Southworth v. Adams

• Decision Date: 18 October 1880
• Citation: 4 F. 1
• Parties: SOUTHWORTH v. ADAMS and others.
• Court: U.S. District Court — Eastern District of Wisconsin

4 F. 1

SOUTHWORTH v. ADAMS and others.

United States Circuit Court, E.D. Wisconsin.

October 18, 1880

Mr Cassoday and Mr. Paige, for complainant.

Mr Weeks and Mr. Lillibridge, for defendant.

DYER D.J.

This is an action originally brought in the state court to establish an alleged lost will of Richard De Forest, deceased, and removed to this court at the instance of the defendant. The complainant is a citizen of the state of Iowa, and claims to be a legatee under the alleged will. The defendant Jane N. Adams is a citizen of the state of Michigan, and the sole heir at law of De Forest. The estate of deceased was situated in this state, and was being administered upon in the probate court of Walworth county as the estate of an intestate, when this action was brought. The administrator is a party to the action with the heir at law but the controversy is between complainant and the defendant Jane N. Adams. As the pleadings in the action originally conformed to the practice under the State Code, and as the suit is one in equity, after the removal of the cause to this court the pleadings were reframed so as to conform to the requirements of the practice in chancery; and the prayer of the bill is 'that proof be taken of the execution and validity of the said last will and testament; * * * and that the said will be established and adjudged as the last will and testament of the said Richard De Forest. ' Issue was joined by answer duly filed, and the case has proceeded here to the extent of taking the testimony. A motion is now made by complainant to remand the case to the state court.

The general ground of the motion is that this court has not jurisdiction of the subject-matter of the action. And in support of the motion it is urged that the purpose of the action is to obtain probate of a lost will; that the federal court, like the court of chancery of England, has not and never had jurisdiction of the probate of wills, that jurisdiction being vested exclusively in the courts of the state, upon which is devolved, by statute, the administration of estates; that a proceeding to probate a will is in the nature of a proceeding in rem, not necessarily involving a controversy between parties, and that therefore the present action is not a 'suit of a civil nature at law or in equity,' nor a 'controversy between citizens of different states,' within the meaning of section 2, art. 3, of the constitution, nor of the removal act of March 3, 1875, under which the cause was removed to this court. It has been held by the supreme court that the federal courts have no probate jurisdiction. This has been directly or incidentally declared in cases where an attempt was made to compel payment of a bequest under a will not admitted to probate, or to set aside a will for fraud, or imposition, or to set aside the probate thereof on the ground of mistake, fraud, or forgery. And in one of the cases it was said, that whatever the cause of the establishment of the doctrine that a bill in equity will not lie to set aside a will or its probate, '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. ' The cases in which the question in its different phases has arisen or been discussed, are Armstrong v. Lear Adm'r, etc., 12 Wheat. 169; Tarver v. Tarver, 9 Pet. 174; Gaines v. Chew, 2 How. 619; Fouvergne et al. v. New Orleans et al. 18 How. 470; Gaines v. New Orleans, 6 Wall. 642, 703; Case of Broderick's Will, 21 Wall. 503; and Gaines v. Fuentes et al. 92 U.S. 10. With the exception of the case last cited, all of these were cases originally brought in the federal courts, thus presenting the question of original jurisdiction of those courts to entertain bills of the nature before indicated. But that is hardly the question here presented. For, even if the present bill could not have been filed as original proceeding in this court, the question is whether this was not, when pending in the state court, a suit in equity in which there was a controversy between citizens of different states, and whether, after removal of the same under and pursuant to the removal act of 1875, this court was not then invested with jurisdiction of the cause.

As appears from several of the cases cited, the denial of general equity jurisdiction to entertain causes involving the probate of wills is made to rest largely upon the fact that such jurisdiction is exclusively vested in the probate courts, and in some of the cases, as in that of Broderick's Will, this point is enforced by reference to state statutes which lodge such jurisdiction in the probate courts. It was, however, a peculiarity of the law of Wisconsin, when this action was commenced, that by statute jurisdiction to establish a lost will was vested in the circuit courts of the state, and, by implication, the probate courts, in that particular class of cases, had not jurisdiction. The statute provided that 'whenever any will of real or personal estate shall be lost, or destroyed by accident or design, the circuit court shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds;' and no statute at that time conferred...