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Opinion of the Court.

whether before or after the passage of the act, and also records of probates made elsewhere, and filed in the register's office here. The act assumes the probates to have been lawfully made; and it no more undertakes to define or to regulate the jurisdiction of the courts of probate of the District for the future, than it does the jurisdiction of those courts in the past, or the jurisdiction of the courts elsewhere whose proceedings filed here are equally made evidence.

The act gives no greater weight to future, than it does to past probates and records. But if it made the record of a will, admitted to probate in the District of Columbia before the act, evidence of title to real estate, it would not only give the probate an effect which could not have been in the mind of the court which granted it; but it would, in many cases, make a will effective to pass real estate, which had never been attested as required by law to constitute a valid will for that purpose.

For example, take the case now before the court, supposing it to have arisen before the passage of the act. The codicil disposed of both real and personal property, and bore the names of three witnesses. To prove it as a testamentary disposition of personal property, two witnesses were ample. Therefore, if the court of probate was satisfied that two only of the witnesses whose names were on the paper saw the testator sign or acknowledge it, the court would be bound to admit it to probate, although, for want of a third witness, there was no sufficient attestation or proof to make it a good will of real estate ; and yet the record of the probate would be evidence of title to real estate under the devise therein contained.

The act not only does not (as did the statute of Maryland of 1831, above cited) contain an express grant of jurisdiction to take probate of wills of real estate; but it does not mention such wills at all. The leading words, “The record of any will or codicil," in the first line of this act, are no more general than the corresponding words, "An attested copy of any will, testament or codicil,” in the similar provision of the statute of Maryland of 1798, which was held by this court, in Darby v. Mayer, before cited, not to embrace wills of real estate, which

Opinion of the Court.

the courts had no authority to admit to probate, although that statute in other clauses (as this act does not) applied by necessary implication, and even by express words, to such wills.

Congress, when framing the act of 1888, cannot be supposed to have been ignorant of the provision relating to evidence in the statute of 1798, which had been part of the law of the District of Columbia for nearly ninety years ; nor of the construction which this court had given to that provision; nor yet of the want of any statute concerning records of wills admitted to probate elsewhere.

There may be some difficulty in ascertaining the motive of Congress in passing the act of 1888. But difficulty in ascertaining the motive of Congress is but a slight foundation for attributing to it an intention, unexpressed, to confer upon the courts of probate within the District of Columbia an authority over wills of real estate which they never had before since the District was first organized.

We regret to be compelled to differ in opinion from the Court of Appeals of the District of Columbia, which, since the decision below in the present case, has held that the record of a will admitted to probate in the District before the passage of the act of 1888 was competent evidence of the title to real estate in an action brought since its passage. But the question appears by the report not to have been argued by counsel, or much discussed by the court. Barbour v. Moore, 4 D. C. App. 535, 543, 544.

The result is that the Supreme Court of the District of Columbia, upon the application for probate of the codicil in question, had no authority to determine upon its sufficiency to pass real estate; and that its order in this respect must be modified.

That the codicil was sufficiently proved to pass personal property was not controverted at the bar. Judgment reversed, and case remanded for further proceed

ings in conformity with this opinion.

MR. CHIEF JUSTICE FULLER took no part in the consideration and decision of this case.

Argument for Plaintiff in Error.

OREGON SHORT LINE AND UTAH NORTHERN

RAILWAY COMPANY V. SKOTTOWE.

ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.

No. 147. Argued March 17, 1896. – Decided April 20, 1896.

This case comes within the established rule that on an application for re

moval from a state to a Federal court, the Federal question or the Federal character of the defendant company must appear from the complaint in the action, in order to justify a removal; and such Federal question or character does not appear in this case.

This was an action brought in the circuit court of the State of Oregon for Wasco county by Jane Skottowe, against the Oregon Short Line and Utah Northern Railway Company, for personal injuries alleged to have been caused by the negligence of the defendant company. The complaint was filed on October 31, 1890, and on November 10, 1890, the defendant filed a petition for the removal of the cause from the state court into the Circuit Court of the United States. This petition was denied; to which ruling the defendant excepted.

The case was proceeded in, and trial on the merits in the state court resulted in a verdict and judgment in favor of the plaintiff in the sum of $10,000. To this judgment a writ of error was sued out to the Supreme Court of the State of Oregon, assigning as error, among others, the action of the trial court in denying the defendant's petition for the removal of the cause into the Circuit Court of the United States.

The Supreme Court of the State affirmed the judgment of the trial court, and a writ of error was allowed to this court.

Mr. John F.

Mr. John M. Thurston for plaintiff in error. Dillon was on his brief.

The complaint alleges " that the defendant is a corporation duly organized, existing and doing business in the State of Oregon, and as such corporation is and was, at all the times

Argument for Plaintiff in Error.

and dates hereinafter mentioned, and long prior thereto, in the operation of a line of railroad running from Portland, Oregon, to The Dalles and Pendleton, Oregon, and other places far east, generally known as the Oregon Railway and Navigation Company's line of road, and in connection therewith and incident thereto has been for such time and now is in the possession of and operating a line of boats running from The Dalles, Oregon, to Portland, Oregon, together with all the bridges, wharf boats, ways, etc., used in getting to and from the landings of the aforesaid line of boats, and had been and was and still is carrying passengers thereon as a common carrier for hire."

It will be noticed that the character of the incorporation is not specifically stated, nor is any reference made to its articles or place of incorporation ; and it will doubtless be contended that the plaintiff in her complaint did not allege or tender the corporate character or charter powers of the Oregon Short Line and Utah Northern Railway Company. We insist, however, that a bill of complaint which alleges that the defendant is an incorporated company, tenders, without any further or additional allegation, the charter or articles of incorporation of the corporation, including all those statutes and grants of power under and by virtue of which it acquired the right to become a corporation and to exercise corporate powers and privileges.

It must be held that the complaint alleges all those facts which it would be necessary for the plaintiff to prove were each and every allegation of the complaint denied by answer. For the purposes of determining as to whether or not the defendant could remove on the ground that the suit was one arising under the Constitution and laws of the United States (as the petition for removal must be filed on or before the answer day), it must be assumed that the cause of action upon which suit is brought arises upon all the facts which it would be necessary for the plaintiff to prove to maintain her cause of action, and among the most important of those facts are the corporate existence, the corporate character, and the cor. porate powers of the defendant.

Argument for Plaintiff in Error.

The corporate existence of the defendant can only be shown by its charter or articles of incorporation and by reference to the statute or statutes authorizing it to become a corporation. A corporation cannot exist as such except by authority of law. To prove a corporation is to prove the law of its creation, and an allegation of corporate existence and capacity is an allegation of its charter and the law of its charter. No cause of action can be proven against an alleged corporation until the corporate existence, the corporate powers and the corporate duties are first proven; and therefore in every petition or complaint filed against an alleged incorporated company, its articles of incorporation and the law of its existence are necessarily tendered as a part of the issue, and whatever cause of action is set up against the defendant is a cause of action arising under whatever law authorized the formation of the corporation, defined its powers, and prescribed its obligations. All this is important, because it will be contended upon the other side that the complaint filed in the state court does not disclose a cause of action arising under any law of the United States, and therefore under the decision of this court in Tennessee v. Union & Planters' Bank, 152 U. S. 454, and in Chappell v. Waterworth, 155 U. S. 102, the cause was not removable under the act of August 13, 1888.

It seems to us that the case at bar is clearly distinguishable from those above cited. It is well settled that the Circuit Court of the United States has jurisdiction of a suit against a corporation created by or exercising powers and franchises derived from the statutes of the United States, and therefore the plaintiff can invoke the jurisdiction of the Federal court by alleging that the defendant is a corporation created under a law of the United States; as no liability can be established against such a corporation without involving a consideration and determination as to the powers conferred and corresponding obligations and duties imposed by the Federal act. An alleged cause of action which would entitle the plaintiff to bring his suit in the Circuit Court of the United States would be such a one as the defendant could remove to the Circuit Court of the United States. Can it be contended that a plain.

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