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frauds, the removal of void instruments, and the record of them from the title to real estate which they cloud are well-known heads of equity jurisprudence. This is a suit to enforce the trust impressed upon the estate of Molen at his death. It is a suit to undo the fraud perpetrated by the procurement of his will by undue influence. It is a suit to remove the cloud which has been imposed upon the title to the real estate of which he died seised by a void and fraudulent will. It has every essential attribute of, and it is, a suit in equity. Hayden v. Thompson, 71 Fed. 60, 62-64, 17 C. C. A. 592, 594, 595, 36 U. S. App. 361, 367, 368; Gaines v. Fuentes, 92 U. S. 21, 23 L. Ed. 524.

Nor is the argument persuasive that this was not a suit at com. mon law or in equity, and that the jurisdiction of the federal court over it was withheld or restricted by the fact that under the Arkansas statute it was to be instituted in the state court of general jurisdiction by appeal, and not by the issue and service of original process. This contention sticks in the bark, and sacrifices substance to form, verity to technicality. This suit in the state circuit court would have been the same that it now is, in substance and in legal effect, if the statute of Arkansas had authorized its commencement in that court, and it had been brought there by original process after the establishment of the pretended will in the probate court. The nature and character of a suit or proceeding are to be determined by its essential attributes, not by the forms or means of its institution. These attributes are the court in which it is pending, the parties, the issues, the object of the suit, and the relief that may be rendered. The court in which the suit would have been pending, the parties to it, the purpose of the suit, the issues in it, and the relief that could have been granted, every essential attribute of it, would have been the same if it had been commenced in the circuit court of the state by original process that they now are, although it was instituted by appeal. The original jurisdiction of the federal court over it could not be restricted, withheld, or determined by the mere mode by which it was commenced. Where a statute of a state authorizes a suit of a civil nature at common law or in equity of a nature of which a federal court may take jurisdiction to be instituted in its courts of general jurisdiction by appeal, certiorari, notice, or other proceeding, the jurisdiction of the federal court attaches; and a like suit between citizens of different states may be instituted in that court by original process, and maintained there. Boom Co. v. Patterson, 98 U. S. 403, 406, 407, 25 L. Ed. 206; Upshur Co. v. Rich, 135 U. S. 467, 474, 475, 10 Sup. Ct. 651, 34 L. Ed. 196; Chicot Co. v. Sherwood, 148 U. S. 529, 533, 13 Sup. Ct. 695, 37 L. Ed. 546; Hess v. Reynolds, 113 U. S. 73, 76, 5 Sup. Ct. 377, 28 L. Ed. 927; Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 522, 11 L. R. A. 567; In re Stutsman Co. (C. C.) 88 Fed. 337, 340; In re Foley (C. C.) 76 Fed. 390.

In Boom Co. v. Patterson, 98 U. S. 403, 407, 25 L. Ed. 206, the statutes of Minnesota provided for the exercise of the power of eminent domain by a proceeding in which the boom company filed a petition in the state court for the appointment of commissioners

to assess the value of the land taken, upon evidence produced before them, and that the landowner might appeal from the award of the commissioners to the state court of general jurisdiction, and there have a trial de novo of the issue relative to the value of his land. The supreme court held that:

"The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of that term. But, when it was transferred to the district court by appeal from the award of the commissioners. it took under the statute of the state the form of a suit at law, and was thenceforth subject to the ordinary rules incident to it." (Page 406, 98 U. S., and page 208, 25 L. Ed.)

It answered the argument that the federal court had no jurisdiction of the suit because it was instituted in the state district court by an appeal from the commissioners and not by original process in these apt and decisive words:

"The case would have been in no essential particulars different had the state authorized the company by statute to appropriate the particular property in question and the owners to bring a suit against the company in the courts of the state." (Page 407, 98 U. S., and page 208, 25 L. Ed.)

This remark is equally true of the suit at bar. That there is no misconception here of the scope and effect of the holding of the supreme court in Boom Co. v. Patterson will appear from an attentive reading of its later decisions in Hess v. Reynolds, 113 U. S. 73, 76, 5 Sup. Ct. 377, 28 L. Ed. 927; Upshur Co. v. Rich, 135 U. S., at pages 474-476, 10 Sup. Ct. 653, 34 L. Ed. 199, where the decision in Boom Co. v. Patterson is reviewed and affirmed; and Chicot Co. v. Sherwood, 148 U. S. 529, 533, 13 Sup. Ct. 695, 37 L. Ed. 546. In the last case a statute of Arkansas provided that all claims against counties in that state should be presented to the county court of the county for allowance or rejection; that any claimant might appeal from the judgment of the county court to the state circuit court, and there have a trial de novo; but that suits against the county could be commenced and maintained in no other way. The supreme court expressly held that the right to maintain the revisory trial in the state court of general jurisdiction was sufficient in itself to warrant the maintenance of a like suit by original process in the federal court. These authorities, and those cited with them which have not been reviewed, are decisive of the proposition that under the statute of Arkansas, which allows the institution of this suit by appeal, the federal court has jurisdiction of a suit brought by original process in that court for like relief; and, since it has jurisdiction of such an original suit, it has jurisdiction of this suit by its removal from the state court.

The deductions which should be drawn from the authorities in this country on the subjects which have been under consideration are these: The federal courts, as a part of their original jurisdiction, derived from the court of chancery in England, have jurisdiction as between citizens of different states to determine their rights to the property of deceased persons in process of administration, to avoid fraudulent deeds, wills, and other instruments which threaten to cloud the

title to the real estate of such estates, and to deprive the owners of their property. No state legislation can destroy or impair this jurisdiction, or deprive citizens of different states of their right to try in the federal courts, in a proper suit, brought in apt time, every issue involving their right to a charge upon or a share in the property of the deceased person, whether that issue involves the validity of a deed, a mortgage, or a will. Federal courts have no jurisdiction of a proceeding to prove a will, or to appoint administrators of estates, or to allow claims against estates as such, in the absence of a suit at law or in equity in a court of justice between citizens of different states involving their rights of property. The statutes of the various states may lawfully provide for the proof of wills, the allowance of claims, and the appointment of administrators, and under these statutes wills may be established as muniments of title, and may become prima facie evidence of their validity, claims may be allowed and rejected, and administration of estates may proceed; but no state legislation regarding the administration of estates, and no administration under such legislation, can deprive the citizens of different states of their right to a trial de novo, and an independent decision by a federal court of every issue which involves their right to a claim upon or interest in the property of the estates administered in a proper suit involving the requisite amount, and instituted in apt time, whether the issue it presents involves the validity of a will, of a debt, or of a claim of heirship. Where the statutes of a state create the right to institute in its courts of general jurisdiction, either by appeal or by original process, and to maintain and try according to the course and practice of the common law or according to the practice in equity, a suit between opposing parties to avoid a will and the probate thereof for fraud, undue influence, or illegality in its making, the federal court in that state has original jurisdiction of a like suit between citizens of different states involving the necessary amount. A suit which involves more than $2,000, instituted pursuant to a state statute by a citizen of Ohio against a citizen of Arkansas, in a court of general jurisdiction of a state, by appeal from a decree of a probate court allowing a will, for the purpose of avoiding the will and its probate for fraud and undue influence in procuring it, is a suit of which the federal court could have taken original jurisdiction by original process, either as a suit at law or in equity, and is, therefore, removable to the federal court under the act of 1887-88. Since the case was removable, and as there was no substantial error in its trial, the judgment below ought to be affirmed.

(100 Fed. 718.)

ROBINSON et al. v. BELT et al.

(Circuit Court of Appeals, Eighth Circuit. March 12, 1900.)

No. 1,320.

FEDERAL COURTS-FOLLOWING STATE DECISIONS-CONSTRUCTION OF STATUTES OF INDIAN TERRITORY.

The construction given by the supreme court of Arkansas to the statutes of that state, which have been adopted and put in force in the Indian Territory by act of congress, will be followed by the federal courts.1

In Error to the United States Court of Appeals in the Indian Territory.

John C. Belt, a merchant residing and doing business in the Indian Territory, executed a deed of assignment conveying all his property to C. M. King, as assignee, for the benefit of his creditors. After the execution of the deed of assignment, J. M. Robinson & Co., the plaintiffs in error, sued out an attachment against the assignor, and attached the assigned property. King, the assignee in the deed, and the defendant in error here, filed an interplea. claiming the property under the deed of assignment. The interplea was tried to a jury in the United States court for the Northern district of the Indian Territory, who returned a verdict for the interpleader; and from the judgment upon the verdict the plaintiffs in error appealed to the United States court of appeals in the Indian Territory, which affirmed the judgment of the lower court, and thereupon they sued out this writ of error.

William T. Hutchings, for plaintiffs in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Every question raised by the assignments of error in this case has been determined by the judgment of this court when it was previously here (Belt v. Robinson, 63 Fed. 90, 11 C. C. A. 39, 27 U. S. App. 273), and by the judgment of the supreme court of Arkansas in the case of King v. Dry-Goods Co., 60 Ark. 1, 28 S. W. 514, where the validity of the same deed of trust was in issue. The act of congress adopted and put in force in the Indian Territory the Arkansas statutes, including the statute on the subject of assignments for the benefit of creditors, and we have uniformly held that it was the duty of this court and the courts in the Indian Territory to follow the construction given to those statutes by the supreme court of Arkansas. Sanger v. Flow, 1 C. C. A. 56, 48 Fed. 152, 4 U. S. App. 32; Appolos v. Brady, 1 C. C. A. 299, 49 Fed. 401, 4 U. S. App. 209. The assignments of error not covered by the opinions. in the cases referred to have not the least merit, and, on the authority of those cases, the judgments of the United States court of appeals in the Indian Territory and of the United States court for the Northern district of the Indian Territory are each affirmed.

1 As to state laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71, and Hill v. Hite, 29 C. C. A. 553.

(100 Fed. 719.)

HUBBARD v. MUTUAL RESERVE FUND LIFE ASS'N.
(Circuit Court of Appeals, First Circuit. March 29, 1900.)

APPLICATION.

No. 290.

1. LIFE INSURANCE-CONSTRUCTION OF POLICY-WARRANTY OF STATEMENTS IN Where an application for life insurance recites that the answers and statements in this application "are warranted to be full, complete, and true," and that, if they are not so, the policy issued thereon "shall be null and void," and also stipulates that the answers which it contains are parts of the policy, the policy and the application together constitute the written agreement of insurance, and both the insured and the beneficiary under the policy are bound by the warranty of the answers and statements in the application, although some of the questions and answers are of such a character as to preclude the idea that the parties intended to make them the subject of warranty.

2. SAME-CONSTRUCTION OF PARTICULAR QUESTIONS.

The question in an application for life insurance, as to how long since the applicant consulted or was attended by a physician, refers to a consultation about some substantial injury or ailment, and not concerning a slight and temporary indisposition.

3. SAME TRUTH OF ANSWERS A QUESTION FOR JURY.

Where the question, "Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity?" is answered in the negative, in an application for life insurance, and, in an action upon the policy, there is evidence that each of several physicians pronounced the applicant to have had a specific malady, which the others did not discover, the plaintiff is entitled to go to the jury upon the issue that each was mistaken, and that no malady existed.

4. SAME.

The question, "How long since you consulted or were attended by a physician?" was answered by an applicant for life insurance, "Not since childhood," and because of such answer no answer was recorded to the question, "For what disease or ailment?" In an action upon the policy, the evidence showed that within five years preceding the application the applicant complained to a physician of having suffered from priapism for a number of years, and that he was treated for such supposed difficulty continuously for over six months, when he was sent to another physician, who pronounced his trouble dyspepsia, and prescribed for him accordingly. Held that, conceding that the applicant as a matter of fact was free from each disease, the evidence showed a breach of the warranty given in the application, that the applicant had not "consulted" physicians for a supposed persistent ailment, nor been "attended" nor "prescribed for" by them.

5. SAME-FRAUD.

Where an applicant for life insurance represents in his application that he has never had any illness, local disease, or infirmity, and that he has not since childhood consulted or been attended by a physician for any disease or ailment, when in fact he was supposed to suffer for a number of years from priapism, and has consulted physicians, and been prescribed for for such ailment, he may be guilty of such fraudulent design in obtaining the insurance as will avoid the policy.

In Error to the Circuit Court of the United States for the District of Rhode Island.

Lewis S. Dabney and Edward D. Bassett (Edward L. Mitchell, on the brief), for plaintiff in error.

Walter F. Angell (George Burnham, Jr., on the brief), for defendant in error.

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