intended to except some controversies which could not be carried on in the Federal Courts without seriously and unnecessarily embarrassing the management by the States of matters which were peculiarly within their province.

135. Federal Courts Have No Jurisdiction Over Probate Proceedings.-The authority to make wills is derived from the State. The requirement of probate is but a regulation to make a will effective.

"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 a Court of the United States may take cognizance by reason of the citizenship of the parties."1

It follows that matters of pure probate in the strict sense of the word are not within the jurisdiction of the Courts of the United States.

Now, what are matters of pure probate? They include all proceedings which by the law of the State may be taken to determine the right to probate, at the time of application, or to settle any such question thereafter in an ancillary probate proceeding. The State law may provide for a form of notice on an application to probate a will and may authorize a contest before the admission of the writing to probate, or it may authorize a will to be proved in common form, that is without notice, and may allow a supplementary probate proceeding by which the probate in common form can be contested. All such proceedings are matters of probate purely. It follows that the trial in Maryland of issues sent from the Orphans' Court to a Court of law to determine whether the testator was of sound mind, whether the signature to his will was his signature, whether the execution of the will was procured by undue influence or fraud, are proceedings ancillary

Ellis vs. Davis, 109 U. S. 485.

to probate. Over such controversies the Courts of the United States have no jurisdiction, even when there is a diversity of citizenship between the parties to them."

136. Federal Courts May Have Jurisdiction of Suits Inter Partes Involving the Validity of a Will.— The rule which prohibits Federal Courts from exercising what is essentially a probate jurisdiction extends no further than the reason for it. Where the "State law, statutory or customary, gives to the citizens of the State in an action or suit inter partes the right to question at law the probate of a will or to assail probate in a suit in equity, the Courts of the United States in administering the rights of citizens of other States or aliens will enforce such remedies.”1

Thus, when the State law gives one who wishes to assail the validity of a will, the right to institute in a State Court either at law or in equity, an independent suit not ancillary to the probate proceedings, he may exercise the like privilege in a Federal Court, provided there is the necessary diversity of citizenship and amount in controversy.

137. Federal Courts May Have Jurisdiction to Construe a Will.-Even where the executor is in possession of the estate and therefore the estate itself is in the custody of a Probate Court, a Federal Court of Equity, where the necessary diversity of citizenship exists, may entertain a bill to construe the will. Its decree passed in such suit will be binding upon the executor.1

138. Federal Court May Have Jurisdiction of a Suit Against an Administrator or an Executor on a Debt Due by the Deceased.-It is well settled law that where the necessary diversity of citizenship and amount in controversy exists. a suit may be brought in the Federal Court

Farrell vs. O'Brien, 199 U. S. 89.

1 Farrell vs. O'Brien, 199 U. S. 89, 110; McDermott vs. Hannon, 203 Fed. 1015; Gaines vs. Fuentes, 92 U. S. 10.

1 Waterman vs. Canal-Louisiana Bank Co., 215 U. S. 33.

against an executor or administrator upon a debt alleged to be due by the testator or intestate. If the plaintiff recovers a judgment in such suit, the fact that he was a creditor of the decedent is conclusively established. The Probate Court must give that judgment full faith and credit. The plaintiff cannot, however, by virtue of a decree of the United States Court seize any part of the decedent's estate. He must file his judgment in the State Probate Court and therein assert his rights.2

139. Federal Courts Disclaim all Jurisdiction of Divorce or the Allowance of Alimony.-As early as Barber vs. Barber1 the Supreme Court said:—

"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 incident to divorce a vinculo, or to one from bed and board."

This statement has been several times reiterated.2 In the Burros Case, the reason for this disclaimer was stated to be that, within the States of the Union, the whole subject of the domestic relations of husband and wife, and parent and child belong to the laws of the State and not to the laws of the United States.

It is not true that the United States Courts will not take jurisdiction over any case which requires them to pass on questions of law peculiarly within the control of the States. The latter regulate, as they will, titles to the lands within them. All questions of real property law are governed by them, yet that fact has never been considered as any reason why a Federal Court will not take jurisdiction of an ejectment case, where the parties to it are of diverse citizenship.

In none of the cases above cited was it strictly necessary to decide whether the Courts of the United States could take

2

1 Hess vs. Reynolds, 113 U. S. 73.

Yonley vs. Lavender, 21 Wall. 276.

'Barber vs. Barber, 21 How. 582.

2 In re Burros, 136 U. S. 586; Simms vs. Simms, 175 U. S. 167.

jurisdiction of a suit for a divorce and alimony where the parties to the controversy were citizens of different States and the alimony claimed was large enough. Under the Statutes of the United States as they now are and always have been, a suit for divorce only can not be maintained in the Federal Courts, because the question in controversy can not be reduced to a pecuniary standpoint. It is, however, clearly established that the Courts of the United States will not under any circumstances take jurisdiction of a suit for a divorce or for alimony as incident to a divorce proceeding.

While the controversy is inter partes, it also partakes largely of the nature of a proceeding in rem by which the future status of the married pair is to be determined. It is in the latter aspect analogous to a probate proceeding.

There are cogent reasons of public policy why Federal Courts should not interfere in such matters-reasons which have no application to land titles and the like, although the latter are, of course, subject to State regulation and control.

140. Courts of the United States May Have Jurisdiction of Suits to Recover Arrears of Alimony.—Where a State Court of competent jurisdiction has decreed that the husband shall pay the wife alimony, and he fails to comply with that decree, and the parties are citizens of different States, and the amount due by him is sufficient to give jurisdiction to the Federal Court, such Court may entertain an action by the wife to compel its payment.1

141. District Courts May Take Jurisdiction of Condemnation Suits Under State Laws.-Federal Courts are. sometimes asked to try condemnation cases where there is a diversity of citizenship between the parties and the necessary amount is in controversy. In gainsaying their right so to do, it has been argued that the proceeding to take private property for public use is an exercise by the State of

Barber vs. Barber, 21 How. 582.

its sovereign right of eminent domain, with which the United States, a separate sovereignty, has no right to interfere. To this reasoning the Supreme Court answered :—

*

"This position is undoubtedly a sound one so far as the act of appropriating the property is concerned. The right of eminent domain, that is the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. ** When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an Act of the Legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the Courts between parties, the owners of the land on the one side and the company seeking the appropriation on the other, there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State.”1

Ordinarily such proceedings are in their inception in the nature of an inquest to ascertain the value of the land, and they are not then a suit in the ordinary sense of that word. Usually at some stage they may, at the instance of either party, be transferred to a Court of law and may under the laws of the State take the form of a suit. They then become a matter of which the Federal Courts may assume jurisdiction, if the other necessary conditions exist.

The question as to whether these special proceedings are or are not suits, comes up most frequently in connection with the removal of cases from the State to the Federal Courts. The word "suit," however, is used in the same sense in those

'Boom Co. vs. Patterson, 98 U. S. 406.