Page:Federal Reporter, 1st Series, Volume 4.djvu/16

 a FEDBBaii BEFOBTEB. �of lowa, and claims to be a legatee under the alleged will. The defendant Jane N. Adams is a citizen of the state of Michigan, and the sole heir at law of De Forest. The estate of deceased was situated in this state, and was being admin- istered upon in the probate court of Walworth county, as the estate of an intestate, when this action was brought. The administrator is a party to the action with the heir at law, but the controversy is between complainant and the defendant Jane N. Adams. As the pleadings in the action originally conformed to the practice under the State Code, and as the suit is one in eqiiity, after the removal of the cause to this court the pleadings were reframed so as to conform to the requirements of the practice in ehancery ; and the prayer of the bill is "that proof be taken of the execution and validity of the said last will and testament ; * * * and that the saià will be established and adjudged as the last will and testament of the said Richard De Forest." Issue was joined by answer duly filed, and the case has proceeded here to the extent of taking the testimony. A .motion is now made by complainant to remand the case to the state court. �The general ground of the motion is that this court has not jurisdiction of the subject-matter of the action. And in sup- port of the motion it is urged that the purpose of the action is to obtain probate of a lost will ; that the federal court, like the court of ehancery of England, has not and never had jurisdiction of the probate of wills, that jurisdiction being vested exclusively in the courts of the state, upon which is devolved, by statute, the administration of estates; thatapro- ceeding to probate a will is in the nature of a proceeding in rem, not necessarily involving a controversy between parties, and that therefore the present action is not a "suit of a civil nature at law or in equity, " nor a "controversy between citizens of different states," within the meaning of section 2, art. 3, of the constitution, nor of the removal act of March 3, 1875, under which the cause was removed to this court. It has been held by the supreme court that the federal courts have no probate jurisdiction. This has been directly or incident- ally declared in cases where an attempt was made to compel pa.y'iaent of a bequest under a will not admitted to probate, ����