Page:Federal Reporter, 1st Series, Volume 4.djvu/18

 :^ ■ FEDERAL REPORTER. �or design, the circuit court shall iiaye the same power to take proof of the execution and, valiLdity of such -will, and to establish the same, as in the case of lost deeds ;" and no stat- ute,at that timeconferred such power upon the probate court. The complainant was, therefore, compelled to institute her proceeding to establish the alleged lost will in the circuit court of the state, and from that court ail causes may be removed to this court which are made removable by the acts of congress. �Npw it is true that the ordinary statutory proceeding to probate a will tb some extent partakes of the nature of a pro- ceeding in rem, because ail parties interested are cited to appear, and because it does not of necessity involve a contro- versy between the parties. But, in the case at bar, a legatee nnder the alleged will is seeking, by action against the sole heir ai; law, to establish the wilL The proceeding is in form and substance a suit. There is an issue between the two parties inVolving the execution, existence, and validityof the supposed will; the one party contending for her rights as a legatee, and the other for her rights as the only heir at law. Ôf necessity the controversy had to assume the usual form of a suit between hostile parties in the state court, and, as the probate court had not jurisdiction of the subject-matter, the proceeding was necessarily instituted in a court of general jurisdiction in the state, where the statute lodged jurisdic- tion to establish lost wills "as in the case of lost deeds." Now was not this, when it was pending in the state court, a suit of a civil nature, in equity, in which there was a controversy between citizens of different states, (and that the matter in dispute exceeds, exclusive of costs, the sum of $500 is not questioned,) within the meaning of the removal act of 1875? That statute provides "that any suit of a civil nature, at law or in equity, now pending or hereafter brought in any state court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, * * * in which there shall be a controversy between citizens of different states," may be removed by either party into the circuit court of the United States for the proper district. In view of the char- acter and necessary form of the present action, and of the ����