Fraser v. Jennison
| Decision Date | 20 November 1882 |
| Citation | 106 U.S. 191,1 S.Ct. 171,27 L.Ed. 131 |
| Parties | FRASER and another v. JENNISON and others |
| Court | U.S. Supreme Court |
H. M. Duffree and Edwards Pierrepont, for plaintiffs in error.
Wm. Jennison, for defendants in error.
The defendants in error filed in the probate court of Wayne county, Michigan, a paper purporting to be the will of Alexander D. Fraser, and asked that it be admitted to probate. The court appointed a time and place for the hearing, and gave the general notice required by law to all persons interested. In due time Ellis Fraser, Alexander Fraser, Elizabeth Calvin, Sophia Redden, Mary Calvin, Francis P. Fraser, and John Fraser, heirs at law of the decedent, appeared and jointly gave notice of their intention to contest the probate 'on the grounds that the said Alexander D. Fraser was not, at the date of the alleged execution thereof, of sound mind and memory; that he, at that time, did not have mental capacity to make a will; that the said paper was procured to be executed by undue influence; and that the same was not executed and attested in the manner required by said statute.' Alexander Fraser, one of the contesting heirs, was a citizen of Illinois, and Francis P. Fraser, another contestant, a citizen of Iowa. All the other contestants were citizens of Michigan, as were the appellees who were named executors of the will. At the time and place appointed the proponents and contestants appeared, and after a hearing the will was admitted to probate and letters testamentary granted to the appellees. By the laws of Michigan the order for the probate of a will, as long as it remains unreversed, is conclusive evidence of the due execution of the will, (Comp. Laws Mich. 1871, p. 1374, § 4341,) but any person aggrieved by such an order may appeal to the circuit court of the county by filing in time a notice to that effect with the judge of probate, with his reasons therefor, and also an appeal bond. Id. p. 1562, § 5216. Notice of the appeal must be given to the adverse party, and copies of the proceedings in the probate court filed in the circuit court. Section 5218. After the case gets to the circuit court, that court is required to 'proceed to the trial and determination of the question according to the rules of law, and if there shall be any question of fact to be decided, issues may be joined thereon under the direction of the court, and a trial thereof had by a jury.' Section 5220. The circuit court may make such order or decree as the judge of probate ought to have made, and remit the case to the probate court for further proceedings. Section 5226.
After the order admitting this will to probate was entered, Alexander Fraser and Francis P. Fraser, who were not citizens of Michigan, appealed to the circuit court, as did also the other contestants. The two appeals were in form separate, but they were taken at the same time and on the same grounds. They were filed in the circuit court together, and the same order was entered in both for allegations of objections to the will and for notice to the proponents. Under this order the same issues were joined at the same time in both appeals, and the appellants in both demanded jury trials. The papers filed in the two appeals were substantially copies of each other, except as to the names of the appellants.
As soon as the issues were joined, Alexander Fraser and Francis P. Fraser, citizens of states other than Michigan, filed their petition for the removal of the cause to the circuit court of the United States for the proper district. In their petition for removal they made no reference to any other contestants than themselves, nor to any other appeal than their own. The state court refused the removal, and thereupon the petitioning appellants filed in the circuit court of the United States a copy of the record in the circuit court of the state, so far as it related to them, but which failed to show that any persons except themselves had united in the contest. The cause having been docketed in the circuit court of the United States, the proponents of the will appeared and moved to remand, filing with their motion an affidavit showing that the record presented by the petitioners was defective. The court thereupon issued a certiorari to bring in the whole record, 'including the record of all the appeals taken from the order of the probate court * * * admitting the will to probate, by whomsoever instituted.' In obedience to the command of this certiorari, a copy of the whole record was certified to the circuit court of the United States, and, the foregoing facts appearing therefrom, the order to remand was granted. From that order Alexander Fraser and Francis P. Fraser brought this writ of error.
The objections to the removal insisted on here are: (1) That a proceeding in a state court for the probate of a will is not removable; (2) that if such a proceeding is removable, the application in the present case should have been made to the probate court prior to the hearing there, and that it comes too...
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... ... necessary parties on one side are citizens of different ... states from those on the other.' In other words, as ... expressed in Fraser v. Jennison, 106 U.S. 191, ... 194, 1 Sup.Ct. 171, 27 L.Ed. 131, 'the case must be one ... capable of separation into parts, so that in one of the ... ...
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