199 U. S. Syllabus. FARRELL v. O'BRIEN.1 APPEAL FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 193. Argued April 4, 5, 1905.-Decided May 29, 1905. Where the jurisdiction of the Circuit Court is invoked not only on the ground of diverse citizenship but also on a constitutional question, the mere averment of the latter is not sufficient if it is so wanting in merit as to be frivolous and, under such circumstances, if an appeal and a petition for certiorari are both pending, as in this case, the appeal will be dismissed; but if the correctness of the decree on the general issue should be considered the writ will be allowed and the record on appeal treated as a return thereto. As the authority to make wills is derived from the State and the requirement of probate is but a regulation to make a will effective, matters of pure probate, in the strict sense of the words, are not within the jurisIdiction of courts of the United States. Where a 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. The action or suit inter partes, however, must relate to independent controversies and not to mere controversies which may arise on an application to probate or a mere method of procedure ancillary to the original procedure. The statutory procedure of the State of Washington for probate of wills relates to nuncupative wills as well as ordinary wills, and the authority conferred on the courts to contest a will is a part of the probate procedure, and does not cause a contest to be a suit inter partes, and therefore the Circuit Court of the United States, in a case where jurisdiction is based on diverse citizenship, is without jurisdiction to declare either the non-existence of a nuncupative will or the nullity of the probate thereof by the probate court. Where the state statute provides that within a fixed period after its admission to probate interested parties may question the validity of a will or its probate, and the statute applies to written and nuncupative wills, the preliminary admission of a nuncupative will to probate and the temporary control taken of the property, both real and personal, by the probate court without the notice required by statute, do not so deprive the parties of their property without due process of law within the provisions of the Fourteenth Amendment as to afford a constitutional basis 1 Originally docketed as O'Callaghan v. O'Brien. for the jurisdiction of the Circuit Court of the United States in a suit where diverse citizenship exists to enjoin the enforcement of the decree of probate, and the decree of the Circuit Court of Appeals is final. THIS suit was commenced in the Circuit Court of the United States for the District of Washington, Northern Division, by the filing on June 20, 1901, of a bill on behalf of Hannah O'Callaghan and Edward Corcoran, appellants in this court. The defendants were Terence O'Brien, as administrator of the estate of John Sullivan, and Marie Carrau. W. M. Russell and S. F. Coombs, who are joined as appellees, were the sureties on a bond given by Marie Carrau, on the appeal taken by her to the Circuit Court of Appeals. It was averred that the complainants, aliens and residents of Ireland, were the first cousins and the sole heirs at law and next of kin of one John Sullivan, who died on September 26, 1900, in the city of Seattle, State of Washington, intestate, leaving a large amount of real and personal property. The appointment by the Superior Court of King County, State of Washington, of a special administrator and the subsequent appointment of the defendant O'Brien and his qualification as general administrator, were next averred. O'Brien and his co-defendant were alleged to be citizens of the State of Washington. The remaining averments were, in substance, that the defendant Marie Carrau, confederating with certain named relatives, had manufactured a pretended nuncupative will of John Sullivan, in favor of said Marie Carrau, under which will she was claiming to be the sole legatee and devisee of all his property. The will purported to have been made about 11 o'clock on the night previous to the death of Sullivan, in the presence of Marie Carrau and her relatives, and the testamentary words employed or the substance thereof were alleged to be the following: "I want you to remember and witness that I will all my property and personal effects, worth many thousands of dollars, to be the money and property of your sister, Marie Carrau. I am sick, and we know not what might happen." 199 U. S. Statement of the Case. It was averred that on the application of the defendant Carrau, and after the appointment of O'Brien as general administrator, the alleged nuncupative will was admitted to probate, and at the time of the filing of the bill stood as illegally probated on the records of the Superior Court of King County, State of Washington. It was, however, charged that the said Superior Court, in assuming to probate said nuncupative will, acted wholly without jurisdiction in the premises, for the reason that the estate bequeathed exceeded the value of two hundred dollars, and because no legal citations had been issued out of said court, and ten days had not elapsed between the filing of the will and the hearing of the proof offered in support of the same. It was further averred that under the laws of the State of Washington real estate could not be disposed of by a nuncupative will. Further averring that the state court, on the application of Marie Carrau, was about to make and enter a decree distributing to her the whole of the Sullivan estate upon the execution of a bond conditioned for the payment of her proportion of the indebtedness of the estate, to which decree the defendant O'Brien, administrator, it was averred, would yield obedience, and that said Marie Carrau on receiving possession would transfer the estate to others, and alleging that such an order and the action of the administrator thereunder would violate the due process clause of the Constitution of the United States, an injunction and the appointment of a receiver was prayed. It was also prayed that a decree might be made adjudging the alleged nuncupative will to be null and void, and perpetually restraining the defendant Carrau from setting up any title or claim thereunder, and adjudging and decreeing the complainants to be the only heirs at law of the decedent and entitled to receive his estate, and commanding the defendant administrator to surrender possession thereof to and account therefor to the complainants. On behalf of O'Brien, administrator, there was filed what was termed a "stipulation and answer," signed by the complain ants and their solicitor and the administrator. In this paper the appointment of O'Brien was recited, and there was also embodied a disclaimer of any interest of said administrator in the subject matter of the controversy between complainants and the defendant Marie Carrau, or any knowledge in respect thereto other than as shown by the records. It was stipulated that no costs should be taxed against the administrator, and that complainants should not be put to proof of the allegations of the bill, so far as the same affected the administrator, and that the stipulation should be taken as and for an answer of said defendant administrator to the bill of complaint. After other proceedings in the cause, not essential to be stated, an answer was filed on behalf of the defendant Carrau. Briefly stated, the answer admitted the death of Sullivan, affirmed the validity of the alleged nuncupative will and of the probate thereof, and further averred that under the laws of Washington a nuncupative will, duly proved and probated, "devises both real and personal property to any amount in value." After specially answering each of the allegations in the bill, it was, in substance, averred, "by way of defense and as questioning the jurisdiction of the court," that the court in which the alleged will had been probated had the sole, original and exclusive jurisdiction of the probation of said will and the management of the estate of the decedent; that in said court various persons, including one Eugene Timothy Sullivan, a resident of the State of Washington, had filed their verified petitions, claiming each to be the sole heir of the decedent; that certain of said claimants (Sullivan not being one of the number), and also the complainants and the State of Washington, had commenced in the state court proceedings to contest the validity of the alleged will, and that such proceedings were at issue and were still pending. Testimony was taken by commission and otherwise, under an agreement providing that the same might be read in evidence in any suit or proceeding which was then or might thereafter be pending in a state or Federal court affecting the estate 199 U. S. Argument for Petitioners. of John Sullivan. Both during the taking of the testimony and at the hearing which followed, the objection to the jurisdiction of the court was reiterated and exceptions were reserved. A decree was entered in favor of complainants. 116 Fed. Rep. 934. In substance the decree found the complainants to be the next of kin of the decedent; that O'Brien was the duly qualified administrator; that the alleged nuncupative will was not made; that the Washington court acted wholly without jurisdiction in the probate of the alleged will, and hence the proceedings in respect thereto were void. It was decreed that the complainants, as first cousins of the deceased, were entitled to share equally in the assets of his estate, and the defendant O'Brien was directed to recognize their right. The defendant Carrau was perpetually restrained from setting up any claim to said estate, under the alleged will or otherwise. On appeal the Circuit Court of Appeals reversed the decree of the Circuit Court for want of jurisdiction in that court over the subject matter and because of the absence of necessary parties, who, if made parties, would oust the court of jurisdiction, and the cause was remanded, with directions to dismiss the bill at the cost of complainants. 125 Fed. Rep. 657. The cause was appealed to this court. Following the filing of a motion to dismiss such appeal, an behalf of the complainants below for the allowance of a writ of certiorari, and the determination of these two motions was postponed to the hearing on the merits. application was made on Mr. James B. Howe, with whom Mr. Samuel H. Piles, Mr. George Donworth, Mr. Charles H. Farrell and Mr. Frederic D. McKenney were on the brief, for the petitioners. On the motion to dismiss. This court has jurisdiction and the appeal should not be dismissed. Jurisdiction below did not depend entirely on diverse citizenship. Northern Pacific v. Soderberg, 188 U. S. 526; Ayers v. Polsdorfer, 187 U. S. 585; Howard v. United States, 184 U. S. 676; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290; Loeb v. Columbia Town |