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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1905
- **Citation:** 199 U.S. 89

## Text

| Whos Seprens font 8.3 7
FILED f

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.
V.

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,

1

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

2

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,

3

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

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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

ri

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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),

8

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-

9

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:

10

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-

11

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

12

AEE EST ee Ce SRS eT SES Re

a

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

13

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.

14

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-

15

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.

16

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.

17

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,

Is

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.

19

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

IN THE SUPREME COURT OF
THE UNITED STATES

Ss ciel ge —
na
#

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.

20

IN THE

Supreme Court of the United States

OCTOBER TERM, i903.

HANNAH OCALLAGHAN and EDWARD
CORCORAN, Petitioners,
V.
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

2

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
© Of the United States for the same state, if the other juris.
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.”

3
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

4

—

ones

Ae Ae

4

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,

a

{ SREMURY woretcems qrnaee a

5

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

6
, : ; ‘
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

8

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,

9

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

10

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
© authorized the District Courts of California to entertain
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

é
3
>
oS
4
7
4
.
x
¥
BY
>.
=
is
=
;

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

11

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
© Pederal court, where the parties are on the one side
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

12
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
© following words :

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,

13

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

ie

Ve pete

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

14

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.

16

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

17

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:

we

“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,”

18

~

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;

Ss
fee

19

“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

20

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

21
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

oe

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

v4

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

or
~_)

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

26

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.

q
4
4
4
4s

Seal Rast hee

RBS MP Raois:

2

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

28

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-

2
3
:

Aw
hth,

Pairk

ee

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-
© ing the title read that the bill was one to amend the Act of
: 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

29

“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

30

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 ——

31

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

Re
2
‘
é
7
ye
‘
e
i
P
i

NOTRE OE ANB iS eatS is temas er ay ————

32

upon estates which might be bequeathed by nuncupative

is

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

33

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 |

34

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 —

35

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
Vs
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 *

36

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 ;

37

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-

38

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
*

39

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 .

40
. 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.)

41

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.

42

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).

25
“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0717%3A02. Public record. Not legal advice.