McDonnell v. Jordan/Opinion of the Court
The question of jurisdiction was certified before the adjournment of the term of the circuit court of the United States for the northern district and northern division of Alabama, at which term the judgment was entered, and we decline, under the circumstances disclosed, to discuss what the effect might have been if the certificate had shown on its face that it was in fact signed in the southern division of the district within which the presiding judge had jurisdiction.

Petitions for removal and motions to remand are matters of record proper. Ordinarily papers filed in support thereof are not so unless made part thereof by bill of exceptions, though sometimes this is otherwise. England v. Gebhardt, 112 U.S. 502, 28 L. ed. 811, 5 Sup. Ct. Rep. 287; Bronson v. Schulten, 104 U.S. 410, 26 L. ed. 797; baltimore & O. R. Co. v. Koontz, 104 U.S. 5, 26 L. ed. 643.

We are not concerned here with the proofs as to prejudice or local influence.

By § 4272 of the Civil Code of Alabama, it is provided that, 'upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, may have the will proved before the proper probate court.' As Mrs. Fennell was an inhabitant of Madison county at the time of her death, the probate court of that county was the proper probate court (§ 4273); and as Walter E. Jordan and Llewellyn Jordan were named executors, and Llewellyn Jordan was the sole devisee and legatee, either of them could propound the will for probate. By § 4284 it was provided that, 'whenever an application is made to prove a will in this state, at least ten days' notice must be given to the widow and next of kin, or to either of them, residing and being within the state, before such application is heard.' In this case Mrs. McDonnell was the next of kin and sole heir at law, and was duly notified.

Section 4287 provides that 'a will, before the probate thereof, may be contested by any person interested therin, or by any person who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, orof  the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.'

Section 4298 reads that 'any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within eighteen months after the admission of such will to probate in this state, contest the validity of the same by bill in chancery, in the district in which such will was probated, or in the district in which a material defendant resides.'

Mrs. McDonnell filed her allegations in writing contesting the will on the grounds that it was not signed by the subscribing witnesses in the presence of the alleged testatrix; nor by testatrix in the presence of the subscribing witnesses; nor was the alleged will signed by the witnesses at the request of the testatrix; nor by the subscribing witnesses in the presence of each other and in the presence of testatrix; that the testatrix at the time the alleged will was signed and executed was of unsound mind and menory, and not mentally capable of making a will; that the execution of the will was procured by fraud and undue influence of Llewellyn Jordan; and that the paper propounded was not the last will and testament of Mrs. Fennell; and she demanded a jury trial. The cause was duly set down for trial as between W. E. Jordan, proponent, and Ada F. McDonnell, contestant, and was subsequently tried, the trial continuing some days, and on April 15, 1897, the jury, being unable to agree upon a verdict, was discharged.

After this mistrial Walter E. Jordan applied to the probate court to allow him to make Llewellyn Jordan a party defendant to his petition that the will be admitted to probate. As Llewellyn Jordan was a coexector, and the sole devisee and legatee, the probate court, on the 3d of August, declined to grant the application. If Llewellyn Jordan had applied to be formally admitted as coproponent, it must be assumed that he would have been permitted to become such of record, but he made no such application. Then, on August 4, the paper purporting to be an 'answer' of Llewellyn Jordan was filed by the clerk, without leave, or knowledge of the court, and on the same day was struck from the files as improvidently placed thereon. The succeeding day, August 5, Walter E. Jordan renounced the executorship, and asked that letters issue to his coexecutor, Llewellyn Jordan. August 12 the order of removal was entered by the circuit court.

The contention of plaintiff in error is that the proceeding in the probate court of Madison county was simply a proceeding to establish and probate the will, and as such was not a 'suit of a civil nature, at law or in equity,' and therefore not removable; that if the proceeding were otherwise removable, Llewellyn Jordan was not a defendant and could not remove; and that the application for removal came too late.

The decisions of the supreme court of Alabama recognize that an application for the probate of a will is a proceeding in rem, but it is held that it becomes a suit inter partes where there is a contest, that is, 'a suit between the party alleging the existence of the will and the contestant.' And that the result of the statutory provisions is to afford two modes of contest, in the probate court before the will has been proved, or in the chancery court after probate by the institution of a suit by those who were not parties to a contest in the probate court. Knox v. Paull, 95 Ala. 505, 11 So. 156, and cases cited.

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 form, which is purely a preceeding in rem; but it is insisted by defendant in error that, by the institution of a contest, a case of controversy inter partes arises, which may be removed to the circuit court just as such a contest may be under the state statute removed by change of venue from the probate court, where the will is propounded, to the probate court of another county, and that the judgment of the Federal court in such a case must be recognized by the probate court of original jurisdiction, just as by statute the judgment of another probate court to which the proceeding has been remitted is certified to that court that the will may be probated or rejected as that judgment is for or against the validity. Code 1896, § 4296.

Assuming, without deciding, this to be so, the question presents itself as to the position occupied by the proponent and the contestant, respectively, and the statute says that on a contest on admission to probate, 'an issue must be made up, under the direction of the court, between the person making the application as plaintiff, and the person contesting the validity of the will, as defendant.'

And the issue on this contest was made up by the probate court of Madison country accordingly.

Notwithstanding this, defendant in error contends that the contestant is the real plaintiff, and that, within the meaning of the act of Congress in respect of removals, 'the contestee is a defendant because he is brought into court against his will by the necessity of defending his right under the will, and his involuntary presence there subjects him to the local prejudice and influence, protection against which is the object of the statute.'

In this connection it is proper to say that it is obvious on the face of these proceedings that the effort of Llewellyn Jordan to become a party to the record was so limited to being made such in a particular capacity as to clearly indicate that it was with the object of making the application for removal. But whether as coexecutor or as sole legatee and devisee, his appearance in the cause would be as proponent of or on behalf of the will, and not against it, and without going into the authorities as to where the burden of proof lies when a contest is initiated as to the validity of a will, when it is presented for probate, and even conceding that the specific provision of this state statute may be disregarded, we are nevertheless of opinion that the application to remove came too late.

Under the statutes of Alabama, Llewellyn Jordan might have propounded the will, either as executor or legatee. He might have intervened as interested, if he had feared that his coexecutor, who did propound the will, would not do justice, of which there is no pretense here. But he could not lie by, permit the will to be propounded, a contest to be initiated, and a trial had, and at that stage intervene and remove the case.

This was a will and testament, disposing of personal as well as of real property; and was propounded by one of two executors named therein. The statute required notice only to the widow and next of kin, and not to beneficiaries under the will.

There is nothing whatever in the evidence to indicate that Llewellyn Jordan was in fact ignorant of the will, of its presentation for probate, or of the initiation of the contest. The presumptions are against him, and he was at least so far represented by his coexecutor that when he applied to come in, and treating the case as if he had come in, he took his place by intervention subject to such disabilities as to the right of removal as then existed.

In Hanrick v. Hanrick, 153 U.S. 192, 197, 38 L. ed. 685, 687, 14 Sup. Ct. Rep. 835, 837, it was said: 'The act of March 3, 1887, chap. 373, corrected by the act of August 13, 1888, chap. 866, was intended, as this court has often recognized, to contract the jurisdiction of the circuit courts of the United States, whether original over suits brought therein, or by removal from the state courts. It not only amends the act of 1875, but it allows to none but defendants the right to remove any casewh atever, and, by new regulations of removals for prejudice or local influence, supersedes and repeals the earlier statutes upon this subject. 24 Stat. at L. 553; 25 Stat. at L. 434; Smith v. Lyon, 133 U.S. 315, 33 L. ed. 635, 10 Sup. Ct. Rep. 303; Fisk v. Henarie, 142 U.S. 459, 35 L. ed. 1079, 12 Sup. Ct. Rep. 207; Tennessee v. Union & P. Bank, 152 U.S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654.'

In Fisk v. Henarie, there cited, this court ruled that the words in the act of March 3, 1887, as corrected by the act of August 13, 1888, 'at any time before the trial thereof,' used in regard to removals 'from prejudice or local influence,' require the application to remove to be filed before or at the term at which the cause could first be tried and before the trial thereof. Tested by that ruling this application to remove came too late.

The judgment is reversed, and the cause remanded to the Circuit Court with directions to remand it to the Probate Court of Madison County, Alabama. 

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