FEDERAl. REPORTER.
of different states; it'is either this, or the last clause is without meaning, and we are not to presume that congress would- put in a statute a clause without intending to mean something by it. The argument in the opinion o{Judge SHIRASi in'the Iowa case, which'reviews the decision in the California case, is soconclusive, to my mind, that suit may be brought in tlie district of thetesidence of either the plaintiff or defend,ant, when the,jurisdiction is only founded upon .the citizenship of parties to the action, that I do'nCltbelieve it can be successfully controverted, and therefore feel constrained to adopt this construction of this provision of the act of 1887. The result is that the defendants' motion to dismiss the cause must be overruled·
.
,
EvERHARTet
m.
t7. EVERHART.
(Ol1'cult Oourt, 8. D.MiI'iuippi,
w: D. ,
February 10,1888.) '
A suit to annul a will, ,nnd to restrnin the enforcement of a decree admittin'g' it to' pl:b'baie, is in essential'Particularsn suit in equity, and if by the law obtaining 'in thesta.te, oustomary or statutory, such a suit can ,be maintained in oourts, whntever dellignntionthat oourt by originnl pr,ocess in the (lircuit court of the may bear, it m",y be United Stntes,if the Parties nte' citiZens of different states, nnd the nmoutl't in controver,sy issutllcielitto give circuit c()'urt of the United States jurisI di,ction , ,:
'
the "
,2., SA){E. , Jurisdiction as to willa, and their probate aa such, is De1t.her included nor excet>Uid out of the grant of judicial powers to the coUrts of the United States. So 'far is e:llparle,nnd is not,oonferred,ajJ,dit qe by them,. at all, a lalY oJ; in equity 'its exercise becolJl.es necessaryto a controversy of whlCha court of the United 8tatesmllY take cognizance by reason of thecitiZllllship of the parties. 8, ,WILLS-VALIDITY AND By stMutes of the state. o! 'lYill, t(> pnss title torlfalestnte to the deVIsee, must be made In, wrltmg, and SIgned by the testntor or testatrix. or oy' some other person iIi. bis or her,presence. and by'his 'Or her express and sUbs<;rib,ed,bythe testMor or testadirection, and, if not w.\l.olly , . trix, it be attested by two. Qr more credible witnesses, in the presence of . , the testator or testMrix. , , . '. (Syllabus by tM 'Oourt.) ,I ",' , ", " ',' '" ' ' " , , "
InEquitY'. On demul'ter to bill. . Frank Joh1uJton and Ym'ger,for conlplainants. CalJWuln Green and McCabe A'(tder8on, fordefendant8.
. HrLI,, J.' The questions forde6isioli arise upOn the demurrer oUha defendant to complainants' bill,1\.1ld, by request of both
'parte eViderlce of the subscribing witnesses exhibited'with'the paper writingpurporting to be the will of the' decedent,. exhibited with the bill. . The billln Buostance alleges 'that M.· Everhart died in ISBllquena county
parties, upon the sufficiency ofthe proof to establish the will upon the ex
:..
EVERHART V.EVERHART.
83.
in this state, possessed and seized of the real estate described in the bill; that he left survi ving him no wife or children or descendants; that complainants are his brother and sisters, and heirs at law, and entitled to an undivided interest in the lands of which decedent died seized and possessed, and for the recovery of "'hich they have brought their action of ejectment in this court, which is now pending, they being citizens of the state of Indiana and the defendant a citizen of this state and division of this district, and the value of the land in oontroversy, of a greater sum than $2,000; that the defendant claims title to said lands under a pretended last will and testament of said l\L Everhart, Whioh paper writing claimed to be such last will was presented to the clerk of the chancery court of said county of Issaquena, and upon the ex parte sworn stateand exhibited with this bill, was admitted to ments taken in probate by said .clerk in common form; that oomplainants had no notioe actual or construotive, of said proceedings had before said clerk. The bill further alleges that said M. Everhart never did sign said paper writing, nor did any oue else sign it in his presence, and at his special direction; and further, that he ,was not at the time said paper writing was prepared. of sound and disposing mind and memory, and capable of making a last will and testament; and further avers that said paper writing is not the last will and testament of said M. Everhart, and prays that the same be so declared by the decree of this oourt, and thllt the defendant be enjoined from setting the same up as a muniment 6i title as against the just claims and rights of complainants to their undivided interest in the lands desoribed in the bill. 'rhe defendant, who is the sole legatee ailddistributee under the will, except the nominal sum of one dollar given to each of the oomplainants, by his demurrer admits the facts stated in the bill as true t but insists that this court has no jurisdiction to grant the relief prayed for in the bill; that jurisdiction to determine whetherthe paper writing presented to the clerk of the chancery court of Issaquena county, and so· admitted to probate by him in common form,is not the will of saidM. Everhart, is alone vested in the said chancery court, with the right of appeal as in other cases. That the demurrer is not well taken, aside from the jurisdictional question thus raised, is admitted, consequently the only question that need be considered arising upon the demurrer is as to whether or not this court has jurisdictionto determine whether or not the paper writing so admitted to probate by the derk of said chancery court is the last will and testament of said decedent, and conveys to the defendant the title to the lands described therein as against the title of complainants to an undivided interest in said .lands as the heirs at law of decedent, and to enjoin defendant from setting up said paper writing as a muniment .of title to said lands in said ejectment suit. and as against complainants' rights as heirs ,fyL Everhart. The power in the owner of real orpeJ;'SQna.l property to dispose of the same bylast will and· testament, and the mode inwhich the same may be done, Rnd the proceedings for the. establishment of such will, is; derived'wholly from thestatutl:ls.·of the state. ,It -iswell13ettledthat the circuit courts of the United. Stllotes have no P9wer