judge legal or equitable rights, and sometimes enforce them, although they grow out of, or are connected with, probate matters, whether the suits therefor are brought in such Courts or are removed thereto from State courts.1 Claims against decedents' estates, which in many States are within the exclusive assuming it to be correct, will show | form, which is purely a proceeding that the case was very different in rem." from such cases as Elliott v. Shuler, supra, Brodhead v. Shoemaker, supra, Southworth v. Adams, supra, and Craigie v. McArthur, supra: "The action is in form to annul the alleged will of Daniel Clark of 1813, and to recall the decree by which it was probated; but as the petitioners are not heirs of Clark, nor legatees, nor next of kin, and do not ask to be substituted in the place of the plaintiff in error, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated as brought against the devisee by strangers to the estate to annul the will 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 property." The distinction between the different classes of cases is clearly pointed out in Ellis v. Davis, 8 Fed. Cas. 550, 4 Woods 6, already cited in note 2 to this section. The question of the removability of a will contest was before the Supreme Court, but was left undecided, in McDonnell v. Jordan, 178 U. S. 229, 20 Sup. Ct. 886, 44 L. 1048; but the Court said: "Undoubtedly the Courts of the United States possess no jurisdiction over an ex parte application for the probate of a will, that is, for the proof thereof in common The jurisdiction on removal of a suit to establish a will was considered so doubtful in Plant v. Harrison, 101 Fed. 307, that the suit was remanded to the State court. § 58. 1 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. 867; Hayes v. Pratt, 147 U. S. 557, 13 Sup. Ct. 503, 37 L. 279; Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. 468, 35 L. 88; George T. Smith Middlings Purifier Co. v. McGroarty, 136 U. S. 237, 10 Sup. Ct. 1017, 34 L. 346; Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. 927; Payne v. Hook, 7 Wall. 425, 19 L. 260; Loring v. Marsh, 6 Wall. 337, 18 L. 802, affirming same case, 15 Fed. Cas. 905, 2 Cliff. 469, 27 Law Rep. 377; Kendall v. Creighton, 23 How. 90, 16 L. 419; Union Bank v. Jolley, 18 How. 502, 15 L. 472; Childress v. Emory, 8 Wheat. 642, 5 L. 705; . Sigler v. Haywood, 8 Wheat. 675, 5 L. 713; Boman v. Boman, 7 U. S. App. 63, 1 C. C. A. 274, 49 Fed. 329; Comstock v. Herron, 6 U. S. App. 626, 5 C. C. A. 266, 55 Fed. 803; Parker v. Robinson, 33 U. S. App. 368, 18 C. C. A. 36, 71 Fed. 256; Cowen v. Adams, 47 U. S. App. 676, 24 C. C. A. 198, 78 Fed. 536; jurisdiction of probate courts, are within the original concur Kendall v. Hardenbergh, 94 Fed. 911; Cent. Nat. Bank v. Fitzgerald, 94 Fed. 16; Bertha Z. & M. Co. v. Vaughan, 88 Fed. 566; Brown v. Ellis, 86 Fed. 357; Brendel v. Charch, 82 Fed. 262; man, 81 Fed. 36, 42; In re Foley, 76 Fed. 390; Wilson v. Smith, 66 Fed. 81; German Sav. & Loan Soc. v. Cannon, 65 Fed. 542; Domestic & Foreign Missionary Soc. v. Gaither, 62 Fed. 422; Wickham v. Hull, 60 Fed. 326; 170; Raynolds v. Hanna, 55 Fed. 783; Bowdoin College v. Merritt, 54 Fed. 55; Semmes v. Whitney, 50 Fed. 666; Ware v. Wisner, 50 Fed. 310, 4 McCr. 66; Sullivan v. Andoe, 6 Fed. 641, 4 Hughes 290; Davis v. James, 2 Fed. 618, 10 Biss. 51; Chapman v. Borer, 1 Fed. 274, 1 McCr. 49; Allen v. Allen, 1 Fed. Cas. 439, 3 Wall. Jr. 248, 14 Leg. Int. 148, 5 | Pittsb. Leg. J. 22; Baring v. Putnam, 2 Fed. Cas. 804, 1 Holmes 261; Board of Foreign Missions v. McMasters, 3 Fed. Cas. 780, 4 Am. Law Reg. 526; Crane v. Cowell, 6 Fed. Cas. 749, 2 Curt. 178; Davis v. Weed, 7 Fed. Cas. 186, 44 Conn. 569, 2 Nat. Bank Cas. (Browne) 115; Gibson v. Williams, 10 Fed. Cas. Schley v. Collis, 47 Fed. 250, 13 336, Brunner Col. Cas. 19, 2 Hayw. L. R. A. 567; Arrowsmith v. Gleason, 46 Fed. 256; Stephens v. Bernays, 41 Fed. 401; s. C., 44 Fed. 642; Ball v. Tompkins, 41 Fed. 486; Smythe v. Henry, 41 Fed. 705; Beadle v. Beadle, 40 Fed. 315, 2 McCr. 586; Schreiner v. Smith, 38 Fed. 897; Harmon v. Smith, 38 Fed. 482; Rich v. Bray, 37 Fed. 273, 2 L. R. A. 225; Robb v. Perry, 35 Fed. 102; N. C. 281; Goshorn v. Alexander, 10 Fed. Cas. 832, 2 Bond 158; Harrison v. Rowan, 11 Fed. Cas. 658, 3 Wash. C. C. 580; Harrison v. Rowan, 11 Fed. Cas. 666, 4 Wash. C. C. 202; Harvey v. Richards, 11 Fed. Cas. 746, 1 Mason 381; Lidderdale v. Robinson, 15 Fed. Cas. 502, 2 Brock. 159; Mallett v. Dexter, 16 Fed. Cas. 542, 1 Curt. 178; O'Brien v. Woody, 18 Fed. Cas. 522, 4 McLean 75; Parkes v. Aldridge, 18 Fed. Cas. 1186, 27 Pittsb. Leg. J. 15, 2 N. J. Law J. 233; Parsons v. Lyman, 18 Fed. Cas. 1263, 5 Blatchf. 170, 32 Conn. 566; rent jurisdiction of the Circuit Courts of the United States," and may be removed thereto from State courts. 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. 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,2 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. 1 This 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; 2Some 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. 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 |