Where the jurisdiction of the circuit court is invoked not only
on the ground of diverse citizenship, but also on a constitutional
question, the mere averment of the latter is not sufficient if it
is so wanting in merit as to be frivolous and, under such
circumstances, if an appeal and a petition for certiorari are both
pending, as in this case, the appeal will be dismissed; but if the
correctness of the decree on the general issue should be
considered, the writ will be allowed and the record on appeal
treated as a return thereto.
As the authority to make wills is derived from the state, and
the requirement of probate is but a regulation to make a will
effective, matters of pure probate, in the strict sense of the
words, are not within the jurisdiction of courts of the United
States.
Where a state law, statutory or customary, gives to the citizens
of the state, in an action or suit
inter partes, the right
to question at law the probate of a will or to assail probate in a
suit in equity, the courts of the United States, in administering
the rights of citizens of other states or aliens, will enforce such
remedies. The action or suit
inter partes, however, must
relate to independent controversies, and not to mere controversies
which may arise on an application to probate or a mere method of
procedure ancillary to the original procedure.
The statutory procedure of the State of Washington for probate
of wills relates to nuncupative wills as well as ordinary wills,
and the authority conferred on the courts to contest a will is a
part of the probate procedure, and does not cause a contest to be a
suit
inter partes, and therefore the circuit court of the
United States, in a case where jurisdiction is based on diverse
citizenship, is without jurisdiction to declare either the
nonexistence of a nuncupative will or the nullity of the probate
thereof by the probate court.
Where the state statute provides that, within a fixed period
after its admission to probate, interested parties may question the
validity of a will or its probate, and the statute applies to
written and nuncupative wills, the preliminary admission of a
nuncupative will to probate and the temporary control taken of the
property, both real and personal, by the probate court without the
notice required by statute do not so deprive the parties of their
property without due process of law within the provisions of the
Fourteenth Amendment as to afford a constitutional basis
Page 199 U. S. 90
for the jurisdiction of the circuit court of the United States
in a suit where diverse citizenship exists to enjoin the
enforcement of the decree of probate, and the decree of the circuit
court of appeals is final.
This suit was commenced in the Circuit Court of the United
States for the District of Washington, Northern Division, by the
filing, on June 20, 1901, of a bill on behalf of Hannah O'Callaghan
and Edward Corcoran, appellants in this Court. The defendants were
Terence O'Brien, as administrator of the estate of John Sullivan,
and Marie Carrau, W. M. Russell and S. F. Coombs, who are joined as
appellees, were the sureties on a bond given by Marie Carrau, on
the appeal taken by her to the circuit court of appeals.
It was averred that the complainants, aliens and residents of
Ireland, were the first cousins and the sole heirs at law and next
of kin of one John Sullivan, who died on September 26, 1900, in the
City of Seattle, State of Washington, intestate, leaving a large
amount of real and personal property. The appointment by the
Superior Court of King County, State of Washington, of a special
administrator, and the subsequent appointment of the defendant
O'Brien, and his qualification as general administrator, were next
averred. O'Brien and his codefendant were alleged to be citizens of
the State of Washington. The remaining averments were, in
substance, that the defendant Marie Carrau, confederating with
certain named relatives, had manufactured a pretended nuncupative
will of John Sullivan in favor of said Marie Carrau under which
will she was claiming to be the sole legatee and devisee of all his
property. The will purported to have been made about 11 o'clock on
the night previous to the death of Sullivan, in the presence of
Marie Carrau and her relatives, and the testamentary words
employed, or the substance thereof, were alleged to be the
following:
"I want you to remember and witness that I will all my property
and personal effects, worth many thousands of dollars, to be the
money and property of your sister, Marie Carrau. I am sick, and we
know not what might happen. "
Page 199 U. S. 91
It was averred that, on the application of the defendant Carrau,
and after the appointment of O'Brien as general administrator, the
alleged nuncupative will was admitted to probate, and, at the time
of the filing of the bill, stood, as illegally probated, on the
records of the Superior Court of King County, State of Washington.
It was, however, charged that the said superior court, in assuming
to probate said nuncupative will, acted wholly without jurisdiction
in the premises for the reason that the estate bequeathed exceeded
the value of $200, and because no legal citations had been issued
out of said court, and ten days had not elapsed between the filing
of the will and the hearing of the proof offered in support of the
same. It was further averred that, under the laws of the State of
Washington, real estate could not be disposed of by a nuncupative
will.
Further averring that the state court, on the application of
Marie Carrau, was about to make and enter a decree distributing to
her the whole of the Sullivan estate upon the execution of a bond
conditioned for the payment of her proportion of the indebtedness
of the estate, to which decree the defendant O'Brien,
administrator, it was averred, would yield obedience, and that said
Marie Carrau, on receiving possession, would transfer the estate to
others, and alleging that such an order and the action of the
administrator thereunder would violate the due process clause of
the Constitution of the United States, an injunction and the
appointment of a receiver was prayed. It was also prayed that a
decree might be made adjudging the alleged nuncupative will to be
null and void and perpetually restraining the defendant Carrau from
setting up any title or claim thereunder and adjudging and
decreeing the complainants to be the only heirs at law of the
decedent, and entitled to receive his estate, and commanding the
defendant administrator to surrender possession thereof to and
account therefor to the complainants.
On behalf of O'Brien, administrator, there was filed what was
termed a "stipulation and answer," signed by the complainants
Page 199 U. S. 92
and their solicitor and the administrator. In this paper, the
appointment of O'Brien was recited, and there was also embodied a
disclaimer of any interest of said administrator in the subject
matter of the controversy between complainants and the defendant
Marie Carrau, or any knowledge in respect thereto other than as
shown by the records. It was stipulated that no costs should be
taxed against the administrator, and that complainants should not
be put to proof of the allegations of the bill so far as the same
affected the administrator, and that the stipulation should be
taken as and for an answer of said defendant administrator to the
bill of complaint.
After other proceedings in the cause not essential to be stated,
an answer was filed on behalf of the defendant Carrau.
Briefly stated, the answer admitted the death of Sullivan,
affirmed the validity of the alleged nuncupative will and of the
probate thereof, and further averred that, under the laws of
Washington, a nuncupative will, duly proved and probated, "devises
both real and personal property to any amount in value." After
specially answering each of the allegations of the bill, it was in
substance averred "by way of defense, and as questioning the
jurisdiction of the court" that the court in which the alleged will
had been probated had the sole, original, and exclusive
jurisdiction of the probation of said will and the management of
the estate of the decedent; that in said court various persons,
including one Eugene Timothy Sullivan, a resident of the State of
Washington, had filed their verified petitions, claiming each to be
the sole heir of the decedent; that certain of said claimants
(Sullivan not being one of the number), and also the complainants
and the State of Washington, had commenced, in the state court,
proceedings to contest the validity of the alleged will, and that
such proceedings were at issue and were still pending.
Testimony was taken, by commission and otherwise, under an
agreement providing that the same might be read in evidence in any
suit or proceeding which was then or might thereafter be pending in
a state or federal court affecting the estate
Page 199 U. S. 93
of John Sullivan. Both during the taking of the testimony and at
the hearing which followed, the objection to the jurisdiction of
the court was reiterated, and exceptions were reserved.
A decree was entered in favor of complainants. 116 F. 934. In
substance, the decree found the complainants to be the next of kin
of the decedent; that O'Brien was the duly qualified administrator;
that the alleged nuncupative will was not made; that the Washington
court acted wholly without jurisdiction in the probate of the
alleged will, and hence the proceedings in respect thereto were
void. It was decreed that the complainants, as first cousins of the
deceased, were entitled to share equally in the assets of his
estate, and the defendant O'Brien was directed to recognize their
right. The defendant Carrau was perpetually restrained from setting
up any claim to said estate under the alleged will or
otherwise.
On appeal, the circuit court of appeals reversed the decree of
the circuit court for want of jurisdiction in that court over the
subject matter and because of the absence of necessary parties,
who, if made parties, would oust the court of jurisdiction, and the
cause was remanded, with directions to dismiss the bill at the cost
of complainants. 125 F. 657. The cause was appealed to this Court.
Following the filing of a motion to dismiss such appeal, an
application was made on behalf of the complainants below for the
allowance of a writ of certiorari, and the determination of these
two motions was postponed to the hearing on the merits.
Page 199 U. S. 99
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The motion to dismiss the appeal and the application for the
allowance of a writ of certiorari will first be passed upon.
Page 199 U. S. 100
While the alienage of complainants and the citizenship of
respondents was alleged, the jurisdiction of the circuit court was
not invoked solely upon that ground. It was asserted in the bill
that the requirements of the Code of Washington had not been
complied with in respect to the preliminary issue of citations to
the next of kin of the decedent; that the hearing on the
application to probate the alleged nuncupative will was had before
service of citations in the mode prescribed by law, and as at the
time of the filing of the bill, six months had elapsed without
lawful probate of the will, the title of complainants to the
property as heirs and next of kin of the intestate had become
absolute. The use by the defendant Carran of the decree of probate
as a muniment of title with which to obtain from the administrator,
under the authority of the state court, the property of
complainants in the custody of the administrator was, as a
consequence, asserted to amount to a deprivation of property
without due process of law, in violation of the Constitution of the
United States.
The statute which, it was asserted, limited the authority of the
Washington court to probate the nuncupative will in question to a
lawful probate thereof within six months of the speaking of the
testamentary words, is as follows:
"No proof shall be received of any nuncupative will unless
offered within six months after speaking the testamentary words,
nor unless the words or the substance thereof be first committed to
writing, and a citation issued to the widow or next of kin of the
deceased, that they may contest the will if they think proper."
Pierce's Code, 2352.
It is settled that the mere averment of a constitutional
question is not sufficient where the question sought to be
presented is so wanting in merit as to cause it to be frivolous or
without any support whatever in reason.
Fayerweather v.
Ritch, 195 U. S. 276,
195 U. S. 299.
We think that the alleged violations of federal right based upon
the Fourteenth Amendment were so unsubstantial and devoid of merit
that they furnish no real support to the contention that the decree
of the circuit court of appeals
Page 199 U. S. 101
was not final. From this it follows that the motion to dismiss
must prevail. But we are not thereby relieved of the duty of
considering the correctness of the decree of the circuit court of
appeals, because, in our opinion, the case is one in which the writ
of certiorari should be allowed. We therefore dismiss the appeal
and grant the application for certiorari, treating the record filed
on the appeal as a return to that writ. Before coming, however, to
dispose of the case, we observe that we do not, at this moment,
state the reasons by which we are led to the conclusion that the
rights asserted under the Constitution of the United States were so
wholly wanting in merit as not to afford a basis for the appeal,
because those reasons will be made manifest when we come to
consider the question whether the bill was one within the
jurisdiction of the circuit court.
The issue first for decision is did the circuit court of appeals
rightly hold that the circuit court was without jurisdiction of the
case made by the bill?
The solution of the question is not free from complexity.
Original reasoning is not, however, required, since the subject has
been previously considered by this Court. We come, therefore, to an
analysis of the leading cases. It results from the analysis which
we have made of the bill that, by necessary effect, it assailed the
previous probate and the existence of the will, and, besides, under
the hypothesis that a will and probate might be found to exist,
sought to limit the operation and effect of the will. The subject
therefore has a two-fold aspect -- the power of federal courts to
entertain jurisdiction concerning the probate or the revocation of
the probate of wills, where the requisite diversity of citizenship
exists, and the power of those courts, where such diversity
obtains, to adjudicate concerning rights against the estates of
decedents. Whilst we shall consider these two subjects separately,
to avoid repetition, we shall first consecutively analyze the cases
concerning both subjects.
In
Hook v.
Payne, 14 Wall. 252, certain distributees of an
estate over which an administrator had been appointed in a court of
Missouri, alleging diversity of citizenship, filed their
Page 199 U. S. 102
separate bills in a circuit court of the United States for the
purpose of annulling releases which they had given as to their
distributive shares to the administrator on the ground of his
fraud, and also sought to annul settlements alleged to have been
fraudulently made in the probate court, and to have a decree
against the administrator for the amount of their distributive
shares. The several suits were consolidated. The trial court, by an
interlocutory decree, set aside the releases and the settlements
made by Hook (the administrator) with the county court, and
appointed a master to state an account with Hook as administrator.
Moreover, the master was directed to inquire what other persons
were interested in the estate, and to report what payments, if any,
had been made to them, and what was due to them, respectively at
the date of the report. The report of the master not only accorded
the relief claimed by the complainants, but restated the accounts
of the administrator, and in effect reported a scheme of
distribution of the estate. The report was approved by the trial
court. In this Court, the decree, insofar as it concerned the
rights of the complainants, was affirmed. Insofar as it attempted
to distribute the estate and to deal generally with the rights of
persons other than the complainants, the decree was reversed, the
Court saying (p.
81 U. S.
255):
"We are of opinion that all that part of the decree which
attempts to settle the right of the parties who were neither
plaintiffs nor defendants in the original suit must be
reversed."
"We do not propose in this case to lay down any precise rule on
the subject of adjusting administrators' accounts in the federal
courts, or how far certain persons, not made parties in the
original suit or incapable of being made parties by reason of their
citizenship, may or may not come in before the master, on a general
accounting, and protect their rights; nor do we intend to go into
that question."
In
Broderick's
Will, 21 Wall. 503, the case was this: a suit in
equity was brought in the Circuit Court for the District of
California by the alleged heirs at law of Broderick to set aside
the
Page 199 U. S. 103
probate of his will, to have the same declared a forgery, and to
recover the assets of Broderick's estate, much of which consisted
of real property. The defendants were the executors, and several
hundred persons who were in possession of portions of the real
estate, claiming ownership thereof as purchasers at sales made by
the executors. The estate had been administered upon, and
distribution had been fully made before the institution of the
suit. The first contention which the court disposed of was that a
court of equity had no jurisdiction of the subject matter of the
suit, the same being vested exclusively in the Probate Court of the
City and County of San Francisco. In sustaining this objection, the
Court, through Mr. Justice Bradley, said (p.
88 U. S.
509):
"As to the first point, it is undoubtedly the general rule,
established both in England and this country, that a court of
equity will not entertain jurisdiction of a bill to set aside a
will or the probate thereof. The case of
Kerrich v.
Bransby, decided by the House of Lords in 1727, is considered
as having definitely settled the question. Whatever may have been
the original ground of this rule (perhaps something in the peculiar
constitution of the English courts), the most satisfactory ground
for its continued prevalence is that the constitution of a
succession to a deceased person's estate partakes in some degree of
the nature of a proceeding
in rem, in which all persons in
the world who have any interest are deemed parties, and are
concluded as upon
res judicata by the decision of the
court having jurisdiction. The public interest requires that the
estates of deceased persons, being deprived of a master and subject
to all manner of claims, should at once devolve to a new and
competent ownership, and consequently that there should be some
convenient jurisdiction and mode of proceeding by which this
devolution may be effected with least chance of injustice and
fraud, and that the result attained should be firm and perpetual.
The courts invested with this jurisdiction should have ample powers
both of process and investigation, and sufficient opportunity
should be given to check and revise proceedings
Page 199 U. S. 104
tainted with mistake, fraud, or illegality. These objects are
generally accomplished by the constitution and powers which are
given to the probate courts and the modes provided for reviewing
their proceedings. And one of the principal reasons assigned by the
equity courts for not entertaining bills on questions of probate is
that the probate courts themselves have all the powers and
machinery necessary to give full and adequate relief."
"In England after the acts of Parliament had authorized devises
of real estate, the same position was assumed by courts or equity
in regard to such devises, it being held that any fraud,
illegality, or mistake affecting their validity could be fully
investigated and redressed in the courts of common law, where also
devises were recognizable."
After a full review of authorities holding that a court of
equity did not possess power to annul the probate of a will, and in
concluding its opinion referring to a statute of the State of
California, the Court observed (p.
88 U. S.
519):
"The statute of 1862 has been referred to, which gives to the
district courts of California power to set aside a will obtained by
fraud or undue influence, or a forged will, and any probate
obtained by fraud, concealment, or perjury. Whilst it is true that
alterations in the jurisdiction of the state courts cannot affect
the equitable jurisdiction of the circuit courts of the United
States so long as the equitable rights themselves remain, yet an
enlargement of equitable rights may be administered by the circuit
courts, as well as by the courts of the state. And this is probably
a case in which an enlargement of equitable rights is effected
although presented in the form of a remedial proceeding. Indeed,
much of equitable jurisdiction consists of better and more
effective remedies for attaining the rights of parties. But the
statute referred to cannot affect this suit, inasmuch as the
statute of limitations would still apply in full force, and would
present a perfect bar to the suit."
In
Gaines v. Fuentes, 92 U. S. 10, the
facts were these: a will of Daniel Clark had been probated in the
Second District
Page 199 U. S. 105
Court for the Parish of Orleans, State of Louisiana.
Distribution of the estate had been completed when certain parties
brought an action in the court named to annul the alleged will and
to recall the decree by which it was probated. The alleged daughter
of Daniel Clark was made a party defendant, and it was averred that
suits had been brought by her against the plaintiffs, in a circuit
court of the United States, as heir at law of her father, to
recover certain property alleged to belong to his estate, and that
the existence of the decree of probate was an obstacle to the
proper defense of those suits, and made it necessary to sue to
annul the will and avoid the decree of probate. Application was
made to remove the cause to the circuit court of the United States,
which the state court refused on the ground that the suit involved
merely a probate matter, and was therefore not cognizable in the
federal court. From a final decree of the state court in favor of
the plaintiffs, the cause was brought to this Court. It was decided
that the state court erred in refusing to permit the removal. In
the opening passage of the opinion, the court pointed out that,
whilst the suit was in form one to annul the alleged will of Daniel
Clark and to recall the decree by which it was probated, it was in
reality a suit brought against the devisee, and by strangers to the
estate, to annul the will as a muniment of title and to restrain
the enforcement of the decree by which its validity had been
established so far as it affected their property. The court
observed:
"It is in fact an action between parties, and the question for
determination is whether the federal court can take jurisdiction of
an action brought for the object mentioned, between citizens of
different states, upon its removal from a state court."
The decision in the case of
Broderick's Will,
concerning the want of power in a court of equity to probate a will
or revoke its probate, was expressly approved. But, referring
doubtless to the concluding passage in the opinion in that case, it
was observed that, if such equitable power was vested in the state
courts, the federal courts sitting in the states where such
statutes
Page 199 U. S. 106
existed might exercise concurrent jurisdiction in a case between
proper parties. Considering the want of authority of federal
courts, as such, over the probate of wills, it was declared (p.
92 U. S. 21):
"There are, it is true, in several decisions of this Court,
expressions of opinion that the federal courts have no probate
jurisdiction, referring particularly to the establishment of wills,
and such is undoubtedly the case under the existing legislation of
Congress. The reason lies in the nature of the proceeding to
probate a will as one
in rem, which does not necessarily
involve any controversy between parties; indeed, in the majority of
instances, no such controversy exists. In its initiation all
persons are cited to appear, whether of the state where the will is
offered or of other states. From its nature and from the want of
parties, or the fact that all the world are parties, the proceeding
is not within the designation of cases at law or in equity between
parties of different states, of which the federal courts have
concurrent jurisdiction with the state courts under the Judiciary
Act; but whenever a controversy in a suit between such parties
arises respecting the validity or construction of a will or the
enforcement of a decree admitting it to probate, there is no more
reason why the federal courts should not take jurisdiction of the
case than there is that they should not take jurisdiction of any
other controversy between the parties."
Having decided that the suit was, in all essential particulars,
one
inter partes, for equitable relief to cancel an
instrument alleged to be void, and to restrain the enforcement of a
decree alleged to have been obtained by false and insufficient
testimony, the Court was brought to consider whether the law of
Louisiana allowed such equitable relief, and said (p.
92 U. S. 20):
"There are no separate equity courts in Louisiana, and suits for
special relief of the nature here sought are not there designated
suits in equity. But they are nonetheless essentially such suits,
and if, by the law obtaining in the state, customary or statutory,
they can be maintained in a state court, whatever designation that
court may bear, we think they may be maintained
Page 199 U. S. 107
by original process in a federal court, where the parties are,
on the one side, citizens of Louisiana, and on the other, citizens
of other states."
In
Ellis v. Davis, 109 U. S. 485, the
will of Mrs. Dorsey had been duly proved in a probate court of
Louisiana, and the universal legatee named therein had been
recognized and put in possession of the estate under the will. Some
time after, a bill was filed in the circuit court of the United
States against him for the two-fold purpose of setting aside the
probate and annulling the will on the ground that it had been made
under undue influence, and, for similar reasons, the annulment was
prayed of a conveyance which had been made by the deceased to the
universal legatee. An account of the rents and profits, etc., was
also prayed. A demurrer to the bill was sustained, and the case
came to this Court. It was decided that the court below had rightly
sustained the demurrer. In the course of the opinion, the Court
declared (p.
109 U. S.
497):
"The original probate [of wills], of course, is mere matter of
state regulation, and depends entirely upon the local law, for it
is that law which confers the power of making wills, and prescribes
the conditions upon which alone they may take effect, and as, by
the law in almost all the states, no instrument can be effective as
a will until proved, no rights in relation to it, capable of being
contested between parties, can arise until preliminary probate has
first been made. Jurisdiction as to wills, and their probate as
such, is neither included in nor excepted out of the grant of
judicial power to the courts of the United States. So far as it is
ex parte and merely administrative, it is not conferred,
and it cannot be exercised by them at all until, in a case at law
or in equity, its exercise becomes necessary to settle a
controversy of which a court of the United States may take
cognizance by reason of the citizenship of the parties."
The court expressly reaffirmed the want of power in a federal
court of equity to set aside the probate of a will in the absence
of a state statute giving the right in the courts of the state to
such equitable relief, it being reiterated (p.
109 U. S.
494):
Page 199 U. S. 108
"It is well settled that no such jurisdiction belongs to the
circuit courts of the United States as courts of equity, for courts
of equity, as such, by virtue of their general authority to enforce
equitable rights and remedies, do not administer relief in such
cases. The question in this aspect was thoroughly considered and
finally settled by the decision of this Court in the case of
Broderick's Will, 21 Wall.
503."
Coming to consider whether, by the customary or statute law of
Louisiana, there existed power in the courts of that state, as a
matter of equitable cognizance, to entertain a suit to annul a will
and set aside its probate, it was decided that no such right
existed, but that, on the contrary, the Louisiana law, whilst
denying such right, afforded relief in an action at law, where the
recovery of property was sought, by permitting the validity of a
will and its probate, when asserted as a muniment of title, to be
collaterally questioned. The Court said (p.
109 U. S.
499):
"It remains, therefore, in the present case to inquire whether
the complainants are entitled, under the laws of Louisiana, to draw
in question in this mode and with a view to the decree sought the
validity of the will of Sarah Ann Dorsey and the integrity of its
probate."
"An examination of the decisions of the Supreme Court of
Louisiana on the subject will disclose that a distinction is made
in reference to proceedings to annul a will and its probate,
according to the objects to be accomplished by the judgment and the
relation of the parties to the subject. If the administration of
the succession is incomplete and
in fieri, and the object
is to alter or affect its course, the application must be made to
the court of probates, which, in that case, has possession of the
subject, and exclusive jurisdiction over it. If, on the other hand,
the succession has been closed, or has proceeded so far that the
parties entitled under the will have been put in possession of
their rights to the estate, then the resort of adverse claimants
must be an action of revendication in the courts of general
jurisdiction, in which the legal title is asserted as against the
will claimed to be invalid, making an issue involving that
question. "
Page 199 U. S. 109
Following this statement, the Court made an exhaustive review of
the decided cases in the State of Louisiana, establishing the
proposition just previously quoted; and, as a necessary result of
this conclusion, the Court declared that, in
Gaines v.
Fuentes, it had been merely assumed that relief in the nature
of an equitable remedy was allowed by the law of Louisiana, under
which the probate of a will could be set aside, saying (pp.
109 U. S. 499,
109 U. S.
503):
"It was assumed, and not decided, that the said suit brought in
the state court was one which, under the laws of the state, its
courts were authorized to entertain for the purpose of granting the
relief prayed for. The point decided was that if it were, it might
properly be transferred to a court of the United States."
"
* * * *"
"The case of
Gaines v. Fuentes, 92 U. S. 10,
was such an action of nullity, but, as before remarked, the point
decided in that case was not that it would lie according to the law
of Louisiana, but that, if it would lie in the state court, it was
removable to the circuit court of the United States, because it
presented a controversy wholly between citizens of different
states."
In
Byers v. McAuley, 140 U. S. 608,
it was decided that a federal court cannot exercise original
jurisdiction in respect to the administration of the estate of a
decedent, and that it cannot, by entertaining jurisdiction of a
suit against the administrator, draw to itself the full possession
of the estate, or the power of determining all claims against or to
it. It was, however, decided that, where the estate of a deceased
person is ready for distribution, but no adjudication has been made
as to the distributees, the circuit court can entertain
jurisdiction in favor of citizens of other states to determine and
award their shares in the estate. It is true that the bill filed in
the case assailed the validity of the probate of a document which
disposed, in favor of two corporations, of a house and lot in the
City of Pittsburgh. But the trial court gave effect to the document
as
Page 199 U. S. 110
a declaration of trust, and the controversy on that branch of
the case was not pressed on the appeal.
Let us, then, first deduce the principles established by the
foregoing authorities as to the power of a court of the United
States over the probate or revocation of the probate of a will. An
analysis of the cases, in our opinion, clearly establishes the
following:
First. That, as the authority to make wills is derived from the
state, and the requirement of probate is but a regulation to make a
will effective, matters of pure probate, in the strict sense of the
words, are not within the jurisdiction of courts of the United
States.
Second. That where a state law, statutory or customary, gives to
the citizens of the state, in an action or suit
inter
partes, the right to question at law the probate of a will or
to assail probate in a suit in equity, the courts of the United
States, in administering the rights of citizens of other states or
aliens, will enforce such remedies.
The only dispute possible under these propositions may arise
from a difference of opinion as to the true significance of the
expression "action or suit
inter partes," as employed in
the second proposition. When that question is cleared up, the
propositions are so conclusively settled by the cases referred to
that they are indisputable. Before coming to apply the
propositions, we must therefore accurately fix the meaning of the
words "action or suit
inter partes."
The cited authorities establish that the words referred to must
relate only to independent controversies
inter partes, and
not to mere controversies which may arise on an application to
probate a will because the state law provides for notice, or to
disputes concerning the setting aside of a probate, when the remedy
to set aside afforded by the state law is a mere continuation of
the probate proceeding -- that is to say, merely a method of
procedure ancillary to the original probate, allowed by the state
law for the purpose of giving to the probate its ultimate and final
effect. We say the words "action or suit
Page 199 U. S. 111
inter partes" must have this significance because,
unless that be their import, it would follow that a state may not
allow any question to be raised concerning the right to probate at
the time of the application, or any such question thereafter to be
made in an ancillary probate proceeding without depriving itself of
its concededly exclusive authority over the probate of wills. This
may be readily illustrated. Thus, if a state law provides for any
form of notice on an application to probate a will, and authorizes
a contest before the admission of the writing to probate, then it
would follow, if the words "suit or action of
inter
partes" embraces such a contest, the proof of wills, if
contested by a citizen of another state or alien, would be
cognizable in the courts of the United States, and hence not under
the exclusive control of the state probate court. Again, if a state
authorized a will to be proved in common form -- that is, without
notice -- and allowed a supplementary probate proceeding by which
the probate in common form could be contested, then again, if such
a contest be a suit
inter partes, it would also be a
federal cognizance.
Having fixed the meaning of the words "action or suit
inter
partes," we come to apply the propositions deduced from the
decided cases in order to test the question of the jurisdiction of
the circuit court over the relief prayed for in the bill so far as
relates to the annulment of the probate. This requires us to
determine whether, by custom or by the statute law of the State of
Washington, the courts of that state had the power of administering
the relief prayed for on that subject in the bill by an independent
suit, as distinguished from the exercise of probate jurisdiction
originally or merely ancillary. There is no pretense of any custom
in the State of Washington beyond the scope of authority conferred
upon the courts of the state by the laws thereof. The question
therefore reduces itself to a narrow compass -- that is, what
remedies do the laws of Washington create for the purpose of the
probate of wills and the revocation of a probate, and are those
remedies exclusively probate in their character or necessarily
merely
Page 199 U. S. 112
ancillary thereto, or do they confer upon the state courts
general legal or equitable authority on the subject merely because
of the existence of a controversy? That is to say, is a will
contest under the laws of Washington an ordinary action or suit
between parties or a special probate proceeding directly ancillary
to or concerning the probate of the will?
By § 5 of Article IV of the Constitution of Washington, it was
provided that there should be in each of the organized counties of
the state a superior court, and by § 6 of the same article original
jurisdiction was conferred upon such court in equity cases and
cases at law, and over specified crimes, etc., and it was vested
with original jurisdiction "of all matters of probate." By such
statute, such courts, in the exercise of their jurisdiction over
matters of probate, were authorized:
"1. To take proofs of wills, and to grant letters testamentary
and of administration. . . ."
"2. To settle the estates of deceased persons, and the accounts
of executors administrators, and guardians."
"3. To allow or reject claims against the estates of the
deceased persons as hereinafter provided."
"
* * * *"
"5. To award process and cause to come before them all persons
whom they may deem it necessary to examine, whether parties or
witnesses, or who, as executors, administrators, or guardians, or
otherwise, shall be entrusted with or in any way accountable for
any property belonging to a minor, orphan, or person of unsound
mind, or estate of any deceased person."
"6. To order and cause to be issued all writs which may be
necessary to the exercise of their jurisdiction."
Ballinger's Annotated Codes and Statutes of Washington, §
6075.
Applications for the probate of a will or for letters
testamentary are required to be made to the judge of the superior
court having jurisdiction, and he is authorized, in the case of
ordinary wills, on the exhibition of the will, to receive the
proof
Page 199 U. S. 113
and grant a certificate of probate, or, if such will be
rejected, to issue a certificate of rejection. Ballinger, §§ 681,
862, 6100. Testimony given in support of a will is to be reduced to
writing, signed by the witnesses, and certified by the judge of the
court, and wills admitted to probate are required to be recorded.
Ballinger, §§ 6105, 6106.
After defining a nuncupative will, the statutes of Washington
provide as follows:
"No proof shall be received of any nuncupative will unless it be
offered within six months after speaking the testamentary words,
nor unless the words, or the substance thereof, be first committed
to writing, and a citation issued to the widow or next of kin of
the deceased, that they may contest the will if they think
proper."
Ballinger, § 4606.
Proceedings to contest a will after admission to probate, or to
secure probate after a certificate of rejection, are regulated by
the following sections of the Code:
"If any person interested in any will shall appear within any
one year after the probate or rejection thereof, and, by petition
to the superior court having jurisdiction, contests 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. Issue shall be made up,
tried, and determined in said court respecting the competency of
the deceased to make last will and testament, or respecting the
execution by the deceased of such last will and testament under
restraint or undue influence or fraudulent representation, or for
any other cause affecting the validity of such will."
Ballinger, § 6110.
"Upon the filing of the petition referred to in the next
preceding section, a citation shall be issued to the executors who
have taken upon 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 state, or to their guardians if any of
them are minors, or their personal representatives if any of them
are dead, requiring them to appear before the court on
Page 199 U. S. 114
a day therein specified, to show cause why the petition should
not be granted."
Ballinger, § 6111.
"If no person shall appear within the time aforesaid, the
probate or rejection of such will shall be binding, save to
infants, married women, persons absent from the United States, or
of unsound mind, a period of one year after their respective
disabilities are removed."
Ballinger, § 6112.
"If, upon the trial of said issue, it shall be decided that the
will is, for any reason, invalid, or that it is not sufficiently
proved to have been the last will of the testator, the will and
probate thereof shall be annulled and revoked."
Ballinger, § 6114.
These statutory provisions have been decided by the Supreme
Court of Washington to apply as well to a contest of a nuncupative
will as to one of an ordinary will.
State ex Rel. Stratton v.
Tallman, 25 Wash. 295, 65 P. 545, 29 Wash. 317.
We are of opinion that the sections in question authorize a
proceeding for contest only before the court which has admitted the
will to probate or rejected the application made for probate, and
that the authority thus conferred concerning the contest is an
essential part of the probate procedure created by the laws of
Washington, and does not therefore cause a contest, when filed, to
become an ordinary suit between parties. This is plainly indicated
by the fact that the proceeding provided by the statute concerns
not only revocation of the probate of a will, but also the right to
petition for the probate of a will where an application to probate
it had been previously rejected. The context of the legislation in
question also clearly establishes that the authorized proceeding is
but supplementary to, and a continuation of, the original
proceeding in probate. This is indicated both by the form of the
petition which is required to be filed and the character of the
proof which may be considered on that petition. That the statute
does not contemplate a formal suit, but a mere summary and
ancillary proceeding, is shown by the circumstance that the
petitioner is merely required to state in his petition "his
objections and
Page 199 U. S. 115
exceptions to said will, or to the rejection thereof," and on
the statement of these objections in the petition, without the
formality of the technical pleadings customary in ordinary suits
inter partes, the statute requires that specified issues
be then made up for hearing. And further, the terms of § 876 treat
the contest as not an ordinary suit between parties, since it is
made the duty of the court to revoke the probate if, for any
reason, the will is invalid, or if "it is not sufficiently proved
to have been the last will of the testator." Moreover, it is
evident that the statute contemplates that the court, when acting
on a contest filed under its provisions, is not confined to the
exertion of powers which would properly be exerted in an ordinary
suit
inter partes, since the statute causes a decree in
favor of the petitioner, revoking a will already admitted to
probate, to inure not only to the benefit of the particular
contestant, but to be operative as to the whole world. This follows
from the provision of the statute saying that, if the court finds
in favor of the petitioner who sought the revocation of a probate
"the will and the probate thereof shall be annulled and
revoked."
It is insisted in argument that the Supreme Court of Washington
has referred to a will contest under the statutes of that state as
a suit or action, and from this the inference is deduced that the
proceeding is one
inter partes, in the broad sense of the
term, and not a part of the probate proceedings. But we do not
consider that the cases relied on do more than use the term "suit
or action" as a convenient form of expression. The view taken by
the Supreme Court of Washington as to the substantive nature of a
will contest is illustrated by its opinion in
Hunt v.
Phillips, 34 Wash. 362, where the court, in opening its
opinion, referred to the case before it as "a proceeding in contest
of the will," etc.
But the opinion of the Supreme Court of Washington as to the
nature of a will contest under the statute of Washington does not
depend upon the mere inference deducible from the characterization
which the court has given to that proceeding. In
Montrose v.
Byrne, 24 Wash. 288, it was expressly held
Page 199 U. S. 116
that the statutory proceeding to establish a will was special in
its character; so much so that in a contest concerning the same the
parties were necessarily limited to the question of the execution
or validity of the will and the right to admit the same to probate,
and therefore issues concerning the construction of the will or the
vesting of property thereunder could not be considered in a contest
proceeding.
In follows that, as the circuit court of the United States had
no jurisdiction to admit a will to probate or to entertain a pure
probate proceeding, and as the remedy afforded by the laws of
Washington to secure the probate or the revocation of the probate
of a will were proceedings of a purely probate character, and not
an action or suit
inter partes, the circuit court of
appeals correctly decided that the circuit court, although there
was diversity of citizenship, was without jurisdiction of the cause
so far as the bill sought a declaration of the nonexistence of a
will, and the consequent nullity of the probate.
It remains only to consider the bill under its other aspects.
The contention that the state court, in admitting the nuncupative
will to probate, violated the due process clause of the Fourteenth
Amendment to the Constitution of the United States rests upon two
propositions: (a) the law of the state, it is contended, required
that proof of an alleged nuncupative will should be offered within
six months after the speaking of the testamentary words, and that
notice should issue to the next of kin as a prerequisite to the
power to entertain the application for probate. As here it is said
the proof established that the hearing as to probate was had
without the notice required by the statute, therefore the admission
to probate was a violation of the due process clause of the
Fourteenth Amendment to the Constitution of the United States. (b)
As, under the laws of Washington, it is asserted real estate could
not be devised by a nuncupative will, therefore, the contention is,
the probate court had no jurisdiction over such real estate or the
rents, issues, and profits thereof, and hence an attempt by that
court to exert authority over that character of property
Page 199 U. S. 117
amounted to depriving the heirs at law of such property without
due process of law, in violation of the Fourteenth Amendment.
We are of opinion that the proposition resting upon the want of
notice did not furnish a basis for the jurisdiction of the circuit
court. The contention rests upon the assumption that the failure to
give the notice under the state law was so essentially a
prerequisite to a hearing on the question of probate that a probate
made without the notice was null and void, and could collaterally
be so treated. In
State ex Rel. Stratton v. Tallman, 25
Wash. 295, the contrary doctrine was expressly held. That case
concerned a collateral controversy relating to the very estate here
in question. The attorney general had filed in the probate court a
motion praying for the vacation of the order admitting the will to
probate, and to set aside all the proceedings leading up to the
probate of the will, upon the grounds that the court acquired no
jurisdiction to hear any evidence in support of the will, because
no citation was issued as required by law, as the citation was
issued on the day it bears date, and was immediately returned by
the sheriff without making any effort to find any of the heirs of
deceased or any person interested in the estate, and because the
deceased never made or attempted to publish and declare the will.
The probate court having refused to entertain the motion, for the
reason that the state was not an interested party, original
proceedings by mandamus were commenced in the supreme court of the
state to compel the court to hear and decide the motion. The
supreme court, however, refused the writ on the ground that any
appropriate proceeding to contest the probate was provided in the
statutes, which gave a year in which to make the contest, and that,
conceding the interest of the state, it nevertheless could not, by
a mere motion, raise the question of the validity of the probate.
But, let us concede, for the sake of the argument only, that, under
the Washington statutes the requirement of notice was essential to
the preliminary probate,
Page 199 U. S. 118
and if, by its omission, the parties were deprived of or lost
their right to deny the existence of the will, or to question its
probate, that the absence of the notice might afford substantial
ground to contend that rights protected by the Constitution of the
United States had been violated. These concessions, however, cannot
control this case. As the theory of the bill was, and as
undoubtedly it was also the law of Washington, that, despite the
mere preliminary admission to probate, there was full right to
assail the existence of the will and its probate, which was not
lost by the failure to give notice, it must follow that such
omission did not deprive of the right to a hearing, which right was
adequately conferred by the statute, wholly irrespective of whether
the notice on the preliminary probate had or had not been given.
Indeed, the contention made on this subject amounts to asserting
that every state law which provides for a probate in common form is
repugnant to the due process clause of the Constitution, even
although, under the state statutes, full and adequate probate
remedies are provided by which interested parties may subsequently,
within a time fixed by law, be heard in the probate proceedings to
question the existence of a will or its probate. When the result of
the proposition is thus ascertained, it becomes obvious that it is
not only opposed to the theory upon which the bill was framed, but
is so in conflict with the adjudications of this Court, to which we
have previously referred, that it is devoid of all foundation in
reason to such an extent as to prevent it from affording a basis
for the jurisdiction of the circuit court.
We think also the claim of the want of due process of law
arising from the contention that, in the State of Washington, a
nuncupative will does not pass title to real estate, and therefore
a violation of the due process clause of the Fourteenth Amendment
would arise if the probate court acted upon the contrary
assumption, was clearly devoid of all reasonable foundation. It is
not denied that, under the law of Washington, in cases of intestacy
as well as of testacy, both real and personal property is taken
into the control of and is administered by the probate
Page 199 U. S. 119
court. And as it is obvious on the face of the bill that the
averment referred to was wholly subordinate to the determination of
the existence of the alleged nuncupative will and the validity of
the probate thereof, a question over which the circuit court did
not have jurisdiction, it results that the bill, upon
constitutional or other grounds, did not present a case warranting
the court in passing upon the construction and effect of the
will.
There was no error in the action of the circuit court of
appeals, and its judgment is therefore
Affirmed.