Wahl v. Franz

ROGERS, District Judge, after stating the case as above, delivered the opinion of the court. In Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672, it was distinctly held that under section 2 of the act of March 3, 1887, as corrected by the act of August 13, 1888 (25 Stat. 433), the jurisdiction of a United States circuit court, on removal — 682 — by tbe defendant from a state court, is limited to such suits as might have been originally brought in the United States circuit court by the plaintiff under- the first section of that act. All the courts have followed that decision, which is now the settled law. It is also decided in the same case that “the question is a question of jurisdiction, as such, and cannot be waived;” citing Capron v. Van Noorden, 2 Cranch, 126, 2 L. Ed. 229; Railway Co. v. Swan, 131 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173, 32 L. Ed. 543. The question, therefore, which arises on the very threshold of this case is, was it removable from the G-arland circuit court to the United States circuit court for the Western division of the Eastern district of Arkansas? The decision of that question turns upon the construction tp.be placed upon sections 1 and 2 of the corrected act of August 13, ÍS88 (25 Stat. 433). The portions of those sections of that act defining the jurisdiction of district and circuit courts of the United States which bear on the question involved are as follows: “Section 1. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall he a controversy between citizens of different states,” etc. “Sec. 2. That any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United. States are given original jurisdiction by the preceding section, which may now he pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. Any other suits of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit courts of the United States of the proper district, by the defendant or the defendants therein, being non residents of that state. * * * And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being- such citizen of another- state, may remove such suit into the eirc-uil. court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on the ground of such prejudice or local influence, to remove said cause.” By reading section 1 of tbe act it will be seen that to confer jurisdiction on a circuit court of tbe United States three things are necessary, and no others: (1) A suit of a civil nature at common law or in equity. (2) It must involve $2,000, exclusive of interest and costs. (3) It must arise between citizens of different states, or present one or the other conditions mentioned in the last part of sec.tion 1, which part of said section is not quoted, because not involved •in the question under consideration. If the three things above- ¡ mentioned concur. in a case, no methods of procedure prescribed by a state for its own courts can deprive circuit courts of’ the — 683 — United, States of original jurisdiction thereof. Railway Co. v. Jones (C. C.) 20 Fed. 193; In re Jarnecke Ditch (C. C.) 69 Fed. 161; Hyde v. Stone, 20 How. 170-175, 15 L. Ed. 874; Ellis v. Davis, 109 U. S. 497, 498, 3 Sup. Ct. 327, 27 L. Ed. 1006; Cowles v. Mercer Co., 7 Wall. 118. 19 L. Ed. 86; Payne v. Hook. 7 Wall. 425, 19 L. Ed. 260; Railroad Co. v. Whitton's Adm’r, 13 Wall. 270, 20 L. Ed. 571. Hearing in mind that the right to remove a case from a state to the federal court depends upon whether the suit might have been originally brought in the federal court, we have concluded that the question of removal in this case is narrowed down to this one proposition: Is the probate of a will “a suit of a civil nature at common law or in equity”? The decisions are in direct conflict, and I have found no decision on the precise question which is binding upon this court. Primarily, that the enactment of the act of August 13, 1888, was to restrict the jurisdiction of the circuit courts of the United Slates, has been repealedlv decided, and is now settled. Smith v. Lyon, 133 U. S. 315, 10 Sup, Ct 303, 33 L. Ed. 635; In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738; Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080; Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685; Railroad Co. v. Davidson, 157 U. S. 208, 15 Sup. Ct. 563, 39 L. Ed. 672. So far ,as we know, original jurisdiction to probate, or reject the probate, of a will was never entertained by a,ny court of the 'United States under the original judiciary act or the act of 1875. II might well be inquired if to recognize jurisdiction under the act of 1888 is consistent with the universally recognized and established purpose for which that act was enacted. But there is also a radical difference between the provisions of both ihe original judiciary act and the act of 1875 and that of 1888 in relation to removal of cases from state courts. Under the original act, as well as that of 1875, the removal was not made to depend on the question as to whether the circuit court had original jurisdiction of the suit (Railroad Co. v. Davidson, 157 U. S. 208, 15 Sup. Ct. 563, 39 L. Ed. 872); but, as we have seen, under the act of 1888 a case cannot be removed to (he circuit court unless it might have been originally brought there. If, therefore, we treat the discussion of Mr. Justice Matthews in the case of Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006, as indicating the tendency of the mind of the court as recognizing the right of a circuit court to fake jurisdiction of the probate of a will under certain conditions specified (which is not conceded, but is denied), it must be remembered that the act of 1875 was then in force, under “which, as already shown, the right of removal was not made to depend upon the existence of the right to bring the suit originally in the circuit court, as is the case now. That case should he read keeping in view the nature of the action and the issues decided. That case was heard on appeal from a decree dismissing fixe bill upon demurrer. Two tilings were sought by the bill: First. An accounting for rents and profits to realty which formerly belonged to defendant's testatrix. To secure this relief, a decree was sought adjudging the will, under which defendant held — 684 — as sole devisee, to be null and void for incapacity to make it. Second. A decree for possession of realty beld by the defendant as sole devisee under the will. The will sought to be annulled had been probated, and the administration closed. The court denied the right to recover the possession of the lands because the plaintiff’s remedy at law was adequate. An accounting was denied, because, when ejectment was brought for the land, the court would direct an accounting as an incident in the cause. The court then proceeded to discuss the facts in the bill to see if they excepted the case from the principles stated. It is clear the object of this bill was primarily not to probate or vacate a will. It was to recover the real estate and rents and profits. In order to do this, the will stood in the way, and hence it was insisted that jurisdiction should be entertained for the purpose of canceling the will. The jurisdiction was denied. The court said: “It is well settled that no jurisdiction belongs to the circuit courts of the United States as courts of equity, for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled by the decision of this court in the case of In re Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599. Later, in the same opinion, in a somewhat historical discussion of the question, very elaborate, but not very satisfactoy, this doubting passage occurs: “And where provision is made by the laws of a state, as is the case in many, for trying the question of the validity of a will, or attempting to probate by a litigation between the parties, in which that is the sole question, with the effect', if the judgment shall be in the negative, of rendering the probate void for all purposes as between the parties and those in privity with them., it may be that the courts of the United States have jurisdiction, under existing provisions of law, to administer the remedy and establish the right in a case where the controversy is wholly between citizens of different states.” (Italics ours.) And later, in the same opinion, the court said: “Jurisdiction as to wills, and their probate as such, is neither included in nor 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 not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which the courts of the United States may take cognizance by reason of the citizenship of the parties.” This case is direct authority against the jurisdiction in cases like the one at bar, although the case is urged by learned counsel as establishing the contrary. The court then quotes approvingly from Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524. In this connection it is important to examine briefly the nature of that case, and the precise points decided, for upon Ellis v. Davis and Gaines v. Fuentes, as we shall see later, is made to rest the decision of Judge Pardee in Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 11 L. R. A. 567; and, if those cases do not support his decision in that case, then it is without any support other than the high standing of the judges delivering it. Gaines v. Fuentes is this sort of a case: Mrs. Gaines, the plaintiff in error, and the defendant in the court below, had probated in the Second district court for the parish of Orleans the will of Daniel" Clark; that court being vested with ju — 685 — risdiction over the estates of deceased persons and appointments necessary in the course of their administration. She afterwards brought several suits against the defendants in error to recover certain lands and properties, relying on the will as a muniment of title as “instituted heir” of Daniel Clark. Thereupon the defendants in error filed their original petition in the same court, alleging they were unable to contest the will until the decree of probate thereof was recalled, and stating as grounds for recalling it the falsity and insufficiency of the testimony upon which it was probated, and the status of the plaintiff in error incapacitating her to inherit under the will. Upon service being made upon the plaintiff in error, she applied, in proper form, with a tender of the necessary bond, for removal of the cause to the circuit court of the United States for the district of Louisiana, under the twelfth section of the judiciary act of 1789, on the ground of citizenship, and her application was denied. She then applied for a removal of the action under the act of March, 18(57, on the ground of prejudice and local influence, and this application was also denied. Upon a hearing in the state court the will was annulled, and the- case taken to the supreme court of the state of Louisiana, and from there, by writ of error, taken to the supreme court of the United States, which court reversed the case for error in the parish court in not removing the case to the United States circuit court for the district of Louisiana. The court in that case say: “The action is in form to annul an alleged will of 1813 of Daniel Clark, and to recall the decree by which it was probated; but, as the petitioners are not heirs of Clark, or legatees, or next of kin, and do not ask to- be substituted in place of the plaintiff in error, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated os brought against the devisee by strangers to the estate to annul the iwill as a muniment of title, and to restrain the enforcement of the decree by which its validity was established, so far as it affects their properly. It is, in fact, an action between' parties, and the question for determination is whether the federal court can take jurisdiction of an action brought for the object mentioned, between citizens of different states, upon its removal from a state court.” The court then says: “ The suit in the parish court is not a proceeding to establish a will, but to annul it as a muniment of title, and to limit the operation of the decree admitting it to probate. It is, in all essential particulars, a suit for equitable relief, — to caucel an instrument alleged to be void, and to restrain the enforcement of a decree alleged to have been obtained upon false and insufficient testimony. There are no separate equity courts in Louisiana, and suits for special relief of the nature hero sought are not there designated suits in equity. But they are none the less essentially such suits; aud if, by the law obtaining in that state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process In a federal court, where the parties are, on the one side, citizens of Louisiana, and on the other citizens of other states. * * * In the case of In re Broderick’s Will the doctrine is approved, which is established in both England and this country, that by the general jurisdiction of courts of equity independent of statutes, a bill will not lie to set aside a will or its probate; and, whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full jurisdiction over the subject of wills vested in the probate courts, and the revisory power over their adjudications in the appellate courts. But that such jurisdiction may be vested in the state courts of equity by statute is there — 686 — recognized, and tliat, when so vested, the federal courts, sitting in the states Where such statutes exist, will also entertain concurrent jurisdiction in a case between proper parties. There are, it is true, in several decisions of this court, expressions of opinion that the federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the casé under the existing legislation of congress.” (Italics ours.) The two cases of Ellis v. Davis and Gaines v. Fuentes thus'appear to rest precisely on the same ground, — one being a suit to recover lands and the rents and profits thereof, and praying the court to cancel a will in order that it might be done; and the other being a direct proceeding by a stranger, under the statutes of the state, to cancel a will already probated in order to defend the title to real estate held by the moving party. The question presented by the case at bar is totally different. The will is presented by the sole devisee for probate only. It is resisted by the sole heir at law. A judgment was rendered in the probate court probating the will, and from that judgment an appeal has been taken, and the same question is presented de novo in the circuit court. It is purely and simply a contest over the probate of the will, and not a mere incident' —important, it may be — to the successful prosecution of another suit for relief of a wholly different character. The defendant in error, to sustain the jurisdiction of the federal court, has cited the decision of Brodhead v. Shoemaker (C. C.) 44 Fed. 518, 11 L. R. A. 567. That case was heard in the circuit court for the Northern district of Georgia, Judges Pardee and Newman presiding, the. opinion being delivered by the former. It must be conceded that this decision is in point, and sustains the jurisdiction contended for in this case. Judge Pardee does not discuss the question at all. He simply says: “From the statutes cited, and the record of the case as made, up to the time of removal, it appears perfectly clear that the proceeding pending in the superior court of Floyd county, G-a., taken in connection with the removal statutes of the United States, was a suit in which there was a controversy removable by the defendants to the circuit court of the United States for the Northern district of Georgia upon compliance with the conditions prescribed in said removal statutes; and it is within the rule laid down by the supreme court in the cases of Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006. See, also, Boom Oo. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; Hess v. Reynolds, 113 U. S. 75. 5 Sup. Ct. 377, 28 L. Ed. 927; Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Mr. Justice Bradley’s dissenting opinion in Rosenbaum v. Bauer, 120 U. S. 461, 7 Sup. Ct. 633, 30 L. Ed. 743.” We cannot assent to the conclusions reached by Judge Pardee. In the view we have taken, the case of Brodhead v. Shoemaker, supra, is not supported by Gaines v. Fuentes or Ellis v. Davis; and the other cases cited by Judge Pardee, in our opinion, have no relevancy or bearing whatever upon the real question at issue, namely, ‘Whether the probate of a will is a suit of a civil nature at common law or in equity,” within the meaning of the act of 1888. We are of the opinion that Judge Pardee totally misapprehended the question decided in Ellis v. Davis, and Gaines v. Fuentes, being led astray by expressions of the court which had no direct bearing upon the precise- questions at issue'.' We prefer the reasoning found in Re — 687 — Cilley (C. C.) 58 Fed. 977, decided by District Judge Aldrich, and concurred in by Circuit Judge Colt, in the circuit court for the district of New Hampshire. This opinion is directly in conflict with the opinion in Brodhead v. Shoemaker, and arose in states where the statutes for probating wills are substantially the same. The opinion in the case of In re Cilley, supra, shows exhaustive research, and was delivered after a reargmnent of that case. In Ellis v. Davis the supreme court reaffirmed, what had frequently been decided before, that the terms “law” and “equity,” as used in the constitution, were intended to mark and fix a distinction between (he two systems of jurisprudence as known and practiced at the time of its adoption. It will not he seriously contended that the same terms used in the original judiciary act were not intended by congress to have the same meaning, and the same is true of the acts of 1875 and 1888. In view of these decisions, it seems natural that the learned judge, in his able discussion of this question in the case of In re Cilley, supra, should have begun with the inquiry as to what was meant by “suits of a civil nature at law or iu equity” when the constitution was adopted; or, to state it in another form, to ascertain whether those words, as then and previously understood in England and America, embraced the proceedings for the probate of wills. He demonstrates, by decisions in England and America (if anything can he demonstrated), that such was not the case in ibis country or in England, either at the time the constitution was adopted or prior' thereto, and that the terms used in the judiciary act, like those used in the constitution; were not used in any local sense, hut “in the broad common-law sense in which equity and common-law jurisdiction are understood in this country and in England.” The opinion, in this regard, is both instructive and strong, and it seems to us conclusive; so much so that little can be added thereto. After citing various decisions of the supreme court of the United Stales and of the circuit courts (In re Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599; Tarver v. Tarver, 9 Pet. 174, 9 L. Ed. 91; Fouvorgne v. City of New Orleans, 18 How. 470, 15 L. Ed. 399; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327, 27 L. Ed. 1006; Ball v. Tompkins [C. C.] 41 Fed. 486; Reed v. Heed [C. C.] 31 Fed. 49; In re Aspinwall’s Estate [C. C.] 83 Fed. 851; In re Frazer, Fed. Cas. No. 5,068; Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054) in which the jurisdiction now asserted was disclaimed, he cites numerous decisions of the state courts to show that proceedings to establish wills are not commonly classed and known as suits at common law or in equity, and were not so classed or known in the early history of this country, and, therefore, were not suits removable to tbe federal courts. He distinguishes cases like that at bar from such cases as Ellis v. Davis, Hess v. Reynolds, Gaines v. Fuentes, and that; class of cases of which Boom Co. v. Patterson is a sample, and pertinently suggests that when congress intends to' make so radical a change as to confer jurisdiction of the probate of wills on the federal courts — a jurisdiction disclaimed by the courts from the foundation of the government, and a jurisdiction always exercised in England by the ecclesiastical — 688 — -courts, and in this country by probate courts created for that and kindred. special purposes — it will not be left- to doubtful construction, but will be provided for by definite and unmistakable language. Tbe argument of the learned judge is well-nigh complete and conclusive, the authorities convincing, and we are content with the result reached in that case. It is precisely in point, and it is absolutely irreconcilable with Brodhead v. Shoemaker, which, in our opinion, is not only unsound, but is not supported by either authority or reasoning, nor does it give evidence of careful consideration or research. It could serve no wise purpose now to quote from the opinion in the case of In re Cilley, supra. In Copeland v. Bruning (C. C.) 72 Fed. 5, District Judge Baker, for the district of Indiana, in a very clear and well-considered opinion rendered in 1896, reviewing many cases, follows In re Cilley, supra. That case is important in this: that in Indiana the probate of a will is had in the circuit court, — a court of general jurisdiction. Under the statute of that state, William H. Bruning presented for probate, in the office of the clerk of the circuit court of Jefferson county, Ind., the alleged last will and testament of John F. Bruning. Clara Copeland, a child of the deceased, under the statute of the state, filed her objections to the probate of the will. Subsequently, under a statute of that state, she filed a complaint to contest the validity of her father’s will, making William H. Bruning, one of the children and heirs at law of the decedent, and a devisee under the will, party defendant. Service was had upon the defendant. Thereupon he tendered a petition, accompanied by a proper bond, for the removal of the cause into the federal court. The state court refused to make the order of removal. He then filed a transcript of the record in the federal court, and the plaintiff, Clara Copeland, filed her motion to remand the same. The question now at bar was, therefore, squarely presented in that case. The learned judge in that case reviewed almost every case cited in this opinion, and, after the most careful consideration, remanded the case to the state court. In Oakley v. Taylor (C. C.) 64 Fed. 245, District Judge Priest, of the Eastern district of Missouri, in a strong and well-considered opinion, reached the same conclusion; and this case is also important because of the statutes of that state regulating the probate of wills. The case is directly in point, and justly entitled to much weight. In Everhart v. Everhart (C. C.) 34 Fed. 85, District Judge Hill, of the Southern district of Mississippi (though retaining jurisdiction of that case), recognized the same rule, and in that case, as in almost every case cited, Gaines v. Fuentes and Ellis v. Davis are cited to support the doctrine announced in that case, thus evidencing the well-nigh unanimous interpretation placed by the courts upon those cases. In Langdon v. Goddard, 2 Story, 267, 14 Fed. Cas. 1101 (No. 8,060), decided by Mr. Justice Story at circuit (district of New Hampshire), that learned justice said: “In respect to tbe wills and the codicils admitted to probate, the exclusive jurisdiction of the probate thereof belongs to the state courts of probate, and we have no authority whatsoever to inquire into it, or examine the validity thereof.” — 689 — And the reporter of the Federal Cases cites, in a footnote to this opinion, the following cases: Armstrong v. Lear, 12 Wheat. 169, 6 L. Ed. 689; Rex v. Inhabitants of Neatherseal, 4 Term R. 258; Price v. Dewhurst, 4 Mylne & C. 76, 80; Tompkins v. Tompkins, 24 Fed. Cas. 40 (No. 14,091). It may be added that it is remarkable, indeed, that if the jurisdiction of a suit, the object and purpose of which is to settle nothing but the validity or invalidity of a will as a preliminary step in determining whether its probate should be granted or denied, was so doubtful that it was never entertained by a federal court, so far as we have been able to ascertain, prior to the decision of Brodhead v. Shoemaker', that it should now be entertained under the act of 1888, which act was confessedly enacted for the specific purpose of curtailing the jurisdiction of the United States courts. (On the general question of the jurisdiction of federal courts over the administration of estates of deceased persons, see notes to Barling v. Bank, 1 C. C. A. 510, 513 [s. c. 50 Fed. 260], and Quarries Co. v. Tomlinson, 36 C. C. A. 272 [s. c. 95 Fed. 208].) It must be remembered that the question is not whether congress has the power, under the constitution, to confer that jurisdiction upon the federal courts. The question is, has it done so? And the action of the courts from the foundation of the government down to the passage of the act of 1888 should be accepted as an absolute denial thereof, and, unless it can be shown that by the act of 1888 the jurisdiction in respect of the subject-matter under consideration was enlarged, the courts should await future action upon the part of congress before assuming jurisdiction of this new and novel class of cases hitherto confided, in England, to the ecclesiastical courts, and in this country to statutory courts adapted especially for their hearing. The law of Arkansas, and the jurisdiction of its courts, touching the probate of wills, have been settled by its own supreme court. In Baptist College v. Scott, 64 Ark. 350, 42 S. W. 537, the supreme court said: “It has been held by this court that a. court of equity has no Jurisdiction to hear and determine a contest of a will. Mitchell v. Rogers, 40 Ark. 91. It has also been held by this court that such a contest cannot be made by proceedings on a writ of certiorari, but that the only remedy is by appeal. Petty v. Ducker, 51 Ark. 281, 11 S. W. 2. It has also been determined by this court that the circuit court has no original jurisdiction now, as formerly, to try such a contest, since the constitution confers original and exclusive jurisdiction of wills, etc., upon the probate courts. Dowell v. Tucker, 46 Ark. 451. It follows that such a contest, if made at all, must be made originally in the probate court, or else, when that cannot be done, on appeal from the probate order of the probate court to the circuit court, accordingly as the will has been probated in the more solemn form or in the common form.” And it is expressly provided by statute that the trial in the circuit court shall be de novo. Sand. & H. Dig. § 1152. It is not, therefore, an original proceeding instituted in the circuit court, but it is a continuation of the proceedings begun in the probate court. It is not a suit at law, nor is it a suit in equity, as understood either at common law or in equity, nor as recognized by the statutes and laws of the state. In its origin a proceeding to probate a will in — 690 — the probaté court, if the probate is sought in common form, — that is, without notice to parties interested, — it partakes very little of either. No complaint is tiled, no pleadings are required, and no service had. It is in the nature of a proceeding in rem. If the probate is sought in the more solemn form (that is, after notice had to parties interested, — which may he done, either in the probate court or on appeal in the circuit court), the proceeding is the same in both, with one exception. In the probate court there can be no jury impaneled; in the circuit court there may be, upon the demand of any one of the parties interested. The real contest of the will, in that event, may be made, as said in Baptist College v. Bcott, supra, on the grounds set forth in the petition of the parties contesting the will, which, of course, will necessarily show the relationship of the parties to the deceased. The statute only provides that the case may be brought to the circuit court on appeal by simply filing the affidavit, and when in the circuit court, “upon the demand of any one of them, a jury shall be impaneled to try which or how much of any testamentary paper produced is or is not the last will of the testator.” If no jury be demanded, the question is determined by the court, and the final decision is a bar to any other proceeding to call the probate or rejection of the will in question, subject to the right of appeal or writ of error to the supreme court as provided by the statute; but it is provided that nothing contained in the statute shall preclude a court of chancery from its jurisdiction to impeach such final decision for such reason as would give it jurisdiction over any other judgment at law. Sand. & H. Dig. § 7421. The contention of the defendant in error is not, therefore, advanced by anything found in the statutes of Arkansas, or the decisions of its courts. The conclusion is that, within the meaning of the first and second sections of the judiciary act of 1888, the proceeding for the probate of a will is not a “suit of a civil nature at common law or in equity,” and therefore is not removable either from the probate'court or from the circuit court into the federal court. The judgment is reversed, with instructions to the circuit court of the United States for the Western division of the Eastern district of Arkansas to remand the case to the circuit court of Garland county.