made. Jurisdiction as to wills, and their ceeded so far that the parties entitled under probate as such, is neither included in nor the will have been put in possession of their excepted out of the grant of judicial power rights to the estate, then the resort of adto the courts of the United States. So farverse claimants must be an action of revenas it is ex parte and merely administrative, dication in the courts of general jurisdiction, it is not conferred, and it cannot be exercised in which the legal title is asserted as against by them at all until, in a case at law or in the will claimed to be invalid, making an equity, its exercise becomes necessary to set- issue involving that question.” tle a controversy of which a court of the Following this statement the court made United States may take cognizance by rea- an exhaustive review of the decided cases in son of the citizenship of the parties.” the state of Louisiana, establishing the prop

The court expressly reaffirmed the want of osition just previously quoted; and, as a power in a Federal court of equity to set necessary result of this conclusion, the court aside the probate of a will in the absence of declared that in Gaines v. Fuentes it had a state statute giving the right in the courts been merely assumed that relief in the na- . of the state to such equitable relief, it being ture of an equitable remedy was allowed by reiterated (p. 494, L. ed. p. 1008, Sup. Ct. the law of Louisiana, under which the pro

p Rep. p. 332):

bate of a will could be set aside, saying “It is well settled that no such jurisdic. (pp. 499, 503, L. ed. pp. 1010, 1012, Sup. Ct. tion belongs to the circuit courts of the Rep. pp. 335, 338): United States as courts of equity; for courts In that case "it was assumed, and not deof equity, as such, by virtue of their gen- cided, that the said suit brought in the state eral authority to enforce equitable rights court was one which, under the laws of the and remedies, do not administer relief in state, its courts were authorized to entersuch cases. The question in this aspect was tain for the purpose of granting the relief thoroughly considered and finally settled by prayed for. The point decided was, that if the decision of this court in the case of it were, it might properly be transferred to Broderick's Will (Kieley v. McGlynn), 21 a court of the United States." Wall. 503, 22 L. ed. 599."

“The case of Gaines v. Fuentes, 92 U. S. Coming to consider whether, by the cus-10, 23 L. ed. 524, was such an action of tomary or statute law of Louisiana, there nullity, but, as before remarked, the point existed power in the courts of that state, as decided in that case was not that it would a matter of equitable cognizance, to enter- lie, according to the law of Louisiana, but tain a suit to annul a will and set aside its that if it would lie in the state court, it was probate, it was decided that no such right removable to the circuit court of the United existed, but that, on the contrary, the States, becausc it presented a controversy Louisiana law, whilst denying such right, wholly between citizens of different states." afforded relief in an action at law, where the In Byers v. McAuley, 149 U. S. 608, 37 L. recovery of property was sought, by permit. ed. 867, 13 Sup. Ct. Rep. 906, it was decided ting the validity of a will and its probate, that a Federal court cannot exercise original when asserted as a muniment of title, to be jurisdiction in respect to the administration collaterally questioned. The court said of the estate of a decedent, and that it can(p. 499, L. ed. p. 1011, Sup. Ct. Rep. p. 335): not, by entertaining jurisdiction of a suit

"It remains, therefore, in the present case against the administrator, draw to itself the to inquire whether the complainants are en- full possession of the estate, or the power of titled, under the laws of Louisiana, to draw determining all claims against or to it. It in question in this mode and with a view was, however, decided that where the estate to the decree sought the validity of the will of a deceased person is ready for distribuof Sarah Ann Dorsey and the integrity of tion, but no adjudication has been made as its probate.

to the distributees, the circuit court can en. “An examination of the decisions of the tertain jurisdiction in favor of citizens of supreme court of Louisiana on the subject other states to determine and award their will disclose that a distinction is made in shares in the estate. It is true that the bill reference to proceedings to annul a will and filed in the case assailed the validity of the its probate, according to the objects to be probate of a document which disposed, in accomplished by the judgment and the rela- favor of two corporations, of a house and lot tion of the parties to the subject. If the ad- in the city of Pittsburg. But the trial court ministration of the succession is incomplete gave effect to the document as a declaration and in fieri, and the object is to alter or af- of trust, and the controversy on that branch fect its course, the application must be made of the case was not pressed on the appeal. to the court of probates, which, in that case, Let us, then, first deduce the principles eshas possession of the subject, and exclusive tablished by the foregoing authorities as to jurisdiction over it. If, on the other hand, the power of a court of the United States the succession has been closed, or has pro- over the probate or revocation of the probate

of a will. An analysis of the cases, in our notice, and allowed a supplementary probate opinion, clearly establishes the following: proceeding by which the probate in common

First. That, as the authority to make wills form could be contested, then, again, if such is derived from the state, and the require a contest be a suit inter partes, it would ment of probate is but a regulation to make also be a Federal cognizance. a will effective, matters of pure probate, in Having fixed the meaning of the words the strict sense of the words, are not within "action or suit inter partes” we come to the jurisdiction of courts of the United apply the propositions deduced from the deStates.

cided cases, in order to test the question of Second. That where a state law, statutory the jurisdiction of the circuit court over the or customary, gives to the citizens of the relief prayed for in the bill, so far as restate, in an action or suit inter partes, the lates to the annulment of the probate. right to question at law the probate of a This requires us to determine whether, by will or to assail probate in a suit in equity, custom or by the statute law of the state the courts of the United States, in admin- of Washington, the courts of that state had istering the rights of citizens of other states the power of administering the relief prayed or aliens, will enforce such remedies. for on that subject in the bill by an inde

The only dispute possible under these pendent suit, as distinguished from the exerpropositions may arise from a difference of cise of probate jurisdiction originally or opinion as to the true significance of the merely ancillary. There is no pretense of expression "action or suit inter partes," as any custom in the state of Washington beemployed in the second proposition. When yond the scope of authority conferred upon that question is cleared up the propositions the courts of the state by the laws thereof. are so conclusively settled by the cases re- The question, therefore, reduces itself to a ferred to that they are indisputable. Before narrow compass; that is, what remedies coming to apply the propositions we must, do the laws of Washington create for the therefore, accurately fix the meaning of the purpose of the probate of wills and the revowords "action or suit inter partes."

cation of a probate, and are those remedies The cited authorities establish that the exclusively probate in their character or necwords referred to must relate only to inde-essarily merely ancillary thereto, or do they pendent controversies inter partes, and not confer upon the state courts general legal or to mere controversies which may arise on an equitable authority on the subject merely beapplication to probate a will because the state cause of the existence of a controversy? That law provides for notice, or to disputes con- is to say, Is a will contest under the laws of cerning the setting aside of a probate, when Washington an ordinary action or suit bethe remedy to set aside afforded by the state tween parties or a special probate proceedlaw is a mere continuation of the probate ing directly ancillary to or concerning the proceeding; that is to say, merely a method probate of the will? of procedure ancillary to the original pro- By § 5 of article 4 of the Constitution of bate, allowed by the state law for the pur- Washington it was provided that there pose of giving to the probate its ultimate should be in each of the organized counties and final effect. We say the words “action of the state a superior court, and by § 6 of or suit inter partes” must have this sig. the same article original jurisdiction was nificance, because, unless that be their im- conferred upon such court in equity cases port, it would follow that a state may not and cases at law, and over specified crimes, allow any question to be raised concerning etc., and it was vested with original juristhe right to probate at the time of the ap- diction "of all matters of probate.” By such plication, or any such question thereafter to statute such courts, in the exercise of their be made in an ancillary probate proceeding jurisdiction over matters of probate, were without depriving itself of its concededly ex- authorized : clusive authority over the probate of wills. “l. To take proofs of wills, and to grant This may be readily illustrated. Thus, if a letters testamentary and of administration., state law provides for any form of notice on an application to probate a will, and au- “2. To settle the estates of deceased perthorizes a contest before the admission of sons, and the accounts of executors adminthe writing to probate, then it would follow, istrators, and guardians. if the words "suit or action of inter partes" “3. To allow or reject claims against the embraces such a contest, the proof of wills, estates of the deceased persons as herein. if contested by a citizen of another state or after provided. alien, would be cognizable in the courts of “5. To award process and cause to come the United States, and hence not under the before them all persons whom they may exclusive control of the state probate court. deem it necessary to examine, whether parAgain, if a state authorized a will to be ties or witnesses, or who, as executors, adproved in common form, that is, without ministrators, or guardians, or otherwise, shall be intrusted with or in any way ac- representatives if any of them are dead, recountable for any property belonging to a quiring them to appear before the court on minor, orphan, or person of unsound mind, a day therein specified, to show cause why or estate of any deceased person.

the petition should not be granted.” Id. “6. To order and cause to be issued all $ 6111. writs which may be necessary to the exer- "If no person shall appear within the time cise of their jurisdiction.". Ballinger's Anno. aforesaid, the probate or rejection of such Codes and Stat. of Washington, $ 6075. will shall be binding, save to infants, mar

Applications for the probate of a will or ried women, persons absent from the United for letters testamentary are required to be States, or of unsound mind, a period of one made to the judge of the superior court hav- year after their respective disabilities are ing jurisdiction, and he is authorized, in the removed.” Id. $ 6112. case of ordinary wills, on the exhibition of "If, upon the trial of said issue, it shall the will, to receive the proof and grant a be decided that the will is, for any reason, certificate of probate, or, if such will be re-invalid, or that it is not sufficiently proved jected, to issue a certificate of rejection. to have been the last will of the testator, Hill's Anno. Stat. and Codes, $8 861, 862; the will and probate thereof shall be anBallinger's Anno. Codes and Stat. $$ 6099, nulled and revoked.” Id. $ 6114. 6100. Testimony given in support of a will These statutory provisions have been deis to be reduced to writing, signed by the cided by the supreme court of Washington to witnesses, and certified by the judge of the apply as well to a contest of a nuncupative court, and wills admitted to probate are re- will as to one of an ordinary will. State ex quired to be recorded. Ballinger's Anno. rel. Stratton v. Tallman, 25 Wash. 295, 65 Codes and Stat. 88 6105, 6106.

Pac. 545, 29 Wash. 317, 69 Pac. 1101. After defining a nuncupative will, the stat- We are of opinion that the sections in utes of Washington provide as follows: question authorize a proceeding for contest

“No proof shall be received of any nun- only before the court which has admitted cupative will, unless it be offered within six the will to probate or rejected the applicamonths after speaking the testamentary tion made for probate, and that the authorwords, nor unless the words, or the sub-ity thus conferred concerning the contest is stance thereof, be first committed to writing, an essential part of the probate procedure and a citation issued to the widow or next created by the laws of Washington, and does of kin of the deceased, that they may con- not, therefore, cause a contest, when filed, test the will if they think proper.” Id. to become an ordinary suit between parties. § 4606.

This is plainly indicated by the fact that Proceedings to contest a will after ad- the proceeding provided by the statute conmission to probate, or to secure probate af- cerns not only revocation of the probate of ter a certificate of rejection, are regulated a will, but also the right to petition for the by the following sections of the Code: probate of a will where an application to

"If any person interested in any will shall probate it had been previously rejected. The appear within any one year after the pro- context of the legislation in question also bate or rejection thereof, and, by petition to clearly establishes that the authorized prothe superior court having jurisdiction, con- ceeding is but supplementary to, and a contests the validity of said will, or pray to tinuation of, the original proceeding in prohave the will proven which has been reject-bate. This is indicated both by the form of ed, he shall file a petition containing his the petition which is required to be filed objections and exceptions to said will, or to and the character of the proof which may be the rejection thereof. Issue shall be made considered on that petition. That the statup, tried, and determined in said court re- ute does not contemplate a formal suit, but specting the competency of the deceased to a mere summary and ancillary proceeding, make last will and testament, or respecting is shown by the circumstance that the petithe execution by the deceased of such last tioner is merely required to state in his will and testament under restraint or undue petition "his objections and exceptions to influence or fraudulent representation, or for said will, or to the rejection thereof,” and any other cause affecting the validity of on the statement of these objections in the such will." Id. 8 6110.

petition, without the formality of the tech"Upon the filing of the petition referred nical pleadings customary in ordinary suits to in the next preceding section, a citation inter partes, the statute requires that specishall be issued to the executors who have fied issues be then made up for hearing. And, taken upon them the execution of the will, further, the terms of $ 876 treat the contest or to the administrators with the will an- as not an ordinary suit between parties, nexed, and to all legatees named in the will since it is made the duty of the court to residing in the state, or to their guardians revoke the probate if, for any reason, the if any of them are minors, or their personal will is invalid, or if "it is not sufficiently

a

proved to have been the last will of the tes- I will, and the consequent nullity of the protator.” Moreover, it is evident that the stat- bate. ute contemplates that the court, when act- It remains only to consider the bill under ing on a contest filed under its provisions, its other aspects. The contention that the is not confined to the exertion of powers state court, in admitting the nuncupative will which would properly be exerted in an to probate, violated the due process clause of ordinary suit inter partes, since the the 14th Amendment to the Constitution of statute causes decree in favor of the United States, rests upon two proposithe petitioner, revoking a will already ad- tions: (a) The law of the state, it is conmitted to probate, to inure not only to the tended, required that proof of an alleged benefit of the particular contestant, but to nuncupative will should be offered within be operative as to the whole world. This fol- six months after the speaking of the testalows from the provision of the statute say- mentary words, and that notice should issue ing that if the court finds in favor of the to the next of kin as a prerequisite to the petitioner who sought the revocation of a power to entertain the application for proprobate “the will and the probate thereof bate. As here it is said the proof estabshall be annulled and revoked.”

lished that the hearing as to probate was It is insisted in argument that the su- had without the notice required by the statpreme court of Washington has referred to ute, therefore the admission to probate was a will contest under the statutes of that a violation of the due process clause of the state as a suit or action, and from this the in- 14th Amendment to the Constitution of the ference is deduced that the proceeding is one United States. (6) As under the laws of inter partes, in the broad sense of the term, Washington it is asserted real estate could and not a part of the probate proceedings. not be devised by a nuncupative will, thereBut we do not consider that the cases relied fore, the contention is, the probate court had on do more than use the term "suit or ac- no jurisdiction over such real estate or the tion” as a convenient form of expression.rents, issues, and profits thereof, and hence The view taken by the supreme court of an attempt by that court to exert authority Washington as to the substantive nature of over that character of property amounted to a will contest is illustrated by its opinion depriving the heirs at law of such property in Hunt v. Phillips, 34 Wash. 362, 75 Pac. without due process of law, in violation of 970, where the court, in opening its opinion, the 14th Amendment. referred to the case before it as "a proceed- We are of opinion that the proposition ing in contest of the will,” etc.

resting upon the want of notice did not furBut the opinion of the supreme court of nish a basis for the jurisdiction of the cirWashington as to the nature of a will con- cuit court. The contention rests upon the test under the statute of Washington does assumption that the failure to give the notice not depend upon the mere inference deduc-I under the state law was so essentially a preible from the characterization which the requisite to a hearing on the question of procourt has given to that proceeding. In bate that a probate made without the notice Montrose v, Byrne, 24 Wash. 288, 64 Pac. was null and void, and could collaterally be 534, it was expressly held that the statutory so treated. In State ex rel. Stratton v. Tallproceeding to establish a will was special in man, 25 Wash. 295, 65 Pac. 545, the conits character; so much so that in a contest trary doctrine was expressly held. That case concerning the same the parties were nec- concerned a collateral controversy relating essarily limited to the question of the exe- to the very estate here in question. The atcution or validity of the will and the right torney general had filed in the probate court to admit the same to probate, and therefore a motion praying for the vacation of the orissues concerning the construction of the will der admitting the will to probate, and to or the resting of property thereunder could set aside all the proceedings leading up to not be considered in a contest proceeding. the probate of the will, upon the grounds

It follows that as the circuit court of the that the court acquired no jurisdiction to United States had no jurisdiction to admit a hear any evidence in support of the will, bewill to probate, or to entertain a pure pro- cause no citation was issued as required by bate proceeding, and as the remedy afforded law, as the citation was issued on the day by the laws of Washington to secure the pro- it bears date, and was immediately returned bate or the revocation of the probate of a by the sheriff without making any effort to will were proceedings of a purely probate find any of the heirs of deceased or any percharacter, and not an action or suit inter son interested in the estate, and because the partes, the circuit court of appeals correctly deceased never made or attempted to publish decided that the circuit court, although there and declare the will. The probate court havwas diversity of citizenship, was without ju- ing refused to entertain the motion, for the risdiction of the cause so far as the bill reason that the state was not an interested sought a declaration of the nonexistence of a party, original proceedings by mandamw

V.

were conimenced in the supreme court of the der the law of Washington, in cases of instate to compel the court to hear and de- testacy as well as of testacy, both real and cide the motion. The supreme court, how- personal property is taken into the control ever, refused the writ, on the ground that of and is administered by the probate court. any appropriate proceeding to contest the And as it is obvious on the face of the bill probate was provided in the statutes, which that the averment referred to was wholly gave a year in which to make the contest, subordinate to the determination of the exand that, conceding the interest of the state, istence of the alleged nuncupative will and it nevertheless could not, by a mere motion, the validity of the probate thereof, a quesraise the question of the validity of the tion over which the circuit court did not probate. But, let us concede, for the sake have jurisdiction, it results that the bill, of the argument only, that under the Wash-upon constitutional or other grounds, did ington statutes the requirement of notice not present a case warranting the court in was essential to the preliminary probate, passing upon the construction and effect of and if, by its omission, the parties were the will. deprived of or lost their right to deny the There was no error in the action of the existence of the will, or to question its pro-Circuit Court of Appeals, and its judgment bate, that the absence of the notice might is, therefore, affirmed. afford substantial ground to contend that

(198 U. S. 521) rights protected by the Constitution of the TEXAS & PACIFIC RAILWAY COMUnited States had been violated. These con

PANY, Piff. in Err., cessions, however, cannot control this case. As the theory of the bill was, and as un

GEORGE H. DASHIELL. doubtedly it was also the law of Washing

Release ton, that despite the mere preliminary ad

construction general and par.

ticular words. mission to probate, there was full right to assail the existence of the will and its pro- 1. General words in a release are to be limited bate, which was not lost by the failure to

and restrained to the particular words in the give notice, it must follow that such omis. 2. Impaired mental powers and partial loss of

recital. * sion did not deprive of the right to a hear

sight, resulting from injuries received by a ing, which right was adequately conferred

railway employee in a collision, are not covby the statute, wholly irrespective of ered by a release which, after enumerating whether the notice on the preliminary pro- the injuries sustained as bruises of his body, bate had or had not been given. Indeed, the

right leg, and right arm, and a scalp wound,

recites that “to maintain amicable and pleascontention made on this subject amounts to

ant relations and avoid all controversy in asserting that every state law which pro

respect to said matter" and for a monetary vides for a probate in common form is re- consideration such employee releases the pugnant to the due process clause of the railway company from all claims of any kind Constitution, even although, under the state

and character whatsoever arising from the in

juries and damages sustained in the manner statutes, full and adequate probate remedies

or upon the occasion aforesaid, and the reare provided by which interested parties sults of those injuries. may subsequently, within a time fixed by

[No. 212.] law, be heard in the probate proceedings to Argued April 11, 1905. Decided May 29, question the existence of a will or its pro

1905. bate. When the result of the proposition is thus ascertained it becomes obvious that it IN ERROR to the United States Circuit

Court of Appeals for the Fifth Circuit is not only opposed to the theory upon which the bill was framed, but is so in conflict with to review a judgment which affirmed a judg

ment of the Circuit Court for the Northern the adjudications of this court, to which we District of Texas in favor of plaintiff in an have previously referred, that it is devoid of all foundation in reason to such an extent railway employee in a collision, which had

action for personal injuries sustained by a as to prevent it from affording a basis for been removed to that court from the Disthe jurisdiction of the circuit court.

trict Court of Tarrant County, in the state We think also the claim of the want of due of Texas. Affirmed. process of law arising from the contention

See same case below, 62 C. C. A. 531, 128 that, in the state of Washington, a nuncupa- Fed. 23. tive will does not pass title to real estate, The facts are stated in the opinion. and therefore a violation of the due process Messrs. David D. Duncan, John F. clause of the 14th Amendment would arise Dillon and Winslow 8. Pierce for plaintiff if the probate court acted upon the contrary in error. assumption, was clearly devoid of all reason- Mr. Ben M. Terrell for defendant in able foundation. It is not denied that, un error. 25 S. C.-47.