Craigie v. McArthur

NELSON, District Judge. Conceding, for the sake of the argument, that the probate of a will and the appointment of an administrator of an intestate’s estate are not proper subjects to be determined in the federal courts, yet, when the estate is ready for distribution and a claim is made for the whole of the estate or a portion thereof, and contested, if the necessary conditions exist, I think a removal is authorized on proper application being made. All the essential elements of a controversy exist. There are parties, and a contest in reference to property, and informal pleadings under which the disputed matters are to be settled by a court. The act of congress authorizes a removal from a court of limited or general jurisdiction, and a controversy in a probate court involving the distribution of an estate between parties who appear and submit to the jurisdiction and litigate therein, is certainly a suit of “a civil nature * * * in equity.” 45 Me. 571; 4 Pa. St. 301; 22 N. Y. 421; 20 Minn. 247 [Gil. 220]; 19 Wis. 200. The probate court of the state of Minnesota is a constitutional court of record, with a seal, and regular terms fixed by law. Section 1, art. 6, Const. Minn.; 2 Biss. St. Minn. 739; 1 Biss. St. Minn. p. 672, § 169. Its decrees, orders, and judgments are binding upon all persons, and the right of appeal is given to the district court, and finally to the supreme court of the state. Pleadings are not necessary, but all applications made to the court orally or in writing are embodied in its records. At the time when the proceedings in that court assume the form of a controversy between parties, and the'conditions requisite exist, the suit is removable. .Gaines v. Fuentes,' 92 U. S. 14. When, in answer to a notice of the hearing of the matters to be determined in the probate court,' the pétitioners filed their objection and instituted a contest, the right of removal could have been enforced. It is urged that there is no controversy inter partes in the probate court, and that the appeal is the commencement of a new suit, when, for the first time, it is known who are the parties interested. I do not so understand the situation of such controversies. The notice authorized to be published by the probate court fixed the time when the matters set forth in the petition would, be determined by. the court, and specified the several questions which would be settled. If no objection is made, a decree in accordance with the prayer of the petition would be conclusive; but opposition being made, a hearing or trial must take place, and all the matters at issue litigated. When the contestants interposed objections, certainly the parties to a- controversy were known, and the decree was binding upon them, as well as all others interested. It is too late, after the determination of the litigated matters in the probate court, and an appeal taken to the district court of the state, to initiate steps for a removal. No such right then exists, and to entertain jurisdiction would-be an attempt to exercise a revisory power over the judgment of the probate court. which is given by law to another tribunal. This court has entertained jurisdiction of the removal of a suit pending in a state court,, on an appeal from commissioners appointed by that court to fix the value of private’ property taken under the right of eminent domain, by an incorporated company — 3 Dill. 465 [Fattex-son v. Mississippi & R. K. Boom Co., Case No. 10,829]— but this appeal is of an entirely different character. In the former case, the 'appeal was from an appraisement by commissioners authorized under the charter of the company, which pi'ovided for an appeal from the award to the district court, and upon the appeal being taken the clei'k is authorized to set it down as a cause upon the docket of the court appointing the commissioners. A suit, then, for the first time is instituted in a court. In the case before nxe, the initiatoi'y proceedings and contest were in a court recognized as one of the judicial tribunals of the state, and the appeal was from a decree of that com-t. The l'emoval of a suit, under the act of congi’ess of March 3, 1S75, must be from the court of original jurisdiction. DILLON, Circuit Judge. I am of opinion that the removal was not applied for in time, under the act of March 3, 1875. and that the cause should be remanded. .Remanded.