Const. 00. v. Jacksonville, T. & K. W. By. Co., 148 U. S. 372, 382, 13 Sup. Ot. 758. "/,f'T:.' The writ is denied,. and the petition dismissed.
COLT, Circuit Judge, concurs.
CILLEY v. , PATTEN et al. (Circuit OOurt, D. New Hampshire. July 6,. 1894:) No. 255.
"A. feEleral courtllns' uojurisdlctioll to disestablish 'It ,will admitted to in the state,eeourt and one oot where the state COU11;s of no sucb.p<>:w,ers.,
2. SAME-DIVERSE CITIZENSHIP-AcTUAL INTEHESTS OF PARTIES.
In deterroiningquel!ttQUS of jurisdiction :on the ground of diverse citithe parties, are,: to be placeq. on the side the, GOntroversy to which they belong according to their actual ,
a G. Cilley agl(linst WilIif,l!U A. Patten, in which. John J. Cilley and J. Henry Dearborn were also joined as will to in state establIsh, .a:n;,ea,i'her Will. :For reports"ofprevlOus decisiob:$: lIt the same IHigation, see 4t>'Fed 892; 1 O. G., A. 522, 50 Fed. 337';' 977; alsoi,62 Fed. 497. complainant., , ,,' , Walker & & Mitchell, for rel!lPQndent 'COLT, Circuit J1idge, and ALDRICH, District Judge: This is a hill inequity, and involves the valilility of,the will. Q£1Ma.tilda P,'Jenness, dated Mal'ch 26, 1884, in A. Patten is sole legatee, or, to speak more specificially, the disestablishment (If the will of 1884, admitted the of a ,will dated in 1878"n9t probated state court, and in ,which Horatio G. "eUley, JpAnJ. Cilley, sole legatees. It , ,,' also prays intbecil'cuit c()urtof the United States annulling the ,of the propa,tecourts in New Hampshire,an accounting ,by the unde,r the probated ,will of 1884 to the sole legaunprobateQ, wi)l of 1878, and, as incident theretol the setting aside of certaiJ:\ from the testatrix to Patten, th,e qates oft];le earlier will and the later ,.one. The conis that involved in the proceeding ,before,tlJJfiI court in 11, 1893) 58 Fed. 971:,111e queEitiQn.then considered proceeded npon tbe idea that the 'federal courts, had no jurisdiction over the -probate of wills in a state where there was no statute conferring juris. diction upon its Qr common-law CO'1lrts.' We, think the . reasoning there tp.e presentcause.df ,the! will of 1884
A.W:fP:CII, District Judge.
stands, all rights which, the estate might otherwise have to set theassignments,asid.e are merged in the will and Patten, who is executor .and .sole legatee thereunder. The right to contest the assignments, therefore, is incident to the will itself, which can only be overthrown in the probate court. In other words, if the will stands, no one has any right or interest to contest the assignments which relate to the property operated upon by the Will; and the question of the existence of the paper as a valid will can only be determined by a probate court proceeding to that end. So it follows that no issue exists as to the assignments except as incident to the jurisdiction to disestablish the will of 1884, and establish the will of 1878; and it results from such situation that we cannot reach. an issue as to the property assignments without 'disestablishing a will admitted to probate in the state probate court, and establishing one nQt admitted, and this would ·involve the exercise of jurisdiction which, we have already said (58 Fed. 977), does not attach to a federal court in a cause coming from the state of New Hampshire, where courts of equity do not exercise such powers. Moreover, if the SUbject-matter were cognizable here in a proper cause, the diverse citizenship contemplated by statute is lacking. Thecour;t directed evidence to be taken upon the question of controversy; and upon the evidence we find, as a matter of fact, that there is no controversy between John J. Cilley and J. Henry Dearborn, of New Hampshire, who are made defendants, and Horatio G. Cilley, of Nebraska, who is the .sole complainant of record, and .that the parties were so arranged for the purpose of creating a cause cognizal;Jle in the federal courts. In reaching this conclusion, we have considered the nature of the contest as disclosed by the pleadings, as well as the evidence submitted by the parties, and have not been unmindful of the fact that John J. Cilley has been before this court on many occasions ,during the contest as to jurisdiction, advising with the learned counsel who contends that the last will should be broken and the earlier will established. The statute of August, 1888 (Supp. Rev. St. p. 614, § 5), provides, in substance, that if, at any time af,ter suit brought in the'circuit courts, or removed thereto, it shall appear that such suit does not really and substantially involve a dispute or controversy within the jurisdiction of such court, or that the parties to such suit have been improperly or collusively joined, either as plaintiffs or defendants, for the purpose of creating a case cogllizable or removable under such act, the court shall proceed no further, but shall dismiss the suit, or remand it to the court from which it was removed, as justice require. The court not only may, but most assuredly shotLld.. for the purpos,e of determining its jurisdiction over the controversy, look to the real interests of the parties, in order that it may know whether the parties, adversely arranged on the record, have a real and substantial controversy, such as the statute con· templates, or whether the controversy is fictitious. and therefore without substance as a basis for assumption of jurisdiction. Jurisdiction depending upoJ.l diverse is founded. upon COn.tro-
versial relations, and this means a real controversy as to the facts involved in the suit. Federal jurisdiction is not founded in fie-tion, nor dOelil it depend upon' the arbitrary or capricious arrangement of the parties by the pleader. While it is doubtless proper, in the first instance, and for the, purposes of a decree binding all, to join as defendants all parties interested who do not desire to institute suit as plaintiffs, when the parties are before thecouct the court will, for the purpose of ascertaining its' jurisdiction, arrange them according to, their actual, interests, and place them on the side of the controversy to Which· they belong, and, if it then appears that the controversy is not oetween citizens' of different states, the condition contemplated by statute is wanting, and the court is without jurisdiction. The duty of' the court to inquire would seem to be as fully recognized as its power to act as justice may require when the facts are made to appear by the parties upon motion and evidence. stat. Aug. 13, 1888, § 5; Bland v. Fleeman, 29 Fed. 669; Marvin'\'. Ellis, 9 Fed. 367; Covert v. Waldron, 33 Fed. 311; Rich v. Bray, 37 Fed. 273; Williams v. Nottawa, 104 U. S. 209; Detroit City v. Dean, 106 U. S. 537, 1 Sup. Ct. 560; Railway Co. v. Swan, 111 U. S. '379, 4 Sup. Ct. 510; Cashman v. Canal Co., 118 U. S. 58, 6 Sup. Ct. 926. The interests of the Nebraska Cilley and the New Hampshire Cilley and Dearborn lie in the same direction. As sole legatees under the will of 1878, they claim, in substance, that all acts subsequent to 1878 should be annulled, and the will -of 1878 established, while Patten alone claims tha.t the will of 1884 is valid, and, unless defeated. by proper proceedings in the probate court, supersedes all prior wills; and this is the controversy. Place the New Hampshire Cilley and Dearborn on the side of the controversy to which they belong,· and there is no jurisdiction on the ground of diverse citizenship. The ingenious or capricious act of counsel in setting them up on the wrong side does not confer jurisdiction. For the above reasons, the bill is dismissed, with costs to the defendant Patten. COLT,Circuit Judge, concurs.
MAYOR,ETC., OF BALTIMORE
v. POSTAL TEL. CABLE CO.
February 23, 1894.)
(Gircuit £J9urt, D. MarYland.
REMOVAL-JURISDICTION-AMOUNT IN CONTROVERSY.
, An was brought by a city in a, state court to recover a tax oJ: $2 for each of 509 poles maintained in the but tho declaration conclUded: "And plaintiff claims $10,000." Held, that the actual amount in dispute was but the amount of the tax, $1,018, and a circuit court could Dot take jurisdiction by removal.
Defendant could Jl.ot' maintain that the real mattel,' in t:f;lpute was its right to keep in the streets without paying the tax and without being liable to the f!.ne M $10 per pole for nonpayment, imposed by the .. city ordiJlanee, and.' lUre penalty of having its poles remoY'ed; for in an