With these special findings the jury returned their general verdict finding that Mary Snell Stone was not the daug'hter of Henrietta Snell, deceased, and that the writing produced in evidence purporting to be the last will and testament of Henrietta Snell was her last" will and testament. Motion for a new trial was overruled and a decree dismissing' the bill was entered, and this appeal prosecuted.

The record is voluminous, containing about two thousand typewritten pages, and it will be impossible within the limits of this opinion to go into an extended review of all the evidence upon all the questions presented. Nor do we think such course necessary to a proper disposition of the case. In the view we entertain of it the controlling questions lie within comparatively narrow limits.

The testatrix was the widow of the late Amos J. Snell, who came to a violent death February 9, 1888, and from him the testatrix derived the large estate here in controversy. The testatrix and Amos J. Snell were married in 1846, and the undisputed evidence is that the only child that was born of both their bodies between the time of their marriage and 1857 was a male child, who. was born within a year or so after the marriag'e and who lived but about three weeks. In 1857 a son, Albert Jerome, was born; in 1863 a daug'hter, Grace Henrietta, and in 1867 another daughter, Alice Eva, were born. These were the only children born as the issue of the bodies of Amos J. Snell and Henrietta Snell, the testatrix.

On the part of the proponents a large number of witnesses testified relative to the history and supposed parentage of the appellant Mary Snell Stone, and no witness was called to contradict or controvert what these witnesses testified to upon that subject. Their testimony shows that Amos J. Snell and the testatrix settled in Jefferson Park, near the city of Chicago, in the year 1851; that in the year 1853 Partick Hughes and his wife, Anne Hughes, came from Rome, N. Y., to Jefferson Park and *61built a little house upon the land of Amos Snell, where they resided. The party who met them at the train upon their arrival, and who was in the employ of Amos J. Snell, was a witness, and -testified that at the time of their arrival they had with them two little girls, which they represented to be, and who were understood to be and were accepted by all who knew them to be, their children. These girls were named Mary and Rosa. After Patrick and Anne Hughes, with these children, had resided at Jefferson Park two or three years, Anne Hughes, the wife of Patrick Hughes and the supposed mother of these children, died. They were in poor circumstances and Patrick Hughes was advanced in years. A Mrs. Burns, a sister of Anne Hughes, also lived at Jefferson Park at the same time and was a witness in this case upon this question. After the death of Anne Hughes these two little girls were taken by Mrs. Burns, their aunt, and kept for a time, when, by some arrangement between the father, Patrick Hughes, and Amos J. Snell, they were both taken to his (Snell’s) house. The time they were taken to the house of Amos J. Snell is not definitely fixed, and the witnesses (and there were a number of them) state that the child Mary was at that time from five to seven years old. After both these girls had remained at the house of Amos J. Snell for a time, the child Rosa was taken by Brockman Hopkins, who resided at or near Jefferson Park, and from that time the appellant Mary Snell Stone resided in and as a part of the family of Amos J. Snell and took the name of Mary Snell, and by that name she was married from the home of Amos J. Snell, the marriage invitation designating her as the daughter of Amos J. Snell and Henrietta Snell. Mrs. Burns, the aunt of appellant Mrs. Stone, was not in New York at the time of the birth of the latter, but was here in Illinois, and no witness did or could testify to actual knowledge of the parentage of appellant Mrs. Stone, but the story of her being brought from Rome, N. Y., to Jef*62farson Park in 1852 or 1853 by Patrick and Anne Hughes and being known as their child, and of her having lived with them until the death of Anne Hughes and with Mrs. Burns after Anne Hughes’ death, is not disputed or questioned by anybody. It is also shown that after Mary Hughes was taken to the home of Amos J. Snell the latter visited Judge Rucker, the then county judge, as we understand from the record, with a view of having papers drawn for the adoption of appellant Mrs. Stone, but upon arriving at the office of the judge he was found busy and the matter was deferred to some subsequent time. There is no evidence showing that appellant Mary Snell Stone was ever legally adopted by Amos J. Snell, and such is not the claim of appellants.

A family bible was also introduced, which bears date of publication of 1875. In this bible was a family register recording marriages, births and deaths. The register was originally written in the hand of some professional penman, and not by Amos J. Snell or the testatrix or any member of the Snell family. As originally written it contained the entry, “Mary Snell was born March 31, 1851, in the State of Illinois.” The undisputed evidence shows that after this entry was made the testatrix erased the name “Snell” and the word “Illinois” from the register, and in her own hand and after the given name “Mary” wrote the name “Hughes,” and instead of “Illinois” wrote “N. Y.” There was also introduced in evidence, as having belonged to the testatrix, a birthday scripture text book. Under each day of the month this book contained a passage of scripture and a verse and on the opposite page a blank for memoranda. The undisputed evidence discloses that opposite the date March 31, in the handwriting of the testatrix, was the following entry: “Mary Snell, born March 31, 1851, in the State of Ill.” When the entry was made does not appear from the evidence and the book in which it was made has no date of its publication, but the evidence discloses that after this *63original entry was made the testatrix erased the name “Snell” and the word “Ill.” from it and substituted the name “Hughes” and for the State “N. Y.”

The testatrix had a box in a safety deposit vault, and some time prior to her death, the date not being definitely known, she placed therein an envelope with this inscription:

“The pictures of the family; for them to look at and read the contents of the writing; give them to the three children.

Mother.”

The envelope contained two pictures of her son, Albert, one of her daughter Grace, one of her daughter Alice and one of herself. Enclosed with these pictures was the following writing-, in the hand of the testatrix:

“Love each other for me. Grace, treat Albert as a brother. Alice, you treat Albert as a brother. Albert, treat Grace and Alice as your sisters, for me, for me.—Mother.

“This is sacred; don’t pass this by as if it was not worth while to think of. Look over the past and forgive. Your Heavenly Father will forgive you.”

These are the express declarations of the testatrix as to her children, and the manner in which they are named absolutely excludes the idea that there could have been any other. Appellant Mrs. Stone does not seek to overcome this testimony by counter-testimony as to her origin, but urges that the appellees are estopped by certain conduct of the testatrix, and certain legal proceedings to which she was a party, to now deny the fact that she was a daughter of the testatrix.

When Amos J. Snell died, the testatrix petitioned the probate court to grant letters of administration to herself and Albert J. Stone, one of the appellants. In that petition she stated that Amos J. Snell left him surviving Mary Snell as one of his children and heirs-at-law, and in the settlement of his estate she was treated as his child and the same distributive share of his estate given to her as was given to his children Albert J., Grace and Alice; also, after the death of Amos J. Snell the testa*64trix filed a bill for the assignment of her dower and the partition of his lands, in which appellant Mrs.. Stone was designated as one of the heirs-at-law of Amos J. Snell, and pursuant to this a decree was entered upon the petition, and pursuant to the-decree partition deeds were exchanged between the children of Amos J. Snell and appellant Mrs. Stone, and it is particularly urged that in the partition proceedings it was adjudicated that Mrs. Stone was the daughter of Amos J. Snell, and that having been a party to that decree the testatrix was bound by it, and could not by her will, nor could the appellees, as her privies in estate, cast doubt upon the parentage of Mrs. Stone.

It may be first remarked that the property involved in the litigation now at bar is not the property derived by appellant Mrs. Stone through that proceeding, or any part of it, and that by neither this proceeding nor the will in question is it sought to in any manner affect the title to any of the property that passed to appellant Mrs. Stone by virtue of the partition proceedings or the settlement of the estate of Amos J. Snell. The vital question here is, is appellant Mrs. Stone a daughter and heir-at-law of the testatrix? The partition suit was a friendly suit and the matter of heirship was not made an issue or question, nor was there any contest whatever upon that subject, and should have little weight in the present controversy. (Wadhams v. Gay, 78 Ill. 415; Farwell v. Great Western Tel. Co. 161 id. 522.) The most that it can be said these proceeding's, or any act done under them, tended to show was, that appellant Mrs. Stone was the daughter of Amos J. Snell, and the relation that she bore to Mrs. Snell was not in question nor in any manner adjudicated or affected. It is true that if it had been definitely shown that appellant Mrs. Stone was born after the marriage of Amos J. Snell and the testatrix and that she was the daughter of Amos J. Snell, the legal inference favoring legitimacy would be that she *65was also the daughter of testatrix. But this presumption is not a conclusive one, and may be overcome by proof and must give way to the actual facts. Orthwein v. Thomas, 127 Ill. 554.

As to the rule of res judicata here invoked, the' prop-'' erty to be affected by this proceeding- is different and other property than that involved in the suit and proceedings relied upon, and it seems to be well established that before the rule has application in such a case it must appear that the identical question was in fact adjudicated in the former proceeding. The distinction seems* to be, that where the second suit is about the same matter or cause of action, then all matters that could have been, as well as all matters that actually were, put in issue and determined in the former suit are presumed to have been so put in issue, and as to them the rule applies; but when the second action is as to a different cause of action or in reference to a different matter, or relating to different property, then the rule has no application, except as to such matters as were actually in litigation and actually decided in the former proceedings relied upon as res judicata. Riverside Co. v. Townshend, 120 Ill. 9; Cromwell v. County of Sac, 94 U. S. 351.

As we have said, the question was not presented in the partition suit whether Mary Snell Stone was a daughter of Henrietta Snell. It is true that that ques.tion might have been presented by denying that appellant Mrs. Stone was the child of Amos J. Snell in the partition suit, and the proof as shown by this record, and which we presume would have been used if the question had been in controversy, would have shown that she was not the daughter of either Henrietta Snell or Amos J. Snell. But, as is said in the case of Cromwell v. County of Sac, supra: “It is quite right that a defendant should be estopped from setting up in the same action a defense which he might have pleaded but has chosen to let the proper time go by, but nobody ever heard of a defendant *66being precluded from setting up a defense in a second action because he did not avail himself of the opportunity of setting it up in the first action.” And so in this case, in the same action the heirs of Henrietta Snell would have been estopped from bringing forward, as a ground of defense, the fact that Mary Snell Stone was not the daughter of Amos J. Snell, but they are not in a subsequent suit, upon a different cause of action, precluded from availing themselves of such ground in proving Mary Snell Stone is not the daughter of Henrietta Snell.

The will in question was made February 2, 1899, and the testatrix died on the 24th day of February, 1900. In 1895 the testatrix filed a petition under the Burnt Records act to establish title to certain real estate to which it appeared Amos J. Snell had at some time had title. In stating who were the children and heirs of Amos J. Snell the testatrix alleged in her petition that the three children, Albert, Grace and Alice, were his only children and heirs-at-law. She further stated, upon information and belief, that appellant Mary Stone would claim, as an heir-at-law, some interest in the property, and made her a party defendant to the petition, and she was regularly served and brought into court. The decree found that the said three children were the only heirs-at-law of Amos J. Snell, and it would be as reasonable to contend that this proceeding was conclusive upon appellant that she was not a child and heir-at-law of Amos J. Snell, as it is to make the contrary contention from the proceeding in partition.

A number of deeds were made to Mrs. Stone to which the testatrix was a party, as grantor, affecting properties that belonged to the estate of Amos J. Snell, in which the consideration was love and affection, and in some of which Mrs. Stone was mentioned as a child and heir of Amos J. Snell, but in none of these deeds was Mrs. Stone named as the child of the testatrix, and if she had been, we are unable to see why that should conclude the tes*67tatrix in other transactions relating to other property than that conveyed by the deeds. We know of no principle of estoppel that would be applicable, but it would be merely an evidentiary fact tending to show the relationship. The principle of estoppel, as we understand it, only applies to the property conveyed by the deed in which the recital is made, and may be invoked to quiet and establish such title. It is a special application of the rule of estoppel which precludes a grantor in a deed from making any declaration of fact, contrary to the recitals of his deed, which would affect the title conveyed. It is true that the evidence discloses many acts and declarations of both Amos J. Snell and the testatrix showing a very sincere affection for and deep interest in Mrs. Stone. It is but natural that it should be so. Nor are such facts inconsistent with the contention of appellees. Mrs. Stone was the child of neither Amos J. Snell nor of the testatrix. Living in the relation that she did to the family for the number of years shown by the evidence, and taken to the family when there was no child of their bodies in the family, it is neither unreasonable nor unnatural that one or both of them should become greatly attached to her, and permitting her to share in the distribution of the estate of Amos J. Snell was but a recognition of the attachment that he bore and showed toward her; but it does not seem sound to contend that because she was so recognized as a beneficiary of the estate of Amos J. Snell, therefore she must, as a matter of law, be recognized as the child and heir of the testatrix, and be recognized as one interested in her estate and entitled to contest her will.

It is contended that it was improper to submit to the determination of the jury the question-of the jurisdiction of the court, and that it was a matter for the court itself to decide. The court did decide it, but first took, as we think it had a right to do, the advisory verdict of the jury upon the question, which was one of fact. Sec*68tion 40 of chapter 22 of Hurd’s Statutes provides, among other things: “The court may, in its discretion, direct an issue or issues to be tried by a jury, whenever it shall be judged necessary in any cause in equity pending' therein.” This was unquestionably a case in equity. The fact that the statute specifically authorizes the contest of wills in a court of chancery, and directs that an issue at law shall be made up whether the writing produced' be the will of the testatrix or not, which shall be tried by a jury, does notin any other respect distinguish such a case from auy other suit or proceeding in chancery in matters of procedure. The bill in this case alleged that Mary Snell Stone was a child and heir-at-law of and interested in the estate of the testatrix. It alleged all that the statute required, and whether those allegations were true became a question of fact. They were denied in the answer and an issue of fact was thereby tendered. The case is unlike that of Jele v. Lemberger, 163 Ill. 338, where the contestant, Joseph Lemberger, stated on the face of the bill that he was of the empire of Germany. In that case an answer was filed denying the general allegations of the bill, but upon a hearing the relief prayed was granted, and the decree was reversed by this court upon the ground that it appeared upon the face of the bill that the complainant, being a resident and citizen of the empire of Germany, could hot, under the Alien law, inherit, and was not a party in interest, and that the bill should have been dismissed. In Bussell v. Paine, 45 Ill. 350, it is said: “Where the evidence is contradictory, depends upon slight circumstances, the veracity of witnesses is involved, and where the manner, intelligence and relation of witnesses to a case must have their proper weight, it is highly desirable that the issue should be tried by a jury.” The chancellor was not required to submit this question to a jury, and when he saw fit to do so the verdict or finding was advisory, only. It was his duty to render such decree as the law required, under the evi*69dence. He might have disregarded so much of the verdict entirely as related to the capacity of appellant to bring the suit and entered such decree as in his judgement the case demanded, non obstante veredicto. Guild v. Hull, 127 Ill. 523.

It must have been apparent to the chancellor that if the issue as to whether Mary Stone was the child of the testatrix should be settled adversely to the contestant that would terminate the case; that it was one of fact and might involve the testimony of many witnesses. No motion was made by appellant Mrs. Stone to try this issue separately, or to first try the issue as to her right to maintain her bill as a legal heir of the testatrix or as one interested in her estate. So far as the record discloses she voluntarily proceeded with both questions submitted to the jury, and if costs were made upon the issue whether the writing was the will of the testatrix or not, and that evidence became immaterial because the jury and the court found that complainant bore no such relation to the estate of the testatrix, or to the testatrix, as entitled appellant Mrs. Stone to contest the will, she is not now in a position to complain.

In Way v. Way, 64 Ill. 406, which was a divorce proceeding, and in which it was necessary that the complainant make the statutory allegations as to residence, and the allegation was that the complainant was a resident of Chicago, Cook county, Illinois, and answer was filed denying the allegations of the bill, including that of residence, the question of fact was submitted to the jury, and the practice was approved by this court. In that case it was said (p. 408): “In this case the court had jurisdiction if the bill was true. Its truth was denied, and when the complainant failed to sustain his allegations by proof, the question of the jurisdiction of the court for the first time arose.”

Complaint is made that if this decree be allowed to stand it will work great hardship upon appellant Mary *70Stone, as it will cast doubt upon her parentage. We are unable to concur in this view. We think this record fair reestablishes her parentage. But if the contrary be true, appellant Mrs. Stone instituted the suit which raised the controversy, and the consequences must be with her, and not with the courts.

Holding, as we do, that appellant Mary Snell Stone was not a party in interest in the estate of Henrietta Snell, within the meaning of the law relative to contests, and therefore not entitled to prosecute this suit, we deem it unnecessary to examine or pass upon the questions relating to the execution of the will, the disposing mind of the testatrix, and the influences, if any, that operated upon her in making it.

Upon a mature consideration of the entire record we think the decree entered was such as both law and equity

demanded, and it is affirmed.

Decree affirmed.

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