Opinion of the Court.

would, therefore, be prescribed by one year. Art. 3536, Civil Code.

But, furthermore, as stated by the attorney for appellant, the cross-bill "is for the same cause of action" as was originally brought in Cragin v. Lovell, in which judgment was rendered against Cragin in the court below, but on appeal to this court was reversed and ordered to be arrested because the petition set up no cause of action against Cragin, the complainant herein. 109 U. S. 194. The cause of action in that case was the same as in this, and the parties are the same; and while the plea of res adjudicata may not be strictly applicable, because the judgment in that cause was simply arrested and did not, therefore, adjudicate upon the merits of the case, yet a comparison of the cross-bill here and the petition in that case discloses that they are almost, if not entirely, identical, so far as the substance of both is concerned. And, as we held there that "the petition shows no privity between the plaintiff and Cragin," and "alleges no promise or contract by Cragin to or with the plaintiff," it would seem that the same rule should be applied with reference to this cross-bill, even though it is ostensibly an equity proceeding. Ballance v. Forsyth, 24 How. 183; Life Insurance Co. v. Bangs, 103 U. S. 780; Gould v. Evansville & Crawfordsville Railroad, 91 U. S. 526, 534; Alley v. Nott, 111 U. S. 472, and cases cited.

The decree of the court below sustaining the complainant's bill was erroneous, and to that extent is reversed; and with respect to its dismissal of the cross-bill it was correct, and to that extent is affirmed; and the case is remanded to that court with a direction to dismiss the bill with costs.

Statement of the Case.

CORNELL UNIVERSITY v. FISKE.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 1224. Argued April 8, 9, 1890.- Decided May 19, 1890.

Under the will of a testatrix who resided in New York, Cornell University, a corporation of that State, was made her residuary legatee. It was provided in its charter that it might hold real and personal property to an amount not exceeding $3,000,000 in the aggregate. The Court of Appeals of New York having held that it had no power to take or hold any more real and personal property than $3,000,000 in the aggregate, at the time of the death of the testatrix, and that, under the jurisprudence of New York, her heirs at law and next of kin had a right to avail themselves of that fact, if it existed, in the controversy about the disposition of the residuary estate, this court held that such decision of the Court of Appeals did not involve any federal question and was binding upon this court.

This court concurred with the Court of Appeals, 111 N. Y. 66, in holding that, at the time of the death of the testatrix, the property held by Cornell University exceeded $3,000,000, and, therefore, it could not take her legacy.

A federal question was involved in this case, arising under the act of Congress of July 2, 1862, 12 Stat. 503, c. 130, granting lands to the State of New York to provide a college for the benefit of agriculture and the mechanic arts.

The legislation of New York on the subject, in its acts of May 5, 1863, May 14, 1863, April 27, 1865, April 10, 1866, May 4, 1868, and May 18, 1880. and the contract of the State with Ezra Cornell, of August 4, 1866, selling to him the land scrip received by the State from the United States under the act of Congress, did not violate that act.

MR. JUSTICE BLATCHFORD stated the case as follows:

This is a proceeding which originated in the surrogate's court of the county of Tompkins, in the State of New York. John McGraw, a resident of Ithaca, in that county, died May 4, 1877, leaving as his only child and heir Jennie McGraw, who, on the 14th of July, 1880, at Berlin, Germany, intermarried with Willard Fiske, and died September 30, 1881, at Ithaca, her place of residence, after reaching the age of 41, without issue, leaving her husband surviving her. John

Statement of the Case.

McGraw left a last will and testament, which was duly admitted to probate by the surrogate of Tompkins County, and of which his daughter, Jennie McGraw, and Douglass Boardman, and the survivor of them were made sole executors. His daughter, Jennie McGraw Fiske, also left a last will and testament, by which she made Douglass Boardman her sole executor, and which was duly proved and admitted to probate by the surrogate. Excepting about from $130,000 to $150,000 in value, which came to her by devise and bequest from her grandfather, John Southworth, the title to the estate and property which formed the subject of disposition by her will came through the will of her father, John McGraw.

On the 8th of January, 1883, after due citation of all parties interested, there was a judicial settlement of the accounts of Douglass Boardman, as executor of Mrs. Fiske's estate, and a decree entered by the surrogate confirming all payments theretofore made by the executor, and directing the balance of said estate to be paid to Cornell University, as her residuary legatee, and also a decree settling the accounts of said Boardman as surviving executor of John McGraw, and transferring the balance of his estate to the estate of Mrs. Fiske.

On the 6th of September, 1883, on the petition of Willard Fiske, as her surviving husband, the decree settling her estate was opened by the surrogate, and he was permitted to be heard with like effect as if he had appeared on the 8th of January, 1883, such opening being without prejudice to payments made or acts done by the executor in pursuance of her will and of said decree, but leaving the validity and effect of those acts and the rights of the respective parties therein for future adjudication; and on the 24th of October, 1883, a similar order was made opening the said decree of settlement in both estates, on the application of certain persons as the heirs and next of kin to Mrs. Fiske, and also on the application of certain legatees and devisees under John McGraw's will. Proofs were taken, the case was heard by the surrogate in November, 1885, and on the 25th of May, 1886, he made and filed his findings and entered his decision and decree, affirm

Statement of the Case.

ing in all things his original decrees as to the two estates. On the 23d of June, 1886, the several contestants made and served their exceptions to his findings, and duly appealed to the Supreme Court from his decision and decree. They also requested him to make certain findings upon questions of fact, and rulings upon questions of law, some of which requests he granted and some of which he refused, and exceptions were taken to his refusals.

The controversy in the case, so far as it presents itself for our consideration, is between Cornell University on the one side and the husband, heirs at law and next of kin of Mrs. Fiske on the other side. It was provided by section 5 of the charter of Cornell University that it might "hold real and personal property to an amount not exceeding three millions of dollars in the aggregate;" and the material question in dispute is as to whether, at the time of the death of Mrs. Fiske, on the 30th of September, 1881, the university held real and personal property to the amount of three millions of dollars in the aggregate.

Of the findings of fact made by the surrogate the following are the only ones which seem material to the case as it is before us:

"62. The Cornell University has had at all times since its incorporation, and now has legal and corporate capacity to take by gift, grant or devise real property in the States of Michigan, Wisconsin, Iowa, Minnesota, Ohio, Indiana, Kansas and New Jersey, and such is the law in those States respectively concerning foreign corporations like the university.

"63. The Cornell University has legal capacity to take, and did take by devise, all the real property the title to which was in Jennie McGraw Fiske at the time of her death, under her last will and testament, situate in the States of Michigan, Wisconsin, Iowa, Ohio, Indiana and New Jersey."

"66. The absolute title to the whole of the land situated in New Jersey passed under the will of Mrs. Fiske to Cornell University."

"75. At the date of Mrs. Fiske's death, September 30, 1881, Cornell University had, held and owned real and personal

100

Statement of the Case.

property which it derived from the founder and other friends. of the university, or which was purchased with funds furnished by them or with the income of such funds, and which property, September 30, 1881, was, of the value of five hundred and ninety-eight thousand five hundred and eighty-eight and f dollars ($598,588.65) in the aggregate." Then follows a description, by items, of the property thus held and owned by the university, with the separate value of each item, as of September 30, 1881. The last item is as follows: "The farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, $69,683.33."

93. The following is a recapitulation of the findings of fact relating to the property of Cornell University, viz.:

"September 30, 1881, Cornell University had, held and owned the property derived from individuals and described in the foregoing 75th finding of fact, to the amount and value of not exceeding $598,588.65 in the aggregate. At the same time Cornell University had, held and owned the property derived from the nation and State, and described in the foregoing findings, to the amount and value of not exceeding $2,088,012.78 in the aggregate, as follows: Western land contracts, $439,834.22; Western lands, $1,648,178.56; total, $2,088,012.78.

"But under and in pursuance of the Cornell contract of August 4, 1866, the whole net proceeds of the avails of said last-mentioned property, being the proceeds of the sale of said college land scrip or lands located therewith, was at that time due or payable by Cornell University to the State of New York, and the total amount and value of the property had, held and owned by Cornell University, September 30, 1881, over and above its obligations to the State of New York, as defined by said contract, was $598,588.65.

"At that time Cornell University had, held and owned the right to the income, revenue and avails which should be received from the investment of the proceeds of the sale of the lands or the scrip therefor, or any part thereof, granted to the State of New York by the act of Congress entitled "An act