Opinion of the Court.

of the testator to provide in, his will for his children, they should be entitled to the same share as in case of intestacy, "unless it shall appear that such omission was intentional." Laws of California, 1850, c. 52, § 17.

In Payne v. Payne, 18 California, 291, 302, the Supreme Court of California, speaking through its then Chief Justice, Mr. Justice Field, said: "The only object of the statute is to protect the children against omission or oversight, which not unfrequently arises from sickness, old age, or other infirmity, or the peculiar circumstances under which the will is executed. When, however, the children are present to the mind of the testator, and the fact that they are mentioned by him is conclusive evidence of this, the statute affords no protection, if provision is not made for them. The inference follows that no provision was intended;" and Terry v. Foster, Wild v. Brewer, Church v. Crocker, and Wilder v. Goss, supra, were cited.

But in the Matter of the Estate of Garraud, 35 California, 336, it was held that evidence aliunde the will was not admissible to show that the omission to make provision for children was intentional, and, in respect to the Massachusetts decisions, the court was of opinion that the words "and not occasioned by any mistake or accident," found in the statute of Massachusetts but not in that of California, were very material, and furnished the real ground for the admission of extrinsic evidence. We do not think so. While those words may strengthen the argument in favor of the admissibility of the evidence, it by no means follows that the construction of the statute should be otherwise in their absence. The evidence which shows that the omission was intentional establishes that it was not through accident or mistake. Action purposely taken by one in the sufficient possession of his faculties, and not induced by fraud or undue influence, excludes in itself the idea of casualty or

error.

We are satisfied that this particular phraseology was used out of abundant caution, as serving to render the proper construction somewhat plainer, and that the construction must be the same, although those words are not used.

Syllabus.

The rule ordinarily followed in construing statutes is to adopt the construction of the courts of the country by whose legislature the statute was originally adopted, but we are not constrained to apply that rule in this instance. The original source of the statute is to be found in the legislation of Massachusetts. The Supreme Court of California declined to treat the received construction in Massachusetts as accompanying the statute and forming an integral part of it, upon a distinction which we do not regard as well drawn. That construction commends itself to our judgment, and we hold that the Supreme Court of the Territory properly applied it.

The evidence was competent, and the judgment must be

Affirmea.

MR. JUSTICE BREWER not having been a member of the court at the time this case was considered took no part in its decision.

CHRISTIAN v. ATLANTIC AND NORTH CAROLINA RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA.

No. 46. Argued October 30, 1889.- Decided January 27, 1890.

A State is an indispensable party to any proceeding in equity in which its property is sought to be taken and subjected to the payment of its obligations.

The State of North Carolina subscribed in 1856 for capital stock in a railway company which had been incorporated by its legislature, issued its bonds with thirty years to run, sold them, and with the proceeds paid its subscription, and received certificates of stock therefor, which certificates it never parted with and still holds. In the act incorporating the company and authorizing the issue of the bonds it was provided that as security for their redemption "the public faith of the State' is hereby pledged to the holders,” “and in addition thereto all the stock held by the State" in the railroad company “shall be pledged for that purpose and that "any dividend" on the stock" shall be applied to the payment of the interest accruing on said coupon bonds." The State being in default in the payment of the interest due on the bonds since 1868, a

Citations for Appellants.

bondholder, who was a citizen of Virginia, brought suit in the Circuit Court of the United States in the Eastern District of North Carolina against the Railroad Company, its president and directors, the person holding the proxy of the State upon the stock held by it, and the treasurer of the State, praying to have the complainant's bonds decreed to be a lien upon the stock owned by the State and upon any dividends that might be declared thereon, and that such dividends might be paid to complainant and to such bondholders as might join in the suit, and for the sale of the stock if the dividends should prove insufficient, and for an account, and for the appointment of a receiver, and for an injunction; Held, that, as the State was an indispensable party to the suit, the bill must be dismissed.

IN EQUITY. Decree dismissing the bill, from which the complainants appealed. The case is stated in the opinion.

Mr. Joseph B. Batchelor and Mr. Samuel F. Phillips, (with whom were Mr. W. H. Lamar and Mr. J. G. Zachry on the brief,) for appellants, cited: Beale v. White, 94 U. S. 382; Wilson v. Boyce, 92 U. S. 320; White Water Valley Canal Co. v. Vallette, 21 How. 414; Barings v. Dabney, 19 Wall. 1; Woodson v. Murdock, 22 Wall. 351; United States v. Union Pacific Railroad, 91 U. S. 72; Ketchum v. St. Louis, 101 U. S. 306; Whitehead v. Vineyard, 50 Missouri, 30; Collins v. Central Bank of Georgia, 1 Georgia, 435; Swasey v. North Carolina Railroad, 1 Hughes, 17; S. C. 71 North Carolina, 571; Ingram v. Kirkpatrick, 6 Iredell Eq. 463; S. C. 51 Am. Dec. 428; Osborn v. Bank of the United States, 9 Wheat. 738; United States v. Peters, 5 Cranch, 115; Curran v. Arkansas, 15 How. 304; Woodruff v. Trapnall, 10 How. 190, 206; Furman v. Nichols, 8 Wall. 44; Bank of the United States v. Planters' Bank, 9 Wheat. 904; Briscoe v. Bank of Kentucky, 11 Pet. 257; Darrington v. Bank of Alabama, 13 How. 9; State v. Stoll, 17 Wall. 425; Elliott v. Vanvoorst, 3 Wall. Jr. C. Ct. 299; Wabash & Erie Canal v. Beers, 2 Black, 448; United States v. Wilder, 3 Sumner, 308; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U. S. 531; Louisiana v. Jumel, 107 U. S. 711; Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446; United States v. Lee, 106 U. S. 196; Vase v. Grant, 15 Mass. 505; Wood v. Dummer, 3 Mason, 308; Upton v. Tribilcock, 91

Opinion of the Court.

U. S. 45; Union Bank of Tennessee v. The State, 9 Yerger, 490; Slaymaker v. Gettysburg Bank, 10 Penn. St. 373; Hutchins v. State Bank, 12 Met. 421; Palmer v. Merrill, 6 Cush. 282; S. C. 52 Am. Dec. 782; Chester Glass Co. v. Dewey, 16 Mass. 94; S. C. 8 Am. Dec. 128; Boston Music Hall Association v. Cory, 129 Mass. 435; Telegraph Co. v. Davenport, 97 U. S. 369; Mechanic's Bank v. Seton, 1 Pet. 299; Morehead v. Western Railroad Co., 96 N. C. 362; Androscoggin Railroad v. Auburn Bank, 48 Maine, 335; Winslow v. Mitchell, 2 Story, 630; Cameron v. McRoberts, 3 Wheat. 591; Hogan v. Walker, 14 How. 29, 36; Payne v. Hook, 7 Wall. 425; Hagood v. Southern, 117 U. S. 52.

Mr. R. H. Battle, for appellees, cited: Robinson v. Hurley, 11 Iowa, 410; S. C. 79 Am. Dec. 497; Kemp v. Westbrook, 1 Ves. Sen. 278; Vanderzee v. Willis, 3 Bro. Ch. 21; Greither v. Alexander, 15 Iowa, 470; Terrell v. Allison, 21 Wall. 289; Robertson v. Carson, 19 Wall. 94; Shields v. Barrow, 17 How. 130; Russell v. Clarke, 7 Cranch, 59, 98; Ribon v. Railroad Companies, 16 Wall. 446; Bank v. Carrollton Railroad, 11 Wall. 624; Williams v. Bankhead, 19 Wall. 563; Poindexter v. Greenhow, 114 U. S. 270; In re Ayers, 123 U. S. 443; Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446; The Siren, 7 Wall. 152; Levey v. Stockslager, 129 U. S. 470; Briggs v. Light Boats, 11 Allen, 157.

MR. JUSTICE BRADLEY delivered the opinion of the court.

The State of North Carolina, by virtue of an act of its legislature, passed 12th February, 1855, and through its board of internal improvement, subscribed for $1,066,600 of the capital stock of The Atlantic and North Carolina Railroad Company, a corporation created by act of the legislature of said State for the purpose of building a railroad from Beaufort to Goldsborough. In order to raise money to pay for this stock, the board of internal improvement, by virtue of the same act, issued the bonds of the State, signed by the governor and countersigned by the public treasurer, each for the sum of five hundred dollars, and in the following form, to wit:

Opinion of the Court.

66

$500.00.

UNITED STATES OF AMERICA.

$500.00. "It is hereby certified that the State of North Carolina is justly indebted to or bearer five hundred dollars, redeemable in good and lawful money of the United States, at the Bank of the Republic, in the city of New York, on the first day of January, eighteen hundred and eighty-six, with interest thereon at the rate of six per cent per annum, payable half-yearly, at the said bank, on the first days of July and January in each year from the date of this bond until the principal be paid, on surrendering the proper coupon hereto annexed. In witness whereof the governor of the

said state, in virtue of power conferred by law, hath signed this bond and caused the great seal of the state to be hereunto affixed, and her public treasurer hath countersigned the same at the seat of government of the said state, this first day of January, eighteen hundred and fifty-six.

Countersigned:

"(Signed) THOMAS BRAGG, Governor.

D. W. COURTS, Public Treasurer.”

"Issued under an act to amend an act entitled An Act to incorporate the Atlantic & North Carolina Railroad Company and the North Carolina & Western Railroad Company, chapter 232."

The act which authorized the issue of these bonds contained the following guaranty of their payment (sect. 10):

"Be it further enacted, That as security for the redemption of said certificates of debt the public faith of the State of North Carolina is hereby pledged to the holders thereof, and in addition thereto all the stock held by the State in the "Atlantic and North Carolina Railroad Company' hereby created shall be pledged for that purpose, and any dividend of profit, which may from time to time be declared on the stock held by the State as aforesaid, shall be applied to the payment of the interest accruing on said coupon bonds; but until such dividends of profit may be declared, it shall be the