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Opinion of the Court.

of the real estate on Duquesne Way should be divided between the "Home for the Friendless" and the "Home for Aged Protestant Women," as a valid declaration of a trust, and in decreeing accordingly. But this assignment seems to have been abandoned, or, at all events, is not contended for in the appellants' brief. We content ourselves, therefore, with saying that we see no error in the judgment of the court below in that particular. It needs no argument to show that a written instrument, though inefficacious as a will, from a want of compliance with statutory requisitions, may yet operate as a declaration of a trust. 1 Perry on Trusts, § 91.

The other ruling was, that the first cousins were entitled to take the estate to the exclusion of the second cousins. In this the Circuit Court of the United States had to deal with a

question of local law. The state statutes prescribed the scheme of distribution, and, if the meaning of those statutes was disputable, the construction put upon them by the state courts was binding upon the Circuit Court.

Our inquiry is, therefore, restricted to the question whether the Circuit Court correctly applied the statute law of Pennsylvania as interpreted by the courts of that State.

The Supreme Court of Pennsylvania, in Brenneman's Appeal, 40 Penn. St. 115, construed the statute law, as it then stood, as preferring first cousins to the entire exclusion of second cousins; and this case was approved in the subsequent case of Hayes' Appeal, 89 Penn. St. 256. Some statutory changes were made in the law, but, in the recent case of Rogers' Appeal, 131 Penn. St. 382, where the opposite view of the case was presented by the same counsel who represents the appellants in the present appeal, in an argument termed by that court ingenious and able, it was held that Brenneman's Appeal should not be overruled or even modified.

The court below, therefore, in sustaining the claim of the first, to the exclusion of the second, cousins, followed the law as construed by the state Supreme Court.

The decree of the Circuit Court must be reversed, and the case remanded with instructions to enter a decree in favor of those citizens of other States than Pennsylvania, who

Dissenting Opinion: Shiras, J., Fuller, C. J.

have petitioned the Circuit Court for relief, and who are first cousins of the decedent, for their shares of the estate other than the real estate described in the declaration of trust, the amount of such shares being determined by the fact that first cousins only inherit; and an order that they recover from the administrator such sums thus found to be due. No decree will be entered in favor of the two corporations named in the first paragraph, and none in favor of the parties to the suit who are citizens of the State of Pennsylvania.

MR. JUSTICE SHIRAS, with whom concurred THE CHIEF JUSTICE, dissenting.

I am unable to concur in the judgment of the court, or in the reasoning used to support it.

If it be true, as is argued in the opinion, that, in the case of an administration of the estate of a decedent by proceedings in the probate court of a State, the possession of the assets by the administrator is the possession of the court, and such assets, as to custody and control, are to be deemed to be in gremio legis, so as to bring the case within the doctrine of Covell v. Heyman, 111 U. S. 176, and kindred cases, then it would follow, as I think, that the plea of the administrator, wherein he set up the pendency of the proceedings in the orphans' court of the State as a bar to the bill of complaint, ought to have been sustained. Between the granting of the letters of administration, and the final distribution of the fund realized by the administration there is no point of time when the jurisdiction and possession of the state court change their character, and hence, if it be the law that the possession and control of the administrator is that of the court appointing him, within the meaning of the cases cited by the majority, there can be no point of time or stage of the proceedings between their inception and conclusion when the process of another court can be legitimately invoked to take from the state court its power of control and decision.

In this view of the case, citizens of States other than that having possession and control of the estate through its officer

Dissenting Opinion: Shiras, J., Fuller, C. J.

must, like the home residents, assert their claims in the state court; and if their claims have a Federal character, and if the state courts should disregard that feature of their rights, the remedy would he found in an ultimate appeal to the Supreme Court of the United States.

But it is certain that such a view of this question cannot prevail without reversing a long line of decisions, of which Payne v. Hook, 7 Wall. 425, may be cited as an early, and Borer v. Chapman, 119 U. S. 587, as a recent case and in which this court has held that the jurisdiction conferred on the Federal court by the Constitution and laws of the United States extends to controversies arising in the distribution of estates of decedents, where such jurisdiction is invoked by citizens of other States than that of the domicile, notwithstanding the peculiar structure of the local probate system.

The logic of the opinion of the majority, as I understand it, seems to require a reversal of the action of the court below in overruling the administrator's plea, setting up that he was an officer of the state court, proceeding in the due and regular performance of his duties as such officer.

As, however, the opinion refrains from accepting this conclusion, though apparently rendered necessary by its own reasoning, the next questions that arise are as to those particulars in which the opinion reverses the decree of the court below.

Having conceded that the jurisdiction of the Circuit Court had duly attached under a bill in equity, brought by citizens of another State, alleging legitimate matters of controversy arising out of the distribution of the decedent's estate, the opinion of the majority proceeds to consider the propriety of the action of the court below in the exercise of that jurisdiction.

The matters of controversy which formed the subject of the bill of complaint were two. The first was as to the legal effect of that provision of the will of the decedent which devised the proceeds of certain real estate, situated in the city of Pittsburgh, in equal shares to the "Home of the Friendless" and the "Home for Aged Protestant Destitute

Dissenting Opinion: Shiras, J., Fuller, C. J.

Women," two charitable institutions organized under the laws of the State of Pennsylvania. As the decedent left no husband, children, brothers, or sisters, but certain first cousins and second cousins, a dispute arose whether both these classes were entitled to share in the distribution of the estate, and this formed the second subject matter of the bill.

In respect to the first matter, the court below held that, while the will of the decedent could not operate as a testamentary disposition of the real estate in question, because such will had not been executed in conformity with certain statutory requirements, yet that it constituted a valid declaration of a trust, under which the two charitable institutions were entitled to the proceeds of the real estate.

The controversy between the two classes of cousins the court resolved in favor of the first cousins, following, in so doing, the construction put upon the Pennsylvania intestate laws by the Supreme Court of that State.

This disposition by the court below of the two questions before it is approved by this court, but, in the opinion of the majority, the court below erred in including in the scope of its final decree all the parties before it, and in not restricting its decree to an adjudication of the case so far as the citizens of States other than Pennsylvania were concerned.

Be it observed that all the parties concerned in the matters in controversy were before the Circuit Court. The administrator, the two charitable institutions, and all the individuals constituting both classes of cousins were parties plaintiff and defendant in the suit, and none of them, either in the court below or in this court, objected to the jurisdiction of the Circuit Court, except the administrator, and his plea to the jurisdiction had been rightfully, as is admitted by the majority opinion, overruled.

In such a state of facts, why was not the action of the court fully warranted in awarding a decree finally establishing the rights of the parties before it?

There is force and logical consistency in the position that the settlement of a decedent's estate is not a suit at law or in

Dissenting Opinion: Shiras, J., Fuller, C. J.

equity, but that such an estate constitutes a res, as to which the jurisdiction of the probate court, when it once attaches, is exclusive.

The position of the court below in exercising its jurisdiction to the extent of final determination and enforcement is likewise consistent with reason, and, as I think, with the doctrine of our previous cases.

But the conclusion of the majority in the present case, requiring the court below to shorten its arm and to dismiss parties who were before it, assenting to its jurisdiction, is one that I cannot accept.

Let us see to what consequences such a doctrine will lead; and no better case than the one in hand is needed to illustrate its possible consequences.

The Federal court having held that the will of the decedent was efficacious as an acknowledgment of a valid trust, of course the real estate, which formed the subject of the trust, was withdrawn from the operation of the intestate law, and was declared to be the property of the cestuis que trustent. From this it follows that the rest of the estate is to be equally divided among the first cousins, who are held to be entitled to it. Here we have a consistent decree that binds all the world, for all concerned were before the court, and their contentions were all heard and considered. The administrator had no official or personal concern in the questions mooted. The suggestion that he would not be protected by obeying the decree of the Circuit Court from his responsibility to the orphans' court, which had appointed him, has no force. If the decree of the Circuit Court were declared valid by this court, of course that decision would, involving as it does a question of the jurisdiction of the Federal courts, be obligatory upon the state court, and a perfect protection to the administrator in carrying it into effect. There may be some foundation for criticism in the action of the court below in going behind the account that the administrator had filed in the orphans' court, and in subjecting him to verify his account before a master, but if this were error it did not affect the final decree, inasmuch as the account of the admin

VOL. CXLIX-40

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