•118 presiding judge. A stipulation was entered Messrs. Heury E. Davis and Franklin H. Mackey for appellant. Messrs. Clayton E. Emig and Charles Poe for appellee. Mr. Justice Brewer delivered the opinion of the court: The appellant contends, first, that the supreme court of the District, sitting as a court of equity, had no jurisdiction of this cause; second, that the verdict of the jury was not sustained by the evidence; and third, that there was duress and coercion of the jury by the court, which resulted in an unjust verdict. Passing to the second question, we premise by saying that it is well settled that when the trial and the appellate courts agree as to the facts established on the trial, this court will accept their conclusion, and not attempt to weigh conflicting testimony. Stuart v. Hayden, 169 U. S. 1, 14, 42 L. ed. 639, 644, 18 Sup. Ct. Rep. 274, and authorities cited in the opinion. And this rule of concurrence with the conclusions of the trial and appellate courts is given more weight when in the first instance the facts are found by a master or a jury. Furrer v. Ferris, 145 U. S. 132, 36 L. ed. 649, 12 Sup. Ct. Rep. 821, and cases cited in the opinion. These propositions we have often At the same time there has always been recognized the right and the duty of this court to examine the record, and if it finds that the conclusions are wholly unwarranted by the testimony it will set the verdict or report aside and direct a re-examination. And after having carefully examined the record in this case we are constrained to the conclusion that there is no testimony which justified the answer returned to the second question. On the contrary, if a will is set aside upon such a flimsy showing as was made of undue influence, few wills can hope to stand. There The facts are these: The testatrix was a woman sixty-five years of age; had been married forty-five years, but was childless; her relations with her husband and sisters were pleasant; her near relatives were two sisters, Caroline Le Fevre, the present apWe pass the first question with the obser- pellee, and Mrs. Maus, the mother of Helen vation that, whatever might have been the B. Johnson. Another sister had died many conclusion if the defendants had stood upon years ago, leaving two children, Charles their challenge of the jurisdiction, the agree- Louis Smith (known in the record as Louis ment of the parties to submit certain ques- Beyer, Junior) and Helen C. Fenton. Louis tions to a jury, the trial before the jury and Beyer, Junior, while a little child, and on the stipulation for returning the testimony the death of his mother, was taken by the there taken to the equity court for consid-testatrix and brought up as her son. eration by the judge thereof, must be held a waiver of the objection to the jurisdiction. Under the Federal system the same judge may preside whether the court is sitting in equity or as a common-law court. While the pleadings and procedure are dissimilar, and the rights of the parties, especially in respect to juries, are different, yet in many cases a party who appears in one branch of the court and consents to a hearing and adjudication, according to the practice there prevailing, of an issue presented by the pleadings and in respect to a subject-matter, which is within the general scope of its jurisdiction, may be estopped from thereafter and in an appellate court challenging such jurisdiction. Reynes v. Dumont, 130 U. S. 354, 395, 32 L. ed. 934, 945, 9 Sup. Ct. Rep. 486. This is such a case. The determination of the title to real estate is within the scope of the general jurisdiction of a court of equity. The issue of undue influence in respect to any transaction such a court is competent to determine. The proceeding consented to, and in fact had, was practically the trial of a feigned issue out of chancery. It is too late now to raise the question of jurisdiction. does not appear to have been any formal adoption, but he went by the name of Louis Beyer, Junior, and was recognized and treated as her son. He was twenty-seven years old at the time of her death. Helen B. Johnson was, as stated, the daughter of Mrs. Maus, a sister of testatrix. She, too, lived with the testatrix the most of her life, although it does not appear that she had been recognized as a daughter. The testatrix died of cancer in the abdomen. The first indications of trouble were in December, 1893, though at that time the appear. ances were of an ordinary*case of indigestion, and the fact that it was cancer was not developed until sometime in the early part of 1896, the year in which she died. In the month of June of that year she went on a visit to the home of Helen Johnson's motherin-law, 12 miles south of Richmond. She returned about the 1st of July, was about the house for a week or so after her return, and then took to her bed, dying on July 26. When spoken to, at different times prior to her visit to Richmond, about making a will she had declined, saying she intended the property should go to her husband; but being advised, either before or after her visit *119 *121 to Richmond, that in case she died without a ling the fee in them, but charged with the will the property would go to her sisters duty of furnishing a home to her husband and their descendants, she decided to have as long as he lived, and relying upon their a will made, and so informed Louis Beyer, affection to give to him the comforts of a Junior, on Sunday, July 12; she also in-home such as they all had had together in quired if a will made on Sunday was valid, the past. While she gave them the power and was told by him, after an examination of alienation, she coupled with it the proviso of a cyclopædia, that it would be. He sug- that whatever was done with this property gested an attorney living near, to whom they should still secure a home to him durshe objected, whereupon he proposed to calling his lifetime. She trusted much to their in Mr. Brennan, who occupied an office in the affection, but is this singular considering same building in which he was employed. the length of time they had been members This was satisfactory. Mr. Brennan was of her family and that which she must have sent for. Witnesses were asked to attend, known to be the relation subsisting between among them her regular physician. Mr. them and him? Yet she did not leave provi. Brennan came in the afternoon, found hersion for her husband entirely to their affec lying in bed, received instructions from her tion. She directed in terms that such prohow she wanted the will drawn, and wrote vision should be made, and she doubtless be-' it then and there. It was thereafter read lieved that that direction would be binding, to her, signed and acknowledged by her in and it was binding. It was in the nature the presence of himself, the regular physi- of a precatory trust, and so expressed as to cian, and a Mr. Sullivan, and signed by be obligatory upon the devisees and enforcethem as witnesses. That will was similar able in the courts. Colton v. Colton,* 127* to the one finally executed, except that it de- U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. vised the property to Louis Beyer, Junior, 1164. It is no ground of criticism that othalone. Mr. Brennan took the will to his ofers might have made a different will. That fice. On examination he found that he had she did not give the fee to her husband, but left out the word "heirs,' so that, as he to her adopted son and niece, burdened with thought, only a life estate would pass to the this precatory trust, may have been owing devisee, and on Monday prepared a new will, to a fact which is, at least, suggested by the exactly like the one which had been exe- testimony, that her husband was visionary, cuted, with the addition of the word "heirs." and she feared might waste his property in He called on the testatrix and explained the developing some of his supposed inventions. change he had made; she then said that, in- That she was justified in placing confidence asmuch as there had to be a new will exe-in the affection of the devisees for her hus cuted, she would like to have Mrs. Johnson band is shown by the fact that they conincluded with Louis Beyer, Junior. Where- veyed to him a large portion of the property upon Mr. Brennan went to his office and upon hearing that he was dissatisfied with wrote a will the third time, and on Tuesday the contents of the will. It is true that went back to the house, and there it was sometime thereafter, owing to his contemexecuted. That is the will in dispute. It was plated marriage, the pleasant relations be taken by him to his office and kept in his tween him and them seem to have ceased, hands until after her death. That the con- but this unfortunate condition does not tents of this will were known to her at the prove that the testatrix did not at the time time of its execution, and that she was "of have good reason to trust in their affection sound and disposing mind, memory, and un- for him. derstanding, and capable of executing a valid deed or contract," were found by the jury, and were abundantly proved by the testimony, among the witnesses thereto being her regular physician, the minister who visted her, the lawyer who drafted the will, and others wholly disinterested. Turning now to the testimony ofered to show undue influence, it comes from two witnesses, Mrs. Stone, the daughter of the appellee, and Fanny Perry, a colored servant in the house of the testatrix. Mrs. Stone's testimony is mainly concerning the condi tion of the testatrix during her last sickBefore noticing what is claimed to be evi-ness, and had a tendency to show that she dence of undue influence, we remark that the was in a drowsy condition, if not unconwill was not an unnatural one for the testa-scious, during the last fourteen days of her trix to make. As long as she supposed her life, though as she was at the house of the husband would inherit the real estate, she testatrix only every other day, and then for declined to make any. She meant that he but a few minutes at a time, her testimony should have the benefit of the property. She was properly considered by the jury as of found, however, that it was necessary for no great significance and overborne by that her to make a will in order to secure this re- of the physician and other witnesses. She sult. He was an old man, and in the natur- does testify to one thing in reference to Mrs. al course of events could not be expected to Johnson, which will be considered hereafter. live many years. It is not strange that, The only other witness, and the one upon with the utmost affection for her sisters, she whom the appellee substantially relies, is should prefer that, after he had had the en-Fanny Perry, the servant. Now, in respect joyment of her property, it should go to the nephew and niece who had made their home with her, who had been brought up by her, and one of whom, at least, was regarded as an adopted child. So she makes a will vest to her testimony, and indeed all the testi mony in the case, it must be observed that there is not a syllable tending to show that Louis Beyer, Junior, ever urged the testatrix to make a will, ever suggested or spok● We put out of consideration the fact that Mrs. Johnson contradicts the witness and denies ever having urged the testatrix to make a will in her behalf or to make a will at all, and inquire whether, giving the fullest weight to this testimony, it warrants a finding that the execution of this will was to her in respect to the matter, and that all Johnson said: "Yes, you will leave it to the connection he had with it was in re-him, and he will sink it in a boat or rum sponse to requests to ascertain what would mill;" and the testatrix replied: "Nellie, be the disposition of the property without how can you talk about your uncle like a will, the validity of a will made on Sun-that?" and also, "Nellie, you are harassing day, and in suggesting the name of a law-me to death." Whereupon Mrs. Johnson yer to prepare the will and asking him to said she would go if the will was not made, come. Now, to find that "the will was ob- and the testatrix replied: "You have run tained by undue influence on his part, when Mrs. Stone out of the house to get something there is not the slightest syllable tending to when I die. You said she was waiting for show that he ever said or did a thing to a dead man's shoes, but you are the one to ward securing the execution of the will ex- catch it." cept at her request, is a proposition which cannot for one moment be entertained. With this must also be remembered that the will which was first drawn, the one executed on Sunday, made him the sole devisee, and that it was intended by the testatrix to vest the property absolutely in him, so as to deprive the appellee and other of her rela-secured by undue influence. We are clear tives of any interest in the property. That that it does not. The conversations which it did not have that effect was owing to a the witness states were had while the testamistake of the scrivener in omitting the trix was about the house and attending to word "heirs," a mistake which, when dis- her ordinary duties were conversations which covered by him, he proceeded promptly to might naturally be had between one brought correct, and only when the corrected will up in the family, as Mrs. Johnson was, and was presented to her did she authorize a one who had been to her as a mother. It change so as to include Mrs. Johnson. Sup- would not be strange that having lived all pose it were true that Mrs. Johnson did aft- her life in the family she felt that there was er the first will by her importunity per- something due to her in respect to the dissuade the testatrix to include her as a dev-position of the property. It will be rememisee, the change wrought no prejudice to the interests of the appellee. It took away nothing from her. It only added a new devisee, and that not the appellee,-another one to share in the property. bered that it is not influence, but undue influence, that is charged, and is necessary to overthrow a will. The question No. 2 puts in the same category fraud, circumvention, and undue influence. Placing undue influence along with fraud and circumvention interprets the character of the influence. Noscitur a sociis. Surely there is nothing in these conversations which has in it anything suggestive of fraud or circumvention, nothing wrongful or misleading. But now, let us see what is the testimony which is claimed to show that Mrs. Johnson exercised undue influence. Mrs. Stone testified that she boarded with the testatrix for a couple of years (and that was a year or two before the death of testatrix), and that during that time, when Mrs. Johnson With reference to the last conversation seemed displeased at something, she heard detailed by the witness, that which took the testatrix say that "it was because she place after the testatrix had taken to her did not make a will and she never intended bed, it may be conceded that there is a disto make a will." Fanny Perry testified that play of urgency and petulance on the part she lived with the testatrix about three of Mrs. Johnson and a rebuke on the part years prior to her death; that Mrs. Stone of the testatrix, but is there enough in it to called at the house on the Sunday when the justify a finding that the will was procured first will was executed, and she heard Mrs. by undue influence? May not one situated Johnson say to Louis Beyer, Junior, "You as was Mrs. Johnson properly plead her go down stairs, and after you get the wagon claims for recognition in a will? May she hitched up take Mrs. Stone around to the not give her reasons why a will should be Christian Endeavor encampment first, and made and why property should not be left then take her home; if she knows what is to a particular person without being subject going on here she won't leave here to-night to the charge of exerting undue influence? unless she gets a share in the profits;" that The only threat made by her was that she she had heard Mrs. Johnson ask the testa- would go if the will was not made. We do trix to make a will, but the testatrix refused, not, of course, approve of such importunity saying that she would leave everything to to a sick person, and it may often be carried Mr. Beyer just as it was, and for them to to such an extent that a jury is justified in stay with him and treat him right, and finding that a will was executed in pursu when he died he would do right by them.ance of it, and through undue influence, but To which Mrs. Johnson replied: "This is the way you are going to treat me after I have been working for you all these years, and this will be all the thanks I'll get for doing it;" that after the testatrix had taken to her bed she asked her to make a will, but she said she would not, but would leave the property to her husband, to which Mrs. 22 S. C.-49. these significant facts must be borne in mind in respect to this case: The witness, Fanny Perry, does not locate the time of this conversation, whether before the first will was executed or after. If before, plainly it had no effect upon the testatrix, for she made a will giving the property to her adopted son and leaving Mrs. Johnson out altogether. If 19, 1902. Decided May after, while it may have had the effect of, Argued March 19, 20, 1902. N A CERTIFICATE from the United O`States Circuit Court of Appeals for the Fifth Circuit presenting a question as to the jurisdiction of a circuit court on the ground of diverse citizenship. Jurisdiction We are clearly of the opinion that the jury were not, under the circumstances of this case, warranted in finding that the execution of the will was procured by fraud, circumvention, or undue influence practised or exercised upon the testatrix. tained. 8u8 Statement by Mr. Chief Justice Fuller: The certificate in this case is as follows: "This suit was commenced by filing in the circuit court the following bill and exhibit, filed November 13th, 1899: "To the honorable the judges of the Circuit created by the laws of Louisiana, and a citizen of said state. And thereupon your orator complains and says: "1st. That by an act of the legislature of Louisiana (No. 74), approved September 14th, 1868, the parishes of Orleans, Jefferson, and St. Bernard were territorially united in one district for the purpose of police government therein called the 'metropolitan police district of New Orleans, state of Louisiana;' that the government of said district for police purposes was vested in a board of commissioners, styled 'the board of metropolitan police.' One who is familiar with the volume of litigation which is now flooding the courts cannot fail to be attracted by the fact that "Alphonse Emsheimer, of New Orleans, actions to set aside wills are of frequent an alien and a subject of the Empire of GerOccurrence. In such actions the testator many, brings this his bill against the city cannot be heard, and very trifling matters of New Orleans, a municipal corporation are often pressed upon the attention of the court or jury as evidence of want of mental capacity or of the existence of undue influence. Whatever rule may obtain elsewhere we wish it distinctly understood to be the rule of the Federal courts that the will of a person found to be possessed of sound mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence. The expressed intentions of the testator should not be thwarted without clear reason therefor. The decrees of the Court of Appeals and of the Supreme Court of the District are reversed and the case remanded to the latter "2d. That said board was required to apcourt, with instructions to set aside the depoint all the officers* and employees of the* cree in favor of the appellee, and for further police force required in said district, and proceedings in conformity to this opinion. their salaries (which were prescribed by the act) were required to be paid monthly; that by said act and acts of said legislature, supplementary to and amendatory thereof, said board was required to make annually an estimate of the expenses of maintaining a police force in said district, and to apportion the same to the several cities and parishes within said district, and said cities and parishes were required by said acts to promptly pay, and to provide the means for promptly paying, the amounts thus apportioned to them. Mr. Justice Harlan and Mr. Justice Gray did not hear the argument, and took no part in the decision of this case. (186 U. S. 33) ALPHONSE EMSHEIMER, Appt., v. CITY OF NEW ORLEANS. Appeal certified question-diverse citizenship as ground of Federal jurisdiction. Questions presented for determination by a certificate from the circuit court of appeals will not be answered by the Supreme Court of the United States, where the certificate contains no statement of the facts on which the question certified arises, as required by rule 87 of the latter court, but the entire record is certified, and the questions contemplate an examination of the whole case, and, in large part, its decision on the merits. A circuit court of the United States has jurisdiction, on the ground of diverse citizenship, of a suit by the assignee of the payees of police warrants, if such payees might, at the time the sult was commenced, have themselves prosecuted suit therein on that ground if there had been no assignment or transfer. [No. 347.] "3d. That said city of New Orleans was a municipal corporation created by the laws of said state of Louisiana, and was within said metropolitan police district; that said board from and after its creation, as aforesaid, annually made the estimate of expenses of maintaining said metropolitan police and apportioned the same to said several cities and parishes as required by said acts. "4th. That the apportionments made by said board aforesaid to the city of New Orleans for all the years from 1869 to 1876, inclusively, amounted to the sum of $6,033,030.51, and when said apportionments were made and notified, as they were to said city, she became liable to said board of metropolitan police for the amount thereof. "5th. That like apportionments of police expenses were made by said board to the *35 cities of Jefferson and Carrollton, which were within said police district, for which apportionments they each became liable to said board, but afterwards, by acts of said legislature, said cities were consolidated with said city of New Orleans, which by said acts of consolidation was made liable for their debts, including those created for their apportionment of police expenses aforesaid. "Your orator has not sufficient information to state the amount of the liabilities thus created and imposed upon said city of New Orleans, but avers, upon information and belief, that it was sufficient to pay and discharge the proportion of police expenses due by each of said cities. 100 the parish of Orleans with the consent of said city, to whom said city on July 25th, 1888, paid the sum of thirty thousand nine hundred and forty-four dollars ($30,944.94) part and parcel of the moneys derived from the collection of such taxes as well as other small sums thereafter, the amount and date of payment of which is to your orator unknown. "And your orator avers that afterwards, to wit, on the 27th of December, 1890, said receiver died, and that said board has been since then, and is now, without any successor or representative, and its affairs are under no administration whatsoever; that said city of New Orleans has since the death of said receiver continued to collect said police taxes, and is still collecting the same, the amount of such collections being to your orator unknown, but he avers that it is a large amount, no part of which she has applied to the payment of any of her indebtedness on account of said apportionments; and that she holds the same subject to said trust as above averred. "6th. That like apportionments were made by said board of police expenses to be paid by said parishes of Jefferson and St. Bernard and the city of Kenner, all within said police district, and notice given to each of said corporations thereof, as required by law, and thereupon they became and were absolutely liable to said board for the amount of their respective apportionments; but what the amounts of said apportionments were complainant is unable to state, but avers that they were sufficient to meet the annual police expenses within their re-terest accrued thereon at the rate of 10 per spective jurisdictions. "7th. That while said cities and parishes within the police district were required to promptly pay and to provide the means for promptly paying their respective apportionments, the councils of said cities and the police juries of said parishes were authorized to raise the amount required for that purpose by levying taxes upon the persons and things subject to taxation within their respective jurisdictions, and for that purpose did severally make such levies, and your orator avers that said city of New Orleans annually, during the whole period of the existence of said board, included in her budget of expenditures the amount thus apportioned to her, and in pursuance of said authority levied and collected taxes for the purpose of paying the same, and paid upon account thereof large sums of money, but not enough to discharge her liability in the premises, there still being due upon account thereof, including Carrollton, the sum of two hundred and forty-one thousand, one hundred and six and dollars ($241,106.54), and the defendant, the present city of New Orleans, successor of said city, as existing at the time said apportionments were made, is liable therefor. 100 "And your orator avers that large amounts of said police taxes levied, as aforesaid, became delinquent, and thereafter in cent per annum; that said city of New Orleans collected large amounts of such interest, which, as accessory to said taxes, should have been paid to said police board, but which she neglected and refused, in violation of her duty as trustee, to apply to the payment of said apportionments, and she should be required to account for the same with interest thereon; that the amount of police taxes, as well as the interest thereon, so as aforesaid collected, is unknown to your orator, and he is entitled to an account thereof from said city before one of the masters of this honorable court, or otherwise, as your honors may direct. "9th. That said board of metropolitan police, in obedience to the laws creating and governing the same, organized a metropolitan police force in said district and maintained the same until March 31st, 1877, when said act No. 74 of September 14th, 1868, establishing said metropolitan police district, as well as all other acts amendatory thereof and upon the same subject-matter, were repealed, and said board of metropolitan police was abolished without any provision being made for the liquidation of its affairs, or the payment of its debts. *"10th. That said board of metropolitan "8th. And your orator avers that said police was a body corporate under the laws city of New Orleans was and is a statutory of its creation, and by the repeal of said trustee of the money derived from such tax-law, ceased to be and had and has no repreation, and collected by her for the purpose sentative or successor against whom suit of paying said apportionments of police ex-night have been or may now be brought for penses; that ever since said several levies the establishment of the demands of the comof such taxes said city has been, and still is, plaint herein, and he is remediless, except making collections thereof, and has collected in this honorable court, where matters of large sums of money on account thereof, for this nature are cognizable and relievable, which she has failed to account and still wherefore he brings this his bill in behalf holds subject to said trust, the amount of himself and all other creditors of said thereof being to your orator unknown; that board, similarly situated, who may come in for a portion of such collections a receiver and contribute to the expense of this suit. was appointed by the civil district court for "11th. That one Lew Goldstein, as holder *37 |