'IN as M’oL1éA1v. 49
In rc Estate of McCnr:Aiv, Jr., Deceased.
(C'1?rcuit Court, W D. Prmnsylcania. December 14, 1885.)
1. RnMovAr. or CAUSE—SEPARABIlE Corrmovnusv.
Where the subject-matter of the suit is a testamentary trust, all the beneil-
ciaries, by themselves or their guardians, being joint exceptants to the trus-
tee‘s account, the purpose of the proceeding being the enforcement of the
trust,——thc preservation of the trust—estate, and its due administration,—heZd
that, as between one of the exceptauts and the trustee, there was no separable
controversy under the removal act. · -
*2. SA.M'E¥·CI’1‘IZlENSHIP on GUARDIAN.
Upon a question of the rightrof removal, the citizenship of the guardian
suing, and not that of his ward, is the test of jurisdiction.
Motion to Remand the Cause to the Orphans’ Court of Allegheny
County. ‘ A I   A-
° S. A. McClung, for the motion.
Wm. A. Stone, contra.
A Aonmson, J. Undoubtedly, in resolving the question of jurisdiction,
regard must be had _to the state of the record as it was when the
petition for removal was filed. But, discarding the subsequent order
of the state court, how stands the case in respect to the parties? On
the one side we find Mrs. Susanna McClean, A. J. Pentecost, guard.
ian of Harry McClean, a minor, and William H. Parsons, guardian
of Florence H. McClean, a minor, and on the other side Abdiel Mc-
Clure. Now, according to the allegations of the petition for removal, F
all these parties are citizens of the state of Pennsylvania, except
William H. Parsons, and his ward. Is there disclosed, then, in the
suit "a controversy which is wholly between citizens of different
states, and which can be fully determined as between them ?" For
the proper solution of the problem we must consider the subject-mat-
ter of the suit, and this we discover to be a testamentary trust; Mrs.
McClean and the two named minors being the benehciaries, and
Abdiel McClure the trustee. In the state court Mrs. McClean and
the guardians of the two minors joined in filing exceptions to the ac-
count of the trustee. The object of the proceeding is the enforcement
of the testamentary trust,—the preservation of the trust estate, and
its due administration. Now, certainly, all the beneficiaries are di-
rectly interested in the relief sought, and the presence of all the
named parties would seem to be necessary for full and complete re-
dress. Winchester v. Loud, 108 U. S. 130; S. C. 2 Sup. Ct. Rep.
311. I am, then, of opinion that there is here no separable contro-
versy, within the meaning of the removal act, between William H.
Parsons, guardian of Florence H. McClean, and the testamentary
trustee.
Nor would thecase be removable were the proposed amendment
(averring that the minor, Harry McClean, is a citizen of the state of
New York) allowed; for not only would the citizenship of Mrs. Mc-
v.26F.no.2—4