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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. 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 devisee of all his property. The will purported to have been made about 11 o'clock on the night previous to the death of Sullivan, in the presence of Marie Carrau and her relatives, and the testamentary words employed, or the substance thereof, were alleged to be the following:

cannot be devised by a nuncupative will, the attempt of a probate court to exert authority over property of that character by admitting such a will to probate deprived the heirs of such property without due process of law, cannot give a Federal circuit court jurisdiction to pass upon the construction and effect of such will, where this question is wholly subordinate to the determination of another

question, of which that court had no jurisdiction, such as the nonexistence of the will

and the consequent invalidity of its probate.

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"I want you to remember and witness that I will all my property and personal effects, worth many thousands of dollars, to be the money and property of your sister, Marie Carrau. I am sick, and we know not what might happen.”

It was averred that, on the application of the defendant Carrau, and after the appointment of O'Brien as general administrator, the alleged nuncupative will was admitted to probate, and, at the time of the filing of the bill, stood, as illegally probated, on the records of the superior court of King county, state of Washington. It was, however, charged that the said superior court, in assuming to probate said nuncupative will, acted wholly without jurisdiction in the premises, for the reason that the estate bequeathed exceeded the value of $200, and because 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 hearing of the proof offered in support of the same. It was further averred that, under the laws of the state of Washington real estate could not be disposed of by a nuncupative will.

Statement by Mr. Justice White: This suit was commenced in the circuit court of the United States for the district of Washington, northern division, by the filing, 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 was 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 receive his estate, and commanding the defendant administrator to surrender possession thereof to, and account therefor to, the complainants.

On behalf of O'Brien, administrator, there was filed what was termed a "stipulation and answer," signed by the complainants and their solicitor and the administrator. In this paper the appointment of O'Brien was recited, and there was also embodied a disclaimer of any interest of said administrator in the subject-matter of the controversy between complainants and the defendant Marie Carrau, or any knowledge in respect thereto other than as shown by the records. It was stipulated that no costs should be taxed against the administrator and that complainants should not be put to proof of the allegations of the bill, so far as the same affected the administrator, and that the stipulation should be taken as and for an answer of said defendant administrator to the bill of complaint.

After other proceedings in the cause, not essential to be stated, an answer was filed on behalf of the defendant Carrau.

Briefly stated, the answer admitted the death of Sullivan, affirmed the validity of the alleged nuncupative will and of the probate thereof, and further averred that, under the laws of Washington, a nuncupative will, duly proved and probated, "devises both real and personal property to any amount in value." After specially answering each of the allegations of the bill, it was, in substance, averred, "by way of defense, and as questioning the jurisdiction of the court," that the court in which the alleged will had been probated had the sole, original, and exclusive jurisdiction of the probation of said will and the management of the estate of the decedent; that in said court various persons, including one Eugene Timothy Sullivan, a resident of the state of Washington, had filed their verified petitions, claiming each to be the sole heir of the decedent; that certain of said claimants (Sullivan not being one of the number), and also the complainants and the state of Washington, had commenced, in the state court, proceedings to contest the validity of the alleged will, and that such proceedings were at issue and were still pending.

Testimony was taken by commission and otherwise, under an agreement providing that the same might be read in evidence in any suit or proceeding which was then or might thereafter be pending in a state or Federal court affecting the estate of John Sullivan. Both during the taking of the testimony and at the hearing which followed, the objection to the jurisdiction of the court was reiterated and exceptions were reserved.

A decree was entered in favor of complainants. 116 Fed. 934. In substance the decree found the complainants to be the next of kin of the decedent; that O'Brien was the duly qualified administrator; that the alleged nuncupative will was not made; that the Washington court acted wholly without jurisdiction in the probate of the alleged will, and hence the proceedings in respect thereto were void. It was decreed that the complainants, as first cousins of the deceased, were entitled to share equally in the assets of his estate, and the defendant O'Brien was directed to recognize their right. The defendant Carrau was perpetually restrained from setting up any claim to said estate, under the alleged will or otherwise.

On appeal, the circuit court of appeals reversed the decree of the circuit court for want of jurisdiction in that court over the subject-matter and because of the absence of necessary parties, who, if made parties, would oust the court of jurisdiction; and the cause was remanded, with directions to dismiss the bill, at the cost of complainants. 60 C. C. A. 347, 125 Fed. 657. The cause was appealed to this court. Following the filing of a motion to dismiss such appeal, an application was made on behalf of the complainants below, for the allowance of a writ of certiorari, and the determination of these two motions was postponed to the hearing on the merits.

Messrs. James B. Howe, Samuel H. and F. D. McKenney for appellants and pePiles, George Danworth, Charles H. Farrell,

titioners.

Messrs. William F. Hays (J. P. Houser, Joseph W. Robinson, and John H. Mitchell, of counsel) for appellees and respondents.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The motion to dismiss the appeal, and the application for the allowance of a writ of certiorari, will first be passed upon.

While the alienage of complainants and the citizenship of respondents was alleged, the jurisdiction of the circuit court was not invoked solely upon that ground. It was asserted in the bill that the requirements of the Code of Washington had not been complied with in respect to the preliminary issue of citations to the next of kin of the decedent; that the hearing on the application to probate the alleged nuncupative will was had before service of citations in the mode prescribed by law, and as, at the time of the filing of the bill, six months had elapsed without lawful probate of the will, the title of complainants to the property as 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 muniment of title, with which to obtain from the administrator, under the authority of the state court, the property of complainants in the custody of the administrator, was, as a consequence, asserted to amount to a deprivation of property without due process of law, in violation of the Constitution of the United States.

The statute which, it was asserted, limited the authority of the Washington court to probate the nuncupative will in question to a lawful probate thereof within six months of the speaking of the testamentary words, is as follows:

"No proof shall be received of any nuncupative will unless offered within six months after speaking the testamentary words, nor unless the words or the substance thereof be first committed to writing, and a citation issued to the widow or next of kin of the deceased, that they may contest the will if they think proper." Pierce's Code, 2352.

It is settled that the mere averment of a constitutional question is not sufficient, where the question sought to be presented is so wanting in merit as to cause it to be frivolous or without any support whatever in reason. Fayerweather v. Ritch, 195 U. S. 276, 299, ante, 58, 25 Sup. Ct. Rep. 58. We think that the alleged violations of Federal right based upon the 14th Amendment were so unsubstantial and devoid of merit that they furnish no real support to the contention that the decree of the circuit court of appeals was not final. From this it follows that the motion to dismiss must prevail. But we are not thereby relieved of the duty of considering the correctness of the decree of the circuit court of appeals, because, in our opinion, the case is one in which the writ of certiorari should be allowed. We therefore dismiss the appeal, and grant the application for certiorari, treating the record filed on the appeal as a return to that writ. Before coming, however, to dispose of the case, we observe that we do not, at this moment, state the reasons by which we are led to the conclusion that the rights asserted under the Constitution of the United States were so wholly wanting in merit as not to afford a basis for the appeal, because those reasons will be made manifest when we come to consider the question whether the bill was one within the jurisdiction of the circuit court.

The issue first for decision is, Did the circuit court of appeals rightly hold that the circuit court was without jurisdiction of the case made by the bill?

The solution of the question is not free from complexity. Original reasoning is not, however, required, since the subject has been

come, therefore, to an analysis of the leading cases. It results from the analysis which we have made of the bill that, by necessary effect, it assailed the previous probate and the existence of the will, and, besides, under the hypothesis that a will and probate might be found to exist, sought to limit the operation and effect of the will. The subject, therefore, has a twofold aspect,-the power of Federal courts to entertain jurisdiction concerning the probate or the revocation of the probate of wills, where the requisite diversity of citizenship exists, and the power of those courts, where such diversity obtains, to adjudicate concerning rights against the estates of decedents. Whilst we shall consider these two subjects separately, to avoid repetition we shall first consecutively analyze the cases concerning both subjects.

In Hook v. Payne, 14 Wall. 253, 20 L. ed. 887, certain distributees of an estate over which an administrator had been appointed in a court of Missouri, alleging diversity of citizenship, filed their separate bills in a circuit court of the United States, for the purpose of annulling releases which they had given as to their distributive shares to the administrator, on the ground of his fraud, and also sought to annul settlements alleged to have been fraudulently made in the probate court, and to have a decree against the administrator for the amount of their distributive shares. The several suits were consolidated. The trial court, by an interlocutory decree, set aside the releases and the settlements made by Hook (the administrator) with the county court, and appointed a master to state an account with Hook as administrator. Moreover, the master was directed to inquire what other persons were interested in the estate, and to report what payments, if any, had been made to them, and what was due to them, respectively, at the date of the report. The report of the master not only accorded the relief claimed by the complainants, but restated the accounts of the administrator, and in effect reported a scheme of distribution of the estate. The report was approved by the trial court. In this court the decree, in so far as it concerned the rights of the complainants, was affirmed. In so far as it attempted to distribute the estate, and to deal generally with the rights of persons other than the complainants, the decree was reversed, the court saying (p. 255, L. ed. p. 889):

"We are of opinion [therefore] that all that part of the decree which attempts to settle the right of the parties who were neither plaintiffs nor defendants in the original suit must be reversed.

"We do not propose, in this case, to lay down any precise rule on the subject of ad

justing administrators' accounts in the Fed- | portunity should be given to check and reeral courts, or how far certain persons, not made parties in the original suit, or incapable of being made parties by reason of their citizenship, may or may not come in before the master, on a general accounting, and protect their rights; nor do we intend to go into that question."

vise proceedings tainted with mistake, fraud, or illegality. These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings. And one of the principal reasons assigned by the equity courts for not entertaining bills on questions of probate is that the probate courts themselves have all the powers and machinery necessary to give full and adequate relief.

"In England after the acts of Parliament had authorized devises of real estate, the same position was assumed by courts of equity in regard to such devises; it being held that any fraud, illegality, or mistake affecting their validity could be fully investigated and redressed in the courts of common law, where also devises were recognizable."

In Broderick's Will (Kieley v. McGlynn), 21 Wall. 503, 22 L. ed. 599, the case was this: A suit in equity was brought in the circuit court for the district of California by the alleged heirs at law of Broderick to set aside the probate of his will, to have the same declared a forgery, and to recover the assets of Broderick's estate, much of which consisted of real property. The defendants were the executors, and several hundred persons who were in possession of portions of the real estate, claiming ownership thereof as purchasers at sales made by the executors. The estate had been administered upon, and distribution had been fully made before the institution of the suit. The first contention which the court disposed of was that a court of equity had no jurisdiction of the subject-matter of the suit, the same being vested exclusively in the probate court of the city and county of San Francisco. In sus-fornia power to set aside a will obtained by taining this objection, the court, through Mr. Justice Bradley, said (p. 509, L. ed. p. 602):

"As to the first point, it is undoubtedly the general rule, established both in England and this country, that a court of equity will not entertain jurisdiction of a bill to set aside a will or the probate thereof. The case of Kerrich v. Bransby, decided by the House of Lords in 1727, 7 Bro. P. C. 437, is considered as having definitely settled the question. Whatever may have been the original ground of this rule (perhaps something in the peculiar constitution of the English courts), the most satisfactory ground for its continued prevalence is that the constitution of a succession to a deceased person's estate partakes, in some degree, of the nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded as upon res judicata by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and, consequently, that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud; and that the result attained should be firm and perpetual. The courts invested with this jurisdiction should have ample powers both of process and investigation, and sufficient op

After a full review of authorities holding that a court of equity did not possess power to annul the probate of a will, and in concluding its opinion referring to a statute of the state of California, the court observed (p. 519, L. ed. p. 605):

"The statute of 1862 has been referred to, which gives to the district courts of Cali

fraud or undue influence, or a forged will,
and any probate obtained by fraud, conceal-
ment, or perjury. Whilst it is true that alter-
ations in the jurisdiction of the state courts
cannot affect the equitable jurisdiction
of the circuit courts of the United
States, so long as the equitable rights
themselves remain, yet an enlargement
of
of equitable rights may
may be adminis-
tered by the circuit courts, as well as by the
courts of the state. And this is probably a
case in which an enlargement of equitable
rights is effected, although presented in the
form of a remedial proceeding. Indeed, much
of equitable jurisdiction consists of better
and more effective remedies for attaining the
rights of parties. But the statute referred
to cannot affect this suit, inasmuch as the
statute of limitations would still apply in
full force, and would present a perfect bar
to the suit."

In Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524, the facts were these: A will of Daniel Clark had been probated in the second district court for the parish of Orleans, state of Louisiana. Distribution of the estate had been completed, when certain parties brought an action in the court named to annul the alleged will and to recall the decree by which it was probated. The alleged daughter of Daniel Clark was made a party defendant, and it was averred that suits had been brought by her against the plaintiffs, in a circuit court of the United States, as heir at law of her father, to recover certain prop

states, of which the Federal courts have concurrent jurisdiction with the state courts under the judiciary act; but whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties."

Having decided that the suit was, in all essential particulars, one inter partes, for equitable relief to cancel an instrument al

erty alleged to belong to his estate, and that the existence of the decree of probate was an obstacle to the proper defense of those suits, and made it necessary to sue to annul the will and avoid the decree of probate. Application was made to remove the cause to the circuit court of the United States, which the state court refused, on the ground that the suit involved merely a probate matter, and was therefore not cognizable in the Federal court. From a final decree of the state court in favor of the plaintiffs the cause was brought to this court. It was decided that the state court erred in refusing to permit the removal. In the opening pas-leged to be void, and to restrain the enforcesage of the opinion the court pointed out that, whilst the suit was, in form, one to annul the alleged will of Daniel Clark, and to recall the decree by which it was probated, it was in reality a suit brought against the devisee, and by strangers to the estate, to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity had been established, so far as it affected their property. The court observed:

"It is in fact an action between parties, and the question for determination is whether the Federal court can take jurisdiction of an action brought for the object mentioned, between citizens of different states, upon its removal from a state court."

The decision in the case of Broderick's Will, concerning the want of power in a court of equity to probate a will or revoke its probate, was expressly approved. But, referring doubtless to the concluding passage in the opinion in that case, it was observed that, if such equitable power was vested in the state courts, the Federal courts sitting in the states where such statutes existed might exercise concurrent jurisdiction in a case between proper parties. Considering the want of authority of Federal courts, as such, over the probate of wills, it was declared (p. 21, L. ed. p. 528):

"There are, it is true, in several decisions of this court, expressions of opinion that the Federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the case under the existing legislation of Congress. The reason lies in the nature of the proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties; indeed, in the majority of instances, no such controversy exists. In its initiation all persons are cited to appear, whether of the state where the will is offered, or of other states. From its nature, and from the want of parties, or the fact that all the world are parties, the proceeding is not within the designation of cases at law or in equity between parties of different

ment of a decree alleged to have been obtained by false and insufficient testimony, the court was brought to consider whether the law of Louisiana allowed such equqitable relief, and said (p. 20, L. ed. p. 528):

"There are no separate equity courts in Louisiana, and suits for special relief of the nature here sought are not there designated suits in equity. But they are none the less essentially such suits; and if, by the law obtaining in the state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a Federal court, where the parties are, on the one side, citizens of Louisiana, and, on the other, citizens of other states."

In Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006, 3 Sup. Ct. Rep. 327, the will of Mrs. Dorsey had been duly proved in a probate court of Louisiana, and the universal legatee named therein had been recognized and put in possession of the estate under the will. Some time after a bill was filed in the circuit court of the United States against him for the twofold purpose of setting aside the probate and annulling the will, on the ground that it had been made under undue influence; and, for similar reasons, the annulment was prayed of a conveyance which had been made by the deceased to the universal legatee. An account of the rents and profits, etc., was also prayed. A demurrer to the bill was sustained and the case came to this court. It was decided that the court below had rightly sustained the demurrer. In the course of the opinion the court declared (p. 497, L. ed. p. 1010, Sup. Ct. Rep. p. 334):

"The original probate [of wills] of course is mere matter of state regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in almost all the states, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has first been

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