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eral circuit court of a suit to set aside the fendant were alleged to be citizens of the state probate, even assuming that such notice is es- of Washington. The remaining averments sential to the preliminary probate, where the were, in substance, that the defendant Marie bill proceeds on the theory, which finds support in the law of the state, that, despite the Carrau, confederating with certain named mere preliminary admission to probate, there relatives, had manufactured a pretended nunremained a right to assail the existence of cupative will of John Sullivan, in favor of the will and its probate, which was not lost said Marie Carrau, under which will she by the failure to give notice.

was claiming to be the sole legatee and 4. The assertion that, because real estate

cannot be devised by a nuncupative will, the devisee of all his property. The will purattempt of a probate court to exert authority ported to have been made about 11 o'clock over property of that character by admitting on the night previous to the death of Sullisuch a will to probate deprived the heirs of van, in the presence of Marie Carrau and her such property without due process of law, relatives, and the testamentary words emcannot give a Federal circuit court jurisdiction to pass upon the construction and effect ployed, or the substance thereof, were alof such will, where this question is wholly leged to be the following: subordinate to the determination of another "I want you to remember and witness that question, of which that court had no juris- I will all my property and personal effects, diction, such as the nonexistence of the will worth many thousands of dollars, to be the and the consequent invalidity of its probate.

money and property of your sister, Marie [No. 193.]

Carrau. I am sick, and we know not what

might happen.” Argued and submitted April 4, 5, 1905. De- It was averred that, on the application of cided May 29, 1905.

the defendant Carrau, and after the appoint

ment of O'Brien as general administrator, PPEAL from and Certiorari to the the alleged nuncupative will was admitted

United States Circuit Court of Appeals to probate, and, at the time of the filing of for the Ninth Circuit to review a decree the bill, stood, as illegally probated, on the which reversed a decree of the Circuit Court records of the superior court of King county, for the Northern Division of the District of state of Washington. It was, however, Washington, in favor of complainants in a charged that the said superior court, in assuit to set aside the probate of a will in a suming to probate said nuncupative will, state court, and remanded the cause with acted wholly without jurisdiction in the directions to dismiss the bill. Appeal dis- premises, for the reason that the estate bemissed and judgment affirmed on writ of queathed exceeded the value of $200, and becertiorari.

cause no legal citations had been issued out See same case below, 60 C. C. A. 347, 125 of said court, and ten days had not elapsed Fed. 657.

between the filing of the will and the hear

ing of the proof offered in support of the Statement by Mr. Justice White: same. It was further averred that, under the

This suit was commenced in the circuit laws of the state of Washington real estate court of the United States for the district could not be disposed of by a nuncupative of Washington, northern division, by the fil. will. ing, on June 20, 1901, of a bill on behalf of Further averring that the state court, on Hannah O'Callaghan and Edward Corcoran, the application of Marie Carrau, was about appellants in this court. The defendants to make and enter a decree distributing to were Terence O'Brien, as administrator of her the whole of the Sullivan estate upon the estate of John Sullivan, and Marie Car- the execution of a bond conditioned for the rau. W. M. Russell and S. F. Coombs, who payment of her proportion of the indebtedare joined as appellees, were the sureties on ness of the estate, to which decree the dea bond given by Marie Carrau, on the appeal fendant O'Brien, administrator, it taken by her to the circuit court of appeals. averred, would yield obedience, and that

It was averred that the complainants, said Marie Carrau, on receiving possession, aliens and residents of Ireland, were the would transfer the estate to others, and alfirst cousins and the sole heirs at law leging that such an order and the action of and next of kin of one John Sullivan, who the administrator thereunder would violate died on September 26, 1900, in the city of the due process clause of the Constitution of Seattle, state of Washington, intestate, the United States, an injunction and the apleaving a large amount of real and personal pointment of a receiver was prayed. It was property. The appointment by the superior also prayed that a decree might be made adcourt of King county, state of Washington, judging the alleged nuncupative will to be of a special administrator, and the subse- null and void, and perpetually restraining quent appointment of the defendant O'Brien, the defendant Carrau from setting up any and his qualification as general administra- | title or claim thereunder, and adjudging and tor, were next averred. O'Brien and his code- decreeing the complainants to be the only


heirs at law of the decedent, and entitled to A decree was entered in favor of complainreceive his estate, and commanding the de- ants. 116 Fed. 934. In substance the decree fendant administrator to surrender posses- found the complainants to be the next of kin sion thereof to, and account therefor to, the of the decedent; that O'Brien was the duly complainants.

qualified administrator; that the alleged On behalf of O'Brien, administrator, there nuncupative will was not made; that the was filed what was termed a "stipulation Washington court acted wholly without juand answer,” signed by the complainants and risdiction in the probate of the alleged will, their solicitor and the administrator. In and hence the proceedings in respect thereto this paper the appointment of O'Brien was were void. It was decreed that the complainrecited, and there was also embodied a dis- ants, as first cousins of the deceased, were claimer of any interest of said administrator entitled to share equally in the assets of his in the subject-matter of the controversy be estate, and the defendant O'Brien was directtween complainants and the defendant Marie ed to recognize their right. The defendant Carrau, or any knowledge in respect there- Carrau was perpetually restrained from setto other than as shown by the records. It ting up any claim to said estate, under the was stipulated that no costs should be taxed alleged will or otherwise. against the administrator and that com- On appeal, the circuit court of appeals replainants should not be put to proof of the versed the decree of the circuit court for allegations of the bill, so far as the same want of jurisdiction in that court over the affected the administrator, and that the stip- subject-matter and because of the absence ulation should be taken as and for an an- of necessary parties, who, if made parties, swer of said defendant administrator to the would oust the court of jurisdiction; and the bill of complaint.

cause was remanded, with directions to disAfter other proceedings in the cause, not miss the bill, at the cost of complainants. 60 essential to be stated, an answer was filed C. C. A. 347, 125 Fed. 657. The cause was on behalf of the defendant Carrau.

appealed to this court. Following the filing Briefly stated, the answer admitted the of a motion to dismiss such appeal, an apdeath of Sullivan, affirmed the validity of plication was made on behalf of the comthe alleged nuncupative will and of the pro- plainants below, for the allowance of a writ bate thereof, and further averred that, under of certiorari, and the determination of these the laws of Washington, a nuncupative will, two motions was postponed to the hearing duly proved and probated, "devises both real on the merits. and personal property to any amount in

Messrs. James B. Howe, Samuel H. value.” After specially answering each of the allegations of the bill, it was, in sub- and F. D. McKenney for appellants and pe

Piles, George Donworth, Charles H. Farrell, stance, averred, “by way of defense, and as titioners.

. questioning the jurisdiction of the court," that the court in which the alleged will had Joseph W. Robinson, and John H.

Messrs. William F. Hays (J. P. Houser, been probated had the sole, original, and ex: Mitchell, of counsel) for appellees and reclusive jurisdiction of the probation of said

spondents. will and the management of the estate of the decedent; that in said court various persons, Mr. Justice White, after making the foreincluding one Eugene Timothy Sullivan, a going statement, delivered the opinion of the resident of the state of Washington, had filed court: their verified petitions, claiming each to be The motion to dismiss the appeal, and the the sole heir of the decedent; that certain of application for the allowance of a writ of said claimants (Sullivan not being one of certiorari, will first be passed upon. the number), and also the complainants and While the alienage of complainants and the state of Washington, had commenced, in the citizenship of respondents was alleged, the state court, proceedings to contest the the jurisdiction of the circuit court was not validity of the alleged will, and that such invoked solely upon that ground. It was asproceedings were at issue and were still serted in the bill that the requirements of pending

the Code of Washington had not been comTestimony was taken by commission and plied with in respect to the preliminary otherwise, under an agreement providing issue of citations to the next of kin of the that the same might be read in evidence in decedent; that the hearing on the applicaany suit or proceeding which was then ortion to probate the alleged nuncupative will might thereafter be pending in a state or was had before service of citations in the Federal court affecting the estate of John mode prescribed by law, and as, at the time Sullivan. Both during the taking of the tes of the filing of the bill, six months had timony and at the hearing which followed, elapsed without lawful probate of the will, the objection to the jurisdiction of the court the title of complainants to the property as was reiterated and exceptions were reserved.' heirs and next of kin of the intestate had become absolute. The use by the defendant previously considered by this court. We Carrau of the decree of probate as a muni- come, therefore, to an analysis of the leading ment of title, with which to obtain from the cases. It results from the analysis which we administrator, under the authority of the have made of the bill that, by necessary efstate court, the property of complainants in fect, it assailed the previous probate and the custody of the administrator, was, as a the existence of the will, and, besides, under consequence, asserted to amount to a depri- the hypothesis that a will and probate might vation of property without due process of be found to exist, sought to limit the operalaw, in violation of the Constitution of the tion and effect of the will. The subject, United States.

therefore, has a twofold aspect,--the power The statute which, it was asserted, limited of Federal courts to entertain jurisdiction the authority of the Washington court to concerning the probate or the revocation of probate the nuncupative will in question to the probate of wills, where the requisite dia lawful probate thereof within six months versity of citizenship exists, and the power of the speaking of the testamentary words, of those courts, where such diversity obtains, is as follows:

to adjudicate concerning rights against the “No proof shall be received of any nuncu- estates of decedents. Whilst we shall conpative will unless offered within six months sider these two subjects separately, to avoid after speaking the testamentary words, nor repetition we shall first consecutively anaunless the words or the substance thereof lyze the cases concerning both subjects. be first committed to writing, and a citation

ion ''In Hook v. Payne, 14 Wall. 253, 20 L. ed.

, . issued to the widow or next of kin of the 887, certain distributees of an estate over deceased, that they may contest the will if which an administrator had been appointed they think proper.” Pierce's Code, 2352. in a court of Missouri, alleging diversity of

It is settled that the mere averment of a citizenship, filed their separate bills in a constitutional question is not sufficient, circuit court of the United States, for the where the question sought to be presented is purpose of annulling releases which they so wanting in merit as to cause it to be friv- had given as to their distributive shares to olous or without any support whatever in the administrator, on the ground of his reason. Fayerweather v. Ritch, 195 U. s. fraud, and also sought to annul settlements 276, 299, ante, 58, 25 Sup. Ct. Rep. 58. We alleged to have been fraudulently made in think that the alleged violations of Federal the probate court, and to have a decree right based upon the 14th Amendment were against the administrator for the amount of so unsubstantial and devoid of merit that their distributive shares. The several suits they furnish no real support to the conten- were consolidated. The trial court, by an intion that the decree of the circuit court of terlocutory decree, set aside the releases and appeals was not final. From this it follows the settlements made by Hook (the administhat the motion to dismiss must prevail. trator) with the county court, and appointBut we are not thereby relieved of the duty ed a master to state an account with Hook of considering the correctness of the decree as administrator. Moreover, the master was of the circuit court of appeals, because, in directed to inquire what other persons were our opinion, the case is one in which the interested in the estate, and to report what writ of certiorari should be allowed. We payments, if any, had been made to them, therefore dismiss the appeal, and grant the and what was due to them, respectively, at application for certiorari, treating the rec- the date of the report. The report of the ord filed on the appeal as a return to that master not only accorded the relief claimed writ. Before coming, however, to dispose by the complainants, but restated the acof the case, we observe that we do not, at counts of the administrator, and in effect rethis moment, state the reasons by which we ported a scheme of distribution of the esare led to the conclusion that the rights as- tate. The report was approved by the trial serted under the Constitution of the United court. In this court the decree, in so far as States were so wholly wanting in merit as it concerned the rights of the complainants, not to afford a basis for the appeal, because was affirmed. In so far as it attempted to those reasons will be made manifest when distribute the estate, and to deal generally we come to consider the question whether with the rights of persons other than the the bill was one within the jurisdiction of complainants, the decree was reversed, the the circuit court.

court saying (p. 255, L. ed. p. 889): The issue first for decision is, Did the “We are of opinion [therefore] that all circuit court of appeals rightly hold that that part of the decree which attempts to the circuit court was without jurisdiction of settle the right of the parties who were the case made by the bill?

neither plaintiffs nor defendants in the orig. The solution of the question is not free inal suit must be reversed. from complexity. Original reasoning is not, "We do not propose, in this case, to lay however, required, since the subject has been 'down any precise rule on the subject of ad- .

of the circuit court of Appeals, because, in a

justing administrators' accounts in the Fed- portunity should be given to check and reeral courts, or how far certain persons, not vise proceedings tainted with mistake, fraud,

, , made parties in the original suit, or incapa- or illegality. These objects are generally acble of being made parties by reason of their complished by the constitution and powers citizenship, may or may not come in before which are given to the probate courts, and the master, on a general accounting, and pro- the modes provided for reviewing their protect their rights; nor do we intend to go into ceedings. And one of the principal reasons that question.”

assigned by the equity courts for not enterIn Broderick’s Will (Kieley v. McGlynn), taining bills on questions of probate is that 21 Wall. 503, 22 L. ed. 599, the case was the probate courts themselves have all the this: A suit in equity was brought in the powers and machinery necessary to give full circuit court for the district of California and adequate relief. by the alleged heirs at law of Broderick to “In England after the acts of Parliament set aside the probate of his will, to have the had authorized devises of real estate, the same declared a forgery, and to recover the same position was assumed by courts of assets of Broderick's estate, much of which equity in regard to such devises; it being consisted of real property. The defendants held that any fraud, illegality, or mistake were the executors, and several hundred per- affecting their validity could be fully investi. sons who were in possession of portions of gated and redressed in the courts of common the real estate, claiming ownership thereof law, where also devises were recognizable.” as purchasers at sales made by the execu- After a full review of authorities holding tors. The estate had been administered upon, that a court of equity did not possess power and distribution had been fully made before to annul the probate of a will, and in con

a . the institution of the suit. The first con- cluding its opinion referring to a statute of tention which the court disposed of was that the state of California, the court observed a court of equity had no jurisdiction of the (p. 519, L. ed. p. 605):

(: subject matter of the suit, the same being "The statute of 1862 has been referred to, vested exclusively in the probate court of the which gives to the district courts of Calicity and county of San Francisco. In sus- fornia power to set aside a will obtained by taining this objection, the court, through fraud or undue influence, or a forged will, Mr. Justice Bradley, said (p. 509, L. ed. and any probate obtained by fraud, concealp. 602):

ment, or perjury. Whilst it is true that alter“As to the first point, it is undoubtedly ations in the jurisdiction of the state courts the general rule, established both in England cannot

cannot affect the equitable

equitable jurisdiction and this country, that a court of equity will of the circuit courts of the United not entertain jurisdiction of a bill to set States, so long as

States, so long as the equitable rights aside a will or the probate thereof. The case themselves remain, yet an a

enlargement of Kerrich v. Bransby, decided by the House of equitable rights

adminisof Lords in 1727, 7 Bro. P. C. 437, is con-tered by the circuit courts, as well as by the sidered as having definitely settled the ques-courts of the state. And this is probably & tion. Whatever may have been the original case in which an enlargement of equitable ground of this rule (perhaps something in rights is effected, although presented in the

, the peculiar constitution of the English form of a remedial proceeding. Indeed, much courts), the most satisfactory ground for its of equitable jurisdiction consists of better continued prevalence is that the constitution and more effective remedies for attaining the of a succession to a deceased person's estate rights of parties. But the statute referred partakes, in some degree, of the nature of a to cannot affect this suit, inasmuch as the proceeding in rem, in which all persons in statute of limitations would still apply in the world who have any interest are deemed full force, and would present a perfect bar parties, and are concluded as upon res ju-to the suit.”

dicata by the decision of the court having In Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. jurisdiction. The public interest requires 524, the facts were these: A will of Daniel that the estates of deceased persons, being Clark had been probated in the second disdeprived of a master, and subject to all trict court for the parish of Orleans, state manner of claims, should at once devolve to of Louisiana. Distribution of the estate had a new and competent ownership; and, conse- been completed, when certain parties brought quently, that there should be some conven- an action in the court named to annul the ient jurisdiction and mode of proceeding by alleged will and to recall the decree by which which this devolution may be effected with it was probated. The alleged daughter of least chance of injustice and fraud; and that Daniel Clark was made a party defendant, the result attained should be firm and per- and it was averred that suits had been petual. The courts invested with this ju- brought by her against the plaintiffs, in a risdiction should have ample powers both of circuit court of the United States, as heir process and investigation, and sufficient op.' at law of her father, to recover certain prop

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erty alleged to belong to his estate, and that states, of which the Federal courts have the existence of the decree of probate was concurrent jurisdiction with the state courts an obstacle to the proper defense of those under the judiciary act; but whenever a consuits, and made it necessary to sue to annul troversy in a suit between such parties the will and avoid the decree of probate. arises respecting the validity or construcApplication was made to remove the cause tion of a will, or the enforcement of a decree to the circuit court of the United States, admitting it to probate, there is no more which the state court refused, on the ground reason why the Federal courts should not that the suit involved merely a probate mat. take jurisdiction of the case than there is ter, and was therefore not cognizable in the that they should not take jurisdiction of Federal court. From a final decree of the any other controversy between the parties." state court in favor of the plaintiffs the Having decided that the suit was, in all cause was brought to this court. It was de essential particulars, one inter partes, for cided that the state court erred in refusing equitable relief to cancel an instrument alto permit the removal. In the opening pas- leged to be void, and to restrain the enforcesage of the opinion the court pointed out ment of a decree alleged to have been obthat, whilst the suit was, in form, one to an- tained by false and insufficient testimony, the nul the alleged will of Daniel Clark, and court was brought to consider whether the to recall the decree by which it was pro- law of Louisiana allowed such equqitable rebated, it was in reality a suit brought lief, and said (p. 20, L. ed. p. 528): against the devisee, and by strangers to the “There are no separate equity courts in estate, to annul the will as a muniment of Louisiana, and suits for special relief of the title, and to restrain the enforcement of the nature here sought are not there designated decree by which its validity had been estab- suits in equity. But they are none the less lished, so far as it affected their property. essentially such suits; and if, by the law obThe court observed:

taining in the state, customary or statutory, "It is in fact an action between parties, they can be maintained in a state court, and the question for determination is wheth- whatever designation that court may bear, er the Federal court can take jurisdiction of we think they may be maintained by original an action brought for the object mentioned, process in a Federal court, where the parties between citizens of different states, upon its are, on the one side, citizens of Louisiana, removal from a state court."

and, on the other, citizens of other states." The decision in the case of Broderick's In Ellis v. Davis, 109 U. S. 485, 27 L. ed. Will, concerning the want of power in a 1006, 3 Sup. Ct. Rep. 327, the will of Mrs. court of equity to probate a will or revoke Dorsey had been duly proved in a probate its probate, was expressly approved. But, re-court of Louisiana, and the universal legatee ferring doubtless to the concluding passage named therein had been recognized and put in the opinion in that case, it was observed in possession of the estate under the will. that, if such equitable power was vested in some time after a bill was filed in the cir. the state courts, the Federal courts sitting cuit court of the United States against him in the states where such statutes existed for the twofold purpose of setting aside the might exercise concurrent jurisdiction in a probate and annulling the will, on the case between proper parties. Considering the ground that it had been made under undue want of authority of Federal courts, as influence; and, for similar reasons, the ansuch, over the probate of wills, it was de- nulment was prayed of a conveyance which clared (p. 21, L. ed. p. 528):

had been made by the deceased to the uni"There are, it is true, in several decisions versal legatee. An account of the rents and of this court, expressions of opinion that the profits, etc., was also prayed. A demurrer to Federal courts have no probate jurisdiction, the bill was sustained and the case came to referring particularly to the establishment this court. It was decided that the court beof wills; and such is undoubtedly the case low had rightly sustained the demurrer. In under the existing legislation of Congress. the course of the opinion the court declared The reason lies in the nature of the proceed (p. 497, L. ed. p. 1010, Sup. Ct. Rep. p. 334): ing to probate a will as one in rem, which “The original probate (of wills] of course does not necessarily involve any controversy is mere matter of state regulation, and debetween parties; indeed, in the majority of pends entirely upon the local law; for it is instances, no such controversy exists. In its that law which confers the power of making initiation all persons are cited to appear, wills, and prescribes the conditions upon whether of the state where the will is of which alone they may take effect; and as, fered, or of other states. From its nature, by the law in almost all the states, no inand from the want of parties, or the fact that strument can be effective as a will until all the world are parties, the proceeding is proved, no rights in relation to it, capable of not within the designation of cases at law being contested between parties, can arise or in equity between parties of different until preliminary probate has first been

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