US SUPREME COURT DECISIONS

The decision in Fisk v. Henarie, 142 U. S. 459, that the words in the Act of March 3, 1887, 24 Stat. 552, with regard to the removal of causes from a state court (as corrected by the Act of August 13, 1888, c. 868) "at any time before the trial thereof," used in regard to removals "from prejudice or local influence," were used by Congress with reference to the construction put by this Court on similar language in the Act of March 3, 1875, c. 187, 18 Stat. 470, and are to receive the same construction, which required the petition to be filed before or at the term at which the cause could first be tried, and before the trial thereof.

Mattie Lee Fennell, a citizen of the County of Madison, State of Alabama, died on the fifth day of August, 1897, leaving a will executed by her December 17, 1895, in which she devised and bequeathed all her property, real, personal, or mixed, to her mother, Mrs. M. E. Fennell, for life, and on her death to Llewellyn Jordan of the State of Mississippi. The will specifically provided that if the mother should die before the death of the testatrix, Llewellyn Jordan should take. Said Llewellyn Jordan and Walter E. Jordan, a citizen of Madison County, Alabama, were nominated and appointed executors of the will, chanrobles.com-red

Page 178 U. S. 230

to act as such without bond. The mother died in 1896. February 9, 1897, Walter E. Jordan, one of the executors named, presented his petition to the Probate Court of Madison County, Alabama, together with the original will, to have said will admitted to probate. The petition stated that the sister of testatrix, Ada F. McDonnell, resident of Madison County, was her next of kin, and would have been her only heir had she died intestate; that Llewellyn Jordan was temporarily residing at Washington, District of Columbia; that the attesting witnesses resided at Huntsville, Alabama, and prayed that a date might be set for the hearing of the petition and due notice thereof be given as required by law to the next of kin of said deceased, and that such decrees, orders, and other proceedings might be had and made in the premises as might be necessary to effect the due probate of said will according to law.

On the 11th day of February, 1897, Ada F. McDonnell, a sister, and only heir at law, of Mattie Lee Fennell, filed in the probate court her written contest of the alleged will, based on certain grounds therein set forth, and demanded a trial by jury. April 1, 1897, a jury was impaneled to try the contest, and an issue was then made up by the court between Walter E. Jordan, as plaintiff, and Ada F. McDonnell as defendant, and the trial entered upon. On April 15, 1897, after having considered the case, the jury came into court and reported that they were unable to agree upon a verdict, whereupon the jury were discharged and the case was continued.

May 28, 1897, Walter E. Jordan applied to the probate court to amend his petition by alleging

"that the said Llewellyn Jordan is the sole legatee and devisee under said will, and is the person really interested in defending the validity of said will and in answering and defending the contest filed in said court to annul and make invalid said will,"

and to add to the prayer of his petition the following:

"Petitioner prays that citation and all proper notice be given the said Llewellyn Jordan of this case and contest, and that he be made a party defendant to this petition."

The following order was entered thereon by the probate court, August 3, 1897:

"In the matter of the petition of W. E.

Page 178 U. S. 231

Jordan to make Llewellyn Jordan party defendant to this case, and that citation and all proper notice be given said Llewellyn Jordan as such, heretofore filed with the papers in this case, May 28th, 1897, was set for hearing this August 3d 1897. This day argued by Shelby and Walker for proponent and Richardson and Cooper for contestant. Motion overruled and amendment not allowed, and for reason good and satisfactory to this court the further hearing of this contest continued to Sept. 3d, 1897."

On the 4th of August, Llewellyn Jordan, without leave, filed with the clerk of the probate court a paper styled an "answer," which commenced as follows:

"In the matter of the contest of the probate of the will of Mattie Lee Fennell comes Llewellyn Jordan, named in the amendment to the petition in this cause filed by Walter E. Jordan, and intervenes in said proceeding and files this his answer to the contest of Ada F. McDonnell,"

and on that day the probate court entered the following order:

"In this cause, a paper purporting to be an intervention on behalf of Llewellyn Jordan having been endorsed 'filed' by the clerk of this court, without the knowledge of the court, and said paper being so endorsed filed without an order authorizing said Llewellyn Jordan to intervene herein, and the motion Made by Walter E. Jordan, the proponent, praying that said Llewellyn Jordan be made a party defendant hereto, on the 3d day of August, 1897, being overruled and disallowed, it is therefore ordered that said paper purporting to be an intervention of said Llewellyn Jordan be stricken from the files in this cause."

August 5, 1897, Walter E. Jordan, the proponent of the will, filed in the probate court a renunciation of his right to have letters testamentary issued to him, and asked that the same be issued to Llevellyn Jordan, couched in these terms:

"The undersigned, Walter E. Jordan, named in the will of Mattie Lee Fennell as one of her executors, renounces his right to have letters testamentary issued to him. He desires that the said will shall be probated, but that letters testamentary should issue alone to the coexecutor named in said will, Llewellyn Jordan."

August 12, 1897, Llewellyn Jordan filed his petition in the chanrobles.com-red

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Circuit Court of the United States for the Northern Division of the Northern District of Alabama to remove to that court the matter of the proceedings to probate and to contest the will of Mattie Lee Fennell, then pending in the probate court, on the ground that from prejudice and local influence he could not obtain justice in the probate court, or any other state court. The circuit court, on the same day, entered an ex parte order removing the cause from the Probate Court of Madison County, Alabama, to that court. Mrs. McDonnell made motions in the circuit court to remand the cause to the probate court, and to dismiss and strike from the files the petition of Llewellyn Jordan for the removal of the proceedings and cause from the state court.

Among the grounds assigned for the motion to remand were that the circuit court had no jurisdiction of a proceeding to probate a will; that Llewellyn Jordan was not a party defendant

"in any suit, proceeding, or controversy in the probate court of Madison County, Alabama, relating to the matter of the probate of the will of Mattie Lee Fennell, deceased,"

and the circuit court had no jurisdiction by virtue of the petition for removal; that the proceeding to establish the will was not a separate, but a single, controversy; that the application for removal was not made in time, or before the trial of the cause in the state court, and that the application for removal was made too late.

The circuit court maintained jurisdiction and overruled each of the motions.

A trial was subsequently had in the circuit court, which directed a verdict in favor of Llewellyn Jordan, contestee. A verdict was returned accordingly, and thereupon the court, November 8, 1898, entered this judgment:

"It is therefore considered by the court that the contest of Ada F. McDonnell of the last will and testament of Mattie Lee Fennell, deceased, and the several grounds of said contest be, and the same are hereby, overruled and denied. It is further considered and adjudged by the court that the contestee, Llewellyn Jordan, have and recover of the contestant, Ada F. McDonnell, the costs in this behalf expended, for which, if not otherwise paid, an execution may issue. "

Page 178 U. S. 233

Under the same date, the court certified to this Court the following questions of jurisdiction:

"1. Whether this court has jurisdiction to hear and determine the matters of controversy shown in the record between said Llewellyn Jordan and Ada F. McDonnell."

"2. Whether this court has jurisdiction to hear and determine the cause removed to this court from the state court, wherein it is sought to establish and probate the will of Mattie Lee Fennell, deceased, late a resident citizen of the county of Madison, State of Alabama."

"3. Whether this court has jurisdiction to remove the proceedings shown in the record from the state probate court upon the petition of the said Llewellyn Jordan."

"4. Whether this Court acquired jurisdiction of the matters in controversy between the said Llewellyn Jordan and Ada F. McDonnell upon the petition of the said Llewellyn Jordan to remove the said proceedings from the state probate court to this court."

"5. Whether this court has jurisdiction to entertain the petition of the said Llewellyn Jordan for the removal of said proceeding to this court after the mistrial of said cause in the state probate court as shown by the record filed herein."

"6. Whether this court has jurisdiction to entertain the petition of said Llewellyn Jordan to remove said cause from the state probate court to this court after a jury had been impaneled in the state probate court, the trial entered upon, the failure of the jury to agree, and a mistrial of said cause entered in said probate court."

"7. Whether this court has jurisdiction of the petition of said Llewellyn Jordan to remove said cause from said probate court to this court after filing in said probate court an answer to the contest of said will."

A writ of error was applied for and allowed March 15, 1899, and the record showed an order on March 16 adjourning "the Circuit and District Courts of the United States for the Northern District and Northern Division" sine die. On the 4th of April, 1899, the judge of the circuit court entered on the certificate a statement that though it was dated November 8, 1898, chanrobles.com-red

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it was actually signed "on the 15th day of March, 1899 at Birmingham, Alabama."