includes all which may be done, and rightfully done, in relation to adverse claims to assets, which have come to the possession of the administrator as the property of the testator or intestate."

Now, it is obvious that the general administration of an estate, including the ascertainment and determination of the rights of creditors, distributees, and legatees, and the preservation of the assets, must almost necessarily involve the determination of controversies between citizens of the same state. It is absolutely certain that the present estate could not be settled in the manner prayed for in the bill without many such controversies arising. And this brings us to an objection peculiarly applicable to the federal courts on account of the limitation of their jurisdiction to controversies between citizens of different states. A Circuit Court undertaking the general administration of an estate and only passing upon controversies between citizens of different states could not ordinarily go far.

These objections to action by a federal court looking to the administration of an estate are pointed out in Byers v. McAuley, 149 U. S. 608, 612, 13 Sup. Ct. 906, 907, 37 L. Ed. 867. In that case an administrator with the will annexed appointed by a probate court had settled the estate and had presented his account for allowance. Suit was then brought in the United States Circuit Court by the heirs to annul the will and the probate thereof, to enjoin the administrator from further proceeding, and to obtain distribution. The Circuit Court practically assumed the general administration of the estate. Mr. Justice Brewer in delivering the opinion of the Supreme Court said:

"It is obvious from the decree which was entered that the Circuit Court of the United States assumed full control of the administration of the estate. That decree disposed of and distributed the entire estate among all the persons interested therein, citizens and noncitizens of the state. It did not stop with an adjudication of the claims of citizens of other states against the estate, but assumed to determine controversies between citizens of the same state, for the two corporations named in the first paragraph were both citizens of Pennsylvania, and yet the decree determined their rights as against the estate, as well as between themselves.

"Indeed, the decree as a whole cannot be sustained, unless upon the theory that the federal court had the power on the filing of this bill to take bodily the administration of the estate out of the hands of the state court and transfer it to its own forum. # (Pages 619, 620, of 149 U. S., and page 910

of 13 Sup. Ct. [37 L. Ed. '867.])

"If original jurisdiction of the administration of the estates of deceased persons were in the federal court, it might by instituting such an administration and taking possession of the estate, through an administrator appointed by it, draw to itself all controversies affecting that estate, irrespective of the citizenship of the respective parties. But it has no original jurisdiction in respect to the administration of a deceased person.

"Our conclusion, therefore, is that the federal court erred in taking any action or making any decree looking to the mere administration of the estate, or in attempting to adjudicate the rights of citizens of the state as between themselves."

It is urged, however, in behalf of the appellee that, while the Circuit Courts may have no jurisdiction over purely probate proceedings or over original proceedings for the administration of an estate, they have power to grant relief in cases relating to the administration of estates where maladministration or nonadministration is shown. And it is contended that the present case is one of nonadministration, where

in the Circuit Court has power to marshal the assets, apply them to the payment of debts, and, having assumed jurisdiction for such purposes, go further and fully administer the property coming into its custody. In our opinion, however, the cases referred to by the appellee do not support the proposition advanced. The distinction sought to be drawn seems in conflict with the principles laid down by the Supreme Court in Byers v. McAuley, supra. Even in the case of maladministration or nonadministration, we think the Circuit Courts of the United States have no power to undertake the general administration and distribution of the estates of deceased persons.

But it does not follow that the federal courts, as courts of equity, have no power to grant some measure of relief to persons whose interests are injuriously affected by the maladministration or nonadministration of estates. Relief in such cases has been repeatedly granted. Thus a bill in the United States Circuit Court by a next kin to recover a distributive share in an estate and charging fraud upon the part of the administrator has been sustained. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260. A judgment creditor has been permitted to maintain a suit in a federal court to enforce payment of his judgment against the estate of the judgment debtor. Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. 342, 30 L. Ed. 532. See, also, Rio Grande R. Co. v. Gomila, 132 U. S. 478, 10 Sup. Ct. 155, 33 L. Ed. 400. Similarly a creditor has been allowed to sue in the Circuit Court to set aside an alleged fraudulent conveyance made by a decedent. Hale v. Tyler (C. C.) 115 Fed. 833. So a suit by a legatee to enforce certain annuities against the estate of a decedent has been sustained. Comstock v. Herron, 55 Fed. 803, 5 C. C. A. 266; Herron v. Comstock, 139 Fed. 370, 71 C. C. A. 466. A receiver of the real estate of a decedent has been appointed at the suit of a distributee alleging mismanagement by the executors, nonpayment of interest and taxes, etc. Ball v. Tompkins (C. C.) 41 Fed. 486.

Where the line is to be drawn between cases in which the courts will and will not afford relief is not clear, neither are the grounds upon which the courts will act entirely free from obscurity. Probably the doctrine that a constructive trust exists in executors and administrators will be found to have afforded the basis of equitable jurisdiction in a majority of cases. So the inadequacy of the law to afford relief and the necessity for the protection of the property of estates has often lead to the intervention of courts of equity.

We expressly refrain from expressing an opinion as to how far a federal court may go in granting relief in case of the nonadministration of estates. We especially reserve the question, appertaining to the present suit, whether in case probate proceedings in the courts of New York with respect to the assets within that state should be permanently prevented, the Circuit Court would have power to marshal the assets and provide for the payment of the complainant's demand. We confine ourselves in the further examination of the jurisdictional question in this case to the inquiry whether the Circuit Court had power to make the particular orders appealed from.

Now, as already noted, the necessity for the protection of property of estates is a ground for the intervention of courts of equity.` In

deed, the protection of the fund in litigation before them has always been peculiarly within their province. Whether they can go so far as to protect the property of estates pending litigation in other courts must now be considered.

In England, before the passage of the act of Parliament authorizing ecclesiastical courts to appoint an administrator of an estate pending litigation concerning the probate of a will, the Court of Chancery often appointed receivers to take charge of the estate until the ecclesiastical court should determine the rights of the parties. And even after the passage of the act the Court of Chancery exercised such power when the ecclesiastical court failed for any reason to appoint an administrator. Alderson on Receivers, p. 95, § 63. See, also, Williams on Executors (7th Ed.) 563.'

Lord Eldon in the case of King v. King, 6 Ves. 172, stated the reason for the practice:

"This is almost a motion of course. There is no doubt this court has appointed a receiver when it was in dispute who was the personal representative; when the matter is in controversy in the spiritual court as to whether there is an intestacy or not. The court goes upon this: That it will do its best to collect the effects. The property is in danger in this sense: That it may get into the hands of persons who have nothing to do with it."

See, also, Atkinson v. Henshaw, 2 Ves. & Bea. 84; Rendall v. Rendall, 1 Hare, 152; Marr v. Littlewood, 2 Myl. & Cr. 455; Ball v. Oliver, 2 Ves. & Bea. 96; Watkins v. Brent, 1 Myl. & Cr. 97.

Under the present English judicature act, the Probate Division of the High Court of Justice has power to appoint receivers and administrators pendente lite. Consequently the modern English practice is to leave such appointments to the Probate Division, although the Chancery Division will still appoint receivers when necessary for the preservation of an estate when the Probate Division has not first acted by appointing an administrator. See Veret v. Duprez, L. R. 6 Ed. 329. The English practice with respect to the appointment of receivers for estates has been followed in this country.

In 4 Pomeroy's Equity Jurisprudence, § 1332, it is said:

“During the litigation concerning the admission of a will to probate and during the interval before an executor or administrator is appointed, a court of equity has power to appoint a receiver of the personal property and of the rents and profits of the real estate, when there is any danger of their loss, misuse, or misapplication. The necessity of such a receiver has been greatly lessened by modern statutes authorizing the probate courts to appoint an administrator ad litem and enlarging his powers."

In Redfield on Wills, p. 96, it is stated:

"Where the property belonging to the estate is in peril of loss, and there is no one appointed to represent the estate, the right of administration being in controversy and the probate court not having appointed an administrator pendente lite, a court of equity will appoint a receiver to arrest or prevent inevitable loss where the estate is of sufficient value and the amount of apprehended loss such as to justify the expense of a receiver."

And in the very recent case of McCarter, Atty. Gen., v. Clavin (1907) 72 N. J. Eq. 642, 66 Atl. 599, the court used language most applicable in this case:

176 F.-3

"In the present instance there is a controversy over the admission of the alleged will to probate. There is a contest over the question whether the party claiming to be the only heir is such. The property is in great danger of loss owing to tax sales and threatened foreclosure. It is clear that, in the absence of an heir, in the absence of an executor or of any lawful appointee entitled to hold the property together, it will be lost, and in any event the rents and profits will be misapplied. It appears to me that, if there ever was a case in which the rule I have referred to ought to be applied, it is in this case, otherwise a vast amount of property that may belong to the state will, for want of protection, be swept away, and pass, without practical consideration, into the hands of strangers to the decedents."

See, also, Ball v. Tompkins (C. C.) 41 Fed. 486; Robinson v. Taylor (C. C.) 42 Fed. 803; Flagler v. Blunt, 32 N. J. Eq. 518; Estate of Colvin, 3 Md. Ch. 278; Buskirk v. Peck, 57 W. Va. 360, 50 S. E. 432.

The Circuit Courts of the United States, sitting in equity, have the full jurisdiction of the English Courts of Chancery as they existed at the time of the adoption of the Constitution of the United States, and we are satisfied, upon the authority cited, that in a suit where they have jurisdiction of the parties they have power to appoint a receiver of an estate pending the probate of a will in the absence of the appointment of a custodian by the probate court.

The appellant urges numerous objections to the existence of any such power. She says, in the first place, that the Circuit Court has no power to entertain a bill for the appointment of a receiver and nothing besides that the suit regarded merely as a suit for a receiver cannot stand. There is force in this contention. The appointment of a receiver is not the ultimate end and object of litigation, but is a provisional remedy or auxiliary proceeding. Alderson on Receivers, p. 15, citing State ex rel. Merriam v. Ross, 122 Mo. 435, 25 S. W. 947, 23 L. R. A. 534. Still we think that this merely means that there must be litigation in some court to which the receivership is auxiliary, and does not necessarily require that it should be in the court of equity itself. In all the English and American cases referred to the probate proceedings to which the receiverships were incident were in a court distinct from the court of equity. Bills merely for the preservation of property pénding litigation have repeatedly been sustained. In Williams on Executors (7th Ed.) p. 563, it is said:

"During a litigation in the ecclesiastical court for probate or administration, a court of equity would entertain a bill for the mere preservation of the property of the deceased till the litigation was determined and appoint a receiver, although the court of probate, by granting an administration pendente lite, might provide for the collection of the effects."

It is true that in a suit merely for the appointment of a receiver the making of the appointment practically disposes of the matter in controversy. There is nothing more to be done except to surrender the property at the termination of the litigation to which the receivership is auxiliary. Anderson v. Guichard, 9 Hare, 275. See, also, Lewis v. Campau, 14 Mich. 458, 90 Am. Dec. 245. But this result while somewhat extraordinary constitutes no reason for denying the existence of a power so firmly established by the authorities. Of course, the defendant is correct in the proposition that a court cannot create

a receivership in a suit of which it has no jurisdiction. But this begs the question. In this case the court did have jurisdiction of the suit regarded merely as a suit for the preservation of imperiled property. Again, it is urged that the suit considered merely as a suit for a receiver is not a controversy over which the Circuit Court can exercise jurisdiction, but is a proceeding purely in rem. We think this contention not well founded. A proceeding in rem strictly speaking is one in which the property itself is the defendant. But this suit, while having for its object the preservation of the property, is against the persons claiming interests in it. The complainant suing in its own behalf and the behalf of other creditors alleges that the property is being neglected by the defendants-the executor, the widow, and the heirs at law. The suit is a controversy inter partes affecting property. It can no more be regarded as a proceeding in rem than could a suit for an injunction to restrain waste. Moreover, if the suit be regarded as a proceeding in rem-using that term in a broader sense-it does not follow that the Circuit Court is without jurisdiction of it. In Pennoyer v. Neff, 95 U. S. 734, 24 L. Ed. 565, the Supreme Court said:

"It is true that in a strict sense a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but in a larger and more general sense the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage or enforce a lien. So far as they affect property in the state, they are substantially proceedings in rem in the broadest sense which we have mentioned."

Suits of this nature while in a sense in rem are nevertheless controversies. Furthermore, while proceedings in rem are not a part of the general equity jurisdiction of any court-English or Americanwe have already seen repeated instances where courts of equity have entertained jurisdiction to appoint receivers to preserve estates, pending the appointment of a representative.

Again, it is urged that the English cases and those from the different states where receivers of estates have been appointed do not constitute authority for action by the United States courts because in those cases the equity courts and the probate courts were acting under the same sovereign. The equity courts, however, acted under general equity powers which the federal courts possess to the fullest extent. A state court as a court of equity has no greater power to appoint a receiver to hold property pending the appointment of a representative there for than has the Circuit Court as a court of equity.

It is further contended that the jurisdiction of the Circuit Court to appoint a receiver is excluded by the fact that the Surrogate's Court has already taken jurisdiction. As shown in the statement of facts, the defendant Owsley, as executor, has applied to that court to establish the will and for ancillary letters testamentary. And it is urged that the principle is applicable that the possession of the res vests the court which first acquires jurisdiction with power to determine all controversies concerning it, and disables other courts of co-ordinate