52 FEDERAL REPORTER.
— United States to carry out the provision of the statute of the state of
‘ Ohio. - If the contest of the will is tried in this court, the record of the
case and the will would remain here, and the whole probate system of
the statechanged; and parties seeking for information in regard to wills
j be compelled to search the records of this court, as well as that of the
probate court, to find the proceedings in reference to the probate of wills.
It seems to me it was not the intention of congress to so invest this court
_ S with a jurisdiction that might produce these results. . .
This question of jurisdiction is not a new one in this court. , At the
` April term, 1878, this court had the same question before it in the case
of Howe v. Nesbit, (not reported,) and the court then decided, after full
argument, (Judges BAXTER and Wsmcan sitting together,) that the court
had no jurisdiction to try a controversy brought under the Ohio statute `
to contest the validity of a will, by-an original bill Bled `for that pur-
pose, and sustained a demurrer to suchbill for want of such jurisdiction,
J and dismissed the case for that- ground of demurrer. In that case the
will had been probated in the probate,-court of. Lorain county, and the
petition was Bled as the one -in this case was Bled, making the heirs at
· lawof the testatrix defendants, and asking that the cause be submitted
to a jury to deterrnine whether the said instrument was the valid last
will and testament of said Catharine Nesbit, and that the same mightbe
declared null and void, etc., I see now, after a careful examination of
V the authorities cited by counsel in this·case, no reason to change that
ruling. - 'V ‘ ·
Several cases are cited of decisions of the supreme court of the United
' States, but none of them meet the precise question made in this case.
The case in 92 U. S. 10, (Gaines v. Fuentes,) does not meet the ques-
tion. In that case suits had been brought to settle titles to lands, and
the will sought to be set aside wasclaimed as muniment of title, and,
as it had been properly probated, it could be disputed only by a suit to
set aside the probate, and declare the will void; and the court decided
i that the circuit court had jurisdiction to set aside the will, where the
» parties were such as gave it jurisdiction, but intimates want of such ju-
risdiction for purposes of establishing a will. — —
r In the case of Ellis v. Dam, 109 UL S. 485, 3 Sup. Ct. Rep. 327, it
was held."that circuit courts, as courts of equity,·have no general juris-
diction tbr annulling or afiirming the probate of a¤will;" ?‘ that jurisdic- ·
. tion as to wills, or their probateas such, is neither included in nor ex-
cepted 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 con-
. a ferred; and it cannot be exercised by them at all until, in a case at law l
» A or in equity, its exercise becomes necessary to . settle a controversy of
. which a courtrof the United States may take cognizance by reason of the
citizenship ofthe parties." . ‘ t I -·
In Re Estate of Fraser, 10 Chi. Leg. N. 390, in the Eastern district of
Michigan, Justice SWAYNE, on a motion to remand to the circuit court
of that state in a case appealed to it from the probate court in proceed-
ings to probate a will, says: