(109 U. S. 485) ELLIS and others v. DAVIS. (December 10, 1883.) EQUITY JURISDICTION-UNITED STATES CIRCUIT COURT-CITIZENSHIP-SUIT TO SET ASIDE WILL-ACCOUNTING BY PARTIES IN POSSESSION-ACTION AT Law. The circuit court of the United States for the district of Louisiana has no jurisdiction of a suit in equity instituted by citizens of another state, as heirs at law, to set aside and annul the probate of a will of real estate, and declare the same null and void, on the ground of want of mental capacity and undue influence, and to compel an account of the rents and profits of the property by the testamentary heir in possession thereof. Appeal from the Circuit Court of the United States for the District of Louisiana. Charles C. Leeds and William Reed Mills, for appellants. J. D. McPherson and C. Carlisle, for appellee. MATTHEWS, J. The appellants, who were complainants below, are alleged in the bill of complaint to be, respectively, citizens of New York or Missouri, or British subjects and aliens, the defendant being a citizen of Mississippi. It is set forth in the bill that Sarah Ann Dorsey died on July 4, 1879, seized in fee-simple of certain real estate, consisting of two plantations in Tensas parish, in Louisiana, an estate called Beauvoir and other property in Harrison county, Mississippi, and real estate, not described, in Arkansas, besides a large amount of movable and personal property, rights and credits, also not described; that she died, leaving no heirs in the ascending or descending lines, the appellants being her next of kin and sole legal heirs in the collateral line, entitled to succeed, in case of intestacy, to the whole of her estate; that during her life-time, on May 10, 1878, Mrs. Dorsey, by a notarial act of procuration, constituted the defendant her agent and attorney in fact, with full and special powers to take exclusive control, charge, and management of all her property and estate, and all transactions and business in any manner connected therewith, including the power "for and in her name to sue and to be sued, to purchase, lease, alienate, or incumber real estate situate anywhere, to borrow money, execute notes, or other evidences of indebtedness; that, in virtue of said agency, the defendant entered upon and assumed the exclusive management of said property and business, and took possession of all account-books, title deeds, and papers thereto appertaining, and continued in the exclusive control, management, and possession as said agent to the time said agency expired by the death of the principal, and since her said death has still continued in said exclusive possession, management, and control; that though, on the expiration of said agency, it was incumbent on and the duty of said defendant to render to said heirs, all of whom, and their respective rights, were well known to him, a full, fair, and correct account of his administration of said agency, and to surrender to them, all and singular, the said property, account-books, title deeds, papers, etc., which had then come into his possession, and which your orators had well hoped he would have done, yet, on the expiration of his said agency, said defendant, notwithstanding amicable demand, refuses still so to do." It is further alleged in the bill that the defendant claims that the said Sarah Ann Dorsey, by her last will and testament, bequeathed to him all her property, for his own sole use and benefit, and thereby constituted him her sole heir and executor, and that, by virtue thereof, he is entitled in his own right to said estate; and the bill admits that on July 15, 1879, the defendant caused to be filed in the second district court for the parish of Orleans an instrument written and signed by Sarah Ann Dorsey, of which the following is a copy: "BEAUVOIR, HARRISON CO., Miss., Jan. 4, 1878. "I, Sarah Ann Dorsey, of Tensas parish, La., being aware of the uncer tainty of life, and being now in sound health in mind and body, do make this my last will and testament, which I write, sign, and seal with my own hand, in the presence of three competent witnesses, as I possess property in the states of Louisiana, Mississippi, and Arkansas. I owe no obligation of any sort whatever to any relation of my own; I have done all I could for them during my life; I therefore give and bequeath all my property, real, personal, and mixed, wherever located and situated, wholly and entirely, without hindrance or qualification, to my most honored and esteemed friend, Jefferson Davis, ex-president of the confederate states, for his own sole use and benefit, in fee-simple, forever; and I hereby constitute him my sole heir, executor, and administrator. If Jefferson Davis should not survive me, I give all that I have bequeathed to him to his youngest daughter, Varina. "I do not intend to share the ingratitude of my country towards the man who is, in my eyes, the highest and noblest in existence. "In testimony whereof I sign this will, written with my own hand, in the presence of W. T. Watthall, F. S. Hewes, and John C. Craig, subscribing witnesses, resident in Harrison county, Mississippi. [Signed] "SARAH ANN DORSEY. "At Mississippi City, on the fourth day of January, eighteen hundred and seventy-eight, the above-named Sarah Ann Dorsey signed and sealed this instrument, and published and declared the same as and for her last will, and we, in her presence and at her request, and in the presence of each other, have hereunto subscribed our names as witnesses. "W. T. WATTHALL. But it is charged that the pretended will is not valid, but is void, because at the time of writing and signing the same Sarah Ann Dorsey was not of sound and disposing mind, because the same was written and signed by her when under the undue influence of the defendant, which undue influence excited and aggravated the causes depriving her of a sound and disposing mind, rendering her more susceptible to such undue influence, and because the motive and object inducing and controlling the testatrix to make the same were contrary to law. The bill then proceeds to recite in detail a narrative of facts alleged in support of these charges affecting the testamentary capacity of Mrs. Dorsey and the integrity of the execution of the instrument as her testament; and alleges further that the defendant, "though in nowise ignorant of the premises hereinbefore set forth touching the nullity of said alleged will," nevertheless resorted to proceedings before the second district court for the parish of Orleans for the probate thereof, "ex parte and without any previous notification thereof, judicial or extrajudicial." And it is thereupon further alleged: "That by said proceedings it appears that on the fifteenth July, 1879, defendant, through his attorneys, filed his certain petition, in which he alleges that by the tenor of the last will and testament of Mrs. Sarah Ann Dorsey, dated fourth January, 1878, he is made the legatee and executor of the deceased; that said will had been on said day filed, and which he prays might be duly proved according to law; that thereupon an order was obtained that said will should be proved before the judge of said court forthwith; that in accordance with said order, and on proof that said instrument was wholly written, dated, and signed in the handwriting of the testatrix, (the only proof essential under the laws of Louisiana and the practice of its courts for an ex parte probate of an olographical will,) and on the further (and unusual in such ex parte probate) sworn statement of two of the subscribing witnesses that the testatrix, Mrs. Sarah Ann Dorsey, at the time of the execution of the aforesaid will, was of sound and disposing mind,' a decree of probate, in usual form, was rendered, decreeing the probate and registry of the will and execution of its provisions, including the issuing of letters of executorship, on defendant's complying with the provisions of law. "That by said proceedings it further appears that without previously qualifying as executor, or applying for an order of inventory, or in any manner showing to the court the amount of the indebtedness of the succession; without tendering any security to creditors, or deferring his application for a reasonable time within which creditors might, should they desire, demand of him security, or heirs might contest the validity of the will, or any of its provisions, or the sufficiency of the testimony of its probate,-proceedings not only usual, but, as to most of them, essential prerequisites to any demand by a testamentary heir or universal legatee to be put in possession of an estate; yet, notwithstanding this, said defendant, on the said fifteenth July, by representing to the court that the testatrix left no forced heirs and owed no considerable debts, that he was willing to accept and take the succession pure and simple, and that in his opinion there is no necessity of further administration,' obtained an order that, as the sole and universal legatee of the late Sarah Ann Dorsey, petitioner, Jefferson Davis, be put in possession of all the property, real, personal, and mixed, left by her, and wherever situated.' "That by said proceedings and decrees said second district court ceased to have jurisdiction over or regarding the administration of said succession, and, owing to his citizenship and the limited jurisdiction of said court, defendant in the premises ceased to be in any manner further amenable or subject to its jurisdiction. "That although said proceedings and decrees, as your orators are advised, are not res adjudicata against them, yet, nevertheless, in virtue thereof, said will and its order of probate are and will remain a muniment of title in defendant to all and singular the estate of said Sarah Ann Dorsey so long as said will and order of probate shall remain unannulled and unrevoked through judicial proceedings had contradictorily with said defendant." And it is further alleged that this decree of probate was unadvisedly rendered, and should be revoked, canceled, and recalled, for the reasons rendering said will, of which it is the probate, null and void, and because the testimony given in support of the probate was false and erroneous, and because, even if uncontradicted, it would be insufficient. It is further charged in the bill that the defendant also claims title to the estate in Mississippi called "Beauvoir," by virtue of a sale to him of said property, and a conveyance thereof made by Sarah Ann Dorsey, February 19, 1879, a copy of which is set out, which the appellants aver, however, to be null and void, for the same reasons on which they allege the will to be void, and because at the time the defendant occupied towards the said Sarah Ann Dorsey such a relation of trust and confidence as that he had no right to purchase the property, and that his consent to the sale thereof to himself, without security for the payment of the price, which was below its value, was a violation of his trust, for which reasons, it is claimed, said sale should be canceled and annulled. It is also alleged in the bill, "that, owing to the complicated character of the said agency thus held by defendant, an account thereof, as herein demanded, cannot properly be taken except in a court of equity." The prayer of the bill is as follows: "And that it may be decreed that the said alleged will of the said Sarah Ann Dorsey, dated Beauvoir, Harrison county, Mississippi, January 4, 1878,' and filed in the second district court for the parish of Orleans in the record of her succession, under No. 41,376 of the docket, on the fifteenth July, 1879, be canceled and annulled as absolutely void and of no effect in law; and that the decree of probate of said alleged will, and the decree recognizing said defendant to be the sole and universal legatee of said Sarah Ann Dorsey, and as such ordered to be put in possession of all the property left by her, wherever situated, both rendered on said fifteenth July, 1879, and in extenso set forth in Exhibit B, be revoked, canceled, and recalled as absolutely void and of no effect in law, and that the alleged sale and conveyance of property situate in Harrison county, Mississippi, by said Mrs. Dorsey to defendant, on the nineteenth February, 1879, and in extenso set forth in Exhibit C, be canceled and annulled as absolutely void and of no effect in law, in so far as either said will, decree of probate, decree of possession, or sale, in any manner to be pleaded by defendant as recognizing him as testamentary heir and universal legatee of said Sarah Ann Dorsey, or as a muniment of title or legal bar against your orators or their coheirs as her legal and sole heirs, and as such entitled to the ownership and possession of all and singular the property belonging to her estate, and which in any manner has come into the possession of said defendant, either as agent or trustee. "And that it be further decreed that said defendant come to a full and fair account of all and singular his acts and doings of his agency under the said act of procuration of May 10, 1878; and that it be decreed the defendant furnish to this honorable court a full and detailed statement of all properties, real and personal, of said Sarah Ann Dorsey, which came into his possession or under his control and management as her agent, or of which he has taken possession under and by virtue of said alleged will or said decrees of the second district court of July 15, 1879, or said alleged sale of February 19, 1879. "And that it be further decreed that said defendant at once surrender unto orators, and, if so desired by them, jointly with their coheirs, the possession of all said property, including all books, papers, evidences, title-deeds, etc., which, belonging to said estate, at any time since May 10, 1878, has come into his possession. "And that defendant be perpetually enjoined and restrained by the decree of this court from setting up or pleading said alleged will, said decree of pro. bate, said decree of possession, and said act of sale, or any title, right, or claim thereunder, against your orators as next of kin and legal heirs of said Mrs. Sarah Ann Dorsey. "And that it be further decreed that defendant make a full and true discovery and disclosure of and concerning all and singular the transactions and matters appertaining to or connected with his said agency, as well during the life-time as since the death of his principal. And that defendant may be decreed to come to an account with your orators, to be taken by and under the direction and decree of this honorable court, of all his dealings and transactions under the agency assumed by him under the act of procuration of May 10, 1878, or as trustee since Mrs. Dorsey's death, and to pay over to orators what shall be found due to them by defendant upon the taking of said account." To this bill the defendant below filed a demurrer, which demurrer was sustained, and a decree rendered dismissing the bill without prejudice, to reverse which this appeal is prosecuted. One of the main objects of this bill is to obtain from the defendant an account of the rents and profits received by him of the estate formerly belonging to Sarah Ann Dorsey, and, in order thereto, a declaration that the legal title to that estate is vested in them as her heirs at law and next of kin, in a decree that the alleged will under which the defendant claims, and the probate thereof, are null and void. It is admitted that the defendant is in possession, and that he holds adversely to the appellants; and there is a prayer in the bill for a recovery of the possession. In no respect does it differ from the frame of the bill in Hipp v. Babin, 19 How. 271. In that case the complainants sought by a bill in equity to recover possession of real estate to which they claimed title, as against a judicial sale, alleged to be void as against them, under which the defendants were in possession, and also for an account of rents and profits. The court refused to entertain the prayer for the recovery of the possession, on the ground that the remedy of the complainants at law was plain and adequate. It was urged that the bill would, nevertheless, lie for the account. To this Mr. Justice CAMPBELL, delivering the opinion of the court, replied as follows: "Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the accounts for rents, profits, and improvements. The rule of the court is that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds |