FARRELL V. O'BRIEN, 199 U. S. 89 (1905)

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U.S. Supreme Court

Farrell v. O'Brien, 199 U.S. 89 (1905)

Farrell v. O'Brien

No. 193

Argued April 4, 6, 1906

Decided May 29, 1906

199 U.S. 89


Where the jurisdiction of the circuit court is invoked not only on the ground of diverse citizenship, but also on a constitutional question, the mere averment of the latter is not sufficient if it is so wanting in merit as to be frivolous and, under such circumstances, if an appeal and a petition for certiorari are both pending, as in this case, the appeal will be dismissed; but if the correctness of the decree on the general issue should be considered, the writ will be allowed and the record on appeal treated as a return thereto.

As the authority to make wills is derived from the state, and the requirement of probate is but a regulation to make a will effective, matters of pure probate, in the strict sense of the words, are not within the jurisdiction of courts of the United States.

Where a state law, statutory or customary, gives to the citizens of the state, in an action or suit inter partes, the right to question at law the probate of a will or to assail probate in a suit in equity, the courts of the United States, in administering the rights of citizens of other states or aliens, will enforce such remedies. The action or suit inter partes, however, must relate to independent controversies, and not to mere controversies which may arise on an application to probate or a mere method of procedure ancillary to the original procedure.

The statutory procedure of the State of Washington for probate of wills relates to nuncupative wills as well as ordinary wills, and the authority conferred on the courts to contest a will is a part of the probate procedure, and does not cause a contest to be a suit inter partes, and therefore the circuit court of the United States, in a case where jurisdiction is based on diverse citizenship, is without jurisdiction to declare either the nonexistence of a nuncupative will or the nullity of the probate thereof by the probate court.

Where the state statute provides that, within a fixed period after its admission to probate, interested parties may question the validity of a will or its probate, and the statute applies to written and nuncupative wills, the preliminary admission of a nuncupative will to probate and the temporary control taken of the property, both real and personal, by the probate court without the notice required by statute do not so deprive the parties of their property without due process of law within the provisions of the Fourteenth Amendment as to afford a constitutional basis

Page 199 U. S. 90

for the jurisdiction of the circuit court of the United States in a suit where diverse citizenship exists to enjoin the enforcement of the decree of probate, and the decree of the circuit court of appeals is final.

This suit was commenced in the Circuit Court of the United States for the District of Washington, Northern Division, by the filing, on June 20, 1901, of a bill on behalf of Hannah O'Callaghan and Edward Corcoran, appellants in this Court. The defendants were Terence O'Brien, as administrator of the estate of John Sullivan, and Marie Carrau, W. M. Russell and S. F. Coombs, who are joined as appellees, were the sureties on a bond given by Marie Carrau, on the appeal taken by her to the circuit court of appeals.

It was averred that the complainants, aliens and residents of Ireland, were the first cousins and the sole heirs at law and next of kin of one John Sullivan, who died on September 26, 1900, in the City of Seattle, State of Washington, intestate, leaving a large amount of real and personal property. The appointment by the Superior Court of King County, State of Washington, of a special administrator, and the subsequent appointment of the defendant O'Brien, and his qualification as general administrator, were next averred. O'Brien and his codefendant were alleged to be citizens of the State of Washington. The remaining averments were, in substance, that the defendant Marie Carrau, confederating with certain named relatives, had manufactured a pretended nuncupative will of John Sullivan in favor of said Marie Carrau under which will she was claiming to be the sole legatee and devisee of all his property. The will purported to have been made about 11 o'clock on the night previous to the death of Sullivan, in the presence of Marie Carrau and her relatives, and the testamentary words employed, or the substance thereof, were alleged to be the following:

"I want you to remember and witness that I will all my property and personal effects, worth many thousands of dollars, to be the money and property of your sister, Marie Carrau. I am sick, and we know not what might happen. "

Page 199 U. S. 91

It was averred that, on the application of the defendant Carrau, and after the appointment of O'Brien as general administrator, the alleged nuncupative will was admitted to probate, and, at the time of the filing of the bill, stood, as illegally probated, on the records of the Superior Court of King County, State of Washington. It was, however, charged that the said superior court, in assuming to probate said nuncupative will, acted wholly without jurisdiction in the premises for the reason that the estate bequeathed exceeded the value of $200, and because no legal citations had been issued out of said court, and ten days had not elapsed between the filing of the will and the hearing of the proof offered in support of the same. It was further averred that, under the laws of the State of Washington, real estate could not be disposed of by a nuncupative will.

Further averring that the state court, on the application of Marie Carrau, was about to make and enter a decree distributing to her the whole of the Sullivan estate upon the execution of a bond conditioned for the payment of her proportion of the indebtedness of the estate, to which decree the defendant O'Brien, administrator, it was averred, would yield obedience, and that said Marie Carrau, on receiving possession, would transfer the estate to others, and alleging that such an order and the action of the administrator thereunder would violate the due process clause of the Constitution of the United States, an injunction and the appointment of a receiver was prayed. It was also prayed that a decree might be made adjudging the alleged nuncupative will to be null and void and perpetually restraining the defendant Carrau from setting up any title or claim thereunder and adjudging and decreeing the complainants to be the only heirs at law of the decedent, and entitled to receive his estate, and commanding the defendant administrator to surrender possession thereof to and account therefor to the complainants.

On behalf of O'Brien, administrator, there was filed what was termed a "stipulation and answer," signed by the complainants

Page 199 U. S. 92

and their solicitor and the administrator. In this paper, the appointment of O'Brien was recited, and there was also embodied a disclaimer of any interest of said administrator in the subject matter of the controversy between complainants and the defendant Marie Carrau, or any knowledge in respect thereto other than as shown by the records. It was stipulated that no costs should be taxed against the administrator, and that complainants should not be put to proof of the allegations of the bill so far as the same affected the administrator, and that the stipulation should be taken as and for an answer of said defendant administrator to the bill of complaint.

After other proceedings in the cause not essential to be stated, an answer was filed on behalf of the defendant Carrau.

Briefly stated, the answer admitted the death of Sullivan, affirmed the validity of the alleged nuncupative will and of the probate thereof, and further averred that, under the laws of Washington, a nuncupative will, duly proved and probated, "devises both real and personal property to any amount in value." After specially answering each of the allegations of the bill, it was in substance averred "by way of defense, and as questioning the jurisdiction of the court" that the court in which the alleged will had been probated had the sole, original, and exclusive jurisdiction of the probation of said will and the management of the estate of the decedent; that in said court various persons, including one Eugene Timothy Sullivan, a resident of the State of Washington, had filed their verified petitions, claiming each to be the sole heir of the decedent; that certain of said claimants (Sullivan not being one of the number), and also the complainants and the State of Washington, had commenced, in the state court, proceedings to contest the validity of the alleged will, and that such proceedings were at issue and were still pending.

Testimony was taken, by commission and otherwise, under an agreement providing that the same might be read in evidence in any suit or proceeding which was then or might thereafter be pending in a state or federal court affecting the estate

Page 199 U. S. 93

of John Sullivan. Both during the taking of the testimony and at the hearing which followed, the objection to the jurisdiction of the court was reiterated, and exceptions were reserved.

A decree was entered in favor of complainants. 116 F.9d 4. In substance, the decree found the complainants to be the next of kin of the decedent; that O'Brien was the duly qualified administrator; that the alleged nuncupative will was not made; that the Washington court acted wholly without jurisdiction in the probate of the alleged will, and hence the proceedings in respect thereto were void. It was decreed that the complainants, as first cousins of the deceased, were entitled to share equally in the assets of his estate, and the defendant O'Brien was directed to recognize their right. The defendant Carrau was perpetually restrained from setting up any claim to said estate under the alleged will or otherwise.

On appeal, the circuit court of appeals reversed the decree of the circuit court for want of jurisdiction in that court over the subject matter and because of the absence of necessary parties, who, if made parties, would oust the court of jurisdiction, and the cause was remanded, with directions to dismiss the bill at the cost of complainants. 125 F.6d 7. The cause was appealed to this Court. Following the filing of a motion to dismiss such appeal, an application was made on behalf of the complainants below for the allowance of a writ of certiorari, and the determination of these two motions was postponed to the hearing on the merits.

Page 199 U. S. 99

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