and Adele Wahl, instituted in the circuit court of the state by appeal, which was to be tried in that court de novo, according to the course and practice of the common law, which was to determine whether or not the writing challenged was procured by fraud and undue influence; and which, in determining that question, was to decide whether a citizen of Ohio or a citizen of Arkansas was the owner of $20,000 worth of property in that state.

The only question the case presents, therefore, is whether or not, when the state has conferred upon its courts of general jurisdiction at common law the right and power to hear and try de novo in a suit instituted by an appeal, and upon its courts of chancery the right to hear and try de novo in a suit commenced by original process, the question whether or not a writing that has been allowed as a will in the probate court of that state was procured by fraud and undue influence, a federal court sitting in that state has concurrent jurisdiction to hear and try that issue where the property in controversy is of the value of $20,000, and the parties to the suit are citizens of different states. This question has been answered in the affirmative by the supreme court in Gaines v. Fuentes, 92 U. S. 10, 20, 23 L. Ed. 524, Ellis v. Davis, 109 U. S. 485, 496, 497, 3 Sup. Ct. 327, 27 L. Ed. 1006, and Byers v. McAuley. 149 U. S. 608, 610, 620, 621, 13 Sup. Ct. 906, 37 L. Ed. 867; by the circuit court of appeals of the Ninth circuit in Richardson v. Green, 9 C. C. A. 565, 61 Fed. 423, 429, 435; by Judges Pardee and Newman in the circuit court in Brodhead v. Shoemaker, 44 Fed. 518, 11 L. R. A. 567; by Judge Hill in Everhart v. Everhart (C. C.) 34 Fed. 82, 85; and by Judge Williams in this case in Franz v. Wahl (D. C.) 81 Fed. 9; and in view of all the decisions upon the question the author of a leading text-book upon this subject has declared the rule to be that:

"While the probate of a will ex parte is in rem, and, not being between parties, cannot be removed to the federal court, yet where such will is contested in pursuance of statutory provisions, and becomes a suit inter partes residing in different states, the federal courts take jurisdiction as they would in any other controversy between parties." Woerner, Adm'n (2d Ed.) § 156, p. *357.

The question has been answered in the negative by Judges Colt and Aldrich in the circuit court of appeals of the First circuit, in Re Cilley (C. C.) 58 Fed. 977; by Judge Welker in Reed v. Reed (C. C.) 31 Fed. 49; by Judge Swayne in Re Frazer, Fed. Cas. No. 5,068; by Judge Baker in Copeland v. Bruning (C. C.) 72 Fed. 5; and by Judge Priest in Oakley v. Taylor (C. C.) 64 Fed. 245. The cases of In re Broderick's Will, 21 Wall. 503, 22 L. Ed. 599; Tarver v. Tarver, 9 Pet. 174, 9 L. Ed. 91; Fouvergne v. City of New Orleans, 18 How. 470, 15 L. Ed. 399; and Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054,-from the supreme court; and In re Aspinwall's Estate (C. C.) 83 Fed. 851; Langdon v. Goddard, 2 Story, 267, 14 Fed. Cas. 1101 (No. 8,060); and Ball v. Tompkins (C. C.) 41 Fed. 486, -are cited in support of the negative answer, but they fail to meet the issue. The case of Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054, does not touch the question. All the other

cases from the supreme court, except Tarver v. Tarver, were commenced when the statutes of the states in which they were brought did not authorize the trial in the respective state courts of general jurisdiction of the questions whether the wills there in controversy were fraudulently procured or invalid at the times when the suits in the federal courts were commenced. Moreover, these are the earlier cases in the supreme court, and, so far as the opinions rendered in them contain expressions at variance with the later decisions in Gaines v. Fuentes, Ellis v. Davis, and Byers v. McAuley, they must be deemed to be overruled.

In the case of In re Broderick's Will it was expressly admitted that, if a state by statute authorized the bringing of a suit to declare a will void in its courts of appeal or equity after its probate, such a suit could be maintained, in a proper case, in a federal court. 21 Wall. 503, 520, 22 L. Ed. 599; Gaines v. Fuentes, 92 U. S. 21, 23 L. Ed. 524.

In the case In re Aspinwall's Estate (C. C.) 83 Fed. 851, the proceeding to be removed was an appeal from the register of wills to the orphans' court. The orphans' court was a special statutory court having probate jurisdiction, but without general jurisdiction. to try suits at common law and in equity. The holding was that the proceeding before the orphans' court was not removable, and it was expressly declared in the opinion in that case that the decision there rendered was not at variance with the decisions in Gaines v. Fuentes and Ellis v. Davis that where, under the state practice, a suit could be brought in the court of general jurisdiction to annul a will and its probate after it was established, a like suit - might be maintained in the federal court.

In Gaines v. Fuentes the suit was commenced by petition in the parish court of New Orleans to annul a will probated years before, and to recall the decree by which it was established. That is the exact purpose of the appeal in the case in hand. Under the Code of Louisiana there was no suit in equity, and the supreme court divided upon the question whether or not the proceeding in that case fell within the term a "suit of a civil nature at law or in equity." The majority held that it did, that it was a suit in equity, and that the federal court had jurisdiction. The minority held that it was neither an action at law nor a suit in equity, and that the federal court was without jurisdiction. Mr. Justice Field, who delivered the opinion of the majority, said of that proceeding, what is equally true of the suit instituted in the state court by appeal in this case:

"The suit in the parish court is not a suit to establish a will, but to annul it as a muniment of title, and to limit the operation of the decree admitting it to probate. It is, in all essential particulars, a suit for equitable relief, to cancel an instrument alleged to be void, and to restrain the enforcement of a decree alleged to have been obtained upon false and insufficient testimony." 92 U. S. 20, 23 L. Ed. 528.

He further said:

"Whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree adimitting 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 parties." 92 U. S. 22, 23 L. Ed. 529.

The dissenting opinion of Mr. Justice Bradley follows the line of argument adopted by the circuit court of appeals in the First circuit in Re Cilley (C. C.) 58 Fed. 977, and by the trial judges who have agreed with the opinion in that case that a suit to annul a will and avoid a decree allowing it is a proceeding to probate it, that a proceeding to probate a will is not a suit at common law or in equity, and that, therefore, a federal court has no jurisdiction of it. This contention met the reprobation of the majority of the supreme court in Gaines v. Fuentes, and it finds no support in the subsequent decisions of that court. In Ellis v. Davis, 109 U. S. 487, 3 Sup. Ct. 327, 27 L. Ed. 1006, that court held: (1) That, where the courts of general jurisdiction of a state are authorized to try the validity of a will in a suit involving the title to real property, the federal court has like jurisdiction in cases in which the necessary amount in controversy and the diverse citizenship exist (page 496, 109 U. S., page 333, 3 Sup. Ct., and page 1009, 27 L. Ed.); (2) that, conceding that the judicial power of the federal courts embraces only such suits as arise "in law and equity," this does not necessarily exclude those which may involve the exercise of jurisdiction in reference to the proof of wills (page 497, 109 U. S., page 334, 3 Sup. Ct., and page 1010, 27 L. Ed.); and (3) that the terms "law" and "equity" do not restrict the jurisdiction of the federal courts to the rights and remedies which were employed and recog nized in courts of law and equity when the national judicial system was adopted, but that they also embrace all rights and remedies newly created by the statutes of the states which may be adminis tered according to the nature of the case in the courts of the United States (Id.).

In Byers v. McAuley, 149 U. S. 608, 610, 620, 621, 13 Sup. Ct. 906, 37 L. Ed. 867, a distributee of an estate, who was a citizen of another state, brought a bill in the federal court in Pennsylvania to avoid a will which had been probated there, and to recover his share of the property of the estate while it was yet in process of administration in the orphans' court; and obtained a decree that the writ ing which had been allowed as a will in that court was not a will, but was a mere declaration of trust, and that he was entitled to a certain share of the estate; and the supreme court sustained the jurisdiction and the decree so far as it determined the rights of citizens of different states.

In Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 522, 11 L. R. A. 567, the contest of a will was first heard on pleadings in the court of ordinary, then appealed to the superior court of Floyd county, Ga., where it was tried according to the practice at common law under the statutes of that state. Thereupon it was removed to the federal court, and Judges Pardee and Newman held that it was an action at law, and removable under the act of 1887-88.

In Richardson v. Green, 9 C. C. A. 565, 61 Fed. 423, 429, 435, an original suit was brought in the federal court in Oregon to avoid a will and the decree of the probate court allowing it on the ground

that it was forged. There was a statute of the state of Oregon which permitted the maintenance of such a suit in its state courts of general jurisdiction. The circuit court of appeals of the Ninth circuit held that it was a suit in equity, and that the federal court had jurisdiction. Judge McKenna, now Mr. Justice McKenna of the supreme court, said:

"The nature of this suit is not precisely defined, but it is certainly inter partes, and seems to be within the doctrine declared in Ellis v. Davis, 109 U. S. 496, 497, 3 Sup. Ct. 327, 27 L. Ed. 1006. This remedy existing in the Oregon courts, it may be exercised by the United States court."

In Everhart v. Everhart (C. C.) 34 Fed. 82, 85, in a similar case, Judge Hill rendered a like decision.

In this state of the law the court below was right in maintaining the removal of this case, and for the following reasons:

(1) Because upon the death of Molen, Mary E. Franz, a citizen of Ohio, his sole heir, became entitled to his property, which was of greater value than $2,000, and, under the constitution and the acts of congress, had the right to maintain a suit in equity in the federal court against Adele Wahl, a citizen of Arkansas, to recover this property, and to enjoin the use of any fraudulent will to create a cloud upon the title of the real estate included within it, and no state legislation could curtail or destroy the jurisdiction of that court to hear and decide for itself every issue between these citizens which was determinative of their rights to this property. (2) Because the larger portion of the property devised by the will was real estate, and after its probate the federal court sitting in equity had plenary jurisdiction, derived from the court of chancery in England, to entertain a suit in equity to avoid the devise of the real estate for forgery, fraud, or undue influence, and, upon the trial of the issue which it was empowered to frame and submit to a jury, to set aside the will, and render futile the decree of probate. And (3) because the statutes of Arkansas gave to the contestant of a will the right to institute in its courts of general jurisdiction, and there to try de novo, a suit involving the question of the validity of the will after its probate; and under these statutes the federal court had like jurisdiction of all suits involving the requisite amount between citizens of different states.

1. When the owner of property dies, his estate is immediately impressed with a trust for the benefit of his creditors, heirs, and legatees. The court of chancery of England and the courts of equity of the United States have plenary jurisdiction, at the suit of any proper creditor, heir, or legatee, to enforce this trust against any occupants, executors, administrators, or parties into whose control any part of the estate may come. 1 Story, Eq. Jur. § 532, etc.; Attorney General v. Cornthwaite, 2 Cox, Ch. 44; Comstock v. Herron, 6 U. S. App. 626, 627, 5 C. C. A. 266, 55 Fed. 803; Hagan v. Walker, 14 How. 29, 14 L. Ed. 312; Adams, Eq. 257; Green's Adm'x v. Creighton, 23 How. 90, 93, 16 L. Ed. 419; Borer v. Chapman, 119 U. S. 587, 598, 599, 7 Sup. Ct. 342, 30 L. Ed. 532. In suits between citizens of different states to enforce this trust this jurisdiction vests in the federal courts, and, while statutes of the various states may

provide for the appointment of administrators, the allowance of claims and the probate of wills as muniments of title and as prima facie evidence of their validity in their courts, they can make no valid provisions which will deprive the national courts of the right or the duty to determine for themselves, independently of these provisions, every issue which involves the rights of citizens of different states to the property of the decedent, when these rights are drawn in question in proper suits brought in apt time.

In Green's Adm'x v. Creighton, 23 How. 90, 93, 16 L. Ed. 419,— a suit against a legatee by a creditor whose claim was barred under the statutes of the state by his failure to present it to commissioners, Mr. Justice Campbell said, in delivering the opinion of the supreme court: "In the court of chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them in favor of creditors, legatees, and heirs in reference to the proper execution of their trust;" and the suit was maintained, notwithstanding the bar of the statutes of the state.

In Borer v. Chapman, 119 U. S. 587, 598, 599, 7 Sup. Ct. 348, 30 L. Ed. 537,—another suit against a legatee by a creditor of New York whose claim was barred by the laws of California, where the estate had been administered, through the failure of the creditor to present his claim within the time fixed by those laws, Mr. Justice Matthews, delivering the opinion of the supreme court, and speaking of the jurisdiction of the federal courts over suits in equity to administer estates of decedents, said: "As a part of the ancient and original jurisdiction of courts of equity it vested, by the constitution of the United States and the laws of congress in pursuance thereof, in the federal courts, to be administered by the circuit courts in controversies arising between citizens of different states. It is the familiar and well-settled doctrine of this court that this jurisdiction is independent of that conferred by the states. upon their own courts, and cannot be affected by any legislation except that of the United States;" and the suit was maintained, and a decree for the complainant sustained over the objection that his claim was barred under the administration statutes of California.

Immediately after the death of Molen, then, this was the situa tion: Adele Wahl, a citizen of Arkansas, the deviser in the fraudulent will, was in the possession of the property of the decedent and of a fraudulent instrument under which she intended to acquire the title to it. Mary E. Franz, a citizen of Ohio, was the sole heir of the deceased, and had the right to all his property, and that property was held in trust for her by Adele Wahl, who was in possession of it. Under the constitution and the acts of congress she had the right to maintain a suit in equity in the federal court in Arkansas against Adele Wahl to enforce that trust, and to have every claim of the latter under the fraudulent will or otherwise, and every issue involving her right to that property, tried and determined in that court. She also had the right to maintain a suit in equity in that court to restrain Adele Wahl from imposing the threatened cloud of that fraudulent will upon the title to the real