Petition for Writ of Certiorari — Farrell v. O'Brien

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APR 121904 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1903

HANNAH O’CALLAGHAN and EDWARD

CORCORAN, - Petitioners,

No, 393, / 9S

TERENCE O’BRIEN as Administrator of the

Estate of John Sullivan, deceased, and

MARIE CARRAU, Respondents.

PETITION FOR WRIT OF CERTIORARI

JAMES B. HOWE,

Counsel for Petitioners,

SAMUEL H. PILES, Seattle, Washington.

GEORGE DONWORTH,

CHARLES H. FARRELL,

Of Counsel.

OWEN 0 aneOee & OF. 60 OROTTLE

ie |

IN THE

Supreme Court of the United States

tesa

HANNAH O’CALLAGHAN and EDWARD

CORCORAN, Petitioners, No. 593.

TERENCE O’BRIEN as Administrator of the October Term,

Estate of John Sullivan, deceased, and 1903.

MARIE CARRAU, Respondents,

PETITION FOR WRIT OF CERTIORARI

To the Honorable the Supreme Court of the United States:

The petition of Hannah O'Callaghan and Edward Corcoran

respectfully shows:

In this suit the Cireuit Court of the United States for the

District of Washington entered a decree which adjudged com-

plainants, these petitioners, to be heirs at law and next of kin of

one John Sullivan, deceased, who died intestate in King County,

in the State of Washington, leaving there an estate of real and

personal property exceeding in value three hundred thousand

dollars; directed. the respondent Terence O'Brien as Admin-

istrator of such estate to recognize the petitioners as such heirs

and next of kin; adjudged that an alleged nuncupative acill,

et ae FINO EGG ASIN EMR rei he . is a

under which the respondent Marie Carrau claimed the entire

estate, had never been made; that its probate was a nullity, and

enjoined Marie Carrau from making any claim to the estate

under either the alleged will or its probate. (R. p. 245.)

The United States Circuit Court of Appeals for the Ninth

The Circuit Court of Appeals erred in holding (R. pp. 1439.

1452):

Ist. That two British subjects, heirs at law and next of kin

of a decedent who died in King County, Washington, leaving

real and personal property there, worth upwards of three hun.

dred thousand dollars, could not maintain a suit in the Circuit

Court of the United States for the District of Washington

against the administrator of the estate of the deceased, and

one claiming the entire estate under an alleged nuncupative

will of the deceased, probated by a decree of a court of general

jurisdiction, regular upon its face, void in fact, and obtained

by fraud, to annul such alleged will and its fraudulent pro-

bate, although for jurisdictional purposes the amount involyed

Was sufficient and the requisite diversity of citizenship existed,

and by the law of the State of Washington, Customary and

Statutory, an equitable proceeding could be maintained between

the same parties for the same relief in a court of the state exer:

cising general jurisdiction.

2nd. That the Circuit Court of the United States for the

District of Washington had no jurisdiction of the subject mat:

ter of a suit by such heirs against such administrator and such

Claimant, to construe the alleged nuncupative will and deter.

mine it invalid on its face.

3rd. That the Cirenit Court of the United States for the

District of Washington had no jurisdiction of a suit between

such parties to construe the alleged nuncupative will and «de.

termine that real estate was not conveyed by it,

4th. That if the Cirenit Court of the United States for the

District of Washington otherwise had jurisdiction of any one

of the foregoing controversies, the fact that the Claimant under

the alleged nuneupative will pleaded that persons other than

the petitioners in this suit also claimed to be the only heirs of

the deceased, who could not be made parties because of their

citizenship, deprived the Circuit Court of the United States of

jurisdiction to determine the controversies between the parties

before the court, although no decree could be entered affecting

in any manner the rights of such absent Claimants, and though

the parties before the court all contended that the claims of

such absent persons were without foundation in fact.

The history of the suit, as shown by the record, is as follows:

John Sullivan, a bachelor, sixty years of age, a resident of

Seattle, King County, Washington, died there on the 26th day

of September, 1900, intestate. He left surviving him as heirs

at law and next of kin his first cousins, the petitioners, resi-

dents of Ireland, and subjects of the King of Great Britain and

Ireland. He left an estate in King County, Washington, con-

sisting of realty worth upwards of three hundred thousand dol-

lars, and personalty of the value of about fifteen thousand

dollars. Immediately upon his death, a special administrator

of his estate was appointed who took charge of his estate (R.

pp. 6, 64). A number of persons filed petitions in the Superior

Court of the State of Washington for King County, in which

they alleged that they were creditors of Sullivan, and prayed

that letters of administration upon his estate should issue.

Each petitioner for letters of administration named a different

nominee for the office of general administrator of the estate

(R. p. 991).

Some months prior to his death, Sullivan visited the Paris

Exposition. THe returned to Seattle, intending at an early date

fo again visit France (BR, PP. 6, 64). On his visit to France he

had heen embarrassed by his ignorance of French (R. p. TOS),

When he returned te Seattle, he boarded and lodged at the

house of one Louis Daussat. and took lessons in French from

the respondent Marie Carrau, a sister-in-law of Daussat resid.

ing in the same house (R, pp. 479, 523). For his board, lodg-

ing and tuition Sullivan paid thirty-five dollars per week (Ex.

Y 18, R. p. 923). He had never seen Marie Carrau prior to the

8ist day of July, 1900 (Rh, pp. 478, 505). She claims that on

September Ist, 1900, Sullivan asked her to marry him (R. p.

oO), On that day he paid his bill for his week's hoard, lodging

and tuition, and received a receipt therefor (Ex. Y 18, R. p.

925). She claims that on September 8, 1900, he again asked

her to marry him, promised her all of his property, and that

she consented to marry him. On that day he again paid his

hill for board, lodging and tuition (R. p. 485; Ex. Y 18, R. p.

523). He continued to make his weekly payments for board,

lodging and tuition after his illness and until a few days before

his death (Ex. Y 18, R. pp. 523, 506). Marie Carran Claims

that on September 25, 1900, the night before he died, Sullivan,

by an oral will, devised and bequeathed to her his entire estate;

that the will was made in the presence of her brother-in-law,

her sisters, herself, and no one else, and that Sullivan died the

next morning.

Sullivan was a Roman Catholic. No priest) was called to

minister to him, although a telephone was in the house, 4

physician lived next door, but his assistance was not sought

(R. pp. 4385, 461, 534),

Sullivan died on September 26, 1900. On October Sth, 1900,

Louis Daussat, the brother-in-law of Marie Carran, and Marie

Carrau, signed and, on October Sth, 1900, filed their petition

in the Superior Court of the State of Washington for King

County, wherein they alleged that Sullivan had died intestate:

that at the time of his death he was indebted to them ’ and they

prayed that I. D. MeCuteheon, Esq., should be appointed ad-

ministrator of the estate ( Ex. Y 25, R. p. 928).

The various petitions for general letters of administration

and for the appointment of a general administrator were duly

brought on for hearing November 18th, 1900. On the 19th day

of November, 1900, the Superior Court in’ the proceeding in

Which Marie Carrau and Louis Daussat petitioned as creditors

for the appointment of a general administrator on the eround

that Sullivan had died intestate, found by its decree appointing

at general administrator that Sullivan had died intestate and

indebted to them in a small sum. The respondent) Terence

O’Brien was appointed veneral administrator of the estate | Ex.

Y 46, Ro po 991). Te duly qualified as such, and entered upon

the discharge of his duties, On the Sth day of March, 1901, the

respondent: Marie Carrau filed in the Superior Court of the

State of Washington for King County her petition, in whieh

she alleged that at about the hour of 11 o’elock P. M. on the 25th

day of September, 1900, Sullivan, while in the actual contem-

plation, expectation and fear of death, and in the presence of

herself, Louis Daussat, Aneustine Daussat and THermance

Carrau, made «a nuncupative will in the following words:

“T want you to remember and witness that Larill all my prop-

erty and personal effects, worth many thousands of dollars, to

be the money and property of your sister, Marie Carran. lam

sick, and we know not what might happen”

In her petition she also alleged that the will Was made at the

house Wherein Sullivan bad resided for more than ten days

immediately preceding his death; that Sullivan requested the

persons named to bear witness to his Will; that the words con-

stituting the will had been reduced to Writing, and that the

writing accompanied her petitions that the time of his death

| Sullivan was a bachelor; that he left personal property of the

: value of fifty thousand dollars and real estate of the probable

| value of four hundred and fifty thousand dollars (Ex. Y 28, R.

p. 9500. This petition was presented to the Judge of the Su-

perior Court of the State of Washington for King County at

dhout half past eleren o'clock ay m., March the Sth, 1901. ( Ex.

You, Re p. 941).

A nuneupative will, under the laws of Washington, is invalid

where the estate bequeathed ercecds tira hundred dollars,

Section 6 of the Organic Act of the Territory of Washington,

approved March 2nd, 1853 (U.S. Stats. at Large, Vol. 10, pp.

1v2, 175), is as follows:

“See. * *) To avoid iuproper influences Which may re-

sult from intermixing in one and the same act such things as

have no proper relation te each other, every lai shall embrace

hut one object, and that shall be erpressed in the title”

The Territorial Legislature, at its first session, in 1854,

enacted a statute entitled :

“An Act establishing probate courts for the Territory of

Washington.”

Laws of ISD4, Territory of Washington, p. 309,

At the same session the legislature enacted a statute entitled :

“An Act relating to Wills.”

Laws of 1834, Territory of Washington, p. 312.

See, 23 of this act provides:

“No nunecupative will shall he good when the estate be-

queathed erceeds the ralue Of tivo hundred dollars, nor unless

the same be proven by two witnesses who were present at the

aking thereof, nor unless it be proven that the testator at the

Wome re i

time of pronouncing the same did bid some person present to

bear witness that such was his will, or to that effects nor un-

less such huneupative will was made at the time of the last

sickness and at the dwelling house of the deceased, or Where

he had been residing for the space of ten days or more, except

Where such person was taken sick from home and died before

his return.”

No change was attempted to be made in the dimount of an

estate which could be bequeathed by nuncupative Will, until

November 11, IST3, when the Legislature of the Territory, by

ap act approved on that date, entitled :

“An Act defining the jurisdiction and practice in the probate

courts of Washington Territory,”

omitted the word “nor” after the words “two hundred dollars”

and before the word “unless,” and thereby, if the repeal was

Valid, removed the limitation on the amount of an estate whieh

might be bequeathed by nuncupative will (Laws of 1873, pp.

=52, 259), making the section read as follows:

“See. 33. No nuncupative will shall be good when the estate

bequeathed exeeeds the Value of two hundred dollars (—) un-

less the same be proved by two witnesses, * # #s

Section 33 of the Act of November 11, 1873, was re-enacted

by the Territorial Legislature by an act approved December 1,

ISS], entitled:

“An Act defining the jurisdiction and practice in the probate

courts of Washington Territory.”

Pierce’s Code of Washington, p. 355.

There is nething in the title of the act of November 11, 1873,

nor in the tithe ef the set of December 1, ISS1, in any manner

relating to the subject of wills. The subject of wills is not men-

tioned in the title of either of those acts. The section in the

body of each of those aets, re-enacting Section 23 of the Act of

1854, but omitting the word “nor and by such omission. re-

pealing the limitation imposed by seetion 23 of the Aet of 1854

Upon the amount of an estate Which might be bequeathed by

Wuneupative will, is in conttict With the provision of Section 6

of the Organie Net of the Territory, which requires that every

law of the Territory—

iS CD tray oe

*—shall embrace but one object, and that shall be expressed

in the title.”

There has been no legislation relating to nuncupative wills

since the Territory of Washington became a State,

A uvuncupative will cannot, winder the law of it ashington, be

probated er parte,

“No proof shall be received of wnV nuncupative will unless

it he 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

wert of kin of the deceased, that ‘hey may contest the will if

they think proper.”

Pierce's Washington Code, See, LBP, Ballinger’s Code,

Sec. 4606 (Laws of 1Sd4. Section 25, )

“Tn all cases in which citations are issued from the Superior

Court in probate proceedings, they shall be serred at least ten

days before the term at which they are mad returnable, except

when issued from the court in eases Where the law requires the

Judge to issue them Upon his own motion and he does so issue

them, and in such cases they shall he served iw sufficient time

foallow the person served lo be in attendance on the court.’

Pierce's Code of Washington, Sec. 2331. Ballinger’s

Code, Sec. GOSS.

A written will is probated in Washington er parte, Laws

ISD4, Section 17.

Pierce's Code of Washington, 2285, Ballinger’s Code,

6100.

The law of the State of Washington with reference to the

contest of a will admitted to probate is as follows:

“If any person interested in uy will shall appear within one

Sear after the probate or rejection thereof, and hy petition to

the superior court having jurisdiction contest the validity of

said will, or pray to have the will preven which has been re-

jected, he shall tile a petition containing his objections and ex-

ceptions to said will, or te the rejection thereof. Issues shall

he made up, tried and determined in said court respecting the

PIR AD REDENS MD By =

competency of the deceased to make last will and testament,

or respecting the execution by the deceased of such last. yil]

and testament under restraint or undue influence or fraudulent

representations, or for any other cause affecting the Validity of

such will.”

Pierce’s Code of Washington, Sec. 2395, Ballinger’s

Code, 6110.

“Upon the filing of the petition referred to in the next pre.

ceding section a citation shall be issued to the executors who

have taken upon them the execution of the will, or to the ad-

ministrators with the will annexed, and to all legatees named

in the will residing in the territory (state), or to their guard.

ians if any of them are minors, or their personal representa.

tives if any of them are dead, requiring them to appear before

the court on a day therein specified, to show cause why the

petition should not be granted.”

Pierce's Code, Sec. 2396. Ballinger’s Code, 6111.

“If no person shall appear within the time aforesaid, the

probate or rejection of such will shall be binding, save to in-

fants, married Women, persons absent from the United States,

or of unsound mind, a period of one Year after their respective

disabilities are removed.”

Pierce's Code, Sec, 2397. Ballinger’s Code 6112.

Fay ’

At half past elerey o'clock a. m., March the Sth, 1901, upon

the presentation to the judge of the petition for the probate of

the alleged huncupative will, he made an order that a citation

issue directed to the widow or next of kin of the deceased, re-

quiring them to appear before the court at a time then already

past, namely, ten o'clock a. mh. of the same day, to show cause

why the nuncupative will should not be admitted to probate.

(Ex. Y 29) R. Pp. 41, 324-326.) The citation immediately

issued, directed to the widow and next of kin, requiring them

to appear at ten o'clock a. in, March the 8th, 1901, a time then

already past, and show cause Why the will should not be ad-

mitted to probate. The citation was immediately placed in the

hands of the sheriff for service, and Without leaving his office

he returned that he could not find any widow or next of kin of

the deceased in King County. The return Was immediately

presented to the judge (R, Pp. 325-328),

ame

The testimony of the witnesses to the alleged will was imme-

diately received by the court. These witnesses were Louis

Daussat, a brother-in-law of the Claimant under the nuncupa-

tive will, and her sisters, Augustine Daussat and Hermance

Carrau. Immediately upon giving their testimony, these wit-

nesses signed previously prepared typewritten affidavits in sup-

port of the will (R. pp. 324-326).

leat

At this time the general administrator of the estate was in

the City of Seattle, King County, in the discharge of the duties

of his oftice. He had no knowledge of the proceeding to probate

the will, nor was notice given to him or anvone else of the pro-

ceeding (R. pp. 327, 328), At this time there were on tile in

the office of the Clerk of the Court in the proceedings in the

administration of the estate, two notices signed by counsel, res-

ident in Seattle, representing certain persons (other than these

petitioners ), Claiming to be heirs of the deceased. No hotice

of the proceeding to probate the will was given to counsel rep-

resenting those parties. The existence of those Claims was not

disclosed to the court (R. PP. 931, 934, 825-828).

The court immediately upon hearing the testimony, made a

certificate of the probate of the will, and immediately entered

a decree thereon adjudging that the court had acquired juris-

diction, that the will was entitled to probate, and admitting it

to probate (R. pp. 324-326; Ex. Y 31, p. 945; Y 32, p. 949).

The certificate of probate and the decree of probate were type-

written documents which had been prepared in advance of the

probate proceedings (R. p. 325).

On March 26th, 1901, Marie Carrau, by her attorneys, filed

her petition for the revocation of O'Brien's letters of adminis.

tration (Ex. Y 41, R. pp. 974-976).

After March 26, 1901, and prior to Mareh 50, 1901, one of

Marie Carrau’s attorneys, who had assisted in the probate of

the alleged will, became the attorney for the administrator (R.

pp. 388, 339),

On March 30, 1901, the petition for the revocation of

O'Brien's letters of administration was Withdrawn without

prejudice (Ex. Y 41, R. pp. 977, 978). On May 21, 1901, Marie

Carrau filed her petition in the Superior Court for King County,

and prayed for the distribution of the entire estate to her as

the owner thereof under the nhuncupative will, one of her attor-

ae AL the

Bess

heys being also attorney for the administrator | Ex. Y 40, R. p.

971).

The hearing of her petition was fixed by the court for the 2 Ist

day of June, 1901 ( Ex. Y 40, P. 971, 15). On the 20th of June,

1901, these petitioners filed their bill in equity in the Circuit

Court of the United States for the District of Washington (R.

Pp. 6-15), wherein they alleged substantially the foregoing

facts, the requisite diversity of citizenship, the amount involved

in the controversy, that the alleged nuncupative will had been

manufactured by the respondent Marie Carrau and her sisters

and brother-in-law, and that they had conspired together to

obtain for themselves all the property of John Sullivan, de.

ceased, by means of false testimony and by the manufacture of

evidence to support the pretended huncupative will.

In their bill these petitioners further alleged that the Sv.

perior Court of the State of Washington for King County

acted wholly without jurisdiction in the matter of the probate

of the alleged will: that the court never acquired jurisdiction

to hear any evidence or take any step for the probate of the

Will; that no legal citation had been issued out of said court;

that ten days had not elapsed between the filing of the pretended

will and the hearing of the pretended proof. in support of it;

that under the law of the State of Washington a huncupative

Will was invalid where the estate bequeathed exceeded the

value of two hundred dollars, and that a nuneupative will, even

if valid, could not dispose of real estate.

The bill further alleged that the estate Was very little in

debt; that the complainants were, even if the alleged will

should be held valid, entitled to all of the real estate and the

rents, issues and profits thereof since the death of Sullivan;

that they were informed that the Superior Court would order

the administrator to deliver the entire estate to Marie Carrau

under the alleged will: that the administrator would obey the

order, and that the action of the court and of the administrator

would deprive the complainants of their property without due

process of law, in violation of their rights under the Four-

teenth Amendment to the Constitution of the United States;

that the respondent Maric Carrau was insolvent: that if pos:

session of the estate was delivered to her, she would transfer

it to various persons and render it necessary for the complain-

ants to institute a multiplicity of suits te protect: their rights

in the property, and that they had no adequate remedy at law,

They prayed as follows:

ati ell 3:

That the pretended nuncupative will should he adjudged null

and void and of no force and effect Whatever; that in the event

that the will should not be adjudged null and void, the same

should be adjudged not to pass any title to the real estate of

the deceased, nor to any of the rents, issues ane profits issuing

out of said real estate since the death of the deceased; that the

respondent: Marie Carrau be perpetually restrained and en-

joined from setting up any title or claim under the pretended

will; that the administrator should be restrained from turn-

ing ever any of the property to her, and that she should be en-

joined from receiving possession of wy of the property, and

from in any manner interfering With it: that upon the final

hearing and determination of the suit, complainants should

he adjudged to be the only heirs at law of the deceased and en-

titled to his whole estate, and that the administrator should

surrender the same and account therefor to them (R. pp. 6-15).

Upon the filing of the bill, process Was iminediately issued

and served upon each of the respondents. On the same day,

but later in the day, the petitioners filed a petition in the Su-

perior Court of the State, alleging that Sullivan had died in-

testate, and setting forth substantially the same facts alleged

in their bill in the Circuit Court of the United States, and in

said petition stated that the filing of the petition was Without

prejudice to their right to Carry on the suit instituted by them

in the Cireuit Court of the United States (Ex. Y 33. R p. Wd).

In the Cirenit Court the administrator filed a disclaimer of any

interest in the controversy between the petitioners and the re-

spondent: Marie Carran CR, p. 33).

The respondent Marie Carran filed various papers in the Cir-

cuit Court of the United States for the Distriet of Washington,

wherein she claimed that. the Superior Court of the State of

Washington for King County was the only court having juris-

diction of the controversy between the petitioners and herself,

Upon her objection to the jurisdiction of the Circuit Court be-

ing overruled, and after the Circuit Court had set aside an

order of default whieh had been entered vgainst her, she filed

her answer, in which she alleged that the petitioners were not

related to the deceased : admitted that the deceased left no re-

lation nearer than first cousin; alleged the tnuking of the nun-

cupative will; that it: was Valid; that it conveyed the entire

estate to her; that the Superior Court duly probated the will;

that the court acquired jurisdiction: that the citation was reg-

ularly issued; that the decree of probate entered on the Sth

day of March, 1901, was in full force and effect: that the Su-

RN NLM TADS”

| as

perior Court for King County had entire jurisdiction of the

matter; denied that the distribution of the estate to her by the

Superior Court of King County under the nuncupative will,

and the decree probating the same, would be in violation of the

rights of complainants under the Fourteenth Amendment to

the Constitution of the United States; and denied that they

would be deprived of any property without due process of lay

by a decree of distribution to her; that persons other than com-

plainants had filed claims in the Superior Court Claiming to he

the sole heirs of the deceased, and that those claims were pend.

ing in the Superior Court (R. pp. 35, G4, 79).

A general replication to this answer was filed (R. p. 84),

Evidence was duly taken in the suit. A large number of wit-

nesses were examined in Ireland. The Circuit Court of the

United States for the District of Washington rendered the de.

cree before referred to in favor of these petitioners; adjudged

that the Superior Court of the State of Washington had never

acquired any jurisdiction to probate the alleged Will; that the

alleged will had never been made, nor had Sullivan ever spoken

the words alleged to constitute his will, or any words of similar

import; directed the administrator to recognize these petition.

ers as the heirs at law and next of kin of the deceased, and as

such entitled to share in his estate, and enjoined Marie Carrau

from making any Claim to the estate or any part thereof under

the alleged will and its alleged probate, or either, except in a

court having appellate jurisdiction to review the decree (R, p.

243). Respondent Marie Carrau appealed from the decree of

the Circuit Court to the United States Circuit Court of Appeals

for the Ninth Cireuit (R. pp. 253-258). The Circuit Court of

Appeals declined to consider the merits of the case, and entered

a decree reversing the decree of the Circuit Court, with diree-

tions to dismiss the bill (R. p. 1452). These petitioners filed a

petition for a rehearing in the Cirenit Court of Appeals, and

prayed that court to set aside its decree of reversal, and to cer-

tify to this court for determination the question whether the

Circuit Court of the United States for the District of Washing-

ton had jurisdiction of the suit. On the 9th day of November,

1903, the petition for rehearing was denied (R. p. 1453). There-

after these petitioners filed their petition, praying the allow:

ance of an appeal from the decree of the Cirenit Court of Ap-

peals to this court, on the ground that the jurisdiction of the

Circuit Court of the United States for the District of Wash-

ington was not dependent upon diversity of citizenship only,

because complainants had alleged facts showing that the

State court had entered a decree affecting the property of

AEE EST ee Ce SRS eT SES Re

these petitioners, without having acquired any jurisdiction of

the proceeding in which such decree was entered, and that the

distribution of the estate to the respondent Carrau under the

alleged will and the decree probating the Same, entered with-

out jurisdiction, would deprive these petitioners of their prop-

erty without due process of law, in contravention of the Four-

teenth Amendment to the Constitution of the United States.

With the petition for the allowance of their appeal, the petition-

ers filed their assignments of error, in’ which they alleged,

among other things, that the jurisdiction of the Circuit Court

of the United States for the District of Washington being in-

voked on the ground that the suit involved the construction and

application of the Consti(ution of the United States, the Cir-

cuit Court of Appeals was without jurisdiction of an appeal

from the decree of the Cireuit Court, because the Supreme

Court had exclusive jurisdiction of an appeal from a decree of

the Cireuit Court in such case (R. p. 1455).

The appeal prayed for by the petitioners was duly allowed,

and has been perfected, and the cause has been docketed in this

court as No. 593 of the October Term, 1903.

Your petitioners respectfully show to the court that if the

ulegations of the bill did not set forth facts showing a real and

substantial controversy, depending on the construction or ap-

plication of the Constitution of the United States, then it may

he that the decision of the United States Circuit Court of Ap-

peals was final, and the only means by which said decree can

he reviewed is by the issuance out of this court of a writ of

certiorari. In the ordinary course of the business of this court,

if jurisdiction of the appeal sionld be denied, it will be too late

for this court to then acquire jurisdiction of this suit by a writ

of certiorari,

The decision of the United States Circuit Court of Appeals

in this suit is in conflict with the decision of the same court

When presided over by Mr. Justice McKenna, then Cireuit

Judge, in

Richardson vr. Green, 64 Fed., p. 423.

In that case the court Said:

“Ifa suit is essentially a suit of a civil nature, for equitable

relief, aad it is customary to prosecute the same in any state

court Where the action arose, whether the same is a county court

seaman wae

be - a

or @ probate court or a District or Cirenit Court, the proper

Federal Court will have concurrent: jurisdiction of the Sittne

With such state courts, where the amount. is Sufficient 2nd the

parties are citizens of different states, as prescribed by the

United States statutes.”

The jurisdiction of the Circuit Court of the United States for

the District of Oregon to entertain a suit to set uside a will as

a forged instrument, and a decree probating the same on the

ground that it was obtained by fraud, was sustained.

The defendants in that case applied to this court for a writ of

certiorari, wherein they alleged that the Cirenit Court of the

United States for the District of Oregon had no jurisdiction to

entertain such a suit, because none of the courts of the State of

Oregon had jurisdiction to entertain a suit between parties for

such relief,

The first paragraph of the brief of counsel in that case on

their application for the writ of certiorari, is as follows:

“The Circuit Court of the United States for the District of

Oregon is without jurisdiction to decree a will invalid and cap-

cel the same, none of the courts of the State of Oregon having

jurisdiction to entertain a suit between parties for such relief.”

(Page 1 of petitioners’ brief, )

The application for the writ was denied by this court.

Richardson rv. Green, 159 UL 8., 264.

Your petitioners also respectfully show to the court that the

decision of the Cireuit Court of Appeals in this suit is in con-

flict with the following decisions:

Decisions Of This Court,

Byers v. MeAuley, WA9 U.S. GOS,

Richardson v. Green. 139 U. 8. 264,

Lilis vr. Davis, 109 VU. S. 485.

Gaines r. Fuentes, 2 U.S. 4

Broderick’s Will, 24 Wall. 503.

Payne v. Hook, 7 Wall, 425.

Decisions of the United States Cireuit Court of Appeals.

Richardson vr. Green, 61 Fed, 423 (Ninth Circuit).

Sawyer v. White, 122 Ped, 223 (Kighth Circuit).

Williams rv. Crabbe, 7 Fed. 193 (Seventh Circuit).

Decisions of Circuit Courts.

Wart vr. Wart, 117 Fed. 766,

Broadhead ¢. Nhocmaker, 44 Fed. 518,

Krerhart rv. Meerhart, BA Fed. 82.

Decisions of the Supreme Court of the State of Washington.

Clayson +. Clayson, 26 Wash. 253.

hilley v, Murphy, 30 Wash. 1.

Browder rv. Phinney, BO Wash. 74.

Higgins v, Nethery, 30 Wash, 239.

State er vel. Stratton ¢. Tallman, 25 Wash. 205.

State er vel, Stratton ry. Tallman, 29 Wash. 317,

Reformed Pye sbiterian Church vr. McMillan, 31 Wash.

O45,

Bower vr. Bower, 5 Wash. 225,

Mason vr. MeLean. Wash. 31.

Mille. Hill, 7 Wash. 408,

Purdy rv. Daris, 12 Wash. 164.

Your petitioners subnvit that it is of the utmost importance

that the rule should be uniform throughout the Circuits of the

c hited States that Whenever by the law of astite, customary

OF SEUMITORN, a proceeding inte; partes can be maintained in a

state court of general jurisdiction for the annulment of a will

ind its probate, a suit ean he maintained in the Circuit Court

of the United States sitting in the same State, when the amount

involved is sufticient and the requisite (diversity of citizenship

exists for the purposes of jurisdiction.

Surisdiction denied because of won-joinder of parties whose

joinder would oust the court of jurisdiction,

The petitioners are aliens. Respondents are citizens of the

Vhited States, Diversity of citizenship existed. The respond-

Pocono e aa

ent Marie Carrau pleaded that petitioners were not related to

the deceased (R. p. 65). She claimed that the deceased left no

relatives (R. pp. 489, 483). She did not plead that the deceased

left heirs who should be made parties. She pleaded that cer.

tain persons Claimed to be the only heirs of the deceased. She

Claimed that the alleged will gave her the entire estate, Whether

the deceased left heirs or not. She admitted that there were

no persons hearer of kin than first cousins (R. p. 65). If Marie

Carrau had shown that the petitioners were not related to the

deceased, she would have defeated them; if she had shown that

there was any person of nearer kin to the dec ased than the

petitioners, she would also have defeated them; if. she had

shown that the alleged will was valid, legally probated, and

that it conveyed real estate, she would have defeated them.

Under the statute of Washington any person interested jn

any will may contest it.

Sec. 2395, Pierce's Code, supra.

The persons to be made defendants in the contest are the ex.

eeutors or administrator and the legatees, named in the will,

residing in the state.

Sec. 2396, Pierce's Code, supra,

AIL persons required by the statute were before the court in

the case at bar. The Circuit Court of Appeals held that the

hon-joinder as defendants of persons whose joinder would oust

the court of Jurisdiction, and which persons both the petition.

ers and respondent claimed were not related to the deceased

and had no interest in his estate, deprived the court of juris.

diction to determine the controversy between the parties, ac-

tually before the court, between whom the requisite diversity

of citizenship did exist. The decisions of the courts of the

United States are directly to the contrary.

Byers rv. McAuley, 149 U. 8. 608.

Williams vr. UL S., 188 0. S. 514.

Kerr v. Watts, 6 Wh at. 160.

Eiendorf{ vr. Taylor, 10 Wheat. 360.

Williams v. Crabb, 117 Fed. 193.

Vattier v. Hinde, 7 Peters 252, 263.

Ntorey rv. Livingston, 13 Peters, 359, 375.

Fisher +. Shropeshire, 147 U. S. 133.

Railway Co, vr. Stewart, 95 U. S. 284.

Dick v. Balch, 8 Peters 36.

Osborne v. U. S. Bank, 9 Wheat. 738, 857.

U.S. v. Hendy, 54 Fed. 447.

Billings v. Aspen Mining Co., 51 Fed. 338.

Smith v. Lee, 77 Fed. 779.

Hamilton v. Savannah R. R., 49 Fed, 412.

Your petitioners present herewith, as a part of this petition,

a brief presenting more fully the questions involved and show-

ing the importance of those questions.

Inasmuch as there is doubt whether the right of appeal ex-

ists in this case, your petitioners have applied promptly to this

court for a writ of certiorari to review the decree of the Circuit

Court of Appeals. The Circuit Court. of Appeals has super-

seded its deeree and staved its mandate until the final deter-

mination of this suit by this court. and the record in the suit

is now on file in this court,

WHEREFORE, vour petitioners respectfully pray that a

writ of certiorari be issued out of and under the seal of this

court, directed to the United States Circuit Court of Appeals

for the Ninth Cireuit, commanding said eourt to certify and

send to this court ona day certain toe be therein designated, a

full and complete transcript of the record and all proceedings

of said Court of Appeals in this case, which was entitled in that

court,

“MARIE CARRAU. Apoellant,

HANNAN O'CALLAGHAN, otherwise known as TOMANNA CAL-

LAGHAN, and Epwarp Corcoran, Appellees.”

to the end that said cause may be reviewed and determined by

this court as provided by law: that the reeard how on file be

deemed and taken as the return to said Writ, and that vour

petitioners may have such other and further relief or remedy

in the premises as to this court nav seem appropriate; and

that the said decree of the said Cireuit Court of Appeals may be

reversed by this Honorable Court.

HANNA OCALLAGHAN and

EDWARD CORCORAN,

By JAMES B. HOWE, Their Counsel.

SAMUEL H. PILES,

GEORGE DONWORTH,

. H. FARREL, of Counsel.

State of Washington, )

\ ss,

County of King. J

James B. Howe being first duly sworn, on oath deposes and

Says: TI have read the foregoing petition and know the con.

tents thereof and believe the same to be true. T make this aft.

davit for and on behalf of the above named petitioners, for the

REQRAR Chet one of sete petitioners is a resident of ( ‘ork, I reland,

and the other of Dublin, Ireland, and neither of them is now

Within the United States. Lam and have been one of the solicit.

ors and counsel for the petitioners in the suit mentioned in the

foregoing petition, and in all proceedings connected therewith,

JAMES B. HOWE.

Sworn to and subscribed before me

this 21st day of March, 1904,

| Official Seal. | GEORGE F. VANDERVEER.

Notary Publie in and for the State of

Washington, residing at Seattle,

I hereby certify that Iam counsel for the petitioners named in

the foregoing petition for writ of certiorart. I have read the fore-

going petition, know the contents thereof, believe

true, and my opinion is that the foregoing

in law,

the same to be

petition is well founded

JAMES B. HOWE,

Counsel for Petitioners.

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1903

sti secsisusseeeennes

HANNAH O’CALLAGHAN and EDWARD

CORCORAN, Petitioners,

Vs.

TERENCE O'BRIEN, as Administrator of the

Estate of John Sullivan, deceased, and

MARIE CARRAU, Respondents.

Notice of Application to Supreme Court for Writ of Certiorari.

Sullivan, deceased, and Marie Carrau : You, and each of you,

are hereby notified that the above named petitioners will, on

Monday, the 25th day of April, 1904, at twelve o'clock M., upon

the coming in of the Supreme Court of the United States, upon

their verified petition and copy of the entire record in this case,

submit to the Supreme Court of the United States, in its court

room at the capitol in the City of Washington, District of Co-

lumbia, their motion and petition for an order granting a writ

of certiorari in the above entitled case, directed to the United

States Circuit Court of Appeals for the Ninth Circuit, requir-

ing said court te certify to said Supreme Court of the United

States the entire record in eause numbered 925, lately pending

in the said Cirenit Court of Appeals, wherein these petitioners

wre appellees and Marie Carrau is appellant, a copy of which

motion and of the petition for the Writ of certiorari and of the

brief in support thereof are herewith delivered to vou.

Mareh 25th, 1904. JAMES B. HOWE.

Counsel for Petitioners.

SAMUEL TH. PILES,

GEORGE DONWORTH,

CHARLES TI. FARRELL.

Of Counsel.

To Terence O'Brien, as Administ rator of the Estate of John:

IN THE SUPREME COURT OF

THE UNITED STATES

Ss ciel ge —

OCTOBER TERM, 1903

ences.

HANNAH O’'CALLAGHAN and EDWARD

CORCORAN, Petitioners,

Vs.

TERENCE O'BRIEN, as Administrator of the

Estate of John Sullivan, deceased, and

MARIE CARR AU, Respondents.

ees ee a

Motion for Writ of Certiorari.

Now come Hannah O° ‘allaghan and Edward Corcoran, by

the undersigned, their counsel, and move this honorable court

that it shall, by a writ of certiorari directed to the honorable

Judges of the United States Circuit Court of Appeals for the

Ninth Cireuit, require said Judges of said court to cause to be

certified to this court, for its review and determination, a cer-

tain cause, in said Court of Appeals lately pending, wherein

the said Hannah O'¢ ‘allaghan and Edward Corcoran were ap-

pellees and Marie Carrau Was appellant, numbered in said

court 925, and to that end they now tender herewith their peti-

tion and brief, with a certified copy of the entire record in said

cause in said Cireuit Court of Appeals.

JAMES B. HOWE.

Counsel for Petitioners.

SAMUEL H. PILES,

EORGE DONWORTH,

HARLES H. FARRELL.

Of Counsel.

IN THE

Supreme Court of the United States

OCTOBER TERM, i903.

HANNAH OCALLAGHAN and EDWARD

CORCORAN, Petitioners,

TERENCE O'BRIEN, as Administrator of the |

Kstate of John Sullivan, deceased, and

MARIE CARRAU, Respondents.

The questions presented in this suit on the application

for the writ of certiorari are the following:

Did the Circuit Court of the United States for the Dis-

triet of Washington have jurisdiction of a suit, by two

heirs at law and next of kin of a person who resided and

died in the State of Washington, intestate, leaving there

his entire estate, real and personal, to annul a fraudulent

nuncupative will and a decree of a court of the state pro-

hating the same, procured by fraud, based entirely on per-

jured testimony and manufactured evidence, regular on

its face, but without jurisdiction having been acquired,

under which alleged will and its fraudulent probate a

ieee |

A OH A IH EER RENEE ese a

stranger claims the entire estate of the decedent, Where

the amount involved is sufficient and the requisite diver.

sity of citizenship for Jurisdictional PpUrposes Exists, and

When by the law of the state, customary and statutory,

4 proceeding between the same parties for the same relief

can be maintained in a court of the state exercising gen.

eral jurisdiction?

The Cireuit Court held that it did have jurisdiction of

such a suit, and rendered a decree upon the merits in fa- ;

vor of the petitioners, The Circuit Court of Appeals for

the Ninth Circuit held that the Cireuit Court did not have

jurisdiction, and reversed the decree of the Circuit Court

; for want of juvisdiction over the subject matter of the

] Suit, and directed the dismissal of the bill,

Ha ak 52 SR aa

: When a proceeding inter partes can be maintained jn

a state court, by ivhatere; wdme the state court may be

called, for the annulment of a will and its probate, a suit

for the same ya lief may be maintained in the Civenit Court

dictional requisites exist.

; The Cirenit Court of Appeals for the Ninth Circuit,

3 in an opinion delivered by Judge Knowles and concurred

4 in by Mr. Justice McKenna, then Cirenit Judge, said, in

: the case of

Richardson vr. Green. O1 Fed. 423, 42s-

3 “It should be observed alse that when it is customary

? for such state courts to hear and determine such equitable

5 suits a) United States Court, under proper conditions,

4 may hear them. /f is not Hecessary that a statute should

Ss exist authorizing the same. The suit in the county court of

| Oregon in such matters is hot authorized directly by any

‘ statute, but is a Customary exercise of jurisdiction.* * * *

, In the Broderick will ease i iras admitted if. a state

‘ by statute authorized the bringing of a suit te declare a

Will void in its courts of law or equity, the same could be

maintained ina Proper case ina Federal court.”

Again in the same opinion, the court said:

“Here it will be seen that if a suit is essentially a suit

of aciril nature, for equitable relicf, and it is customary

(lo prosecute the same in avy state court where the action

arose, Whether the same is a county court or a probate

col or a District or Circuit Court, the proper Federal

Court Will have concurrent jurisdiction of the same with

such state courts, where the amount is sufficient and the

parties are citizens of different states as prescribed by

the United States statutes.”

In the concurring opinion, Judge MeKenna, at page

iy. said:

“A suit, however, may be maintained in the county

court to declare the will void and revoke. its probate.

Clark’s Heirs v. Ellis, 9 Or. 132. and cases supra. The

nature of Chis suit is not precisely defined by the decisions,

but it is certainly inter partes, and seems to be within the

doctrine declared in Ellis v. Davis, 109 U.S. 496, 41973 3

Sup. Cb 3827. This remedy existing in the Oregon courts,

it could he exercised by the United States Cirenit Court.”

The Circuit Court of Appeals therefore affirmed the

decree of the Cirenit: Court for the Distriet. of Oregon,

adjudging, in a snit brought by the heirs of a decedent,

that an alleged will was forged and its probate fraudu-

lenthy obtained. and enjoining the persons claiming there-

tnder from setting up any title to the estate of the de-

ceased under the will and its probate.

The defendants applied to the Supreme Court for a

writ of certiorari, upon the single ground that there was

he law in the State of Oregon authorizing the maintenance

ofa suit in the courts of the state to annul a will and its

probate; that a proceeding to annul a will and its pro-

bate was in effect one requiring the re-probate of the will:

that it could be entertained by the county court only in

the exercise of probate jurisdiction, and that for that rea-

son jurisdiction did not exist in the Cireuit Court of the

United States for the District of Oregon to entertain a

—

ones

Ae Ae

suit for the annulment of a will and its probate. — ( Petj.

tion for writ of certiorari in Richardson y. (ireen, p. 4),

Counsel for the Petitioners tre thet ese Sid, at page 1 of

their brief:

“The Cirenit Court of the United States for the Dis.

trict of Oveqon is without jurisdiction ta decree a will jn.

ealid and cancel the same, none of the courts Of the State

of Oregon having jurisdiction to eutertain a snit between

harties for such relief”

Phe application for the Writ of certiorari was denied

by this court.

Richardson M Green, W9 UL Ss. 264,

The denial of the awrit Of cerliovari where the ques-

Hou sought to he peric wed was the jurisdiction of the Ciy-

cuit Court of the United States ta « utertain the suit, must

be taken as an tffirmauce by this court of the jurisdiction

of that court.

This is the view Which has tlways been taken of that

Case,

Ju Wart r. Wart, 117 Ped. 766,

the court, in following Richardson y, Green as establish.

ing the jurisdiction of the Circuit Couris of the United

States to entertain such Suit, said:

“In Richardson y. Green, 9. C. A. 565. 61 Fed. 422,

this question is discussed at length, the conclusion

reached being that under the laws of Oregon a proceed.

ing to contest the Validity of a will could be instituted

after the probate thereof, and that if the wiversary parties

were citizens of different states and the amount involved

Was suficient to meet the requirements of the judiciary

tet, at court of the United States could take jurisdiction

over such a controversy. fy application was made to the

Supreme Court for the purpose of bringing this case hy

means of a writ Of cortiovari hefore that court, but the

pplication was depir (Richardson rv. Gre Nn, 159 U. 8.

24, 15 Sup. Cf tI, to 7. Ed. 142. The denial of the

Writ when the question involved was that of jurisdiction,

{ SREMURY woretcems qrnaee a

must be taken to be in effect an approval of the ruling of

the Court of Aapeals.”

The court, therefore, held that the Statutory right

given by section 3296 of the Code of Lowa to contest a will

and its probate, was a right enforceable in the courts of

the United States when the other Jurisdictional requisites

existed. The court: said:

“Ab procecding thus brought to contest the validity

of awl presents a controre rey belivcen adversary partios,

af hich a court of the United Nlates way take jurisdic-

lion, provided the requisite mnouwnl is imvolved and a di-

rersity of citizenship exists between the litigant parties.”

In Williaus rv. Crabb, WT Ped. 193.

the Cirenit Court of Appeals for the Seventh Circuit, in

asserting the jurisdietion of the Circuit Court to enterain

suit toset aside a will and its probate, said in following

the decision in Richardson y. Cireen:

“Tt is well settled that rights aud remedies, legal or

equilable provided hy the statutes of the states to be pur-

sued in the state courts may be enforced and administered

inthe Federal Courts, and that the terms ‘law’ and ‘equity’

is used in the Constitution, although intended to mark

a distinction between the two S¥stoins of jurispradence as

Known and practiced at the time of its adoption, do not

restrict the jurisdiction conferred by it to the very rights

amd remedies then recoenized and euploved, but embrace

as well wot only rights newly created hy the statutes of

the states, but new forms of remedies to be administered

in the courts of the United States according to the nature

af the case. A state cannot. by its legislature, confer a

“Wbslantive right OF Cine dy in the ray of ao snit inter

pirtes, upou its owe citizens. that will not be available

fo the citizens of the other state 82 onor can hy any derice

restricl such right or remedy thus made arailable to en-

forcement in its own conrts. the conditions of citizenship

Weing such that they would otherwise be enforceable in

the Federal Courts. By any other view it would he in the

power of a state by legislation te deprive citizens of other

slates either of the new right or remedy given by the state

on)

re ss me * a antes FRG

, : ; ‘

Satite, or of the forum granted by the Federal Constitu- 3

tion and hiws. Phe eit izen of another state cannot be com- A

pelled to make such an election, or to #ecepl aw remedy ;

Upon condition that he forego the constitutional fornme to

Which he would otherwise be entitled.” ;

Certlorari was applied for and denied in this case, '

Crabb vr. Williams, IST USS. 45, £

In Newryer vr. White, 122 Fed, 223,

the Cireuit Court of Appeals for the Eighth Cireuit had

before it the question of the jurisdiction of the Cireuit

Court to set aside a will and its probate on the ground

that the execution of the will had heen procured by undue

infltence. Phe court said:

“The action to contest the validity of this will is a

statutory proceeding, wider sections 4622, 46223, 1 Rev.

Si. Mo. ES99. po TLO2. whieh provide that any person inter.

ested in the probate of any will may contest its Validity

by a petition to the Cirenit Court of the state, tiled within

live Vears after the will is probated, * * #

A a i

Is the parties lo this action were citizeus of different

states the Federal Court had juvisdiction to hear and de- 3

termine this issue ander the fumilian rule that rights .

created and vemecdios provided by the statutes of a state

fo be pursued in the state rout may be enforced and

administered in the nelional courts either al law, in equity

or in admiralty, as the nature of the rights or remedies

may require, Darragh vo T. Wetter Mfg. Co., 78 Fed. 7,

14, 23, CL AL G00, GIG: Gaines Vv. Fuentes, 2 UL 8. 10,

20, 23, L. Rd. Sea: Richardson v. Cireen, 8 EA O65,

O71, STS, OL Ped. #28, 420, 435: Brodhead y, Shoemaker

(CO. Cl) 4d Peds Sas, tt hoo. OOF? In re Stutsman

County (CL CL) 88 Bed. 337, M41: Elis ve Davis, 109 0.

S.ASS, AUT Sup. C1 827, eT b. Mal. 10063 Railway Co,

V. Whitton, 13 Wall 270, 278. 2x

2000. Bd. STt: Cum.

mings vo Rank, 101 US. lok, 1ST, 25 L.Ed. gon: Davis

V. Gray, 16 Wall 20x, esl, 21 LL. Ed. 447: Broderick's

Will, 21 Wall, 503, S20, 22 1. Md. 5993 Gormley v. Clark.

Is DS. S38. 348. 10 Sup. Cb S54, 33 1. Ed. 900: Cowley

Vv. Railroad Co. 130 TLS. OOO, SSP. 16 Sup. Ct. 127, 40

‘

I. Ma. 2633 National Surety Co. vo State hank of Tum.

holdt «C. C Avy 220 Fed. 593."

It is clear that the courts of the United States. other

than the present Cireuit Court of Appeals for the Ninth

Circuit, understood when they followed the decision in

Richardson v. Green, 61 Ped. 423, that that decision held

that when a proceeding could be maintained in the courts

ofa State to annula will and its probate, a suit to enforce

Ihe same rights could be maintained in the Cirenit Court

of the United States sitting in such State. and that it was

nomaterial whether the right to maintain such a proceed:

ing in the courts of the State is ereated hy a customary

Crepeune Of jnvisdietion, ar hy statute, This is certain,

because the jurisdiction upheld in Wart v. Wart, 117 Bed.

HOB Was founded upon Seetion 3296 of the Code of Lowa:

nm Sawver vy White, de Bed, 223. the jurisdiction upheld

Was founded Upon sections MW22, W220 4 Rev. St. Mo.

INMA p. TTO2; and in Williams vw Crabb the Jurisdiction

Wis founded upon seetion 7 of chapter TIS, Rev St. of TL,

In Richardson vr. Gyee Ww. Ul Ped. iy,

the claim was gnade that the Cirenit Court of the United

States for the Distriet of Oregon had no jurisdiction to

entertiin steh a suit, beewuse there was no statute in Ore-

Hon anihorizing a court of the state lo cuterlain sucha

site OAT page 28 the court said:

“Tis not wecessary that a statute should exist author-

wimg the same, * * * In the Broderick Will ease if

ras adinitted iff a Slate statute authorized the bringing

ofa suit to dechire a will void in its courts of law or equity,

the same contd be maintained ina proper case in the Ped-

eral Court”

Howas coneeded that if there wes a statute of the

Suttle authorizing such a suit, then the Cirenuit Court of

the Chited States had coneurrent jurisdiction with the

courts of the state. Tt was held by the court that if it was

customary for the courts of the state te entertain such

suits, then, even if there Wis ho statute, the Cireuit Court

of the United States had conenrrent Juvisdiction,

In the case at bar the Circuit Court of Appeals holds

that because there ix a statute whieh authorizes a pro-

ceeding inter partes in the Superior Courts of the State

of Washington exercising general jurisdiction, the Cireuit

Court of the United States for the District of Washington

is excluded from exercising COHCHETONE Jurisdiction qwith

the state court,

In Oregon the only court of the State having juris.

diction to entertain a rontest of a will admitted to pro

bate was a COUNLY court,

It is important, therefore, to determine the exact juris

‘lietion of the COUnEY court of Oregon,

“The county court shall have the Jurisdiction pertaining

10 probate courts and Boards of County Commissioners,

aM seh other powers and duties and such eiril jurisdic.

lion, not ercecding the amount of vale of SSOO.00, and

such criminal Jurisdiction net extending to death or im.

Prisonment in the penitentiary, as navy be prescribed by

law."

Article 7, Seetion Ie. Constitution of Oregon,

“The county court. is ereated by the organic lay of

the state (Art. 7 Const. 1, tnd its oreanization is provided

fordnd its huvisdiction limite dand de fined by such Organic

fair and the provisions of this tithe * # ‘as

See SU3 TL s Annotated Laws of Oregon,

See. S67 Deady's General Laws of Oregon,

“The county court has Jurisdiction, but nos eEXClUSiVE,

af actions at law and all proceedings therein and eon.

heeted therewith, where the chtiim or subject of the con

Troversy does not crcerd the value of fire hundred dal.

lars = i sh

Ses, SUE Till: S68 Deady,

“The county court. has exclusive jurisdiction in the

fist instance yr raining tod cour of probate, that is,

L. Fo take hoof uf} wills,

2 To erant and revoke letters testamentary, of ad-

miistration ov of guardianship. * * #

See S95, TIL S69 Deady,

Hothus appears that not only was there ne grant to

ihe county court of Oregon of equity jurisdiction, but all

civil jurisdiction eranted to the county court, outside of

its probate jurisdiction, was expressly limited to five hun-

dred dollars, and that jurisdiction was only conceded to it

in aetions atlaw. Tt is plain, therefore, that the authority

for upholding the jurisdiction of the Cirenit Court of the

I nited States for the District of Oregon ina suit in equity,

in the case of Richardson ve Green, was not based upon

the proposition that the county court could entertain a

suit either at law or in equity to annul a will and its

probate, The authovity for Upholding the jurisdiction of

the Civentt Court in that case rested sale lyon the qround

that the proceeding was tader partes, This clearly aly

pears from the cases cited by Judge MeKenna to establish

(he character of the proceeding customarily instituted in

the county courts of Oregon.

In Heirs of Clack v BUMS. W Ove. 12s,

the Supreme Court of Oregon said :

“Phe chief objection made Upon the argument of the

demurrer wis that the county court had no jurisdiction

of the subject matter, that the Jurisdiction to annul wills

isnot a mattey pertaining to peobaic. and is not vested

in the county court either hy the Constitution or by statute,

and that original jurisdiction of sneh eauses belongs to

the Cirenit: Court. * * * ‘phe jurisdiction of the

COUNLY Court in a proper proceeding to set aside ; will

ind to revoke letters festiimentary, iss net questioned.

“The ve-probate required when the validity of

the will is attacked. the issue formed in every such pro-

ceeding of which the party propounding the will has the

wus pPOhandi isa subject mattey of the same jurisdiction

as the probate of awillof which the county court has the

LSS Ae ee ane ornare a

exclusive jurisdiction in the first instance under the Statute

hore cited”

We now ask the attention of the court te some of the

decisions Upholding the jurisdiction of the Circuit Court

of the United States in this suit.

Brodevick’s Will, 24 Wall. 502, (hieley vo Me- |

Gilvnn),. 1

;

This court dismissed a bill filed in the Cirenit: Court oO

the United States for the District of California, instituted ;

faoset aside a will and its probate. The statutory time

ONL Ed OUR fas x HERES ARPES B a sess

for attacking the will and its probate in the probate court

3 had elapsed long prior to the institution of the suit. No

3 proceeding could then have been instituted in the probate

> court to annul the will and its probate. and this court

3 held that none could be iustituted ina Cireuit Court of

% the United States, beenuse hone could be instituted in

é Hecourtof the state. Tt is perfectly clear from the opinion

} that had there heen ne question of the statute of limita. «

> tions, and had the statute of IS62 of California heen in

; force at the time of the probating of the will, Which

Proceedings to set aside wills and their probate on the

$ sround of fraud. the Jurisdiction of the Cirenit: Court

1 of the Chited States would have been sustained. That

j such is the case clearly appears from the following lan-

: stage of the opinion:

# “The statute of IS62 has been referred to, Which gives

4 to the District Courts of California power to set aside

So will obtained by framed or unde Intiuence, or a forged

3 Will, and any probate obtained by fran, concealment. or

;

perjury. Whilst it is tne thet alterations in the juris-

diction of the state courts ramnot atfect the equitable juris-

diction of the Cirenit Courts of the United States so long

#8 the equitable rights themselves remain, yet an ¢ ularge-

ment of equitable rights men be administeyed hy the Cip-

cnil Courts as wellas hy the convds of the slate, lid this

ix probably a case in oawhich an cularge meul of equitable

es ANP A EN UR yee RemaRR

"CSE CSNY NN er J

rights is effected, although prescuted in’ the form of a —

remedial proceeding. Indeed, much of equitable juris-

diction consists of better and more effective remedies for

avitining the rights of parties. But the statute referred

to cannot affect this suit, inasmuch as the statute of lim-

itations would still apply in full force, and would present

a perfect bar to the suit.”

Gaines ¢. Pucntes, 92 US. 10,

This court having before it the question whether a Cireuit

Court of the United States sitting in equity in the State

of Louisiana had jurisdiction to entertain a suit to annul

a’ forged will and its frandulent probate, said :

“The suit in the parish court is not a proceeding to

establish a will, but to annul it as a muniment of title,

and to limit the operation of the decree admitting it to

probate, 10 is in all essential particulars a suit for equit-

ahh velief/--to cancel an instrument alleged to be void,

and to restrain the enforcement of a decree alleged to

have been obtained upon false and insufficient testimony,

There ave noe separate equity courts in’ Louisiana, and

suits for special relief of the nature here sought are not

there desiquated suits in equity, but they ave none the

less essentially such suits, and if by the law obtaining in

the state, customary or statutory, they can be maintained

ina stale court, whatever desiquation that court may bear,

we thik they may be maintained by original process in

citizens of Louisiana and on the other citizens of other

states

Milis ¢. Davis. 109 U.S, 485, 496, 4

“Where provision is made by the laws of a. state.

ats ois the case in many, for Irving the question of the

Validity of a will already admitted to probate by a litiga-

tion between parties in which that is. the sole question,

with the effect, if the judgment shall be in the negative,

of rendering the probate void for all purposes as between

the parties and these in privity with them, it may be

that the courts of the United States have jurisdiction

under existing provisions of law, to administer the remedy

and to establish the right) ina ease where the controversy

Sa. |

woos LOTSA ETE et erat SS

is: wholly between — citizens of different states. The

Judicial power of the United States extends, by the terms

of the Constitution, +to Controversies between citizens of

different states,’ and on the Supposition, which is not audl-

mitted, that this embraces only such as arise in Cases ‘jn

law and equity, it does not necessarily exclude those

Which may involye the exercise of Jurisdiction jn reference

fo the proof of Validity of wills.”

Byers rv. MeAuk 4 149 TLS. GOK.

A suit was instituted by persons Claiming to he the heirs

at law and next of kin of a decedent, agvinst the admin-

istrator of the estate with the wil] dnnexed. It was

hat one Mary MeAuley left

claimed by the complainants t

an instrument in Writing in th

“By request of my

Duquesne Way is to be sold

to be divided hetween the

the Tlome for Protestant

dear brother, my house on

at my death and the proceeds

Home of the Mriendless and

Destiture Women.”

This instrumeny had been adlinitted to probate as the

Will of Mary Me Nunley, and letters of administration With

the will annexed had heen issued to one bVers, Byers

proceeded with the administration of the ¢

Was ready for distribution,

‘state until it

The day before the hearing

of the application for distribution hill

Cirenit Court of the United States for

triet of Pennsylvania

Was filed in the

the Western Dis.

» by citizens of States other than

Pennsylvania. The bil se forth the death of Mary Me.

Awley, that there were two classes of Claimants te the

estite, first and second cousins, that the scaled will was

null and void, and that there was a large amount of per-

sonal estate in the hands of the administrator. The prayer

Was that the will and the probate he de

of neo effect, that the

“ BeBe Roe pc ate ba peli a ls Gh ois ea

a alerSechalg Rinker alia ghd, "RDI tsi GS et Riga ais eeu TS ae

NE IA ha Od Dee

Clared void and

RdMInistrator be enjoined from col-

lecting the rents, that he be ord

Ted to make an account

of the assets, and that

He assets be distributed among

the complainants and all parties legally entitled thereto.

The administrator filed # plea setting up the proceedings

RE RATA eK ue ese. Ca CORA Rate NNS yy ARGS A Kaw PIN RCN COOL Ramee,

in the Orphans’ Court. The plea was overruled. The

Cireuit Court entered a decree in’ accordance with the

prayer of the bill, This court reversed so much of the

decree of the Circuit Court as undertook to determine the

rights of parties, as between themselves, who were citizens

of the same state, but affirmed so much of the decree of

the Cirenit Court as adjudicated the rights of persons

possessing the requisite diversity of citizenship. The court

held that complainants had no interest in the real estate

mentioned in the instrument which had heen probated

as the will of Marvy MeAulev. This holding, however,

was based upon the ground that the instrument, though

void as a will, was valid as a declaration of trust.

If the decision ef the Court of Appeals in the ease

at bar is correct, then this court, in the case of Byers y.

MeAuley, would have ordered that cause remanded and

dismissed. Tt would not have aftirmed so much of the

decree of the Cirenit Court as udjudicated the rights of

parties before the court who possessed the requisite di-

versity of citizenship.

Cowley ve Northern Pacific Railroad Company, 159

U.S. 569, 5xv.

A judgment had been entered upon a stipulation made

by the attorneys of appellant. Thereafter, without tak-

img any proceeding in the original suit, appellant insti-

tuted an original proceeding in the District Court of the

Territory of Washington to set aside the judgement in the

former case, on the sround of fraud. The proceeding

begun in the territorial court Was afterwards proceeded

With in the Superior Court of the State of Washington

for Spokane County, and then removed to the Circuit

Court of the United States. Which entered a decree dis-

missing it. The Cirenit Court held that appellant should

have applied to the state court by petition or motion in

the original case, and should not have brought an independ-

ent suit; that after the ease had heen removed from the

Ve pete

ey LPAI ID NARA POI HV SR ns “ oe ee — » —

state court to the Circuit: Court of the United States it

Was treated as a suit in equity, and that a court of the

— United States sitting in equity could not word appellant

any relief. This court, in reversing the decree of the

— Circuit Court, said:

* “Although the statute of a stale or territory may not

restrict or limit the equitable jurisdiction of the Federal

Courts, and may not directly enlarge such jurisdiction,

it may establish pew rights or privileges which the Federal

Courts may enforce on thei; equity or admiralty side,

precisely as they may enforce a new right of action given

by statute on their common law side.” (Citing Brod.

erick’s Will, 21 Wall. 503).

Bardon vr. Land & Rirey Iimprovement Company,

los UL 8. 327

«gg

“We remarked in Gormley vo Clark, 134 0. S. 33s,

348, that while the rule was Well settled that remedies in

the courts of the United States at common law or in equity,

according to the essential] character of the case, are uncon.

trolled in that particular by the practice of the state COUrtS,

Yetan enlargement of equitable rights by state statutes

may be administered by the Circuit Courts of the United

States as well as by the courts of the state, and ichen the

COSC IS Oe of a remedial procecding, essentially of an

equitable charactey, there ean be no objection to the cre.

cise of the jurisdiction. Wieley vo MeGlynn, 21 Wall. DOS,

920.7 ¢ Broderick's Case),

Nmythe v, lives, 169 UL oS. 166. S17,

“A party, by going into a National Court, does not.

this court has said. lose any right or appropriate remedy

| Of which he might have availed himself in the state courts

oof the same locality: that the wise policy of the Constitu-

tion gives him a choice of tribunals.”

Darragh re. Wetter Wig. Co. 7s hed. 7. 14.

“Rights created or provided by the statutes of the

Slates to be pursued in the state courts, may be enforeed

and administered in the Federal Courts, either at law,

ie,

in equity or in admiralty, as the nature of the hew rights

nay require.”

Sheffield Furnace Co. +. Witherow, 149 0. S.574,

a7.

“Ttomay well be affirmed that a state, by prescribing

anoaction at law to enforce even statutory rights, cannot

oust a Pederal Court sitting in equity of its jurisdiction

lo enforce such rights, provided they are of an equitable

nacre,”

Leightou ve. Young, 52 Ped. 429, 442.

“Where a state statute creates a rieht and preseribes

Ho mede of proceeding to enforce it in the state courts,

the courts of the United States in that state Will enforce

the right. but not always in the mode preseribed for en-

forcing it in the state courts,”

It being clear that whenever a state statute creates

an equitable right the Cireuit Courts of the United States

Vi have jurisdiction in equity to enforce that right, the

question is, has the State of Washington provided an

equitable right which can be enforced ino the courts of

that state for the annulment of a will and its probate?

In Broderick’s case, supra,

this court, speaking of the right of action provided hy

the act of 1862 of California, for the annulment of a will,

said:

“This is probably a case in whieh an enlargement

of equitable rights: is effected, although presculed in the

form ofa remedial proceeding. Wwdeed. much of equitable

jurisdiction consists of better end more effective remedies

for atttining the rights of parties,”

Gaines vo Puentes, supra.

Suits to annul and cancel wills on the ground of

fraud are not in Louisiane designated swits in equity. Wut

this court in thai case said hit they are none the less

essey tially such suits.”

CRM CFT I

VIP IALS

wes, St

Been.

The statute of Washington providing for the contest

of a will is as follows:

“If any person interested in any will shall appear

Within one year after the probate or rejection thereof,

and by petition to the superior court having jurisdiction

contest the Validity of said Will, or pray to have the will

proven’ which has been rejected, he shall file a petition

containing his objections and exceptions to said Will, or

to the rejection thereof. Issues shall be made up, tried

and determined in’ said court respecting the competency

of the deceased to make last will and testament, or respect-

ing the execution hy the deceased of such last will and

festament: under restraint or undue influence or fraudn.

lent representations, or for any other cause affecting the

Validity of such will.”

Pierce's Washington Code, sec, 2895, (Ball. Code.

sec, 6110),

“Upon the filiny of the petition referred to in the

NeXt preceding section a citation shall be issued to the

executors who have taken pon them the execution of the

Will, or to the administrators with the Will annexed, and

to all legatees named in the will residing in the territory

(state) or to their guardians if any of them are minors.

ov their personal representitives if any of them are dead,

requiring them to Uppear before the court ona day therein

specitied, to show cause \ hiv the petition should not he

eranted.”

Pierce's Washington Code, see, 2806, (Ball. Code,

sec. 6111),

These sections of the statute create an equitable right

in the form ofa remedial proceeding, The Supreme Court

of Washington has se decided,

“Procecdinys te contest aowill ape jy their nature

equitable, aud lriad by jury of issace Of fact thervin js

Hota matter of right.”

Clausow ry. Chiyson, Wash. 252.

In the State of Washington there are Ho probate

courts, Me Superior Courts Of the state are courts of

general jurisdiction. Prior to statehood there were pro-

bate courts in the Territory of Washington. The consti-

tution of the state Csee. 7, Att. $7}. provided for the

continuance of probate courts until the second Monday

of January, IS91, and that until that time the Superior

Courts should exercise appellate and revisory jurisdie-

tion over the probate courts,

In Ball et alo vs. Clothier 1 al.. decided by the Su-

preme Court of Washington March 12. 14134 Wash.

shot vet prblished ). the court said:

“When the Constitution was tdopted the Superior

# Court was vested with veneral Jurisdiction, such as was

exercised by the Territorial District Courts, and also with

invisdiction in probate matters, and the Probate Court as

an independent tribunal was abolished.”

In Fitley ve. Murphy, 30 Wash. 1, 5,

the Supreme Court of the State said:

“In this state we have no probate court, properly

speaking, as distinguished froin the court that entertains

jurisdiction of other matters, % # * Matters pertain-

iug to probate ave referred to what is called ‘probate pro-

redures as distinguished from what is denominated ‘civil

or ceriminal procedure, but when the court sitting ina

probate preceeding discovers ina petition the statement of

facts which forms the basis of controversy, we see no

reason Why it may not settle the issues thereunder, when

| rapped rance has been made thereto, and then proceed to

ity it ina proper manner, as any other civil cause.”

a i i ee

Iu Browder r. Phinney, 30 Wash. 74

the court said, speaking of the Superior Court :

“Tt is net a law court nor ay equity court nora pro-

hate court, Wut it is all the time fhe Superior Court o

general jurisdiction, cmipowered to try all these differently

fermed causes wader the tithe of a ciril action; and when

it has once aequired jurisdiction of that ciril aclion, it may

proceed in-an orderly way to determine equitable, legal

or probate controversies,”

i fn State ex rel. Stratton rv. Tallman, 25 Wash. 295,

; the Supreme Court of the state, speaking of the same

alleged will which is involved in this suit When the Attor.

ney General of the state sought to attack its probate by

motion, said:

“There is a plain procedure which is speedy and ade-

quate, pointed out in Sec. 6110 Ball. Code, by whieh issues

may be properly made up and tried and determined, re-

specting all questions affecting the regularity of the exe.

cution or of the Validity of the will, and the Superior Const

eutertaining such a suit may fully protect such rights in the

estate by such stay of proceedings in the procedure in pro.

bate as may be necessary or effective.”

In Higgins ¢. Vethery, 30° Wash. 239,

the language of the court is:

“This action was begun by the appellants on Febru.

ary 15, 1901, to set aside the will upon the grounds that

the deceased did not make it, that the same is Void because

the testator at the time the will was made was not of sound

ad * + © Oy ea. trial the court found the facis

against the contestants, and dismissed theaction, * 4 *

When the cause was called for trial, appellants (plaintiffs

below) requested the court to impose the burden of proof

upon the defendant. * * * When the record shows,

as it does in this case, that the court Lad jurisdiction, and

all the facts appear to show prima facie a Valid will, the

order of the court admitting the will to probate must have

some force. For that reason the burden must. be upon

the plaintiffs to show that the will was invalid by reason of

the facts alleged, namely, that the testator did not execute

the will, or that he Was not of sound mind, or was under

undue influence at the time he made it. The order ad-

mitting the will to probate is not conclusire of the facts

necessary to support it, but When the facts appear of record

they must be taken as trne until the contrary is shown.”

In Reformed Presbyterian Church re MeWillan, 31

Wash. 643,

the Supreme Court said;

fee

“The Constitution does not make the Superior Courts

probate courts. On the contrary, it vests the Superior

Courts with jurisdiction ‘of all matters of probate, hence

the court is not shorn of its general powers simply because

the cause before it may be one which was cognizable for-

merly ina court of probate. VY possesses in every case

and at all times its powers as a court of superior and gen-

eral jurisdiction, and among these is the power to hear

and determine the question to Whom a bequest made by

a decedent rightfully belongs, { statute, therefore, can

wither add to nor take away the power, and it is imma-

feyial to inquire whether ov not onc conferring such power

is in existence.”

These decisions of the Supreme Court of the State

of Washington demonstrate that the proceeding to contest

awill and its probate is a suit in a court of general juris-

diction,

In the opinion of the Court. of Appeals in this suit

the court said that the Supreme Court of the State, in

denominating the proceeding to contest a will, provided

by the state statute, a “sit.” manifestly used an inapt

expression (Rep. 1445).

In Weston r¢,. City Council of Charleston, 2 Pet. 449,

this court, speaking by Chief Justice Marshall, in detining

the word “suit.” said:

“The term is certtiniy a very comprehensive one, and

is understoed to apply te any proceeding in a court of

justice by whieh an individual pursues that remedy in

court of justice which the law affords him. The modes

of proceeding may be various. but ifa vight is litigated

hetireen parties in a court of justice, the proceeding by

ithich the decision of the court ix sought isa suit.”

It is respectfully submitted that it: would be hard to

provide a proceeding which would have more of the char-

acteristics of a suit than the proceeding provided by the

Statute of Washington, and in determining that it was a

“suit” the Supreme Court of the state not only followed

the rule announced by this court, but as the highest anthor-

ERR © Oe eR FT NR eT ay RNA RT A CAND LOS ODE Aer Ss

itv in the state announced a rule for the courts of the

state in construing a statute of the state. The Supreme

Court of the state, in designating the proceeding a “suit.

Was not deciding that it was a “suit” over which the Na-

tional Courts would have jurisdiction, It Was only de-

ciding in construing the State Statute that the proceed.

ing was a “suit” to be entertained by the Superior Courts

of the state in the exercise of their general jurisdiction,

That determination is conclusive. As then this suit could

be maintained in the courts of the state, it can he main-

tained in the Court of the United States sitting in the

Same state, the other jurisdictional requirements existing,

In Woerner on Administration (2nd Edo), See. 156,

p. 35

the law is thus stated:

“While the probate of a will er parte is in rem, and,

not being between parties, cannot be removed to the Fed.

eral Courts, vet, where such Will is contested in pursuance

of statutory provisions, and becomes a suit. inter partes,

residing in different states, the Federal Courts take juris.

diction as they would in any other controversy between

the parties,”

Brodhead. vr. Shoe maker, 44 Fed. 518.

Rrerhart vr. Prerhart, 34 Fed, 89.

Kirby vr. R.R. Co. 106 Ped. 551.

If, in Richardson y. Green, the Cireuit Court of the

United States of the Distriet of Oregon had jurisdiction

in equity of a snit te annul a will and its probate, although

the only State Court in Which a contest might be instituted

had no jurisdiction in equity, and none at law where the

mount involved exceeded five hundred dollars, then the

jurisdiction of the Circuit Court in that case was founded!

Upon the proposition that an equitable right had been

created by a state custom, and a Court of the United States

could enforce that right in equity, regardless of the remedy

existing in the Courts of the state, and regardless of the

as EE RY ATARI UENO Ae MRE RENE OARS ere tee Bae OT a healy

character of the Court of the state in Which it might be

enforced, provided the right to be enforced was one which

was to be enforeed inter partes,

hur parte MeNeil, 13 Wall. 236, 243.

“A state law cannot give jurisdiction to any Federal

Court, but that is not a question in this case. A state

law may give a substantial right of such a character that

Where there is no impediment arising from the residence

of the parties, the right may be enforced in the proper

federal tribunal, whether it he a court of equity, of ad-

miralty, or of common law. The statute in such cases

does hot confer the jurisdiction. That crists already, and

itis invoked to gire effect to the vight by applying the

appropriate remedy. This principle may be laid down as

tNXiomatic in our national jurisprudence. A party forfeits

nothing hy going inte a federal tribunal.”

If the customary exercise of jurisdiction by a county

court in Oregon in the exercise of probate jurisdiction

over a proceeding tuter partes to annul a will and its pro-

ite, Was sufficient to authorize the Cireuit Court of the

Chited States in Oregon, sitting in equity, to take juris-

diction of a snit to annul a will and its probate, how ean

it be claimed that the custotiary and statutory exercise

of jurisdiction by the Superior Courts of the State of

Washington over like proceedings can deprive the Circuit

Courts of the United States sitting in Washington of juris-

diction to entertain a similar suit?

If the statute of Washington and the decisions of the

Supreme Court of the state do not make it clear that the

contest of a will and its probate is a proceeding inter

pertes, and is a suit of sueh oa character as authorizes x

Circuit, Court of the United States to take jurisdiction

When instituted by parties possessing the requisite di-

versity of citizenship, and where the amount involved is

sufficient, we are unable to understand upon what possible

theory the decision in

epee

PBA Uo eleMgh.wiaihid season Sip: TW Bah oak oa allay He Ns te

DPritowiics Bt LAD Mier i 8a eae tenatigs

Richardson v. Green, 61 Fed, 423.

could have been rendered and approved by this court,

We submit that it is not competent for the State of

Washington to provide a remedy by which a will, after

its probate, can be attacked by a proceeding inter partes

in a court of general jurisdiction, that the procedure should

be of an equitable character, that it should bea suit, a civil

action, but that a party claiming such remedy must resort

exclusively to Courts of the state or give up his right to

redress, although by reason of his citizenship

“the wise poliey of the Constitution gives him a

choice of tribunals.”

We submit that no case ean be found denying the

jurisdiction of a Cirenit Court of the United States over

asuit to annul a will and its probate, instituted by parties

possessing the requisite diversity of citizenship, where the

wnount involved is sufficient: for jurisdictional purposes,

When by the law of the state Where the Cireuit Court of

the United States is held. a proceeding inter partes, other

than by an appeal, ean be maintained in a State Court

of general jurisdiction to obtain the same relief,

The Civenit Court of the United States for the District

of Washington, under the all gations of the bill, had juris:

diction in equity to entertain the suit to set aside the will

on the ground of fraud, and the decree probating the same

because procured by fraud, and which. if allowed to stand,

would constitute muniments of title, if the will conveyed,

as claimed by Marie Carran, realty as well as personalty,

In Cowley vo Northern Pacific ROR. Co. 159 0. Ss.

69, SSO,

this court distinguished the cases of

Gaines vs, Fucntes, 92 0. S., 10,

and

Barrow ve Hunton, 99 UL 8. 80,

and said:

“The distinction between the two cases above cited

is that in the latter case the judgment was impeached for

a matter of form, and in the former case for the falsity

aud insufficiency of the testimony wpon whieh the will

Was admitted to probate; in other words, fora fraud con-

nected with the probating of the will.

In Marshall vr. Holmes, 141 U8. 590,

this court cited Gaines vy. Fuentes, Barrow y. Hunton,

Johnson ve Waters, svpra.. and Arrowsmith vy. Gleason,

129 U.S. 86, and said:

“These authorities would seem to place beyond ques-

lion the jurisdiction of the Circuit Court to take cognizance

of the present suit, which is none the less an original,

independent suit because it relates to judgments obtained

i the court of another jurisdiction. While it: cannot

require the state court itself to set aside or vacate the

judgments in question, it may, as between the parties be-

fore it, if the facts justify such relief, adjudge that Mayer

shall not enjoy the inequitable advantage obtained by his

judgments. A decree to that effect would operate directly

upon him, and would not contravene that provision of

the statute prohibiting a court of the United States from

granting a writ of injunction to stay proceedings in the

state court. Tt would simply take from him the benefit

of judgments obtained by fraud.”

That a court of the United States has jurisdiction of

asnit to enjoin a person from availing himself of a judg-

ment obtained by fraud, based upon false evidence and

rendered cr parte, would seem to be perfectly clear.

Howard v. Cordova, V7 U.S. G09.

Graver v Faurot, 76 Ped. 257.

Arrowsmith vo Gleason, 129 U.S. 86.

Varshall vr. Holmes, 141 UL 8. 590,

———— statin a ——— LT

ERED spree

7 en CPC. wes let RU URR EEF

Davenport ¢. Moore, 74 Ped. 945,

Johnson rv. Waters, UL ULS. O40.

ROME IRAT A 90 ks

Did the Civenit Conre of the Cuited States for the

District of \i ashington have Jurisdiction of a suit betireen

the parties lo the record ty construc the alleged nuncupa-

tire will and determine it invalid on its face, on the ground

that the section of the act of the Pervitory of Washington

under which jts ralidity is asserted is roid: because in

conflict with section & of the act of Congress entitled “Ay

let to establish the Vervitorial Government of Washing-

ton”?

OME carne Cy

The law of Washington, approved March 20, IS95,

(Laws of Washington, ISIS, pp. 197), is as follows:

“Section 1 When a Person dies seized of lands, tene-

ments or hereditaments, o¢ any right thereto, or entitled

fo any interest therein in foe or for the life of another,

his tithe shall vest inne diately in his heirs or de risces,

subject to his lebts, faimily allowance, expenses of admin-

istration ane wy other charges for Which such real estate

is liable under eXisting laws. No administration of the

estate of such decedent, and he decree of distribution or

any other finding or order of any court shall be necessary

iN AMY Case to vest such tithe in the heirs or devisees, but

the same shall vest in the heirs or devisees instantly upon

the death of such decedent; provided, that no person shall

be deemed a devises mutil the will has been probated. The

tithe and right te possession of such lands, tenements or

hereditaments so vested in such heirs or devisees, together

With the rents, issues wud: profits thereof shall be good

and valid against all persons claiming adver “ely to the

claims of any such heirs, or devisees, excepting only the

executor or adminisivator when Uppointed, and persons

lawfully Claiming under sneh executor or adininistrator:

aud CNY ONC OF snore of such heirs or derises S, or their

7 grantees, jointly ov seve rally, mary sine for and recover their

4 respective shares ov interes x many such lands. fenements

or hereditaments, and the vents, issues and profits thereos,

whether letters festa lary or of administration he

granted or not, from anu person crcept the erecutlor or

a MDI Te 2

ee ee eeeae ae Aree

~_)

administrator, dud those lairfulty claiming under such

erecutor ov administrator”

In construing this how, the Supreme Court of Wash-

ington, in the case of

Griff rv. Warburton, 23 Wash. 231,

said:

“Under the statute as it now exists, the heirs upon the

death of an ancestor become vested at once with the full

property, subject only to the claims of the ancestor's eredi-

tors and the necessary costs and charges of administra-

tion, They have the vight of possession against all the

orld, crcept the vight of the administrator irhile these

claims ave being adjusted aud satisfied. But the adminis-

trater’s right to the possession of the property of an estate

ix temporary and limited to the purposes of administra-

tion, When the claims of creditors are paid or barred,

aud the costs and charges of administration are satistied,

the estate is for all practical purposes fully administered

upon, the right of possession in the administrator termin-

wlessand the right of the heirs to the residue of the estate

in his hands heeomes absolute. The heirs are then entitled

to have this residue delivered over to them as their ewn

property, Hader the law, and it is made the duty of the

administrator by the statute to surrender the property

io them. "This duty they ean enforce hy obiaining a decree

of the court directing its performance. As such a deeree,

however, neither ereates their title nor their right of pos-

session to the property, a distribution made without. it

cammot be invalid.”

It is clear, therefore, that if the aleged will was

invalid. these petitioners were the owners of the estate

of the deceased, and the realty vested in them immedi-

ately, ‘They could not, however, maintain ejectinent

tgainst the administrator, for the statute protected his pos-

session. They could net maintain ejectnent against

Marie Carrau, because she was not. in possession. The

tdministrator held the property in trust for the heirs.

Marie Carrau asserted a claim to the property under the

tHeged will and its fraudulent decree of probate. A court

——_,-_peiaecle a

of equity was the only court which could afford petitioners

any relief, by cancelling the alleged will and enjoining

Marie Carrau from setting up any claim under it. The

bill invoked the jurisdiction of the Circuit Court. if it

should be found that the Will was made, to determine that

it was void upon its face hecause the estate bequeathed

exceeded in value the sum of two hundred dollars. [1

is respectfully submitted that a Cireuit Court of the

United States sitting in equity has jurisdiction of a suit

to construe a will and to determine it invalid, where the

party instituting such suit has no adequate remedy at lay.

Potter vr. Couch, 141 U.S. 206.

Jones vr. Habersham, 7 U8. 174.

Ware v. Wisner, 50 Fed. 310.

Brigham vr. Kenyon, 76 Fed. 30.

Seal Rast hee

RBS MP Raois:

SSA

Sherman ro American Congregational Ass’n., 113

Fed. 609,

Waterfield r. Rice. 114 Fed. 625.

Handley rv. Palmer, 103 Fed. 39,

Colton rv. Colton, 127 VU. S. 300.

Boman vs. Boman 49 ¥ed 329

A nuncupatire will, under the law of Washington, is

invalid achere the estate bequeathed ercecds tire hundred

dollars.

Section 6 of the Organic Act of the Territory of

Washington, approved March 2, 1853, (U.S. Stats. az

Large, Vol. 10, Pp. 172, 175), is as follows:

“Section 6& * * * To avoid improper influences

| Which may result from intermixing in one and the same

- act such things as have no proper relation to each other,

every law shell embrace but one Object, and that: shai

he expressed in the title.”

; The Territorial Legislature, at its first’ session, in §

ISS4, enacted a statute entitled :

“An Act establishing probate courts for the Territory

of Washington.”

Laws of IS54, Territory of Washington, p. 309,

Bic Bi Sabet eax

GILPIN AL CROAT en Ten eae

At the same session the legislature enacted a statute

entitled :

“An Act relating to Wills.”

Laws of 1854, p. 312.

Section 23 of this act provides:

“No nuncupative will shall be good when the estate

bequeathed exceeds the value of two hundred dollars, nor

unless the same be proven by two witnesses, * * #"

No change was attempted to be made in the amount

of an estate which could be bequeathed by nuneupative

will, until November 11, 1873, when the legislature of

the Territory, by an act approved on that date, entitled:

“An Act defining the jurisdiction and practice in the

probate courts of Washington Territory,”

omitted the word “nor” after the words “two hundred

dollars” and before the word “unless,” and thereby, if

the repeal was valid, removed the limitation on the amount

of an estate which might be bequeathed by nuncupative

will,

Laws of IS73, pp. 252, 259,

aking the section read as follows:

“Section 33. No nuncupative will shall be good when

the estate bequeathed exceeds the value of two hundre?!

dollars, (————) unless the same be proved by two wit-

Ree, > 7

Section 33 of the act of March 11, 1873, was re-enacted

by the Territorial Legislature by an act approved De-

cember 1, 1881, entitled:

“An Net defining the jurisdiction and practice in the

probate courts of Washington Territory.”

Pieree’s Code of Washington, p. 355.

There is nothing in the title of the act of November

11, INT3, nor in the title of the act of December 1, ISS],

relating in any manner to the subject of wills. The sece-

sa am

tion in the hody of each of those acts, re-enneting see.

tion 23 of the act of ISS4, but omitting the word “nor,”

and by such omission repealing the limitation imposed

by section 23 of the tet of IS854 upen the amount of an

estate which might be bequeathed by nuncupative will,

is in conflict with the Provisions of section 6 of the Organic

Act of the Territory of Washington, whieh required tha:

every law of the territory—

“—shall embrace but one object, and that shall be ex.

pressed in the title.”

By leaving the word “nor” after the words “two hun-

dred dollars” and before the word “unless,” out of Section

33 of the act entitled “An act detining the jurisdiction and

practice in the probate courts of Washington Territory,”

not only was the limitation upon the amount of an estate

Which might be bequeathed by auncupative will, which had

been imposed by Section 23 of the Act of IS54, removed, but

When the estate did not exceed two hundred dollars the

formalities required by 29 Stat. of Charles Il. and by the

Act of 1854 were entirely dispensed with. Could a legis-

hth,

Pairk

E tor, hearing only the title of the act read, possibly con-

4 template that sueh a vital change in the law of Wills was

4 heing made, in an aet entitled “An Aet defining the juris-

> diction and practice in the probate courts of Washington

3 Territory?" Would he not necessarily conclude upon hear-

: INS4, entitied “An Net establishing probate courts for the

i Territory of Washington.” instead of “An Act relating to

Wills?” The vice in the act is that the title not only does

hot give notice that the legislature was dealing with the

subject. of wills, but it is aetnally Misleading because

it purports to deal only with the jurisdiction and practice

of courts.

There has been neo legistation relating to nunecupative

Wills since the Territory of Washington became a state.

That the title

OER ESA NE ti AE A Rig eA bes

OS eS ee ee ae

PGRN LOE RE ST PAF Ss POT Ste bee ee

“An Act defining the jurisdiction and practice in the

probate courts of Washington Territory.”

is not sufficiently broad to cover a provision repealing

the limitation of two hundred dollars which had beer

imposed upon estates bequeathed by nuncupative wills,

there is no doubt. There is in the title no indieation

that the legislature of the territory was legislating upou

the subject of wills. Legislation in reference to that sub-

ject was therefore void, because the title of the act did

not conform to the requirements of the organic law of the

territory.

Ntate vr. Tieman, 73 Pac. Rep. 375: B82 Wash. 294.

Ntate vr. McDonald, 64 Pac. 912; 25 Wash. 122.

NSengfelder vr. Hill, 21) Wash. 371.

In this case the court said:

“The title of the act is “An Act to protect: innocent

purchasers of community veal property, which under sce-

tion 19 of Article 2 of the state constitution ix too narrow

fo include within the terms of the act property held by

a title other than that specially mentioned.”

Warburton vr. White, 18 Wash. 3511.

Howlett vr. Cheatham, 17 Wash. 626.

National Bank of Commerce ro Neattle Pickle

Works, 15 Wash. 126.

Percival vr. Cowychee Dist... 15 Wash. 480.

Mn Howard v. Schneider, 62 Pac. 435. 10 Kan. App.

137, the Supreme Court of Kansas held:

“Chapter 208, laws of 1891, entitled “An Aet to abolish

survivorship in joint lenancy’ is uneonstitutional, in soe

far as it attempts to abolish survivership in estates in

entirely, said subject not being included in the tithe.”

In Nlate rv. Bankers’ & Merchants’ Mutual Be nejit

Assn., 23 Kan. 501,

repos .

Rae NN RAN Nth elm INT wane ak Lt ERAS ny a

Mr. Justice Brewer, then upon the Supreme Bench of

Kansas, said:

DT hee Constiintion has said that the litle must be an

4 index to the law, and the courts may not sanction as a

4 ralid enactment Guy part of a statute to which the finger

| of the title does not point, If wwe should attempt to en.

‘ large the title, we should defeat the rery purpose of the

i constitutional Prohibition, whieh was fo make the title

% 10a bill notice of all contemplated legislation.”

Citizens’ Savings Bank Auditor General, 9° N.

: W., 214 ( Mich.) ; 123 Mieh, S11.

‘ State rv, Board, AV Pac. 1455 99 Nev, 899,

‘ Van Houten " People, 4 Pac. 137; 29 Colo. 53.

: State ov rel, Cooper ¢, Springer, 46 Atl, 589 65 N,

: J. 1. 161,

: In this case the court said :

“ “To comply with the Constitution, the title of a pro-

posed law must give reasonable intimation of the mat-

fers under conside ‘ation; and as the title mnust limit the

ehactinent to matters within its scope, it follows that the

legislation on which rests the present application is void.”

Gray, Atty. Gen.. rv. Newark Co., 4G AGL. 606; 65 .N,

J. L. 51,

Walling rv, Mayor, 44 Nt. S645 64 No 1. 203.

Harris +. State, 36 8. E. 232; 113 Ga. 25.

Hayes rv, Storms, 45 Atl. S093 64. N. J. 1. 514.

/n re Brean, 14 Colo, 401.

Rer Lumber Co. r Reed, TN. Ww. 272; 107 Lowa

111.

razier y, Georgia RoR. & Banking Co., 28 8. E.

: 662, 101 Gia. 77,

Polkner v. Dorland, 24 Ath. 4033 S54 No LL. 4009,

; Brooks rv, People, 24 Pae, 9933 14 Colo. 413.

Rayio rv, State, GS. W, 401; 2 Pickle (Tenn.) 272.

Thomas vr. Wabash Ry. AO Ped, 126.

Case r, Loftus, 43 Fed. 839.

Crowther ¢. Midelity Tus. Co, 85 ed. 41,

eeatenhetialiniiatle tate nT a a ——

In People vr. Congdon, 48° N. W. 986, 77 Mieh. 351,

the body of the act provided for articles of adoption, and

that the child adopted showld be the heir of the persons

adopting. The court said;

“The law is plainly in violation of the constitutional

provision that the object of the act shall be expressed in

itx title, The title of this act as passed and adopted is,

“An Aet to provide for the changing the names of minor

adopted children and of other persons.”

In State vy. Hancock, 82 Ath 689, 58 N. J. L. 139, the

svilabus, which is by the court, is as follows:

“The title of an act being ‘An Act to tax intestates’

estates, gifts, legacies and collateral inheritance, in cer-

tain cases,” held, that the title did not express a purpose

to tax real estate devised, and the provisions for that pur-

pose were therefore invalid.”

The Code of 1881 was not a reenactment of former

laws, but was a compilation of such laws as had there-

tofore been legally enacted, and of such laws as were

enacted at the special session of the legislature in 1881,

Baer v. Choir, 7 Wash. 631, 637.

Gractz v. McKenzie, 3 Wash. 194, 197.

Northern Pacific R. R. Co. rv. EUison, 3 Wash. 225.

We have examined the original enrolled act in the of.-

fice of the Secretary of State of the State of Washington,

Which was passed at the session of 1881, and approved De-

cember 1, 1881, entitled:

“An Act defining the jurisdiction and practice in the

probate courts of Washington Territory.”

Its sections begin with section 1297 and end with see-

tion 1686, of the Code of 1881. Its title is also set forth

in Pierce's Washington Code at page 355. The law of

Washington, therefore, upon the subject of nuncupative

Wills remains as enacted by the legislature of 1854. That

legislature imposed a limitation of two hundred dollars

‘

NOTRE OE ANB iS eatS is temas er ay ————

upon estates which might be bequeathed by nuncupative

will.

% The alleged hunecupative will under which Marie Cap.

% ‘au claims the entire estate asserts that the estate be.

8 queathed is worth “many thousands of dollars.” Tt js

4 therefore void upon its face.

Stricker v, Oldenburg, 39 Lowa 653.

Pierce vr, Pierce, 4G Ind. 86,

The Cirenit Court of the United States certainly had

jurisdiction of a suit instituted hy aliens against Marie

i Carran, a citizen of the State of Washington claiming un.

der the alleged Will, to construe the alleged will, to deter.

mine it invalid, and te enjoin her from making any claim

under it.

: IV.

Did the Civenit: Court of the United States for the

District of Washington hare jurisdiction of a suit betircen

the parties to constrne the alleged nuncupative will and

determine that if did not convey real estate, and that.

therefore, eren if valid, the decedene died intestate as to

such real estate?

The authorities cited under proposition TTT Clearly

establish the jurisdiction of a court of the United States

sitting in equity to construe a will,

In Byers r, MeAuley, Supra,

this court held that the instrument which had heen pro-

hated by the Orphans’ Court of Pennsylvania as a last will

and testament, could not stand as a will, but that it was

ood as a declaration of trust.

The statute of Washington in reference to nuneupa-

tive wills did not erente at right to make a huncupative

Will. Tt simply required that nuneupative wills should be

made with more formality than was required by the eom-

ila ae Te eee Bee

‘ mon law, and limited the mount of an estate whieh might

% be bequeathed. Until the Statutes of Wills (32 and of

Aol tang

rm i

Henry VITL) real estate could not be devised. The Stat-

ite of Wills required wills of lands to be in writing. Nun-

cupative wills were left as at common law, and they could

dispose of personal property only. By the Statute of

20 Charles TT. restrictions were imposed upon them, They

were abolished in’ England by Act TL. Viet, « 26 (1837),

except in case of soldiers in service and seamen at sea, In

America they have generally been abolished, except in the

case Of soldiers in service and sailors at seu, Or else greater

restrictions have been imposed upon them and the amount

Which might be bequeathed limited to sinall sums. Wash-

ington has imposed great restrictions, limited the amount

ind allows only bequests.

A nuncupative will does not convey real estate.

Mn ve Davis’ Will, TON. W,. Rep. 761; 103 Wis. 455.

Sadler v. Sadler, 60 Miss, 251.

MeLeod v. Dell, 9 Fla. 451.

Nmithdeal v. Smith, 64 N.C. 52.

Palmer v. Palmer, 2 Dana 390.

Page v. Page, 2 Rob. (NVia.) 424.

Lewis vr. Nylott, 45 Tex. 190.

Pieree v. Pierce, AG Ind. 86.

Schouler on the Law of Wills, See. 362.

Moffett vr. Moffett. 67 Texas 642.

Thasmuch as the bill inveked the jurisdiction of the

Circuit Court to annul the alleged will and its probate, on

the ground of fraud, alleging facts bringing the ease with-

in the decision in’ Marshall y. Holmes, svpra, and inas-

hich as the bill also invoked the jurisdiction of the court

fo construe the alleged will and to determine it invalid

Npon its face because there was no law authorizing the

aking of a nuncupative will where the estate bequeathed

exceeded two hundred dollars, and also invoked the juris-

diction of the court if the Will was made and was valid,

fo construe it and determine that real estate did not pass

tuder it, there was a suit before the court of which it had

we i |

undoubted jurisdiction, and in that suit there arose a eon.

troversy as to the making of the will, Sueh being the case,

the suit) comes directly within the rule wunouneed jy

Giaines vy. Fuentes, supra.

Petitioners were compelled to resort te a court of

equity inorder to obtain the relief whieh they sought. Me

claim of the respondent was not that petitioners had a

Plain and adequate remedy at how, but it was that the Su-

perior Court of the State of Washington for King County

had exclusive jurisdiction of the subject matter of the ean.

treversy hetween the parties to the suit in the Cirenit

Court of the United States. A court of law could net en.

join the respondent Carrau from wsserting title te the es.

fates Which was the principal relief sought against her,

In Vet ‘oathay v, Wright, 121 US. vor,

a osuit was brought in the Cirenit Court of the United

Stites in equity to quiet the tithe of coloplainant toa traet

of land in) West Virginia. The West Virginia Code al

lowed an action of ejectment against one claiming title to

or interest in land. althoueh not in possession. Tt was

claimed by the defendant that the West Virginia statute

furnished a plain and idequate remedy at law, and there-

fore that a court of equity had no jurisdietion of the suit

to quiet tithe. This court said. speaking of the existence

of the statute:

“Admitting this te be se. it nevertheless cannot have

the effect to oust the jurisdiction in equity of the courts of

the United States as previously established.”

The remedy at law, in order to exelude the exercise of

equity jurisdiction, must be net only adequate, but as eom-

plete as that which ean he afforded by a court of equity,

Rich rv, Brarton, 158 U8. 87s.

Gormley ve Clark, AUS. 28K.

Allen rv. Hanks, 160. 8. BOT, S10,

Tyler v, Savage Tas US. TO. od.

(pss s te VedWsoyie —

Kilbourne vr. Sunderland, 30 U.S. DOD, S14,

Boyee’s Raccutors vr, Grundy, 3 Pet. 210, 215.

Walla Walla ev. Walla Walla Water Co, 172 U. 8.

I, 32.

Hudson v. Raudolph, 66 Fed. 217,

Waite rv, O'Neil, 72 Fed. 356.

Bardon v. Land Co. 157 UC. 8. 330.

Nmythe vo Ames, 1 UL SS. 316.

Sheffield Purnace Co. vr. Witherow, 149 0. S. 574,

BYELS

ftoes the fact that certain claimants of the estate,

hase claims are denied hy both parties to the suit, and

vqainst whom wo relief is asked ov can be granted, are not

jaimed as partics, and whose joinder would oust the court

uf jurisdiction, deprive the court of jurisdiction to deter-

wine the controversy betwen the parties actually before

the court. who do possess thi requisite diversity of citizen-

ship?

The '7th rule in equity settles this question in the

negative,

Pisher vr. Shropshire, WAT USS. 138.

Alb of the parties were before the court whom the stat-

eof Washington required should be made parties to a

sit to contest the will, mimely, the petitioners as parties

interested in the wilh the administrator, and the alleged

legatee named in the will, residing in the state. The stat-

tte of Washington does not, as does the statute of Califor.

bia, require that all of the heirs should be made parties,

even if there were heies other than these petitioners. In

view of the fact, however, that the petitioners claim to be

the only heirs of the deceased, and that the respondent

Marie Carrau claims that the deceased died without leay-

ing any relatives, it would seem an idle form te make par-

lies those who both petitioners and respondents say have

wo interest in the estate. In Byers v. MeAuley, supra, this

ere ——

waediy Su *

court found no difficulty in determining the controversy

between the parties to the suit Who possessed the requisite

diversity of citizenship, but reversed the decree as to other

parties who did not possess the requisite diversity of cit.

izenship. Under the allegations of the bill and answer,

and especially in view of the evidence in the case, the per-

sons other than the petitioners, who claimed to be heirs of

the deceased, were neither indispensable nor proper par-

ties, No relief was asked against them. They were not

alleged to have any interest in the controversy,

In Williqus vr. United States, 138 U.S. 514,

certain lands in controversy had been certified to the State

of Nevada. The state made a contract with appellant for

the sale to him, he paving one-fifth of the purchase money

at the date of the contritet, and contracting to pay the bal-

anee in subsequent installments. The United States filed

a bill in the Cirenit Court for the District of Nevada

against appellant alone. The scope of the allegation of the

bili was that the lands were improperly certified to the

state, The prayer of the bill was for the cancellation of

the contract between appellant and the State of Nevada,

and an adjudication that appellant had no interest or title

in the lands, and that he he directed to surrender to the

state for cancellation all contracts and agreements whieh

he had with the state. The court said:

“The first contention of appellant is that this aetion

could not be Inaintained, because the State of Nevada was

not made party, it holding the legal tith, * * # «

With respeet to the first contention, it cannot be doubted

that the certification operated to transfer the legal title

fo the state (Frasher. O'Conner, 115 U.S, 102), nor

that the contract between the sttte and appellant passed

to him the equitable title, the legal title being retained by

the state simply as security for the Unpaid part of the pur.

chase money, The proposition, therefore, is that where

there are outstanding tivo interests or titles held by differ-

ent parties, the real owney cannot proceed against either

without joining the others that only one action can be

PBs Rien

PR ;

maimtained to divest these parties f their separate titles,

aud that to that action both adverse holders must be par-

fics. The proposition is wot sound. A court of equity has

jurisdiction to divest cither one of the adverse holders of

his title ina separate action. Dowbtless the court: has

power, When a separate action is instituted against one, to

require that the other party be broveht inte the suit. if. it

appears necessary To prevent wrong and injury to either

party, and to thus fully determine the tithe in one ae-

tion, but such right does not oust the court of jurisdiction

of the separate action against either. [thas jurisdiction of

separate aetions against each of the adverse holders, and

there is no legal compulsion, as a matter of jurisdictional

necessity, to the joinder of both parties as defendants in

one action. There are special reasous why this rule should

be recognized in this case. It may bethat the Cireuit Court

would not have jurisdiction of an adion against the state;

that an action against a state on behalf of the United

Suutes can be qaintainable only in this court, and that,

When brought in this court, no other party than the state

can be made defendant. We do not decide that these things

are so, but suggest the difficulty which must have presented

itself to the counsel for the government, and which justifies

separate suit against the holder of the equitable title.”

In Aer rv. Watts. 6 Wheat. 550 this court said:

“No one need be made a party complainant in whow

there exists no interest, and no one party defendant from

whom nothing is demanded. Watts costs his case upon the

arerment that all the interests once vested in O'Neill and

the Scotts now center in himself, aud provided he can re-

corer the land now in possession of those aelually made

defendants, he is contented afterwerds to meet the just

claims of any others who are not nade defendants. No

rights will be affected by his recovery but those of the ae-

fual defendants and those claiming through them.

In the case at bar, these petitoners are entitled te

relief against the defendants actually before the court, and

are content afterwards to meet the claims of any others

Who are not made defendants. These petitioners say there

are no others who should be made defendants. The. re-

spondent Carran says that there arene relatives of the de-

ceased. Tf the claim of these petitioners is true, there is

ho need to make the absent Claimants parties. If the Claim

of the respondent Carrau is true, there is no need to make

them parties. If persons other than those before the court

had any rights in the este, the decree in this suit would

hot affect them.

Line ndorf v. Taylor, 1 Wheat. 152.

Valtier vr. Hinde, 7 Pot. see, 268,

Storey vr. Livingstone, 13 Pet, 359, 375.

Joy ve Wirts, Ped. Case Tod,

House vr, Mullen, 22 Wall. 49.

Ru. Co, vr, Stewart, 9 US. PSE

Dick vr. Balch & Pet. 36.

Williams vr. Gibbs, 17 How. 239,

C.S. er. Hendy, 54 Fea. 447.

Billings co Aspen Vining Co, SL Ped. 33s.

Harrison v4 ran, Ped. Case G16.

Union MoCo, r, Danghery SV Ped. 73.

Smith vr. Lee, 77 Fed. 779.

Hamilton rv, Savannah RoR. AY Ped. 112.

Society vr. Hartland, Ped. Case 13055.

Vi.

As stited in the petition for the Writ of certiorari, in

this suit an appeal has been allowed by the United States

Circuit Court of Appeals to this court, and is now pending

in this cours, being docketed as No. 593, October Term,

1903.

The application for the writ of certiorari is made be-

cause there is doubt whether the decree of the United

States Circuit Court of Appeals is final If this) court

should hold that it has net Jurisdiction of sueh appeal

When the case is reaehed in. the ordinary course of the

business of this court, it would then be too late for these

petitioners to apply for the writ.

Lyves ¢, Polsdorfer, AST US. DSS,

Po ae

These petitioners have, therefore, applied for the writ

promptly, so that if this court has not jurisdiction to re-

view the decree of the United States Circuit Court of Ap-

peas hy was of appeal, such review may be had by the writ

of certiorari, and they pray that the copy of the record

heretofore tiled on the appeal be taken and deemed a sufti-

crent return to the writ of certiorari,

Security Trust Co. rv. Deut, UST UL OS. 2BT.

The appeal presents the following questions :

1. Tas the United States Cireuit Court of Appeals

jurisdiction of amappeal from a decree of the Cireuit Court

of the United States for the Distriet of Washington, ren-

dered on the merits ina ease where the jurisdiction of the

Circuit Court, which was ia issue, was invoked both on the

sround of diversity of citizenship and also on the ground

that certain proceedings in the Superior Court of the State

of Washington for King County were taken without juris-

diction, and deprived the petitioners of their property

Without due process of law, in contravention of the Four:

tecnth Amendment to the Constitution of the United

States?

It is clear that if diversity of citizenship did not exist,

and that the jurisdiction of the Cireuit Court rested solely

on the ground that the bill stated facts showing that the

suit depended on the construction or application of the

Constitution of the United States, the Cireuit Court of Ap-

pedals liad no jurisdietion of the appeal, and the sole rem-

mdy of the respondent (the appellant in the United States

Cirenit Court of Appeals) was te appeal to this court.

Cnion & Planters’ Bank vo Me mphis, S9ULS. 71.

American Sugar Ref. Co. rv. New Orleans, UST U.S.

2t4.

It is equally clear that if the jurisdiction of the Cir-

eit Court could be rested beth on diversity of citizenship

. -- > © Se

MEN ID DO o .

. and a federal question other than one involving the eon.

Fi struction or application of the Constitution of the Uhited

“ States, then the Circuit Court of Appeals would have jur.

isdiction of an appeal from the Cirenit Conwt, but its de-

cision would not be final.

Northern Pacific BR. Co, r Soderberg, 18x U. S,

526.

Howard vr. U8. to the use of David Stewart, 1S4

U.S. 676,

If, however, 2 suit is one where jurisdiction of the

Cireuit Court is invoked because the construction or ap-

plication of the Constitution of the United States is in-

volved, then it is one Which can be brought directly to this

court from the Cireuit Court, and the whole case is open

Upon such appeal.

Giles vr. Harris, 189 U. B, 475.

Cummings r, Chicago, 188 UL Ss. 110.

This is se, although Jurisdiction also ex ists because

Of diversity of citizenship

Davis & Farnum Corr, Los Angeles, py U.S. 207.

The Circuit Court of Appeals for the Ninth Circuit, in

Wright r. MeFarlane & Co., 122 Fed. 770,

dismissed an tppeal for want of Jurisdiction, and said, in

commenting upon

Poun Mut. Life Ins. Co, ¢. Austin, 168 US. HS}:

“Tt will be observed that in this ease the jurisdiction

of the Cirenit Court Was invoked upon the ground of di-

verse citizenship of the ltrties to an aetion, lout the bill

disclosed a second sround of jurisdiction in the allegations

Claiming that the ordinances of the city and law of the

state were in contravention of the Constitution of the

United States. Those allegations Presented a case in which

the jurisdiction of the Cireuit Court Was not entirely de-

pendent upon the Opposite parties to the Suit or contro-

anette.)

versy being citizens of different states, and therefore, un-

der section 5 of the act of March 3, 1891, the Supreme

Court had exclusive jurisdiction.”

It is suggested that where the jurisdiction of the Cir-

cuit Court rests both on diversity of citizenship and also

because the bill invoking the jurisdiction of the Circuit

Court shows a case involving the construction or applica-

tion of the Constitution of the United States, and the jur-

isdiction of the Cireuit Court is in issue, the Whole case

must be brought to this court from the Circuit Court and

the jurisdiction of this court is exclusive.

Howard v. US8., U4 US. 676.

: Nt. Louis Cotton Compress Corr. American Cotton

Co. (CO. CL AL Sth Cireuity, 125 Ped, 196.

VWrightman vr. Boone County, 31 CO. CL AL STO.

Chicago, M.& St. P. Co. rv. Brans, 7 C2 C. A. 290.

Huguley Mfg. Co. rv, Galeton Cotton Mills. Ist U.S.

2u0,

Robinson v. Caldirell, 165 U.S. 359.

Loch v, Columbia Township, 179 U8. 472.

Ayres vr. Polsdorfer, UST UL S. SNH.

Colo, Cont, Consolidated Min. Conor. Turk, 150 U.S.

13s.

Daris& P.M fg. Co. rv. Los Angeles, 89 U.S. 207,

2. Does the bill of complaint state facts showing that

the jurisdiction of the Cireuit Court was founded upon a

controversy involving the construction or application of

the Coustitution of the United States?

The bill alleges that the Superior Court, without no-

lice to any one, entered a decree probating the alleged

huncupative will The bill alleges that the Superior Court

did not acquire jurisdiction to hear any evidence or to

take any action in regard to the probate of the will. The

law of Washington upon the subject of the probate of a

huneupative will required that the next of kin should be

summoned so that they could contest the will.

When the bill was filed more than six months had

elapsed since the alleged speaking of the alleged testament.

ary words. Tf not aly ady probated the will never could

he probated. The mandate of the statute prohibited it.

SARTRE re a

“No proof shall be received Of duy nuncupative will

unless it he offered within sip moths after speaking the

testamentary words, nor unless the words or the substance

thereof be first committed to Writing and a citation issaed

fo the widow or nert Of kin of the deceased, that they may

contest the will if they think proper”

Pieree’s Washington Code, See. 2552. Ballinger’s

Code, Sec. 4606 (Laws of 1854, page 316, Section

2).

“In all cases in which citations are issued from the

Superior Court in probate proceedings, they shail be serred

at least ten days before the term at which they ave made

returnable, except: when issued from the COUrE In cases

Where the law requires the Judge to issue then upon his

OWh motion and he does so issue them. aie iw such cases

they shall be served iy sufficien! lime to allow the person

served to be in attendance on the court

Pierce's Code of Washington, See. 2551. Ballinger’s

Code, See. GOS2.

Section 1303 of the Code of INS] of the Territory of

Washington provided :

“ATL process issuing out of the Probate Court shall be

attested by the clerk and sealed with the seal of the court,

and shall be served in the same manner as process issuing

out of the Distriet Court.”

This section is still the law and is contained in Pierce's

Washington Code, See. 2227.

The Superior Court of the State of Washington sue-

— service cannot be had in the Superior Court. service is

nade by publication.

It is claimed by the respondent Marie Carrau that the

| eee P

alleged will vested in her the entire real estate and per-

sonal property of the deceased. She could not, under the

law of Washington of ISS, svpra, assert any title to the

real estate as a devisee until the will should be probated.

She alleges in her answer that the Superior Court of the

State of Washington for King County

“niide and caused to be entered a decree in said court pro-

batting said will, and that said deeree established the mak-

ing, publishing and validity of such nuncupative will, and

that said decree has heen ever since and is now in full

force and effect.”

The Superior Court of the State of Washington for

King County, in violation of the statute prohibiting it

from hearing any proof of the alleged hnuncupative will

until the widew or next of kin had been cited, that they

light contest the will, entered its decree of probate. On

the strength of that decree, the respondent Marie Carrau

luis asserted that she is the sole legatee and devisee of

the deceased, and she claims that the decree is conclusive

dgainst these petitioners, and that they have no standing

ws heirs at law or next of kin to ask the court to distrib-

ite the property to them, because she claims the deceased

died testate and that his will has been duly probated (R.

pp. WT1, 977, 9TH).

The alleged decree of probate wis net only made by

the Superior Conrt without jurisdiction, but it was based

Hpon the false testimony af witnesses, given er parte. 1

Was based upon a citation ordered by the court to be made

returnable atoan impossible date, and the citation con-

formed to the order for its issuance. The decree of pro-

ite is fair upon its face, but is false in fact.

Whenever the law requires notice to be given to a

party, ie means sucha notice as will enable him to appear

in time to defend himself against the claims of the other

party. ;

In Ball cf alors, Clothier et al, decided by the Su-

tine, |

ate

OREM Penis

re SOMOS

preme Court of Washington Mareh 12, 1904 (34 Wash.

+ hot yet published),

The Supreme Court of Washington had before it the

question whether the Probate Court, after the adoption of

the State Constitution and prior to its jurisdiction being

merged in the Superior Court, acquired jurisdiction to

order a sale of rex] estate, without notice being given to

minor heirs and Without the appointment of a guardian

for them. The notice Was by publication, but the publica-

tion Was not fora sufficient length of time.

The Court said:

“The petition for the sale of the land substantially

complied with the stitute, but there was no Service or at:

fempt at service of the petition or notice of the hearing

"pon the minor heirs, except an tnsufticient publication

directed to all interested parties. No guardian ad litem

Was appointed for them, They had no general guardian.

No appearance was made by any person for them upon the

hearing as to the necessity for the sale. The Court neverthe-

less directed the sale of the land. The sale Was made on

the date provided in the notice, 4 return thereof was sub.

sequently made, and Without an Opportunity for object ion,

Was confirmed, and a deed issued. The purchase price was

paid and the estate had the benetit thereof, Appellants

contend that the statute relating to notice and sale was

merely directory: that the Proceedings are jy rem, and

since the court had jurisdiction jy rem, the sale was Valid,

hotwithstanding irregularities, Conceding that the Pro-

bate Court had Jurisdiction of the real estate for the pur-

pose of administration Upon the appointment of executors

or administrators, as was stid in Ackerson vs. Orchard, 7

Wash. 377, still before the heirs, who were the beneficiaries

under the will, could he divested of their title, the substan-

tial requirements: of the statute must be complied with.

The statute in force ut the time the order Was thade pro-

vided that, when a Petition for the sale of real estate was

filed, the court should make an order directing all inter-

ested persons to Uppeary ata tine and Place specified, to

Show cause Why the order should not be ranted, and that

this order should he personally served Upon all persons

mterested in the estate at least ten days before the hear-

ing, or published four successive weeks in a hewspaper.

ss * Tf the court had jurisdiction over the estate.

if aeas also necessary that it acquire jurisdiction over the

porsous Of the minor heirs before proceeding to divest them

of their title, because the statute expressly required the

minor heirs to be represented. * * * When the stat-

ite required the appearance of the minor heirs by guardian

ad litem, before the court should make the order of sale, it

Was Necessary for such appearance, even if the proceedings

were im rem. The order of sale was therefore without the

authority of law and was void as to the minor heirs.”

In the case in re Leonard's Will, AT ACL. wae, Go NG

jd. L. 167,

cittions were issued returnable at a time whieh had al-

ready passed. The court said:

“The citations issued by the Surrogate were as if no

return day had been inserted therein, for the dav tamed

Was an impossible date.”

In Randolph vo Bayue, Ad Cal. 370,

the court said:

“Although proceedings for the proof of wills are usu-

aly treated as proceedings in rem, vet if the statute re-

quires that certain persons shall be notified, such provis-

ions must be complied with in order to vive the court jur-

isdiction.”

In Charlebois vr. Bourdon Admr.. 6 Mont. 343,

the court said:

“The statute in relation to the probate of wills pro-

Vides that, when the petition is tiled and the will pro-

duced, the probate judge musi tix a day for hearing the

petition. Notice of the hearing shall be given by the clerk

of the court by publishing the same ina newspaper

of the county. * * * * ‘The statute alse provides

that at the time appointed for the hearing. the court must

require proof that the notice of the hearing has been given,

Which being made, the court must hear the testimony in

proof of the wilh * * * Phe court is authorized to

hear the testimony in proof of the Will, after proof of ho-

tice of the hearing has been given. But there is nO au.

thority to hear the testimony before proof of notice, Np.

tice as provided by the law gives jurisdiction, The pro.

bate court is of limited jurisdiction. It has its life and

being in the Statutes. Tt possesses such authority as is

conferred. Jurisdict ion comes to it by observing the law.

The hearing for the adinission of a will to probate is jn

the nature of an action, and the order thereon is in the

hacure of a judgement. The heirs at law have the right to

be heard. They have the right to be present at the hear.

ing: and if they are net notified thereof and an order is

made without giving them an Opportunity to be heard or

fo contest the admission of the will to probate, they would

stand in very much the Sue position as if a Judgment had

been rendered deainst them Without bringing them into

court and giving them an Opportunity to answer or de-

fend.”

“sy

To the same effort are the following cases :

Duperier v, Berard, 31 So, GAB: 107 La. 91,

Perez vr, Perez, 59 Tex. 322,

Ashhurst r. Fountain, 67 Cal. 1s,

Spencer r. Houghton, GS Cal. 82.

In Winsor a MeVeigh, 3 LS, a4, 377,

this court said:

Without hearing him or viving him an Opportunity to he

heard, is not a Judicial determination of his rights, and is

Hot entitled toy spect inany othey ‘ibunal. That there

USE he notice to the Party of some kind, aetual or con-

structive, to a valid indgiment Hifecting his rights, is ad-

mitted. (y¢is notice is given the court has no Jurisdiction

Many case to procecd lo judqment, whaterey its authority

may de hy the lay of its organization. over the Sub ject

matter”

In Rolley r. Holley, T6ULS. SOS,

“A sentence of a COUrT pronounced aeainst a party

the question before this court was Whether a judgment of

a court of Texas inn Proceeding in pen affecting the prop-

erty of a defendant served With process in Virginia, re-

quiring him to appear and defend the action in Texas with-

in five days, had been rendered without due process of law.

This court said:

“Tn short, for aught that appears here, parties may be

called from the uttermost parts of the earth to come to

Foxas and defend suits against them within five days from

the day the notice is served upon them. * * * That

aman is entitled to some notice before he can be deprived

af his Tiherty or property. is an ariom of the law to which

vo Cilation of authority would give additional we ight, Wut

upon the question of the length of such notice there is a

singular dearth of judicial decision. It is manifest that

the requirement of notice would be of no value whatever

tntess such notice were reasonable and adequate for the

purpose, * * * Without undertaking to determine

What is a reasonable notice to non-residents, we are of

opinion, under the cirenmstances of this case, and con-

sidering the distance between the plaice of service and the

place of return, that fire days iras vot a reasonable notice

or dive process of law, and that the indament obtained upon

wich notice was wot binding upe the defendant.”

It is respectfully submitted that if five days is not

die process of law because vot a reasonable time within

Which to require a defendant inan aetion in rem, who is

served With process in the state of Virginia, to appear. in

the courts of Pexas and defend his rights. there is no pos-

sible theory upon whiel a decree, probating an oral will

distnheriting these petitioners and declaring the claimant

tinder the alleged munenpative will to be the legatee and

devisee of the entire estate, can be sustained, when the

statute required notice, and the deeree was founded on a

citation requiring these petitioners, then in Ireland. te itp)

pearon the day of its issuance at an hour already past to

defend their rights in the courts of the State of Washing-

fon, six thousand miles distant. The Cirenit Court well

designated the citation “a mockery.” To recognize the de-

crees based upon it as capable of conferring rights would

be to convert the requirement of notice provided in the

statute inte “a delusion, a mockery and a snare.”

The decree of probate was, therefore, rendered with.

out jurisdiction, without due process of law, and to give

it effect, or to recognize it in any manner as the basis of

any claim: on che part of the respondent Marie Carrau, is

to deprive these petitioners of their property without duc

process of law, in contravention of the Fourteenth Amend.

ment of the Constitution of the United States. The bill

so alleged. This allegation the respondent: Marie Carran

denied.

The opinion of the Cireuit Court not only held that

these petitioners were the heirs at law and next of kin of

the deceased, and as such entitled to challenge the alleged

nuneupative will, because it never was executed, but that

the decree of probate, based upon a citation requiring

these petitioners to appear ata time which was already

past at the time of its issuance, was a nullity and that no

effect could be given to it as against the petitioners (R.

pp. 241, 242).

SAO CLD TEAL DLS IB RSET Ae tieg

The Circuit: Court, therefore, rested its decision in

partupon the proposition that to give effect to the decree

of probate would be to deprive these petitioners of their

property without due process of law.

Inasmuch, therefore, as the bill alleged the foregoing

facts, it showed that the jurisdiction of the Circuit Court

could be rested upon a ground entirely separate and apart

from diversity of citizenship.

NASD aS Nel abe i

3. If the bill does not state such a controversy, is

there a right of appeal to this court from the decree of the

United States Cirenit Court of Appeals deciding the ques-

tion of jurisdiction only and reversing a decree rendered

by the Circuit Court on the merits in favor of the party

Who invoked the jurisdiction of that court when the juris-

diction of the Cireuit: Court Was in issue?

It is perfectly clear that, had the Circuit Court of the

United States for the District of Washington dismissed

the bill of petitioners for want of jurisdiction, petitioners

could have had the question of jurisdiction certitied to this

court and here determined. Does the fact that the Cirenit

Court sustained the jurisdiction, invoked by these petition.

ers, and decided the case upon the merits in their faver cut

off the right of these petitioners to have the question of

jurisdiction determined by this court, because the Cireuit

Court of Appeals, on the appeal of the respondent here,

has determined it against them and has refused to hear

the case upon the merits? The decisions of this court hold

that, where the jurisdiction of the Cireuit Court is in is-

sue, and the jurisdiction is sustained and a deeree ren-

dered upon the merits, the defeated party has the right to

take an appeal, on the question of jurisdiction alone, to

this court, and to have the jurisdictional question certified

to this court, or he has the right to appeal the whole case

to the Cirenit Court of Appeals, and that, if the decision

of the Cireuit Court of Appeals is against him. he has no

appeal to this court. If, however, the Cirenit Court of

Appeals refuses to decide the case upon the merits and

decides against the jurisdiction of the Cirenit Court, does

the successful party in the Circuit Court lose his right to

have the jurisdictional question determined by this court?

The Cirenit Court of Appeals refused to certify the

question of jurisdiction to this court. If. instead of allew-

ing an appeal to this court, the Cirenuit Court of Appeals

had remanded the cause to the Cireuit Court, with instrue-

tions to dismiss the bill for want of jurisdiction, and the

Cireuit Court had entered a decree dismissing the bill for

Want of jurisdiction, could these petitioners have appealed

therefrom and have had the jurisdictional question then

certified to this court? If they could not, then the law is

in this peculiar condition: By reason of the election of

the defeated party to take a ease involving the jurisdiction

of the Cirenit Court to the United States Cireuit Court of

Appeals upon the whole case, the successful party, who has

2 dmet'-

Nee SE TENE OME WRITE,

had no election, is deprived of his right to have this court

pass upon the question of jurisdiction.

In the case of Pullman Palace Car Co. r Central

5 Transportation Cw, tei T. &. 22K.

: this court, in view of the doubt as to which court an appeal

: should have been taken to, issued the writ of er rliorari.

We submit that, unless it is perfectly clear in this case

that the decision of the United States Circuit Court of Ap-

peals is not final, then the writ of certiorari should be is-

sued to review its decree, the decree of the Circuit Court

a of Appeals should be reversed and that the whole case

¢ being brought to this court, the decree of the Circuit Court

of the United States for the District of Washington should

be affirmed.

Respect fully submitted,

JAMES Bo LOWE,

Counsel for Petitioners.

SAMUEL Hh. PILES,

GEORGE DONWORTHI,

CHARLES TH. FARRELL.

Of Counsel,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.