asap v. mann. 49
REED v. Rican and [others.
(Oirouit Oourt, LI D. Ohio, B'. .D.Q 1887.)
1. Rimovar. on C.wsms—0memsr. Junrsmorron.
The circuit courts of the United States, sitting in Ohio, have no jurisdiction
_ to try a controversy brought under the statutes of that state to contest the
validity of a will by an original bill for that purpose; and, as under the act of
. congress of March 3, 1887, no cause can be removed from a state court to the
United States circuit court, unless the circuit court would have had original
‘ jurisdiction of the controversy involved in the case, such a controversy is
not, under that act. a. proper subject for removal.
2. S.nm—Sm1=sn.•.1z1.m Corvrnovnnsv. .
Under Rev. St. Ohio, § 5859, providing that,f‘all the devisees, lcgatees, and
heirs of 'the testators, and other interested persons, including the executor or, _
administrator, must be parties" to a proceeding to contest the validity of a
will, where the contestant isa resident of Ohio, and of the three defendants
two are also residents of that state, and the third of New York, there is no
‘ separable controversy, for the purposes of removal, between the contestant
and such third defendant. · `
On Motion to Remand. V · ·
John Mc»S*weeney, Day &·I4;nch, and R L. Baldwin, for complainants.
Alonzo W. Taft, and Lloyd do Baldwin dc Shields, for respondents.
WELKER, J`. The case was commenced by Franklin A. Reed, in the
court of common pleas of Stark county, Ohio, to contest the validity of
the willof Gustavus P. Reed, deceased, before that time probated in
the probate court of said Stark county, alleging that he was the sole
heir at law of said Gustavus P. Reed, deceased; that Harriet A. Butler
W Reed and Adeline E. Reed are named as several legatees and devisees in
said supposed will; that James H. Hunt was administrator with will
annexed of said Reed, deceased; and alleging that the said Paper writing
was not the last will and testament of said Gustavus P. Reed; and prays
_ that an issue be made as to whether said paper writing is the last will
and testament of said Reed. Answers and cross-bills were Bled by
Harriet A. Butler Reed and Adeline E. Reed. _Petition Bled on the
twenty-fourth day of March, 1887, for removal by said Harriet A. But-
ler Reed, who says her name is Harriet A. Butler Reed, and wife of the
said Gustavus P. Reed, and states she is a citizen and resident of the
state of New York, and that all the other parties are citizens and resi- .
dents ofthe state of Ohio, and that the matter in dispute in said suit
exceeds the sum of $2,000, exclusive of costs. The record and papers
_ were duly Bled in this court, April 2, 1887. Motion Bled by the said
Franklin A. Reed and Adeline Reed to remand the case to the said
common pleas court. As cause for said remanding, they allege (1)
that the petition for removal was not Bled within the time prescribed by
the United States statute; (2) that the said cause is not a removable
[ cause, within the provisions and meaning of the act of congress of third
of March, 1887; (3) that the said circuit court has not original jurisdic-
tion of the controversy, and it is not, therefore, removable; (4) that
V.31F.r1o.2—4 ·