mentioned concur in a case, no methods of procedure prescribed by a state for its own courts can deprive circuit courts of the United States of original jurisdiction thereof. Railway Co. v. Jones (C. C.) 29 Fed. 193; In re Jarnecke Ditch (C. C.) 69 Fed. 161; Hyde v. Stone, 20 How. 170-175, 15 L. Ed. 874; Ellis v. Davis, 109 U. S. 497, 498, 3 Sup. Ct. 327, 27 L. Ed. 1006; Cowles v. Mercer Co., 7 Wall. 118, 19 L. Ed. 86; Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Railroad Co. v. Whitton's Adm'r, 13 Wall. 270, 20 L. Ed. 571. Bearing in mind that the right to remove a case from a state to the federal court depends upon whether the suit might have been originally brought in the federal court, we have concluded that the question of removal in this case is narrowed down to this one proposition: Is the probate of a will "a suit of a civil nature at common law or in equity"? The decisions are in direct conflict, and I have found no decision on the precise question which is binding upon this court. Primarily, that the enactment of the act of August 13, 1888, was to restrict the jurisdiction of the circuit courts of the United States, has been repeatedly decided, and is now settled. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635; In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738; Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080; Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685; Railroad Co. v. Davidson, 157 U. S. 208, 15 Sup. Ct. 563, 39 L. Ed. 672. So far as we know, original jurisdiction to probate, or reject the probate, of a will was never entertained by any court of the United States under the original judiciary act or the act of 1875. It might well be inquired if to recognize jurisdiction under the act of 1888 is consistent with the universally recognized and established purpose for which that act was enacted. But there is also a radical difference between the provisions of both the original judiciary act and the act of 1875 and that of 1888 in relation to removal of cases from state courts. Under the original act, as well as that of 1875, the removal was not made to depend on the question as to whether the circuit court had original jurisdiction of the suit (Railroad Co. v. Davidson, 157 U. S. 208, 15 Sup. Ct. 563, 39 L. Ed. 672); but, as we have seen, under the act of 1888 a case cannot be removed to the circuit court unless it might have been originally brought there. If, therefore, we treat the discussion of Mr. Justice Matthews in the case of Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006, as indicating the tendency of the mind of the court as recognizing the right of a circuit court to take jurisdiction of the probate of a will under certain conditions specified (which is not conceded, but is denied), it must be remembered that the act of 1875 was then in force, under which, as already shown, the right of removal was not made to depend upon the existence of the right to bring the suit originally in the circuit court, as is the case now. That case should be read keeping in view the nature of the action and the issues decided. That case was heard on appeal from a decree dismissing the bill upon demurrer. Two things were sought by the bill: First. An accounting for rents and profits to realty which

40 C.C.A.-41

formerly belonged to defendant's testatrix. To secure this relief, a decree was sought adjudging the will, under which defendant held as sole devisee, to be null and void for incapacity to make it. Second. A decree for possession of realty held by the defendant as sole devisee under the will. The will sought to be annulled had been probated, and the administration closed. The court denied the right to recover the possession of the lands because the plaintiff's remedy at law was adequate. An accounting was denied, because, when ejectment was brought for the land, the court would direct an accounting as an incident in the cause. The court then proceeded to discuss the facts in the bill to see if they excepted the case from the principles stated. It is clear the object of this bill was primarily not to probate or vacate a will. It was to recover the real estate and rents and profits. In order to do this, the will stood in the way, and hence it was insisted that jurisdiction should be entertained for the purpose of canceling the will. The jurisdiction was denied. The court said:

"It is well settled that no jurisdiction belongs to the circuit courts of the United States as courts of equity, for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled by the decision of this court in the case of In re Broderick's Will, 21 Wall. 503, 22 L. Ed. 599."

Later, in the same opinion, in a somewhat historical discussion of the question, very elaborate, but not very satisfactory, this doubting passage occurs:

"And where provision is made by the laws of a state, as is the case in many, for trying the question of the validity of a will, or attempting to probate by a litigation between the parties, in which that is the sole question, with the effect, if the judgment shall be in the negative, of rendering the probate void for all purposes as between the parties and those in privity with them, it may be that the courts of the United States have jurisdiction, under existing provisions of law, to administer the remedy and establish the right in a case where the controversy is wholly between citizens of different states." (Italics ours.) And later, in the same opinion, the court said:

"Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is ex parte, and merely administrative, it is not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which the courts of the United States may take cognizance by reason of the citizenship of the parties."

This case is direct authority against the jurisdiction in cases like the one at bar, although the case is urged by learned counsel as establishing the contrary. The court then quotes approvingly from Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524. In this connection it is important to examine briefly the nature of that case, and the precise points decided, for upon Ellis v. Davis and Gaines v. Fuentes, as we shall see later, is made to rest the decision of Judge Pardee in Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 11 L. R. A. 567; and, if those cases do not support his decision in that case, then it is without any support other than the high standing of the judges delivering it. Gaines v. Fuentes is this sort of a case: Mrs. Gaines, the plaintiff in error, and the defendant in the court

below, had probated in the Second district court for the parish of Orleans the will of Daniel Clark; that court being vested with ju risdiction over the estates of deceased persons and appointments necessary in the course of their administration. She afterwards brought several suits against the defendants in error to recover certain lands and properties, relying on the will as a muniment of title as "instituted heir" of Daniel Clark. Thereupon the defendants in error filed their original petition in the same court, alleging they were unable to contest the will until the decree of probate thereof was recalled, and stating as grounds for recalling it the falsity and insufficiency of the testimony upon which it was probated, and the status of the plaintiff in error incapacitating her to inherit under the will. Upon service being made upon the plaintiff in error, she applied, in proper form, with a tender of the necessary bond, for removal of the cause to the circuit court of the United States for the district of Louisiana, under the twelfth section of the judiciary act of 1789, on the ground of citizenship, and her application was denied. She then applied for a removal of the action under the act of March, 1867, on the ground of prejudice and local influence, and this application was also denied. Upon a hearing in the state court the will was annulled, and the case taken to the supreme court of the state of Louisiana, and from there, by writ of error, taken to the supreme court of the United States, which court reversed the case for error in the parish court in not removing the case to the United States circuit court for the district of Louisiana. The court in that case say:

"The action is in form to annul an alleged will of 1813 of Daniel Clark, and to recall the decree by which it was probated; but, as the petitioners are not heirs of Clark, or legatees, or next of kin, and do not ask to be substituted in place of the plaintiff in error, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated as brought against the devisee by strangers to the estate to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity was established, so far as it affects their property. It is, in fact, an action between parties, and the question for determination is whether the federal court can take jurisdiction of an action brought for the object mentioned, between citizens of different states, upon its removal from a state court."

The court then says:

"The suit in the parish court is not a proceeding 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. There are no separate equity courts in Louisiana, and suits for special relief of the nature here sought are not there designated suits in equity. But they are none the less essentially such suits; and if, by the law obtaining in that state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a federal court, where the parties are, on the one side, citizens of Louisiana, and on the other citizens of other states. * * * In the case of In re Broderick's Will the doctrine is approved, which is established in both England and this country, that by the general jurisdiction of courts of equity independent of statutes, a bill will not lie to set aside a will or its probate; and, whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full

jurisdiction over the subject of wills vested in the probate courts, and the revisory power over their adjudications in the appellate courts. But that such jurisdiction may be vested in the state courts of equity by statute is there recognized, and that, when so vested, the federal courts, sitting in the states where such statutes exist, will also entertain concurrent jurisdiction in a case between proper parties. There are, it is true, in several decisions of this court, expressions of opinion that the federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the case under the existing legislation of congress." (Italics ours.)

The two cases of Ellis v. Davis and Gaines v. Fuentes thus appear to rest precisely on the same ground,-one being a suit to recover lands and the rents and profits thereof, and praying the court to cancel a will in order that it might be done; and the other being a direct proceeding by a stranger, under the statutes of the state, to cancel a will already probated in order to defend the title to real estate held by the moving party. The question presented by the case at bar is totally different. The will is presented by the sole devisee for probate only. It is resisted by the sole heir at law. A judgment was rendered in the probate court probating the will, and from that judgment an appeal has been taken, and the same question is presented de novo in the circuit court. It is purely and simply a contest over the probate of the will, and not a mere incident -important, it may be to the successful prosecution of another suit for relief of a wholly different character.

The defendant in error, to sustain the jurisdiction of the federal court, has cited the decision of Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 11 L. R. A. 567. That case was heard in the circuit court for the Northern district of Georgia, Judges Pardee and Newman presiding, the opinion being delivered by the former. It must be conceded that this decision is in point, and sustains the jurisdiction contended for in this case. Judge Pardee does not discuss the question at all. He simply says:

"From the statutes cited, and the record of the case as made, up to the time of removal, it appears perfectly clear that the proceeding pending in the superior court of Floyd county, Ga., taken in connection with the removal statutes of the United States, was a sult in which there was a controversy removable by the defendants to the circuit court of the United States for the Northern district of Georgia upon compliance with the conditions prescribed in said removal statutes; and it is within the rule laid down by the supreme court in the cases of Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006. See, also, Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; Hess v. Reynolds, 113 U. S. 75, 5 Sup. Ct. 377, 28 L. Ed. 927; Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Mr. Justice Bradley's dissenting opinion in Rosenbaum v. Bauer, 120 U. S. 461, 7 Sup. Ct. 633, 30 L. Ed. 743."

We cannot assent to the conclusions reached by Judge Pardee. In the view we have taken, the case of Brodhead v. Shoemaker, supra, is not supported by Gaines v. Fuentes or Ellis v. Davis; and the other cases cited by Judge Pardee, in our opinion, have no relevancy or bearing whatever upon the real question at issue, namely, "whether the probate of a will is a suit of a civil nature at common law or in equity," within the meaning of the act of 1888. We are of the opinion that Judge Pardee totally misapprehended the question decided in Ellis v. Davis, and Gaines v. Fuentes, being led astray

by expressions of the court which had no direct bearing upon the precise questions at issue. We prefer the reasoning found in Re Cilley (C. C.) 58 Fed. 977, decided by District Judge Aldrich, and concurred in by Circuit Judge Colt, in the circuit court for the district of New Hampshire. This opinion is directly in conflict with the opinion in Brodhead v. Shoemaker, and arose in states where the statutes for probating wills are substantially the same. The opinion in the case of In re Cilley, supra, shows exhaustive research, and was delivered after a reargument of that case. In Ellis v. Davis the supreme court reaffirmed, what had frequently been decided before, that the terms "law" and "equity," as used in the constitution, were intended to mark and fix a distinction between the two systems of jurisprudence as known and practiced at the time of its adoption. It will not be seriously contended that the same terms used in the original judiciary act were not intended by congress to have the same meaning, and the same is true of the acts of 1875 and 1888. In view of these decisions, it seems natural that the learned judge, in his able discussion of this question in the case of In re Cilley, supra, should have begun with the inquiry as to what was meant by "suits of a civil nature at law or in equity" when the constitution was adopted; or, to state it in another form, to ascertain whether those words, as then and previously understood in England and America, embraced the proceedings for the probate of wills. He demonstrates, by decisions in England and America (if anything can be demonstrated), that such was not the case in this country or in England, either at the time the constitution was adopted or prior thereto, and that the terms used in the judiciary act, like those used in the constitution, were not used in any local sense, but "in the broad common-law sense in which equity and common-law jurisdiction are understood in this country and in England." The opinion, in this regard, is both instructive and strong, and it seems to us conclusive; so much so that little can be added thereto. After citing various decisions of the supreme court of the United States and of the circuit courts (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; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006; Ball v. Tompkins [C. C.] 41 Fed. 486; Reed v. Reed [C. C.] 31 Fed. 49; In re Aspinwall's Estate [C. C.] 83 Fed. 851; In re Frazer, Fed. Cas. No. 5,068; Simmons v. Saul, 138 U., S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054) in which the jurisdiction now asserted was disclaimed, he cites numerous decisions of the state courts to show that proceedings to establish wills are not commonly classed and known as suits at common law or in equity, and were not so classed or known in the early history of this country, and, therefore, were not suits removable to the federal courts. He distinguishes cases like that at bar from such cases as Ellis v. Davis, Hess v. Reynolds, Gaines v. Fuentes, and that class of cases of which Boom Co. v. Fatterson is a sample, and pertinently suggests that when congress intends to make so radical a change as to confer jurisdiction of the probate of wills on the federal courts—a jurisdiction