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
84
FEDERAL REPORTER.
to take proof and admit wills to probate,' so far as it is ex parte and merely administrative, and, if this bill were filed for that purpose, it is clear that this court would be without jurisdiction, and the demurrer should be sustained, and the bill dismissed. It is equally clear that any decree this court can make can only settle the rights of the parties to the suit, and to the property embraced in it. Section 1960, Code 1880, gives to the chancery court of the county in which the testator had a mansion or residence at the time of his death the jurisdiction to admit wills to probate, and by section 19'61 provides that when any last will and testament isexhlbited to be proved, the court may take the probate thereof, but that anyperson interested may at any time within two years, by petition or bill, contest the validity of such will, and an issue shall be made up and tried; as other issues, to determine whether the writing produced be the will of the testator or not; but if no partyshalI appear within two years to contest the will, the probate shall be final, and forever binding, save to infants and persons wn compds mentis, who have two years to contest the will after the removal. 'of their respective disabilities.: Section 1962 provides that anyone interested in a will may propolll1d it for probate, and the clerk may issue summons for the attendance oCthe.witnesses. Section 1963 prl2lvidesthat the will must:be proven by one of the subscribing witnesses, if alive, and resident in the state, and competent .10 testify; otherwise the. handwriting of the testator and witnesses may"be proven. Section 1964 provides that the affidavits of the subscribing witnesses may be substituted for the attendance of the witnesses. Section 1965 provides that the testimony shall be reduced to writing, when, if it shall appear that the will was duly executed, it shall be admitted to probate. 'Section 1967 provides that any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will, but at the request of either party to the proceedings an issue shall be made up, and tried by a jury, as to whether the writing.propounded be the will of the alleged testator or not. The defendant did not proceed under this last section, and consequently the complainants have the right to contest the will under the provisions of seqtion 1961, and might have filed their tition or bill to set aside the probate in the chancery court of Issaquena county, but, being citizens ·of another state, have seen proper to file their bill in this court, in aid of their action of ejectment, of whioh this court has undisputed jurisdiction. The provision made in section 1961 is a special provision made· for those desiring to contest a will to probate'of which they were not made parties, and not to establish a will, and provides that the same shall beby petition or bill,-as I understand it, sitting as a court of equity proper, and not in the capacity ofa probate; 00l,utj and provides that an issue shall be made, and. tried by a jury; .but :the 'jury maybe waived, and the question tried by the chancellor.. lam of opi11ion that. under the rule announced by the supreme court of the United States in the case of Gaines v. Fuentes, 92 U. S. 18, and Ellis v. Davia, 109 U. S. 485, 3 Sup. Ot. Rep. 327, that this court has jurisdic-
EVERHART V. EVERHART.
85
tioh to try and determine the question as to whether or not the paper writing propounded as the will of said M:. Everhart, and probated in common form, is the last will of decedent or not. It is held in the lastnamed case that jurisdiction of wills, and their probate as such, is neither included or excepted out of the grant of judicial power to the courts of the United States; so far as it is ex parte and merely administrative it is confined, and cannot be exercised by them at all, until in a case at lawaI' in equity its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties. It is also held in the same case that the circuit courts of the United States will take jurisdiction of rights created by the statute of the state, and special remedies given by the statute of the state in which circuit court of the United States is held. This rule is sustained by numerous decisions of the same ;court, and is not now an open question., The result is that defenrlant's demurrer must be overruled, with leave to the defendant to answer within 30 days, and, ifan issue shall be made, it will be submitted to a jury, as provided in section 1961. With the purpose of settling the rights of the parties without fllrther litigation, as I suppose, both parties request me to determine whether or not the proof of the subscribing witnesses taken before the clerk of the chancery court of Issaquena county, and upon which the paper writing was admitted to probate by the clerk in common form, is sufficient to establish the validity of the paper writing as the last will and testament of said M:. Everhart, so as to vest the title to the lands in controversy in the defendant. The testimony is quite brief, and is in substance as follows: That said M. Everhart requested one of the witnesses to write his will, which he did, as dictated by said Everhart; that when it was written said Everhart attempted to sign it, but from physical debility was unable to do so, but in the attempt made a small mark or scratch ·on the paper, and failed to do more; that he said he made and published the paper as his last will and testament. The paper writing shows a .small mark or scratch on the left-hand corner, but no name attached to it. There are also two small marks or dots on another part of the paper. very dim, and look as though made with the point of a pencil, and not at the usualp]ace for signing such a paper, by the party executing it. The name of M. Everhart only appear8 in the commencement of the paper, which it is evident was not intended as a signature of the testator. The draughtsman was not requested to Sigli the testator's name, and the testator's effort to sign the paper himself shows that he did not recognize the signature made in the commencement of the writing by the draughtsman as his signature. The place where made, and the character of the .small marks and dots, furnish no evidence that they were.made as a substitute for the signature of the testator. It is true that a testator may sign his will by making a mark, but he must intend the mark.as a sub.. stitute for his name; and when there is 110 name written, or anything indicating who made the mark, and especially when the mark is made .-.t an unusual place for the signature, it ought to require very satisfao.:.
"86
FEDERAL REPORTER.'
tory evidence that the mark was intended by the testator as his signahire, or Mfa substitute for it. As already stated, to make a will valid t{) pass the title to real estate, under the laws of this state, it must be in writing.and signed by the testator, or by some other person in his presence, and by his special direction. This paper writing was not signed by any other person. I am satisfied that the proof exhibited with th(} paper writing as the proof upon which it was admitted to probate by the clerk of .the chancery court, fails to show that the testator intended the marks made by him to beasubstitute for his signature, if indeed he knew that he had made them at all. I am satisfied, looking at the face of the paper propounded as the last will of said M. and the proofof'the subscribing witnesseS exhibited IVith it, that this paper cannot be held a valid will, so as to vest the defendant with thE: title to the lands described in the bill. But if the defendant defiires so to do, he can ansIVer the bill, when an issue will be made up to be tried by a jury upon the evidence produced by both parties; and upou E1uch trial what is here said will have no influence with either court or jury, but the cause will be determined as though these remarks had never been made, or even conceived. .
UNITED STATES
t1.
B.ATEMAN.
':".(Oircuit OQurt·.N.D. Oalifornia. :March 5.1888,)
1.
COURTS-...FEDERAL-JURISDICTION"-HoMICIDE-WiTHIN PRESIDIO MILITARY RESERVATION.
The Presidiomilitary reservation, in the city and county of San Francisco, is not a prace "'Qnder the exclusive jurisdiction of the United States;" and a homicide'committed within the reservation is not an offense against the United States, within the meaning of section 5339. Rev. St. '. .· . ' . .
S. .
.A homicide committed within said PreSidio lDilitarfreservation is not an offense (lvel'wliich the courts of the United Stll.teshave jurisdiction. (Syllabllsby 11&8 Oourt.)
SAME;
Indictment of Thomas N. Bateman for the murder of Samuel M. Soper, first sergeant of troop A, Second cavalry, U.S. A., .stationed at the Presidio military reservation. J. T; Carey, U. S. Atty., for. the United States. Mitchell & DcmneUy, for defendant. Before ,sAWYER, Circuit Judge, and HOFFMAN, District Judge. SA\V'YER,J., (HOFFMAN. J'., concurring.) The defendant is indicted for the murder of Samuel M. Soper, alleged to have been committed on July 5,1887, within the limits oithe military reservation situate within the city and county of San Francisco, and known' as the "Presidio. 1t The indictment' is found under section 5339; Rev. St., which pmvides for pnnishillga: murder committed "within any fort,. arsenal, dock-yard,