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In Hyde v. Stone, 20 How. 170-175, it was said by Mr. Justice CAMPBELL, delivering its opinion, that “the court has repeatedly docided that the jurisdiction of the courts of the United States over oontroversies between citizens of different states cannot be impaired by the laws of the states, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.”

In Payne v. Hook, 7 Wall. 425, it was decided that the jurisdiction of the circuit court of the United States, in a case for equitable relief, was not excluded because by the laws of the state the matter was within the exclusive jurisdiction of its probate courts; but, as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res, which is the subject of the litigation, is entitled to administer it. Williams v. Benedict, 8 How. 107; Bank of Tennessee v. Horn, 17 How. 160; Yonley v. Lavender, 21 Wall. 276; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 454; Hook v. Payne, 14 Wall. 255.

It was said by this court in Gaines V. Fuentes, 92 U. 8. 10–18, Mr. Justice FIELD delivering its opinion, that “the constitution imposes no limitation upon the class of cases involving controversies between citizens of different states, to which the judicial power of the United States may be extended; and congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the federal judiciary." And, referring to the nature of suits which, as in that case, sought to annul the probate of a will and adjudge it to be invalid, the court further said, (page 20 :) "And if by the law obtaining in the 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.

As that was a case in which the sole question decided was the right of the defendant to remove the cause from the state court to the circuit court of the United States, under the act of March 2, 1867, (14 St. 558,) it was assumed, and not decided, that the said suit brought in the state court was one which, under the laws of the state, its courts were authorized to entertain for the purpose of granting the relief prayed for. The point decided was, that if it were it might properly be transferred to a court of the United States. It remains, therefore, in the present case to inquire whether the complainants are entitled, under the laws of Louisiana, to draw in question, in this mode and with a view to the decree sought, the validity of the will of Sarah Ann Dorsey and the integrity of its probate.

An examination of the decisions of the supreme court of Louisi. ana on the subject will disclose that a distinction is made in refer. ence to proceedings to annul a will and its probate, according to the objects to be accomplished by the judgment and the relation of the

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parties to the subject. If the administration of the succession is in complete and in fieri, and the object is to alter or affect its course, the application must be made to the court of prorates, which, in that case, has possession of the subject and exclusive jurisdiction over it. If, on the other hand, the succession has been closed, or has proceeded so far that the parties entitled under the will have been put in possession of their rights to the estate, then the resort of adverse claimants must be to an action of revendication in the courts of general jurisdiction, in which the legal title is asserted as against the will claimed to be invalid, making an issue involving that ques. tion.

In O'Donogan v. Knox, 11 La. 384, the supreme court of Louisiana said:

“ It appears, then, that the jurisdiction of the courts of probate is limited to claims against successions for money, and that all claims for real property appertain to the ordinary tribunals and are denied to courts of probate. The plaintiff in this case was therefore compelled, in suing for the property of the succession, to seek redress in the district court, and whether she attacked the will, or the defendant set it up as his title to the property, the court having cognizance of the subject must of necessity examine into its legal effect. And although the will may have been admitted to probate and an order given for its execution, yet these are only preliminary proceedings necessary for the administration of the estate, and not a judgment binding on those who are not parties to them. When, therefore, in an action of revendication a testament with probate becomes a subject of controversy, it will surely not be contended that a court of ordinary jurisdiction, having cognizance of the principal matter, shall suspend its proceedings until another court of limited power shall pronounce upon the subject; for in that case the ordinary courts would submit to another tribunal the decision of the main question in the cause, without right of trial by jury, and would have little else to do than to comply with its decree.”

In Robert v. Allier's Agent, 17 La. 4, the same court said:

“On the question of jurisdiction arising from the state of the case we un. derstand the distinction repeatedly made by this court to be that whenever the validity or the legality of a will is attacked and put at issue, (as in the present case,) at the time that an order for its execution is applied for, or after it has been regularly probated and ordered to be executed, but previous to the heirs or legatees coming into possession of the estate under it, courts of probate alone have jurisdiction to declare it void, or to say that it shall not be executed. This is the purport and extent of the decision in the case of Lewis' Heirs v. His Executor, 5 La. 387; Code Prac. art. 924, § 1. But when an action of revendication is instituted by an heir at law against the testamentary heir or universal legatee who has been put in possession of the estate, and who sets up the will as his title to the property, district courts are the proper tribunals in which such suits must be brought. 6 Mart. (N. S.) 263; 2 La. 23; 11 La. 388.”

In Rachal v. Rachal, 1 Rob. (La.) 115, it is also said:

“ We cannot consider the question of jurisdiction as an open one. The doctrine is now well settled that in a suit for property, whether the plaintiff attacks the will under which it is held or the defendant sets it up as his title to the property claimed, the*courts of ordinary jurisdiction before whoni the principal matter, to-wit, the action of revendication, is brought, must of

necessity pronounce on the validity of the will which is thus drawn in question. The proceedings had in the court of probate for the settlement of the estate, such as the probate of the will and the order given for its execution, cannot have the effect contended for by the appellant; they cannot be considered as a judgment binding on the plaintiffs, who were not parties to them."

In Succession of Duplessis, 10 Rob. 193, it is said:

“This court has often held that the admission of a will to probate, and the order given for its execution, are only preliminary proceedings, necessary for the administration of the estate, and do not amount to a judgment binding on those who are not parties thereto."

To the same effect are Succession of Dupuy, 4 La. Ann. 570; Sophie v. Duplessis, 2 La. Ann. 724; Abston v. Abston, 15 La. Ann. 137.

In Sharp v. Knox, 2 La. 23, it was said:

"The petitioner himself shows that the defendant holds the property claimed from him under a will and confirmatory act, which she seeks to set aside. This she cannot effect except in a court of ordinary jurisdiction; i. e., in the district court."

In Hoover's Succession v. York, 30 La. Ann. 752, the suit was simply to annul a will and the probate of a will, and to have certain persons plaintiff declared heirs and entitled to take as such. This, it was declared, was purely a probate proceeding, and cognizable alone by the parish court in which the succession was opened. "It was a matter incidental to the opening and settlement of the succession." And the same principle governed the decision in Blasini v. Blasini's Succession, Id. 1388. That was an application in the probate court on the part of forced heirs, demanding that their rights as such, known under the law of Louisana as their legitime, of which their ancestor could not deprive them by his testament, should be recognized, so that they might receive their share of the succession." The effect of allowing it would be, not to annul or invalidate the will, but merely to displace it, in the administration of the succession, to the extent required by their indefeasible interest in it. It was objected to the jurisdiction of the court that the succession had been closed by a previous judgment sending the widow and testamentary heir into possession; but the exception was overruled on the ground that the suit was of probate jurisdiction.

In Gibson v. Dooley, 32 La. Ann. 959, an action to annul a will, it was held, might be brought in the parish court, although the succession had been closed by a delivery of the property to the instituted heir. The rule, as laid down in Robert v. Allier's Agent, 17 La. 15, was cited and approved, but was held not to apply. The reason was given in these words: "Here no action of revendication was instituted, but simply a suit for the nullity of the will. There is no prayer for ejectment, or that plaintiffs may be put into or quieted in their possession of property claimed under the will."

By the law of Louisiana (Code Prac. art. 4) a real action is given,

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which relates to claims made on immovable property, or to the im movable rights to which they are subjected, the object of which is the ownership or the possession of such property, and, when prosecuted by one having the title against the person in possession, is called the petitory action, and is the proper action for the recovery of an universality of things, such as an inheritance. Code Prac. art. 12. It is an action of revendication, (Id. art. 43,) and it is the proper one to be brought for the purpose of asserting the legal title and consequent right of possession of the heir at law to the succession, when another is in possession under claim of title by virtue of a will admitted to probate, as is abundantly shown by the citations already made from the decisions of the supreme court of Louisiana. We entertain no doubt that this action can be brought in a proper case as to parties in the circuit court of the United States.

The Louisiana Code of Practice, art. 556 et seq., provides for an action of nullity, whereby definitive judgments may be revised, set aside, or reversed, which may proceed either on the ground of vices of form or upon the merits, as that the judgment was obtained through fraud, and is a separate action, commenced by petition, the adverse parties being cited as in other suits. This action, with reference to the jurisdiction of the courts of the United States, was the subject of consideration in Barrow v. Hunton, 99 U. S. 80; but the present is not an action of that description, for the relief prayed for is recovery of the possession of the inheritance, which, we have seen, must be prosecuted in an action of revendication. Whether the probate of a will is a definitive judgment which can be the subject of an action of nullity under these provisions of the Code of Practice, is a question, therefore, which we are not called upon to discuss or decide. The case of Gaines v. Fuentes, 92 U. S. 10, was such an action of nullity; but, as before remarked, the point decided in that case was not that it would lie, according to the law of Louisiana, but that if it would lie in the state court it was removable to the circuit court of the United States, because it presented a controversy wholly between citizens of different states.

The present suit is not an action of nullity, because it prays for the recovery of possession of the inheritance, to which the appellants claim the legal title as heirs at law of Sarah Ann Dorsey. That claim, as has been shown, is properly the subject of an action of revendication, which furnishes a plain, adequate and complete remedy at law, and consequently constitutes a bar to the prosecution of a bill in chancery.

There is nothing left, therefore, as a ground of support for the present bill, except so much of the case made by it as rests upon the prayer for the cancellation of the sale and conveyance of the Beauvoir estate by Mrs. Dorsey in her life-time. That relief is claimed in part on the ground of a constructive fraud, growing out of the defendant's relation to her at the time as a confidential agent; but we see nothing

in the circumstances as detailed to forbid such a transaction between the parties, and the charges of actual fraud and undue influence applicable to this sale, considered as detached from the rest of the case, are not of such character, even when admitted by the demurrer, as in law would justify a rescission. And as the case for relief as tog this sale is not made independently, but only as part of the whole case intended to be presented by the bill, we conclude that it must fail with the rest.

(109 U. S. 550)

The demurrer was rightly sustained and the bill properly dismissed. The decree is affirmed.


(December 17, 1883.)


A demurrer admits all facts well pleaded.

Under the Colorado Code of Civil Procedure, as at common law, facts may be pleaded according to their legal effect, without setting out the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea.

In an action by the patentee of a placer claim to recover possession of a vein or lode within its boundaries, an answer alleging that the vein or lode was known to the patentee to exist at the time of applying for the patent, and was not included in his application, well pleads the fact which, under section 2333 of the Revised Statutes, precludes him from having any right of possession of the vein or lode.

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

T. M. Patterson, for plaintiff in error.

G. G. Symes and Ashley Pond, for defendants in error.

GRAY, J. This action was brought by the Iron Silver Mining Company, owning a tract of land or mining claim known as the Wells & Moyer placer claim, described by metes and bounds in the complaint, against Sullivan and others, to recover possession of part of the tract, likewise described, from which it had been ousted by the defendants. The answer originally filed was demurred to, and the demurrer sustained. The defendants thereupon, by leave of the court, filed an amended answer, alleging that on the eleventh of March, 1879, the United States issued to Wells & Moyer, the grantors of the plaintiff, for the premises described in the complaint, and known as No. 281, upon the application for and entry of the premises as the Wells

18ee 8. C. 16 Fed. Rep. 829.

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