rent jurisdiction of the Circuit Courts of the United States,2 and may be removed thereto from State courts.3 A proceeding under a State statute to compel an assignee for the benefit of creditors to allow a claim is a suit of a civil nature at law within the removal act.4

§ 59. The exact discrimination of suits at law or in equity from those of a probate nature has been, and is, almost impossible. The jurisdiction of courts of law and equity, at some points, approach very close to that of probate courts; and their separation has been a difficult task.1 The fact that the courts of most States, which exercise probate powers, also have jurisdiction that, from time immemorial, has belonged to courts of law and equity, adds not a little to the difficulty of discriminating between suits that are of probate jurisdiction proper, and those which belong to law or equity, as those terms are used in the removal acts, although

Payson v. Hadduck, 19 Fed. Cas. 23, 8 Biss. 293, 11 Chi. Leg. News 57;

Pratt v. Northam, 19 Fed. Cas. 1254, 5 Mason 95;

Reading v. Blackwell, 20 Fed. Cas. 360, Baldw. 166;

Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. 88.

Contra, but overruled,

Du Vivier v. Hopkins, 116 Mass. 125, 17 Am. R. 141.

4 Claflin v. Robbins, 5 Fed. Cas. 806, 1 Flip. 603, 4 Am. Law Rec.

Smith v. Fenner, 22 Fed. Cas. 546, 505. 1 Gall. 170;

Sullivan v. Winthrop, 23 Fed. Cas. 371, 1 Sumn. 1;

$ 59.

1This appears from the almost hopeless chaos in the decisions

United States v. Backus, 24 Fed. upon the subject, and from the Cas. 932, 6 McLean 443;

number and character of dissenting

United States v. Drennen, 25 Fed. opinions in cases decided by the

Cas. 908, Hempst. 320;

Van Bokkelen v. Cook, 28 Fed. Cas. 949, 5 Sawy. 587, 9 Reporter 502.

1;

2 Some of the cases cited note

Supreme Court, cited in the two preceding sections, and from the conflicting opinions of the majority and minority of the Court in

Wahl v. Franz, 40 C. C. A. 638, 100 Fed. 680, 49 L. R. A. 62,

Gallivan v. Jones, 42 C. C. A. 408, where the decisions are reviewed.

102 Fed. 423;

Security Trust Co. v. Dent, — C. C. A. 104 Fed. 380;

Crider v. Shelby, 95 Fed. 212. Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. 927;

Compare

Story's Equity, § 530 et seq.
2 Ante § 7 and notes.

The probate courts have trenched upon the ancient jurisdiction of the law and equity courts. Even the word "probate" has acquired a

cognizable in a State court of probate jurisdiction. The extension of the jurisdiction of probate courts to wills of real estate, and other questions affecting real estate, is of modern origin. This has added several points to the perplexing problem as to what suits of a probate nature, according to modern State practice, are removable to a United States Circuit Court.4

3

much wider meaning than that to quiet title. This is not now, in which it formerly possessed. most States, the custom. Such question is now usually tried in a contest in a court of probate juris

Henry's Probate Law (2 Ed.), ch. I.

8 Campbell v. Porter, 162 U. S. 478, diction. The old practice, how16 Sup. Ct. 871, 40 L. 1044;

ever, is obsolescent, rather than

Robertson v. Pickrell, 109 U. S. obsolete. A judgment of a court 608, 3 Sup. Ct. 407, 27 L. 1049; of general jurisdiction quieting the Darby v. Mayer, 10 Wheat. 465, 6 title to real estate given by a will, L. 367; is a bar to a suit brought by the deCurrell v. Villars, 72 Fed. 330, | feated party against the successful party therein to contest the will in

334;

Adams v. De Cook, 1 Fed. Cas. a court of probate jurisdiction. 102, McAll. 253;

Tompkins v. Tompkins, 24 Fed.

Cas. 40, 1 Story 547.

It is held in

Faught v. Faught, 98 Ind. 470.

A suit in a court of law or equity to recover the possession of, or quiet the title to, real estate, may

Fuentes v. Gaines, 9 Fed. Cas. 973, be a removable one, where the only

1 Woods 112,

to be the law of Louisiana that the probate of a will ex parte is not conclusive of its validity so far as it affects real estate.

question in dispute is the validity of the will under which plaintiff claims title. But where the validity of a will of real estate arises in a suit to contest such will, can there

The conflicting State decisions on be a removal? Here chaos reigns this subject are collected in

Lange v. Dammier, 119 Ind. 567, 573, 21 N. E. 749, 751.

4 Does the extension of probate jurisdiction in State courts affect the question of what suits are "at law or in equity" for the purpose of removal?

It was formerly the practice to try the validity of wills, so far as they affect real estate, in suits in ejectment.

supreme.

Wahl v. Franz, 40 C. C. A. 638, 100 Fed. 680, 49 L. R. A. 62.

This is a difficulty that is not new. It was said over a century ago:

"The experience of ages, with the continued and combined labors of the must enlightened legislators and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of

California v. McGlynn, 20 Cal. justice. The precise extent of the 233, 81 Am. Dec. 118. common law, and the statute law, Sometimes it was done in a suit the maritime law, the ecclesiastical

1 Barber v. Barber, 21 How. 582, 16 L. 226;

Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. 654;

Fischli v. Fischli, 1 Blackf. 360, 12 Am. Dec. 251.

§ 60. The United States Circuit Courts have no jurisdiction, either original or removal, of suits for divorce or alimony; but such Courts may entertain suits upon decrees for alimony rendered in State courts.-A suit for a divorce, or alimony, or both, is not a suit at law or in equity, within the meaning of the United States judiciary acts. A suit, in England, for a divorce from bed and board, was within the jurisdiction of the ecclesiastical courts when our original judiciary act was passed, and the power to grant a divorce from the bonds of matrimony was exercised by the Parliament, the courts of law and equity having no jurisdiction whatever of such suits.1 The United States Courts have no original jurisdiction of such proceedings.2 There can be no removal of a suit for a divorce or alimony from a State law, the law of corporations, and $ 60. other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed." | dent to divorce a vinculo, or to one The Federalist, No. 37, by Madison. from bed and board." Barber v. It would seem logically to follow Barber, 21 How. 582, 16 L. 226, from the decisions cited in the quoted and approved, Simms v. notes to § 56 that where a cause of Simms, 175 U. S. 162, 20 Sup. Ct. action of law or equity jurisdiction, 58, 44 L. 115. and a cause of action of exclusively probate jurisdiction, are combined, pursuant to a State statute, in a suit brought in a State court, the suit cannot be removed to a Federal Court. There was such a combination of causes of action in Wahl v. Franz, supra, and in several of the cases cited in the notes to § 57, which were held not to be within the jurisdiction of a Federal Court.

2" We disclaim altogether any jurisdiction in the Courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an inci

In the last case, the Supreme Court continues:

"It may therefore be assumed as indubitable that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a State court."

It has been held-but the hold

court to a United States Circuit Court. But a judgment of a State court for alimony is a debt of record; and a suit thereon would be removable, as a United States Circuit Court has original jurisdiction of such a suit.*

§ 61. A United States Court has no jurisdiction as parens patriæ.-The Courts of the United States have-and under the Constitution can have-none of the powers possessed by the High Court of Chancery in England, as the representative of the King as parens patriæ.1 They have no

ing is open to serious questionthat a United States Circuit Court, as a court of equity, may set aside and annul a decree of divorce for fraud.

McNeil v. McNeil, 78 Fed. 834. A contrary decision, supported by the better reasoning, was made by the supreme court of Illinois, in a case where defendant sought a removal from the State to the United States Court.

Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342, cited, also, post § 80, notes 2, 3.

3 Johnson v. Johnson, 13 Fed. 193; Bowman v. Bowman, 30 Fed. 849; Chappell v. Chappell, 86 Md. 532, 39 Atl. 984.

A suit in equity to recover alimony due upon a State judgment, was held maintainable in a United States Court, in

the merits on the ground that the judgment for alimony was void for want of personal service of summons in the divorce suit. A like defence was successfully made in

Hekking v. Pfaff, 82 Fed. 403, which was (as I am informed by the clerk) an action at law in the United States Circuit Court for the District of Massachusetts upon a decree of divorce rendered by a State court of South Dakota. The judgment of the Circuit Court was affirmed by the Circuit Court of Appeals.

Hekking v. Pfaff, 50 U. S. App. 484, 33 C. C. A. 328, 91 Fed. 60, 43 L. R. A. 618.

It is decided in

Knapp v. Knapp, 59 Fed. 641, disapproving some authorities to the contrary, that an action at law will lie to recover alimony due upon

Barber v. Barber, 21 How. 582, a decree of divorce, but the decision 16 L. 226,

the Court saying:

"When it is not paid, the wife can sue her husband for it in a court of equity."

In

in Barber v. Barber, supra, is not
therein cited. In Hekking v. Pfaff,
supra, it does not appear that the
right of plaintiff to sue at law was
questioned.
§ 61.

Bunnell v. Bunnell, 25 Fed. 214, 1" Powers not judicial, exercised the Court entertained, without by the Chancellor merely as the question, a suit in equity, to en- representative of the Sovereign as force a judgment for alimony, by parens patriæ are not possessed by setting aside an alleged fraudulent the Circuit Courts." Fontain v. conveyance. But the Court de- Ravenel, 17 How. 369, 15 L. 80, per cided the case for defendants on Justice McLean; Loring v. Marsh,

jurisdiction to administer the estates of infants, lunatics, or idiots, or determine as to their care or custody, or administer charities under the cy pres power.2 Jurisdiction of all such matters belongs, if to any court, in this country, to such State tribunals as may be designated by their laws.3

15 Fed. Cas. 905, 2 Cliff. 469, 27 | idiots, and lunatics, or charities, Law Rep. 377. which the English Chancellor posFor non-judicial powers of the sesses. Nobody will for a moment High Court of Chancery, see suppose that a Court of equity of the United States could, in virtue of a State law, take upon itself the

Bacon's Abridgment, Guardian C, et seq.;

3 Blackstone Commentaries, p. guardianship over all the minors, 47; Id. p. 427; idiots, or lunatics in the State.

McCord v. Ochiltree, 8 Blackf. Yet these powers in the English 15, 17.

Chancellor stand upon the same ground, and are derived from the same authority, as its power in cases of charitable bequests." Fontain v. Ravenel, 17 How. 369, 15 L. 80, per Chief Justice Taney.

2 Fontain v. Ravenel, 17 How.

Ex parte Burrus, 136 U. S. 586, 10 Sup. Ct. 850, 34 L. 500;

King v. McLean Asylum, 21 U. S. App. 481, 12 C. C. A. 145, 64 Fed. 331, 26 L. R. A. 784;

"The 2d section of the [third] Article of the Constitution declares that the judicial power of the United States shall extend to all cases in law and equity specified in the section [ante § 2]. These words obviously confer judicial | 369, 15 L. 80; power and nothing more; and cannot, upon any fair construction, be held to embrace the prerogative powers, which the King, as parens patriæ, in England, exercised through the courts. And the chancery jurisdiction of the Courts of the United States, as granted by the Constitution, extends only to cases over which the Court of Chancery had jurisdiction in its judicial character as a court of equity. The wide discretionary power which the Chancellor of England exercises over infants or idiots, or charities, has not been conferred.

"The prerogative powers which belong to the sovereign as parens patriæ remain with the States.

But State laws will not authorize the Courts of the United States to exercise any power that is not in its nature judicial; nor can they confer upon them the prerogative powers over minors,

Ex parte Barry, 42 Fed. 113, 136 U. S. 597 note, 34 L. 503 note, Brunner Col. Cas. 533, 7 Law Rep. 374, 11 Hunt Mer. Mag. 265.

8 Cases cited in preceding note. In one of them the Supreme Court said:

"The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." Ex parte Burrus, 136 U. S. 586, 10 Sup. Ct. 850, 34 L. 500.

This language is repeated in substance, citing Ex parte Burrus, as applied to the States, in

Simms v. Simms, 175 U. S. 162, 20 Sup. Ct. 58, 44 L. 115,