The decision in
Fisk v. Henarie, 142 U.
S. 459, that the words in the Act of March 3, 1887, 24
Stat. 552, with regard to the removal of causes from a state court
(as corrected by the Act of August 13, 1888, c. 868) "at any time
before the trial thereof," used in regard to removals "from
prejudice or local influence," were used by Congress with reference
to the construction put by this Court on similar language in the
Act of March 3, 1875, c. 187, 18 Stat. 470, and are to receive the
same construction, which required the petition to be filed before
or at the term at which the cause could first be tried, and before
the trial thereof.
Mattie Lee Fennell, a citizen of the County of Madison, State of
Alabama, died on the fifth day of August, 1897, leaving a will
executed by her December 17, 1895, in which she devised and
bequeathed all her property, real, personal, or mixed, to her
mother, Mrs. M. E. Fennell, for life, and on her death to Llewellyn
Jordan of the State of Mississippi. The will specifically provided
that if the mother should die before the death of the testatrix,
Llewellyn Jordan should take. Said Llewellyn Jordan and Walter E.
Jordan, a citizen of Madison County, Alabama, were nominated and
appointed executors of the will,
Page 178 U. S. 230
to act as such without bond. The mother died in 1896. February
9, 1897, Walter E. Jordan, one of the executors named, presented
his petition to the Probate Court of Madison County, Alabama,
together with the original will, to have said will admitted to
probate. The petition stated that the sister of testatrix, Ada F.
McDonnell, resident of Madison County, was her next of kin, and
would have been her only heir had she died intestate; that
Llewellyn Jordan was temporarily residing at Washington, District
of Columbia; that the attesting witnesses resided at Huntsville,
Alabama, and prayed that a date might be set for the hearing of the
petition and due notice thereof be given as required by law to the
next of kin of said deceased, and that such decrees, orders, and
other proceedings might be had and made in the premises as might be
necessary to effect the due probate of said will according to
law.
On the 11th day of February, 1897, Ada F. McDonnell, a sister,
and only heir at law, of Mattie Lee Fennell, filed in the probate
court her written contest of the alleged will, based on certain
grounds therein set forth, and demanded a trial by jury. April 1,
1897, a jury was impaneled to try the contest, and an issue was
then made up by the court between Walter E. Jordan, as plaintiff,
and Ada F. McDonnell as defendant, and the trial entered upon. On
April 15, 1897, after having considered the case, the jury came
into court and reported that they were unable to agree upon a
verdict, whereupon the jury were discharged and the case was
continued.
May 28, 1897, Walter E. Jordan applied to the probate court to
amend his petition by alleging
"that the said Llewellyn Jordan is the sole legatee and devisee
under said will, and is the person really interested in defending
the validity of said will and in answering and defending the
contest filed in said court to annul and make invalid said
will,"
and to add to the prayer of his petition the following:
"Petitioner prays that citation and all proper notice be given
the said Llewellyn Jordan of this case and contest, and that he be
made a party defendant to this petition."
The following order was entered thereon by the probate court,
August 3, 1897:
"In the matter of the petition of W. E.
Page 178 U. S. 231
Jordan to make Llewellyn Jordan party defendant to this case,
and that citation and all proper notice be given said Llewellyn
Jordan as such, heretofore filed with the papers in this case, May
28th, 1897, was set for hearing this August 3d 1897. This day
argued by Shelby and Walker for proponent and Richardson and Cooper
for contestant. Motion overruled and amendment not allowed, and for
reason good and satisfactory to this court the further hearing of
this contest continued to Sept. 3d, 1897."
On the 4th of August, Llewellyn Jordan, without leave, filed
with the clerk of the probate court a paper styled an "answer,"
which commenced as follows:
"In the matter of the contest of the probate of the will of
Mattie Lee Fennell comes Llewellyn Jordan, named in the amendment
to the petition in this cause filed by Walter E. Jordan, and
intervenes in said proceeding and files this his answer to the
contest of Ada F. McDonnell,"
and on that day the probate court entered the following
order:
"In this cause, a paper purporting to be an intervention on
behalf of Llewellyn Jordan having been endorsed 'filed' by the
clerk of this court, without the knowledge of the court, and said
paper being so endorsed filed without an order authorizing said
Llewellyn Jordan to intervene herein, and the motion Made by Walter
E. Jordan, the proponent, praying that said Llewellyn Jordan be
made a party defendant hereto, on the 3d day of August, 1897, being
overruled and disallowed, it is therefore ordered that said paper
purporting to be an intervention of said Llewellyn Jordan be
stricken from the files in this cause."
August 5, 1897, Walter E. Jordan, the proponent of the will,
filed in the probate court a renunciation of his right to have
letters testamentary issued to him, and asked that the same be
issued to Llevellyn Jordan, couched in these terms:
"The undersigned, Walter E. Jordan, named in the will of Mattie
Lee Fennell as one of her executors, renounces his right to have
letters testamentary issued to him. He desires that the said will
shall be probated, but that letters testamentary should issue alone
to the coexecutor named in said will, Llewellyn Jordan."
August 12, 1897, Llewellyn Jordan filed his petition in the
Page 178 U. S. 232
Circuit Court of the United States for the Northern Division of
the Northern District of Alabama to remove to that court the matter
of the proceedings to probate and to contest the will of Mattie Lee
Fennell, then pending in the probate court, on the ground that from
prejudice and local influence he could not obtain justice in the
probate court, or any other state court. The circuit court, on the
same day, entered an
ex parte order removing the cause
from the Probate Court of Madison County, Alabama, to that court.
Mrs. McDonnell made motions in the circuit court to remand the
cause to the probate court, and to dismiss and strike from the
files the petition of Llewellyn Jordan for the removal of the
proceedings and cause from the state court.
Among the grounds assigned for the motion to remand were that
the circuit court had no jurisdiction of a proceeding to probate a
will; that Llewellyn Jordan was not a party defendant
"in any suit, proceeding, or controversy in the probate court of
Madison County, Alabama, relating to the matter of the probate of
the will of Mattie Lee Fennell, deceased,"
and the circuit court had no jurisdiction by virtue of the
petition for removal; that the proceeding to establish the will was
not a separate, but a single, controversy; that the application for
removal was not made in time, or before the trial of the cause in
the state court, and that the application for removal was made too
late.
The circuit court maintained jurisdiction and overruled each of
the motions.
A trial was subsequently had in the circuit court, which
directed a verdict in favor of Llewellyn Jordan, contestee. A
verdict was returned accordingly, and thereupon the court, November
8, 1898, entered this judgment:
"It is therefore considered by the court that the contest of Ada
F. McDonnell of the last will and testament of Mattie Lee Fennell,
deceased, and the several grounds of said contest be, and the same
are hereby, overruled and denied. It is further considered and
adjudged by the court that the contestee, Llewellyn Jordan, have
and recover of the contestant, Ada F. McDonnell, the costs in this
behalf expended, for which, if not otherwise paid, an execution may
issue. "
Page 178 U. S. 233
Under the same date, the court certified to this Court the
following questions of jurisdiction:
"1. Whether this court has jurisdiction to hear and determine
the matters of controversy shown in the record between said
Llewellyn Jordan and Ada F. McDonnell."
"2. Whether this court has jurisdiction to hear and determine
the cause removed to this court from the state court, wherein it is
sought to establish and probate the will of Mattie Lee Fennell,
deceased, late a resident citizen of the county of Madison, State
of Alabama."
"3. Whether this court has jurisdiction to remove the
proceedings shown in the record from the state probate court upon
the petition of the said Llewellyn Jordan."
"4. Whether this Court acquired jurisdiction of the matters in
controversy between the said Llewellyn Jordan and Ada F. McDonnell
upon the petition of the said Llewellyn Jordan to remove the said
proceedings from the state probate court to this court."
"5. Whether this court has jurisdiction to entertain the
petition of the said Llewellyn Jordan for the removal of said
proceeding to this court after the mistrial of said cause in the
state probate court as shown by the record filed herein."
"6. Whether this court has jurisdiction to entertain the
petition of said Llewellyn Jordan to remove said cause from the
state probate court to this court after a jury had been impaneled
in the state probate court, the trial entered upon, the failure of
the jury to agree, and a mistrial of said cause entered in said
probate court."
"7. Whether this court has jurisdiction of the petition of said
Llewellyn Jordan to remove said cause from said probate court to
this court after filing in said probate court an answer to the
contest of said will."
A writ of error was applied for and allowed March 15, 1899, and
the record showed an order on March 16 adjourning "the Circuit and
District Courts of the United States for the Northern District and
Northern Division"
sine die. On the 4th of April, 1899,
the judge of the circuit court entered on the certificate a
statement that though it was dated November 8, 1898,
Page 178 U. S. 234
it was actually signed "on the 15th day of March, 1899 at
Birmingham, Alabama."
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The question of jurisdiction was certified before the
adjournment of the term of the Circuit Court of the United States
for the Northern District and Northern Division of Alabama at which
term the judgment was entered, and we decline, under the
circumstances disclosed, to discuss what the effect might have been
if the certificate had shown on its face that it was in fact signed
in the southern division of the district within which the presiding
judge had jurisdiction.
Petitions for removal and motions to remand are matters of
record proper. Ordinarily papers filed in support thereof are not
so unless made part thereof by bill of exceptions, though sometimes
this is otherwise.
England v. Gebhardt, 112 U.
S. 502;
Bronson v. Schulten, 104 U.
S. 410;
Railroad Company v. Koontz,
104 U. S. 5.
We are not concerned here with the proofs as to prejudice or
local influence.
By section 4272 of the Civil Code of Alabama, it is provided
that,
"upon the death of a testator, any executor, devisee, or legatee
named in the will, or any person interested in the estate, may have
the will proved before the proper probate court."
As Mrs. Fennell was an inhabitant of Madison County at the time
of her death, the probate court of that county was the proper
probate court, § 4273, and as Walter E. Jordan and Llewellyn Jordan
were named executors, and Llewellyn Jordan was the sole devisee and
legatee, either of them could propound the will for probate. By
section 4284, it was provided that,
"whenever
Page 178 U. S. 235
an application is made to prove a will in this state at least
ten days' notice must be given to the widow and next of kin, or to
either of them, residing and being within the state, before such
application is heard."
In this case, Mrs. McDonnell was the next of kin and sole heir
at law, and was duly notified.
Section 4287 provides that
"A will, before the probate thereof, may be contested by any
person interested therein, or by any person who, if the testator
had died intestate, would have been an heir or distributee of his
estate, by filing in the court where it is offered for probate
allegations in writing that the will was not duly executed, or of
the unsoundness of mind of the testator, or of any other valid
objections thereto, and thereupon an issue must be made up, under
the direction of the court, between the person making the
application, as plaintiff, and the person contesting the validity
of the will, as defendant, and such issue must, on application of
either party, be tried by a jury."
Section 4298 reads that
"Any person interested in any will who has not contested the
same under the provisions of this article may at any time within
eighteen months after the admission of such will to probate in this
state, contest the validity of the same by bill in chancery in the
district in which such will was probated, or in the district in
which a material defendant resides."
Mrs. McDonnell filed her allegations in writing contesting the
will on the grounds that it was not signed by the subscribing
witnesses in the presence of the alleged testatrix; nor by
testatrix in the presence of the subscribing witnesses, nor was the
alleged will signed by the witnesses at the request of the
testatrix, nor by the subscribing witnesses in the presence of each
other and in the presence of testatrix; that the testatrix at the
time the alleged will was signed and executed was of unsound mind
and memory, and not mentally capable of making a will; that the
execution of the will was procured by fraud and undue influence of
Llewellyn Jordan, and that the paper propounded was not the last
will and testament of Mrs. Fennell, and she demanded a jury trial.
The cause was duly set down for trial as between W. E. Jordan,
proponent, and
Page 178 U. S. 236
Ada F. McDonnell, contestant, and was subsequently tried, the
trial continuing some days, and on April 15, 1897, the jury, being
unable to agree upon a verdict, was discharged.
After this mistrial, Walter E. Jordan applied to the probate
court to allow him to make Llewellyn Jordan a party defendant to
his petition that the will be admitted to probate. As Llewellyn
Jordan was a coexector, and the sole devisee and legatee, the
probate court, on the third of August, declined to grant the
application. If Llewellyn Jordan had applied to be formally
admitted as coproponent, it must be assumed that he would have been
permitted to become such of record, but he made no such
application. Then, on August 4, the paper purporting to be an
"answer" of Llewellyn Jordan was filed by the clerk, without leave
or knowledge of the court, and on the same day was struck from the
files as improvidently placed thereon. The succeeding day, August
5, Walter E. Jordan renounced the executorship and asked that
letters issue to his coexecutor, Llewellyn Jordan. August 12 the
order of removal was entered by the circuit court.
The contention of plaintiff in error is that the proceeding in
the Probate Court of Madison County was simply a proceeding to
establish and probate the will, and as such was not a "suit of a
civil nature at law or in equity," and therefore not removable;
that, if the proceeding were otherwise removable, Llewellyn Jordan
was not a defendant and could not remove, and that the application
for removal came too late.
The decisions of the Supreme Court of Alabama recognize that an
application for the probate of a will is a proceeding
in
rem, but it is held that it becomes a suit
inter
partes where there is a contest -- that is, "a suit between
the party alleging the existence of the will and the contestant."
And that the result of the statutory provisions is to afford two
modes of contest, in the probate court before the will has been
proved, or in the chancery court after probate by the institution
of a suit by those who were not parties to a contest in the probate
court.
Knox v. Paull, 95 Ala. 505, and cases cited.
Undoubtedly the courts of the United States possess no
jurisdiction over an
ex parte application for the probate
of a will --
Page 178 U. S. 237
that is, for the proof thereof in common form -- which is purely
a proceeding
in rem; but it is insisted by defendant in
error that by the institution of a contest, a case of controversy
inter partes arises which may be removed to the circuit
court just as such a contest may be under the state statute removed
by change of venue from the probate court, where the will is
propounded, to the probate court of another county, and that the
judgment of the federal court in such a case must be recognized by
the probate court of original jurisdiction, just as by statute the
judgment of another probate court to which the proceeding has been
remitted is certified to that court that the will may be probated
or rejected as that judgment is for or against the validity. Code
1896, § 4296.
Assuming, without deciding, this to be so, the question presents
itself as to the position occupied by the proponent and the
contestant, respectively, and the statute says that, on a contest
on admission to probate,
"an issue must be made up, under the direction of the court,
between the person making the application as plaintiff, and the
person contesting the validity of the will, as defendant."
And the issue on this contest was made up by the Probate Court
of Madison County accordingly.
Notwithstanding this, defendant in error contends that the
contestant is the real plaintiff, and that, within the meaning of
the act of Congress in respect of removals,
"the contestee is a defendant because he is brought into court
against his will by the necessity of defending his right under the
will, and his involuntary presence there subjects him to the local
prejudice and influence, protection against which is the object of
the statute."
In this connection, it is proper to say that it is obvious on
the face of these proceedings that the effort of Llewellyn Jordan
to become a party to the record was so limited to being made such
in a particular capacity as to clearly indicate that it was with
the object of making the application for removal. But whether as
coexecutor or as sole legatee and devisee, his appearance in the
cause would be as proponent of or on behalf of the will, and not
against it, and without going into the authorities
Page 178 U. S. 238
as to where the burden of proof lies when a contest is initiated
as to the validity of a will, when it is presented for probate, and
even conceding that the specific provision of this state statute
may be disregarded, we are nevertheless of opinion that the
application to remove came too late.
Under the statutes of Alabama, Llewellyn Jordan might have
propounded the will either as executor or legatee. He might have
intervened as interested if he had feared that his coexecutor, who
did propound the will, would not do justice, of which there is no
pretense here. But he could not lie by, permit the will to be
propounded, a contest to be initiated, and a trial had, and at that
stage intervene and remove the case.
This was a will and testament disposing of personal as well as
of real property, and was propounded by one of two executors named
therein. The statute required notice only to the widow and next of
kin, and not to beneficiaries under the will.
There is nothing whatever in the evidence to indicate that
Llewellyn Jordan was in fact ignorant of the will, of its
presentation for probate, or of the initiation of the contest. The
presumptions are against him, and he was at least so far
represented by his coexecutor that, when he applied to come in, and
treating the case as if he had come in, he took his place by
intervention subject to such disabilities as to the right of
removal as then existed.
In
Hanrick v. Hanrick, 153 U.
S. 192,
153 U. S. 197,
it was said:
"The Act of March 3, 1887, c. 373, corrected by the Act of
August 13, 1888, c. 866, was intended, as this Court has often
recognized, to contract the jurisdiction of the circuit courts of
the United States, whether original over suits brought therein, or
by removal from the state courts. It not only amends the act of
1875, but it allows to none but defendants the right to remove any
case whatever, and, by new regulations of removals for prejudice or
local influence, supersedes and repeals the earlier statutes upon
this subject. 24 Stat. 553; 25 Stat. 434;
Smith v. Lyon,
133 U. S.
315;
Fisk v. Henarie, 142 U. S.
459;
Tennessee v. Union & Planters' Bank,
152 U. S.
454."
In
Fisk v. Henarie, there cited, this Court ruled that
the words in the Act of March 3, 1887, as corrected by the Act
of
Page 178 U. S. 239
August 13, 1888, "at any time before the trial thereof," used in
regard to removals "from prejudice or local influence," require the
application to remove to be filed before or at the term at which
the cause could first be tried and before the trial thereof. Tested
by that ruling, this application to remove came too late.
The judgment is reversed, and the cause remanded to the
circuit court with directions to remand it to the Probate Court of
Madison County, Alabama.
