And it is further alleged that this decree of probate was unadvisedly rendered, and should be revoked, canceled, and recalled, for the reasons rendering said will, of which it is the probate, null and void, and because the testimony given in support of the probate was false and erroneous, and because, even if uncontradicted, it would be insufficient.

It is further charged in the bill that the defendant also claims title to the estate in Mississippi called "Beauvoir,” by virtue of a sale to him of said property, and a conveyance thereof made by Sarah Ann Dorsey, February 19, 1879, a copy of which is set out, which the appellants aver, however, to be null and void, for the same reasons on which they allege the will to be void, and because at the time the defendant occupied towards the said Sarah Ann Dorsey such a relation of trust and confidence as that he had no right to purchase the property, and that his consent to the sale thereof to himself, without security for the payment of the price, which was below its value, was a violation of his trust, for which reasons, it is claimed, said sale should be canceled and annulled. It is also alleged in the bill, "that, owing to the complicated character of the said agency thus held by defendant, an account thereof, as herein demanded, cannot properly be taken except in a court of equity."

The prayer of the bill is as follows:

·

"And that it may be decreed that the said alleged will of the said Sarah Ann Dorsey, dated Beauvoir, Harrison county, Mississippi, January 4, 1878,' and filed in the second district court for the parish of Orleans in the record of her succession, under No. 41,376 of the docket, on the fifteenth July, 1879, be canceled and annulled as absolutely void and of no effect in law; and that the decree of probate of said alleged will, and the decree recognizing said defendant to be the sole and universal legatee of said Sarah Ann Dorsey, and as such ordered to be put in possession of all the property left by her, wherever situated, both rendered on said fifteenth July, 1879, and in extenso set forth in Exhibit B, be revoked, canceled, and recalled as absolutely void and of no effect in law, and that the alleged sale and conveyance of property situate in Harrison county, Mississippi, by said Mrs. Dorsey to defendant, on the nineteenth February, 1879, and in extenso set forth in Exhibit C, be canceled and annulled as absolutely void and of no effect in law, in so far as either said will, decree of probate, decree of possession, or sale, in any manner to be pleaded by defendant as recognizing him as testamentary heir and universal legatee of said Sarah Aun Dorsey, or as a muniment of title or legal bar against your orators or their coheirs as her legal and sole heirs, and as such entitled to the ownership and possession of all and singular the property belonging to her estate, and which in any manner has come into the possession of said defendant, either as agent or trustee.

"And that it be further decreed that said defendant come to a full and fair account of all and singular his acts and doings of his agency under the said act of procuration of May 10, 1878; and that it be decreed the defendant furnish to this honorable court a full and detailed statement of all properties, real and personal, of said Sarah Ann Dorsey, which came into his possession or under his control and management as her agent, or of which he has taken possession under and by virtue of said alleged will or said decrees of the second district court of July 15, 1879, or said alleged sale of February 19, 1879.

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"And that it be further decreed that said defendant at once surrender unto orators, and, if so desired by them, jointly with their coheirs, the possession of all said property, including all books, papers, evidences, title-deeds, etc., which, belonging to said estate, at any time since May 10, 1878, has come into his possession.

"And that defendant be perpetually enjoined and restrained by the decree of this court from setting up or pleading said alleged will, said decree of pro. bate, said decree of possession, and said act of sale, or any title, right, or elaim thereunder, against your orators as next of kin and legal heirs of said Mrs. Sarah Ann Dorsey.

"And that it be further decreed that defendant make a full and true discovery and disclosure of and concerning all and singular the transactions and matters appertaining to or connected with his said agency, as well during the life-time as since the death of his principal. And that defendant may be decreed to come to an account with your orators, to be taken by and under the direction and decree of this honorable court, of all his dealings and transactions under the agency assumed by him under the act of procuration of May 10, 1878, or as trustee since Mrs. Dorsey's death, and to pay over to orators what shall be found due to them by defendant upon the taking of said account."

To this bill the defendant below filed a demurrer, which demurrer was sustained, and a decree rendered dismissing the bill without prejudice, to reverse which this appeal is prosecuted.

One of the main objects of this bill is to obtain from the defendant an account of the rents and profits received by him of the estate formerly belonging to Sarah Ann Dorsey, and, in order thereto, a declaration that the legal title to that estate is vested in them as her heirs at law and next of kin, in a decree that the alleged will under which the defendant claims, and the probate thereof, are null and void. It is admitted that the defendant is in possession, and that he holds adversely to the appellants; and there is a prayer in the bill for a recovery of the possession. In no respect does it differ from the frame of the bill in Hipp v. Babin, 19 How. 271. In that case the complainants sought by a bill in equity to recover possession of real estate to which they claimed title, as against a judicial sale, alleged to be void as against them, under which the defendants were in possession, and also for an account of rents and profits. The court refused to entertain the prayer for the recovery of the possession, on the ground that the remedy of the complainants at law was plain and adequate. It was urged that the bill would, nevertheless, lie for the account. To this Mr. Justice CAMPBELL, delivering the opinion of the court, replied as follows:

"Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the accounts for rents, profits, and improvements. The rule of the court is that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds

have been stated to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been suocessful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of a court of chancery to decide the title and to adjust the account."

This case was cited, and its doctrine approved and applied, in the recent case of Root v. Ry. Co. 105 U. S. 189–212.

In the present bill no circumstances are alleged to except the case from the general rule. The defendant did not sustain towards the complainants at any time any relation of trust and confidence; he was not their agent; and any right which they can assert against him for the rents and profits of the estate is altogether dependent upon their title to that estate, and cannot arise until that has been established. The title which they assert to that is not an equitable, but a legal title, as heirs at law and next of kin of Sarah Ann Dorsey, and is to be established and enforced by a direct proceeding at law for the recovery of the possession which they allege the appellee illegally withholds. There is no ground, therefore, on which the bill can be supported for the account as prayed for.

It is contended, however, for the appellants that the bill ought to have been maintained, for the purpose of decreeing the invalidity of the will of Mrs. Dorsey and annulling the probate; so far, at least, as it gave effect to the will as a muniment of title. It is well settled that no such jurisdiction belongs to the circuit courts of the United States as courts of equity; for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled by the decision of this court in the case of Broderick's Will, 21 Wall. 503. It was elaborately considered and finally determined in England by the house of lords in the case of Allen v. McPherson, 1 H. L. Cas. 191. In that country it was undoubtedly the practice of the courts of chancery to entertain bills to perpetuate the testimony of the witnesses to a will devising lands, at the suit of the devisee against the heir at law, it being alleged that the latter disputed its validity; and this, as Blackstone says, (3 Bl. Comm. 450,) "is what is usually meant by proving a will in chancery." It is also true that a bill in equity, in the nature of a bill of peace, or quia timet, would lie at the suit of a devisee against the heir at law, in which the validity of the will having been sustained by the verdict of a jury on the trial of an issue, devisavit vel non, a decree might be passed establishing the will and the title of the devisee under it, and perpetually enjoining the heir at law from setting up any claim of title against it. Story, Eq. Jur. § 1447. The heir at law, it was formerly held, was not entitled to file such a bill, for he could bring his action of ejectment and thus had his remedy at law; although such a bill would be entertained, if not objected to,

or if there were any impediments to the proper trial of the merits on such an action. Bootle v. Blundell, 19 Ves. 494. The modern rule is "that the usual and generally more convenient practice is to enable the heir to proceed by ejectment, but that it is open to the court to direct an issue, if from any cause that course appears desirable." Boyse v. Rossborough, 6 H. L. Cas. 1-42.

The manifest ground on which courts of equity in England proceeded in declining the jurisdiction in question was that, as to wills of personalty, the jurisdiction of courts of probate was exclusive, and that as to devises the remedy at law was plain, adequate, and complete. In this country, from a time anterior to the adoption of the constitution, the same distinction of jurisdiction has existed, all probate and testamentary matters having been confided either to separate courts of probate, under different denominations, or a special jurisdiction over them having been vested in courts having jurisdiction also over other subjects. For reasons growing out of our policy, which subjected real estate equally with personalty to the payment of debts, and in other respects freed it from feudal fetters, the probate jurisdiction was extended, but with varying effect in different states over wills of land, as well as of personal chattels, preserving, however, in some form, the rights and remedies of heirs at law to contest their validity. But it was almost universally recognized that no will could have effect, for any purpose, until admitted to probate and record by the local authority, although in some states, while the original probate was conclusive until set aside, for all purposes and as to all persons, in others it was conclusive, while in force at all, only as to personalty and for the purposes of administration, and not as a muniment of title as to devises. In states where it is held to have a conclusive force, formal modes are prescribed of contesting the validity of the instrument as a will, and of the regularity and legality of the probate, by suits regularly instituted solely for that purpose, and inter partes; but such proceedings are generally regarded as the exercise of probate jurisdiction, even if administered in courts other than that of original probate, but the judgment, as in other cases inter partes, binds only parties and privies. In those states where the probate, although conclusive while in force as to personalty and for the purposes of administration merely, is only prima facie evidence where the will is relied on as a muniment of title to real estate, its validity may become a question to be tried whenever and wherever a litigation arises concerning real property, the title to which is affected by it, just as in England, in actions of ejectment between the heir and the devisee, or those claiming through them. In a state, of which New York is an example, where, by its law, its own courts of general civil jurisdiction are authorized thus incidentally and collaterally to try and determine the question of the validity of a will and its probate in a suit involving the title to real property, there can be no question but that the circuit courts of the

United States might have jurisdiction of such a suit by reason of the citizenship of the parties, and in exercising it would be authorized and required to determine, as a court administering the law of that state, the same questions. And where provision is made by the laws of a state, as is the case in many, for trying the question of the validity of a will already admitted to probate, by a litigation between parties in which that is the sole question, with the effect, if the judgment shall be in the negative, of rendering the probate void for all purposes as between the parties and those in privity with them, it may be that the courts of the United States have jurisdiction, under existing provisions of law, to administer the remedy and establish the right in a case where the controversy is wholly between citizens of different states. The judicial power of the United States extends, by the terms of the constitution, "to controversies between citizens of different states;" and on the supposition, which is not admitted, that this embraces only such as arise in cases "in law and equity," it does not necessarily exclude those which may involve the exercise of jurisdiction in reference to the proof and validity of wills. The original probate, of course, is mere matter of state regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in all the states, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made. Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties.

It has been often decided by this court that the terms "law" and "equity," as is used in the constitution, although intended to mark and fix the distinction between the two systems of jurisprudence as known and practiced at the time of its adoption, do not restrict the jurisdiction conferred by it to the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the states, as in cases of actions for the loss occasioned to survivors by the death of a person caused by the wrongful act, neglect, or default of another, (Ry. Co. v. Whitton, 13 Wall. 287; Dennick v. Railroad Co. 103 U. S. 16,) but new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are entitled to it, according to the course and analogy of the common law. Ex parte Boyd, 105 U. S. 647; Boom Co. v. Patterson, 98 U. S. 406.