estate of which Molen died seised, and to compel a surrender and cancellation of the instrument, and in this suit she had the right to have the question of the fraudulent character of the will tried in the federal court. Could the legislature of Arkansas destroy these rights? Could the statutes of that state, by providing that this fraudulent will should be presented to, contested, and allowed, with or without notice, in its probate court, or in any of its other courts, and that, if there established, its validity should never be questioned elsewhere, deprive this citizen of Ohio of the right granted to her by the constitution and laws of the United States to try in the federal court the only issue involving her right to her property, the issue whether or not this will was procured by fraud and undue influence? Could the statutes of Arkansas provide that a fraudulent deed should be presented to the register of deeds, or to any of its courts, and, if there allowed, deprive the citizens of other states of the right to contest its validity in a federal court as against the citizens of Arkansas when its validity was determinative of their rights of property in that state? These questions are susceptible of but one answer. The proposition that no state legislation can destroy or impair the right of citizens of different states to maintain their suits for and to try their issues involving rights of property in the federal courts is fundamental in the jurisprudence of the United States, and it is nowhere affirmed more decisively or illustrated more copiously than in the suits in the federal courts by creditors and distributees for their shares of the estates of decedents. The statutes of the various states commonly provide that claims against the estates of decedents shall be presented to their probate courts, or surrogate courts, or orphans' courts, or to commissioners within a certain time after a published notice, and that, if disallowed by them, or if not presented within the time fixed, they shall be barred; that wills shall be presented for probate, and that all persons who fail to contest them in these courts shall be estopped to question their validity; that administrators' and executors' accounts shall be allowed by these courts, and that their allowances shall be conclusive upon all the world. But creditors, heirs, and legatees who are citizens of other states are not deprived of their right to maintain and try their suits in the federal courts against administrators, executors, and all other parties who are citizens of the state of the decedent, to determine their rights in the property of the estate; nor are they barred of their original rights to maintain and to try these suits in the federal courts by their failure to present their claims to the state courts, as provided by the administration statutes of the states. Suydam v. Broadnax, 14 Pet. 67, 74, 10 L. Ed. 357; Bank v. Vaiden, 18 How. 503, 507, 15 L. Ed. 472; Borer v. Chapman, 119 U. S. 587, 588, 589, 7 Sup. Ct. 342, 30 L. Ed. 532; Lawrence v. Nelson, 143 U. S. 215, 224, 12 Sup. Ct. 440, 36 L. Ed. 130; Payne v. Hook, 7 Wall. 425, 430, 19 L. Ed. 260; Arrowsmith v. Gleason, 129 U. S. 86, 98, 9 Sup. Ct. 237, 32 L. Ed. 630; Johnson v. Waters, 111 U. S. 640, 667, 4 Sup. Ct. 619, 28 L. Ed. 547; Hayes v. Pratt, 147 U. S. 557, 570, 13 Sup. Ct. 503, 37 L. Ed. 279; Byers v. McAuley, 149 U. S. 608, 621, 13 Sup. Ct. 906,

37 L. Ed. 867; Hyde v. Stone, 20 How. 170, 175, 15 L. Ed. 874; Hess v. Reynolds, 113 U. S. 73, 76, 5 Sup. Ct. 377, 28 L. Ed. 927.

In Bank v. Vaiden a creditor who had failed to present his claim against the estate before the probate court, as provided by the statutes of Alabama, and whose claim was by those statutes barred by such failure, brought a bill in equity against the administrators in the federal court to enforce the trust in his favor, and to compel them to allow and pay his claim, and the supreme court sustained the bill, and said:

"The law of a state limiting the remedies of its citizens in its own courts cannot be applied to prevent the citizens of other states from suing in the courts of the United States in that state for the recovery of any property or money to which they may be legally entitled."

In Lawrence v. Nelson, 143 U. S. 215, 224, 12 Sup. Ct. 443, 36 L. Ed. 134, it was held that a statute of the state of Illinois which required all claims against the estate of a deceased person to be filed in the county court within two years, or be forever barred, did not cut off a claim of a citizen of another state, who failed to present his claim within the time, and afterwards sued the administrator in the federal court, and the supreme court said:

"The general equity jurisdiction of the circuit court of the United States to administer as between citizens of different states the assets of deceased persons within its jurisdiction cannot be defeated or impaired by laws of a state undertaking to give jurisdiction to its own courts."

In Payne v. Hook, 7 Wall. 425, 430, 19 L. Ed. 260, one of the distributees of the estate of a deceased person brought a suit in equity in the federal court against the administrator of the estate in Missouri, who was proceeding to administer the estate in the probate court under the laws of that state. Objection was made that the suit could not be maintained because the statutes of Missouri provided that the probate court should have exclusive jurisdiction over all disputes concerning the duties and accounts of administrators. But the supreme court sustained the bill, determined the rights of the distributees, and declared that no legislation of a state could oust the jurisdiction of the federal court to determine a controversy between citizens of different states.

In Byers v. McAuley, 149 U. S. 608, 610, 620, 621, 13 Sup. Ct. 906, 37 L. Ed. 867, a distributee of an estate which was in process of administration under a pretended will which had been probated as such before the register in Pennsylvania maintained a suit in equity in a federal court to avoid the will, and to have a determination of his rights to a share in the estate, and obtained a decree that the instrument which had been probated as a will was not a will, and that determined his rights in the distribution of the estate.

The rational deduction from the decisions that have been cited and from the principle on which they rest is that immediately upon the death of Joseph Molen the federal court had original jurisdiction of a civil suit in equity by Mary E. Franz against Adele Wahl to enforce the trust impressed upon the estate of the decedent in the latter's hands in favor of the former, and to enjoin the latter from using her fraudulent will to cloud the title of the real property

40 C.C.A.-42

which was the principal part of the estate; that Mary E. Franz had the right to the trial and determination of the crucial question whether or not the pretended will was fraudulent in that court; that the statutes of Arkansas could not deprive her of any of these rights; that the federal court still has that jurisdiction; and that, since the suit she has instituted by appeal in the circuit court of the state was pending in a court of justice of general jurisdiction, is between these two parties, involves the same property and the same issues, she had the right to its removal.

2. As a part of the original jurisdiction exercised by courts of common law and equity in England to try and decide the question whether or not a devise of real estate was legally made after the will had been probated in the ecclesiastical court, the federal court derived a like jurisdiction to hear and determine that question after the probate of this will in a suit brought for that purpose. It was long a disputed question in England, never finally put at rest until decided by a divided court in Allen v. McPherson, 1 H. L. Cas. 191, in 1847, whether or not the court of chancery had jurisdiction to avoid a will of personal property and the decree allowing it in the ecclesiastical court for forgery, fraud, or undue influence. The jurisdiction was repeatedly invoked and repeatedly maintained. Thynn v. Thynn, 1 Vern. 296; Segrave v. Kirwan, 1 Beat. 157; Marriot v. Marriot, 1 Strange, 166; Barnesley v. Powel, 1 Ves. Sr. 284. But it was finally refused in Allen v. McPherson. Under the English law a devise of real estate rested upon different grounds. Notwithstanding the probate of a will of both personal and real property in the ecclesiastical court, the jurisdiction of the court of chancery and of courts of law to try the issue whether or not the devise of the real estate was procured by fraud or undue influence was always conceded. Barnesley v. Powel, 1 Ves. Sr. 283-285. A like jurisdiction vested in the federal court below, and, as the bulk of the property covered by this will was real estate, it had jurisdiction of an original suit between these parties to set aside this will upon this ground. The statutes of Arkansas could not deprive it of this jurisdiction, and, as the suit removed was before a court of justice, and for the same purpose, it had jurisdiction of this suit.

3. If it is conceded, for the sake of argument merely, that the federal court had no jurisdiction of an original suit to avoid this fraudulent will, and to render futile its probate upon the grounds that have now been considered, it still has jurisdiction of such suit under the statutes of Arkansas, which gave the right to maintain it in its courts of general jurisdiction. Rights created and remedies provided by the statutes of a state to be pursued in its courts may be enforced and administered in the federal courts, either at law, in equity, or in admiralty, as the nature of the new rights and remedies may require. Darragh v. Manufacturing Co., 78 Fed. 7, 14, 23 C. C. A. 609, 49 U. S. App. 1; Gaines v. Fuentes, 92 U. S. 10, 20, 23 L. Ed. 524; Richardson v. Green, 9 C. C. A. 565, 61 Fed. 423, 429, 435; Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 11 L. R. A. 567; In re Stutsman Co. (C. C.) 88 Fed. 337, 341; Ellis v. Davis, 109 U. S. 485, 497, 3 Sup. Ct. 327, 27 L. Ed. 1006; Railway Co. v. Whitton's Adm'r,

13 Wall. 278, 287, 20 L. Ed. 571; Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Cummings v. Bank, 101 U. S. 153, 157, 25 L. Ed. 903; Trust Co. v. Krumseig, 23 C. C. A. 1, 77 Fed. 32; Ex parte McNiel, 13 Wall. 236, 20 L. Ed. 624; In re Broderick's Will, 21 Wall. 503, 520, 22 L. Ed. 599; Holland v. Challen, 110 U. S. 15, 25, 3 Sup. Ct. 495, 28 L. Ed. 52; Frost v. Spitley, 121 U. S. 552, 557, 7 Sup. Ct. 1129, 30 L. Ed. 1010; Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733; Chapman v. Brewer, 114 U. S. 158, 170, 171, 5 Sup. Ct. 799, 29 L. Ed. 83; Gormley v. Clark, 134 U. S. 338, 348, 349, 10 Sup. Ct. 554, 33 L. Ed. 909; Bardon v. Improvement Co., 157 U. S. 327, 230, 15 Sup. Ct. 650, 39 L. Ed. 719; Cowley v. Railroad Co., 159 U. S. 569, 583, 16 Sup. Ct. 127, 40 L. Ed. 263; Davis v. Gray, 16 Wall. 203, 221, 21 L. Ed. 447; Fleitas v. Richardson, 147 U. S. 538, 13 Sup. Ct. 429, 37 L. Ed. 272; Lincoln Co. v. Luning, 133 U. S. 529, 531, 10 Sup. Ct. 363, 33 L. Ed. 766.

In Darragh v. Manufacturing Co., 23 C. C. A. 609, 78 Fed. 7, 14, the state of Arkansas had enacted a statute which gave to a simple contract creditor of an insolvent corporation a suit in equity in its chancery court to wind up the affairs of such corporation, and to distribute its assets without the recovery of a judgment or the return of an execution. No such suit could have been maintained in the federal court without this statute. But this court held that, inasmuch as that state had created this new right and remedy, and had provided for their enforcement in its court of chancery, an original suit in equity could be maintained in the federal court for the same purpose.

In Ex parte McNiel, 13 Wall. 236, 243, 20 L. Ed. 626, a statute of New York had created a right to pilotage in certain cases. This right did not exist without the statute. A libel in admiralty was filed in the United States district court to enforce this right, and a decree for the libelant was rendered. An application was made to the supreme court for a writ of prohibition against the enforcement of the judgment because the court below had no jurisdiction. The supreme court denied the writ, and said: "This principle may be laid down as axiomatic in our national jurisprudence: A party forfeits nothing by going into a federal tribunal."

In Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 286, 20 L. Ed. 571, and Dennick v. Railway Co., 103 U. S. 11, 18, 26 L. Ed. 439, it was held that state statutes creating causes of action for negligent killing, and providing for actions at law to enforce them in state courts, enabled the federal courts to take jurisdiction of such actions, and to enforce the rights created by the state statutes, although no such actions could have been maintained in the absence of those statutes.

In Cummings v. Bank, 101 U. S. 153, 157, 25 L. Ed. 904, the statutes of a state had given to property holders the right to enjoin the payment of an illegal tax, and in discussing the right of the complainant to maintain a suit in a national court for the same purpose the supreme court declared the holding of that court to be that, "where a statute of a state created a new right, or provided a new remedy, the federal courts will enforce that right either on the

common-law or equity side of its docket, as the nature of the new right or the new remedy requires."

These decisions, and those cited with them which we have not reviewed, conclusively establish the proposition that the meaning of the term "suits of a civil nature at common law or in equity," which was re-enacted by congress in 1887-1888, is not to be discovered by a consideration alone of what actions at law or suits in equity might have been maintained when the national system of jurisprudence was established in 1789. They demonstrate the fact that it is not to be restricted to those suits at law and in equity which might then have been maintained, but that it includes every action at law, and every suit in equity which had been authorized to enforce rights created under state laws between 1789 and 1887. The broad interpretation and liberal construction which had been given to this term by the decisions of the supreme court to which reference has been made was by a familiar canon of construction adopted and confirmed by congress when it re-enacted the same words without change in the act of 1887-1888. When, therefore, the statutes of Arkansas gave this defendant in error the right to institute and maintain a suit in its courts of general jurisdiction to try the va lidity of this will, and to avoid it and its probate on account of fraud, undue influence, or illegality, the jurisdiction of the federal court in that state was thereby extended over that suit between citizens of different states.

It will not do to say that the proceeding here in hand was sui generis, and not a suit. Chief Justice Marshall conclusively answered that suggestion in Weston v. City Council, 2 Pet. 449, 464, 7 L. Ed. 486. He said:

"The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but, if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought is a suit."

When this case was pending in the circuit court of the state, the defendant in error was pursuing the remedy in that court of justice which the law afforded her. A right was being litigated in a court of justice between two, and only two, opposing parties, and the case was, therefore, a suit and a suit of a civil nature.

To the suggestion that it is neither a suit at common law nor in equity, the answer is that it is both. It is a suit of which a court of law and a court of equity have concurrent jurisdiction. The statute which authorizes it declares that the issues it involves may be joined and tried de novo according to the course and practice of the common law, and that the judgment it prescribes may be rendered by a court of law. It is accordingly an action at law. The same statute provides that the same issues may be framed and tried in an original suit in the court of chancery in case the complainant is a nonresident, and has not appeared, or been served with process, in the circuit court. Moreover, this suit has the essential attributes of a suit in equity. The enforcement of trusts, the undoing of