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

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. 494, L. ed. p. 1008, Sup. Ct. Rep. p. 332):

"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 (Kieley v. McGlynn), 21 Wall. 503, 22 L. ed. 599."

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. 499, L. ed. p. 1011, Sup. Ct. Rep. p. 335): "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 pro

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 na ture of an equitable remedy was allowed by the law of Louisiana, under which the probate of a will could be set aside, saying (pp. 499, 503, L. ed. pp. 1010, 1012, Sup. Ct. Rep. pp. 335, 338):

In that case "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, 23 L. ed. 524, 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, 149 U. S. 608, 37 L. ed. 867, 13 Sup. Ct. Rep. 906, 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 Pittsburg. But the trial court gave effect to the document as 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 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 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 4 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:

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 14th 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 testa

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, 75 Pac. 970, 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, 64 Pac. 534, it was expressly held 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.

It 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

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 14th 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 amounted to depriving the heirs at law of such property without due process of law, in violation of the 14th 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, 65 Pac. 545, 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 mandamu