199 U. S.

PECKHAM, WHITE and MCKENNA, JJ., dissenting.

stated in the cases cited in the opinion of the court. Those from New York were based upon a matter of public policy, where the purpose was to overturn proceedings in assessments and taxation, in which the public was interested, and the courts refused in such cases to grant the writ. The result of the refusal in this case is to prevent the review of the findings of the Commissioner before whom the original proceeding was had, upon the question of probable cause. I admit that the weight of evidence will not in such cases be reviewed here, but evidence which conclusively rebuts the presumption of probable cause arising from the indictment and which is uncontradicted, may be looked at, and a finding of probable cause reversed. In order to refer to it the evidence must be part of the record, and in such a case as this the application for a writ of certiorari to bring up the evidence which the petitioner avers shows such fact is not addressed to the discretion of the court, but on the contrary the petitioner has the right to demand that it shall be granted. The right is none the less, when the want of probable cause rests upon conclusive evidence of the absence of the defendants from the district at the time when the indictment alleges the conspiracy was formed in such district. If defendants were not then there, they could not be guilty of the crime charged in the indictment. This case is an extreme illustration of the very great hardship involved in sending a man 3,000 miles across the continent, from California or Oregon, to this District for trial, where he is to bring his witnesses, and where on such trial it will appear that the court must direct an acquittal, because the averment of the formation of the conspiracy at Washington, D. C., is shown to be false to a demonstration.

The expense to a defendant in his necessary preparation for trial, and in procuring the attendance of witnesses in his behalf from such a distance, must necessarily be enormous, and in many, if not in most cases, utterly beyond the ability of a defendant to pay. The enforcement of the criminal law should not be made oppressive in such cases, and, therefore, when it

appears there was no probable cause to found the indictment upon, the order of removal should be refused.

I am authorized to say that MR. JUSTICE WHITE and MR. JUSTICE MCKENNA Concur in this dissent.

DIMOND v. SHINE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 410. Argued February 21, 23, 1905.-Decided May 29, 1905.

Hyde v. Shine, ante, p. 62, followed.

Mr. Frank H. Platt and Mr. J. C. Campbell, with whom Mr. Charles Page and Mr. Samuel Knight were on the brief, for appellant.

The Solicitor General and Mr. Francis J. Heney, Special Assistant to the Attorney General, with whom Mr. Arthur P. Pugh, Special Assistant United States Attorney, was on the brief for the United States.1

PER CURIAM. This case is indistinguishable from the last, and the judgment of the Circuit Court is also

Affirmed.

1 This case was argued simultaneously with Hyde v. Shine; for abstracts of briefs see ante, p. 64.

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 à regulation to make a will effective, matters of pure probate, in the strict sense of the words, are not within the jurisdiction 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 UnitedStates 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."

.

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