States Circuit Court may, so the decisions say, entertain a suit to construe and enforce a will already probated. The administration of the estates of decedents belongs, not to law or equity courts as such, but to courts variously called probate courts, surrogate courts, orphans' courts, etc., which have succeeded to the jurisdiction, in that respect, of the ecclesiastical courts of England. Therefore, under the pres Sup. Ct. 327, 27 L. 1006, affirming | App. 488, 9 C. C. A. 565, 61 Fed. 8. c., 8 Fed. Cas. 550, 4 Woods 6; 423, affirming Green v. Terwilliger, Kieley v. McGlynn (Case of Brod- 56 Fed. 384; erick's Will), 21 Wall. 503, 22 L. 599; Everhart v. Everhart, 34 Fed. 82. Yonley v. Lavender, 21 Wall. on by a United States marshal un276, 22 L. 536; der an execution from a United Gaines v. New Orleans, 6 Wall. States Court, and the debtor dies, 642, 18 L. 950; the property should be sold by the Gaines v. Chew, 2 How. 619, 11 marshal and not turned over to a L. 402; probate court of the State for ad Tarver v. Tarver, 9 Pet. 174, 9 L. ministration. 91; Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 272, 95 Fed. 208; Jordan v. Taylor, 98 Fed. 643; Oakley v. Taylor, 64 Fed. 245; Cilley v. Patten, 62 Fed. 498; Sowles v. First Nat. Bank, 54 Fed. 564; Freeney v. First Nat. Bank, 16 Fed. 433, 3 McCr. 622; Rio Grande R. Co. v. Gomila, 132 U. S. 478, 10 Sup. Ct. 155, 33 L. 400, reversing s. c., 28 Fed. 337. 8 Colton v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. 138; Walker v. Atmore, 3 U. S. App. 131, 1 C. C. A. 595, 50 Fed. 644; Wood v. Paine, 66 Fed. 807; Mathewson v. Sprague, 16 Fed. man, 22 Fed. 872; Cas. 1103, 1 Curt. 457; Coulson v. Holmes, 6 Fed. Cas. Reid v. Kerfoot, 20 Fed. Cas. 482, 627, 5 Sawy. 279, 6 Reporter 674, 11 Chase 349; Brownell v. De Wolf, 4 Fed. Cas. Tibbatts v. Berry, 49 Ky. (10 B. 444, 3 Mason 486. Mon.) 473, 490. The exceptions to this rule are pointed out in several cases, notably in the Case of Broderick's Will, supra, and in Ball v. Tompkins, 41 Fed. 486. Some cases seem to carry the exceptions beyond what sound principle will warrant. Richardson v. Green, 15 U. S. There are other cases in the reports too numerous for citation where this has been done without question. 4 Robinson v. Fair, 128 U. S. 53, 9 Sup. Ct. 30, 32 L. 415; Kieley v. McGlynn (Case of Broderick's Will), 21 Wall. 503, 22 L. 599; ent statute, which limits removals to suits at law or in equity, there can be no removal of a probate proceeding from a State court to a United States Circuit Court.5 Perris v. Higley, 20 Wall. 375, 22 L. 383; Gaines v. Chew, 2 How. 619, 11 L. 402; In re Cilley, 58 Fed. 977, overruling Patten v. Cilley, 46 Fed. 892; Reed v. Reed, 31 Fed. 49; McElmurray v. Loomis, 31 Fed. Armstrong v. Lear, 12 Wheat. 395. 169, 6 L. 589; Comstock v. Herron, 6 U. S. App. For a discussion of the jurisdiction of the ecclesiastical courts of England, see The same rule was held under the act of 1875, ante § 7, note 7, in In re Frazer, 9 Fed. Cas. 729, 18 Alb. Law J. 353, 25 Int. Rev. Rec. 226, 6 Reporter 357, 3 Cin. Law Bul. 668, 7 Weekly Dig. 129, 10 Chi. Leg. News 390, 7 Cent. Law J. 227, 26 Pittsb. Leg. J. 147. "The 12th section of the act of Congress of 1789, to establish judicial Courts of the United States, .. has no application to this Bacon's Abridgment, title "Ec- proceeding for the probate of a clesiastical Courts D." will." Tibbatts v. Berry, 49 Ky. For a history of probate courts, (10 B Mon.) 473, 490. the reader may refer to Introductory Note, 1 Bradf. vii; 1 Woerner's American Law of Administration, §§ 137-144. In some States, probate jurisdiction is not conferred upon a separate court, but is granted, as a distinct and separate jurisdiction, to the circuit court, common pleas court, or other court of general jurisdiction. Noble v. McGinnis, 55 Ind. 528. In those States where a separate court exists, its jurisdiction is usually much broader than that which the ecclesiastical courts of England possessed. Contra: In Elliott v. Shuler, 50 Fed. 454, it was held that a proceeding by an administrator of an estate against the heirs for a sale of the decedent's real estate to pay debts, is one of which a United States Circuit Court would have no original jurisdiction; but, nevertheless, such proceeding, when commenced in a State court, is removable to the United States Circuit Court. But that decision is in the teeth of the present statute limiting the right of removal to suits of which the United States Circuit Court is thereby given original jurisdiction; 5 Wahl v. Franz, 40 C. C. A. 638, see ante § 7. 100 Fed. 680, 49 L. R. A. 62; In re Aspinwall's Estate, 83 Fed. 851; In re Foley, 80 Fed. 949; In re Foley, 76 Fed. 390; In Brodhead v. Shoemaker, 44 Fed. 518, 11 L. R. A. 567, the Court held that a proceeding inter partes for the probating of a Copeland v. Bruning, 72 Fed. 5; will, is a removable one under the § 58. Suits at law or in equity, though allied to probate proceedings, are within the jurisdiction of the United States Circuit Courts.-The United States Circuit Courts ad present act; the parties being all the decedent's heirs at law. That case was followed in Franz v. Wahl, 81 Fed. 9; but the latter decision was reversed Wahl v. Franz, supra. based chiefly upon what is supposed to have been decided in Gaines v. Fuentes, 92 U. S. 10, 23 L. 524, reversing Fuentes v. Gaines, 25 La. Ann. 85. Strange as it may seem, that case is relied upon by the Courts in Copeland v. Bruning, supra, Reed Southworth v. Adams, 4 Fed. 1, v. Reed, supra, and In re Frazer, 9 Biss. 521, supra, as deciding directly the opposite! it was held that, although a United States Circuit Court has no original jurisdiction of such an action, a proceeding begun in a State court by a legatee against the heir at law to establish and probate a lost will, was removable to a United States Circuit Court under the act of 1875, ante § 7, note 7. By reason of the change in the statute, that decision is against, rather than in favor of, a removal under the present act, ante § 7, discussed post § 64. That suit (Gaines v. Fuentes) was held removable under the act of 1867, codified as Rev. St., § 639, cl. 3, ante § 7, note 6. There is a vigorous dissenting opinion by three Justices. The radical changes in the statutes as to what suits may be removed, make the case a very unsafe precedent, if not wholly inapplicable, under the present act. That decision is based upon the doctrine that the removal act Under the same act (of 1875) it of 1867 applied to all classes of was held in Craigie v. McArthur, 6 Fed. Cas. 736, 4 Dill. 474, 9 Chi. Leg. News 156, 4 Cent. Law J. 237, 15 Alb. Law J. 121, Syllabi 115, 23 Int. Rev. Rec. 42, by Judge Nelson that a contest between the heirs, upon the hearing of an administrator's final report, in regard to the distribution of the estate of a deceased person, was removable from a State court to the United States Circuit Court. Reference may also be made to Filer v. Levy, 17 Fed. 609; Boman v. Boman, 47 Fed. 849; 8. c., 7 U. S. App. 63, 1 C. C. A. 274, 49 Fed. 329. These cases, asserting the removability of probate suits, are suits, and was not limited to such as might have been brought originally in the United States Circuit Court, reversing upon this question the decision of the Louisiana supreme court. Referring to the status when the act of 1789, ante § 7, note 3, was in force,-and the same rule applies now,-the Supreme Court of the United States said in Gaines v. Fuentes: "No case could then be transferred from a State court to a Federal Court, on account of the citizenship of the parties, which could not originally have been brought in the Circuit Court." A quotation from the prevailing opinion in Gaines v. Fuentes, supra, judge legal or equitable rights, and sometimes enforce them, although they grow out of, or are connected with, probate matters, whether the suits therefor are brought in such Courts or are removed thereto from State courts.1 Claims against decedents' estates, which in many States are within the exclusive assuming it to be correct, will show | form, which is purely a proceeding that the case was very different in rem." from such cases as Elliott v. Shuler, supra, Brodhead v. Shoemaker, supra, Southworth v. Adams, supra, and Craigie v. McArthur, supra: "The action is in form to annul the alleged will of Daniel Clark of 1813, and to recall the decree by which it was probated; but as the petitioners are not heirs of Clark, nor legatees, nor next of kin, and do not ask to be substituted in the place of the plaintiff in error, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated as brought against the devisee by strangers to the estate to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity was established, so far as it affects their property." The distinction between the different classes of cases is clearly pointed out in Ellis v. Davis, 8 Fed. Cas. 550, 4 Woods 6, already cited in note 2 to this section. The question of the removability of a will contest was before the Supreme Court, but was left undecided, in McDonnell v. Jordan, 178 U. S. 229, 20 Sup. Ct. 886, 44 L. 1048; but the Court said: "Undoubtedly the Courts of the United States possess no jurisdiction over an ex parte application for the probate of a will, that is, for the proof thereof in common The jurisdiction on removal of a suit to establish a will was considered so doubtful in Plant v. Harrison, 101 Fed. 307, that the suit was remanded to the State court. $ 58. 1 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. 867; Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. 503, 37 L. 279; Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. 88; George T. Smith Middlings Purifier Co. v. McGroarty, 136 U. S. 237, 10 Sup. Ct. 1017, 34 L. 346; Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. 927; Payne v. Hook, 7 Wall. 425, 19 L. 260; Loring v. Marsh, 6 Wall. 337, 18 L. 802, affirming same case, 15 Fed. Cas. 905, 2 Cliff. 469, 27 Law Rep. 377; Kendall v. Creighton, 23 How. 90, 16 L. 419; Union Bank v. Jolley, 18 How. 502, 15 L. 472; Childress v. Emory, 8 Wheat. 642, 5 L. 705; Sigler v. Haywood, 8 Wheat. 675, 5 L. 713; Boman v. Boman, U. S. App. 63, 1 C. C. A. 274, 49 Fed. 329; Comstock v. Herron, 6 U. S. App. 626, 5 C. C. A. 266, 55 Fed. 803; Parker v. Robinson, 33 U. S. App. 368, 18 C. C. A. 36, 71 Fed. 256; Cowen v. Adams, 47 U. S. App. 676, 24 C. C. A. 198, 78 Fed. 536; jurisdiction of probate courts, are within the original concur Kendall v. Hardenbergh, 94 Fed. 911; Cent. Nat. Bank v. Fitzgerald, 94 Fed. 16; Bertha Z. & M. Co. v. Vaughan, 88 Fed. 566; Brown v. Ellis, 86 Fed. 357; Brendel v. Charch, 82 Fed. 262; man, 81 Fed. 36, 42; In re Foley, 76 Fed. 390; Wilson v. Smith, 66 Fed. 81; German Sav. & Loan Soc. v. Cannon, 65 Fed. 542; Domestic & Foreign Missionary Soc. v. Gaither, 62 Fed. 422; Wickham v. Hull, 60 Fed. 326; Heaton v. Thatcher, 59 Fed. 731; Hershberger v. Blewett, 55 Fed. 170; Raynolds v. Hanna, 55 Fed. 783; Bowdoin College v. Merritt, 54 Fed. 55; Semmes v. Whitney, 50 Fed. 666; Ware v. Wisner, 50 Fed. 310, 4 McCr. 66; Sullivan v. Andoe, 6 Fed. 641, 4 Hughes 290; Davis v. James, 2 Fed. 618, 10 Biss. 51; Chapman v. Borer, 1 Fed. 274, 1 McCr. 49; Allen v. Allen, 1 Fed. Cas. 439, 3 Wall. Jr. 248, 14 Leg. Int. 148, 5 Pittsb. Leg. J. 22; Baring v. Putnam, 2 Fed. Cas. 804, 1 Holmes 261; Board of Foreign Missions v. McMasters, 3 Fed. Cas. 780, 4 Am. Law Reg. 526; Crane v. Cowell, 6 Fed. Cas. 749, 2 Curt. 178; Davis v. Weed, 7 Fed. Cas. 186, 44 Conn. 569, 2 Nat. Bank Cas. (Browne) 115; Gibson v. Williams, 10 Fed. Cas. Schley v. Collis, 47 Fed. 250, 13 336, Brunner Col. Cas. 19, 2 Hayw. L. R. A. 567; Arrowsmith v. Gleason, 46 Fed. 256; Stephens v. Bernays, 41 Fed. 401; s. C., 44 Fed. 642; Ball v. Tompkins, 41 Fed. 486; Smythe v. Henry, 41 Fed. 705; Beadle v. Beadle, 40 Fed. 315, 2 McCr. 586; Schreiner v. Smith, 38 Fed. 897; Harmon v. Smith, 38 Fed. 482; Rich v. Bray, 37 Fed. 273, 2 L. R. A. 225; Robb v. Perry, 35 Fed. 102; Prince v. Towns, 33 Fed. 161; Woodfin v. Phoebus, 30 Fed. 289; Earp v. Coleman, 28 Fed. 340; Del Valle v. Welsh, 28 Fed. 342; Sibley v. Simonton, 20 Fed. 784; Hull v. Dills, 19 Fed. 657; N. C. 281; Goshorn v. Alexander, 10 Fed. Cas. 832, 2 Bond 158; Harrison v. Rowan, 11 Fed. Cas. 658, 3 Wash. C. C. 580; Harrison v. Rowan, 11 Fed. Cas. 666, 4 Wash. C. C. 202; Harvey v. Richards, 11 Fed. Cas. 746, 1 Mason 381; Lidderdale v. Robinson, 15 Fed. Cas. 502, 2 Brock. 159; Mallett v. Dexter, 16 Fed. Cas. 542, 1 Curt. 178; O'Brien v. Woody, 18 Fed. Cas. 522, 4 McLean 75; Parkes v. Aldridge, 18 Fed. Cas. 1186, 27 Pittsb. Leg. J. 15, 2 N. J. Law J. 233; Parsons v. Lyman, 18 Fed. Cas. 1263, 5 Blatchf. 170, 32 Conn. 566; |