O'CONNOR v. Slaker

• Decision Date: 10 October 1927
• Docket Number: No. 7767.,7767.
• Parties: O'CONNOR et al. v. SLAKER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 147 (1927)

O'CONNOR et al. v. SLAKER et al.

No. 7767.

Circuit Court of Appeals, Eighth Circuit.

October 10, 1927.

James M. Johnson, of Kansas City, Mo., Bernard McNeny, of Red Cloud, Neb., and Donald W. Johnson, of Kansas City, Mo., for appellants.

P. E. Boslaugh, of Hastings, Neb., O. S. Spillman, of Pierce, Neb., and George Ayres, of Lincoln, Neb., on the brief), for appellee State of Nebraska.

John A. Lawler, of Hastings, Neb., for appellee Slaker.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

KENYON, Circuit Judge.

This is an appeal from an order and judgment of the District Court of the United States for the District of Nebraska dismissing upon motion a petition of appellants. The petition is in three counts. In the first appellants claim they are entitled to the estate of John O'Connor, deceased, by virtue of a will bequeathing the same to one Charles O'Connor and in case of his death to his heirs; that he died intestate and that they are his heirs at law; that appellee John Slaker is administrator de bonis non of said estate, and is in possession of all the property of the same, including the real property described in the petition; that said will was contested, and it was held by the Supreme Court of Nebraska (105 Neb. 88, 179 N. W. 401, 12 A. L. R. 199) to be a forgery; that James B. O'Connor, one of the appellants, was tried and convicted in the district court of Adams county, Nebraska, for the alleged forgery, which judgment was reversed by the Supreme Court of Nebraska (110 Neb. 822, 95 N. W. 125); said court stating that the evidence showed the will to be the last will of John O'Connor.

It is asked that the will be adjudged the last will and testament of said John O'Connor, and that plaintiffs be decreed to be the sole devisees and legatees under the same.

The second count is not predicated on any will, but on the alleged fact that plaintiffs are the sole and only heirs at law of the said John O'Connor, deceased, and therefore entitled to inherit his property.

The third count asks that title be quieted, as against the administrator and the state of Nebraska, to the real estate left by the said John O'Connor, and that title thereto be adjudged and confirmed in appellants, as the sole heirs of the said John O'Connor, deceased. The only relief asked as to the state of Nebraska is set forth in the third count.

The court sustained the motion to dismiss the bill on the ground that sole jurisdiction over the causes of action was in the state courts.

It is the claim of appellees that the county court of Nebraska has exclusive original jurisdiction in matters of probate and administration, and that the right to determine the heirs of a deceased person is vested solely in that court; that matters of the character presented by appellants are not within the ordinary equity jurisdiction of the federal courts.

The relief asked in count 1 is in effect the probate of an alleged will which had been adjudicated in the state court to be a forgery. This cannot be done in the federal court. Matters purely of a probate character, which includes, of course, proceedings to probate wills, are not within the jurisdiction of the federal courts.

The Supreme Court of the United States has spoken clearly on this subject. In Ellis et al. v. Davis, 109 U. S. 485, 497, 3 S. Ct. 327, 334 (27 L. Ed. 1006), the court said: "The original probate, of course, is mere matter of state regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in almost all the states, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made." In Farrell v. O'Brien, 199 U. S. 89, 110, 25 S. Ct. 727, 734 (50 L. Ed. 101), it was said: "As the authority to make wills is derived from the state, and the requirement of probate is but a regulation to make a will effective, matters of pure probate, in the strict sense of the words, are not within the jurisdiction of courts of the United States."

In Sutton v. English, 246 U. S. 199, 38 S. Ct. 254, 62 L. Ed. 664, it was held that a suit which was in the nature of one to annul a will, and which under the state law is merely supplemental to proceedings for probate, and cognizable only by the probate court, is not within the jurisdiction of the District Court of the United States. We quote (page 205 38 S. Ct. 256) therefrom: "By a series of decisions in this court it has been established that since it does not pertain to the general jurisdiction of a court of equity to set aside a will or the probate thereof, or to administer upon the estates of decedents in rem, matters of this character are not within the ordinary equity jurisdiction of the federal courts; that as the authority to make wills is derived from the states, and the requirement of probate is but a regulation to make a will effective, matters of strict probate are not within the jurisdiction of courts of the United States; that where a state, by statute or custom, gives to parties interested the right to bring an action or suit inter partes, either at law or in equity, to annul a will or to set aside the probate, the courts of the United States, where diversity of citizenship and a sufficient amount in controversy appear, can enforce the same remedy, but that this relates only to independent suits, and not to procedure merely incidental or ancillary to the probate; and, further, that questions relating to the interests of heirs, devisees, or legatees, or trusts affecting such interests, which may be determined without interfering with probate or assuming general administration, are within the jurisdiction of the federal courts, where diversity of citizenship exists and the requisite amount is in controversy."

See, also, 21 Corpus Juris, p. 121; 25 Corpus Juris, p. 695.

The action of the court as to count 1 was correct.

The question presented as to count 2 is entirely different. It is there assumed that no will was made by John O'Connor, and it is asked that appellants be adjudicated his heirs at law and their share in the estate be determined. The right to have such question determined in the federal court (requisite diversity of citizenship existing and the required amount being in controversy) has been settled by the Supreme Court of the United States. Nor can such right be destroyed by any action of a state. It is a creation of the Constitution of the United States. In Byers v. McAuley, 149 U. S. 608, 620, 13 S. Ct. 906, 910 (37 L. Ed. 867), it is said: "A citizen of another state may establish a debt against the estate. Yonley v. Lavender, 21 Wall. 276 22 L. Ed. 536; Hess v. Reynolds, 113 U. S. 73 5 S. Ct. 377, 28 L. Ed. 927. But the debt thus established must take its place and share of the estate as administered by the probate court, and it cannot be enforced by process directly against the property of the decedent. Yonley v. Lavender, supra. In like manner a distributee, citizen of another state, may establish his right to a share in the estate, and enforce such adjudication against the administrator personally, or his sureties, Payne v. Hook 7 Wall. 425, 19 L. Ed. 260, supra; or against any other parties subject to liability, Borer v. Chapman 119 U. S. 587, 7 S. Ct. 342, 30 L. Ed. 532, supra; or in other way which does not disturb the possession of the property by the state court."

In the leading case of Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33, 43, 30 S. Ct. 10, 54 L. Ed. 80, the court discusses various cases coming before the courts of the United States for the purpose of determining the rights of persons claiming an interest in estates, and considers to what extent the jurisdiction in equity of the courts of the United States may be affected by state statutes, and says (page 43 30 S. Ct. 12): "The general rule to be deduced from them is that, inasmuch as the jurisdiction of the courts of the United States is derived from the federal Constitution and statutes, in so far as controversies between citizens of different states arise which are within the established equity jurisdiction of the federal courts, which is like unto the High Court of Chancery in England at the time of the adoption of the Judiciary Act of 1789 1 Stat. 73, the jurisdiction may be exercised, and is not subject to limitations or restraint by state legislation establishing courts of probate and giving them jurisdiction over similar matters. This court has uniformly maintained the right of federal courts of chancery to exercise original jurisdiction (the proper diversity of citizenship existing) in favor of creditors, legatees and heirs to establish their claims and have a proper execution of the trust as to them."

The court points out that the United States courts, while they may make decrees binding upon the parties, cannot seize and control the property if it is in the hands of a state court, and referring to Farrell v. O'Brien, supra, says (page 44 30 S. Ct. 13): "That case recognized what previous cases had held, that in proceedings purely of a probate character there was no jurisdiction in the federal courts. This was in harmony with the rule theretofore laid down in Byers v. McAuley, supra, in which it was held that the federal court could not exercise original jurisdiction to draw to itself the entire settlement of the estate of the decedent and the accounts of administration, or the power to determine all claims against the estate. But it was there decided that a Circuit Court of the United States could entertain jurisdiction in favor of citizens of other states to determine and award by decrees binding in personam their shares in the estates."

In McClellan v. Carland, 217 U. S. 268, 30 S. Ct. 501, 54 L. Ed. 762, the...