Opinion of the Court.

courts, as is clearly shown by the cases cited in the margin.* They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the'one in doing his work may injure the other in doing his work. Their separate services have an immediate common object, the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence, against the corporation, their common master.

The only cases cited by the plaintiff, which have any tendency to support the opposite conclusion, are the decisions of the Supreme Court of Wisconsin in Chamberlain v. Milwaukee & Mississippi Railroad Co., 11 Wis. 248, and of the Supreme Court of Tennessee in Haynes v. East Tennessee & Georgia Railroad Co., 3 Coldw. 222, each of which wholly rejects the doctrine of the master's exemption from liability to one servant

*Farwell v. Boston. & Worcester Railroad Co., 4 Met. 49; Holden v. Fitchburg Railroad Co., 129 Mass. 268; Coon v. Syracuse & Utica Railroad Co., 5 N. Y. 492; Wright v. New York Central Railroad Co,, 25 N. Y. 562; Besel v. New York Central Railroad Co., 70 N. Y. 171; Slater v. Jewett, 85 N. Y. 61; McAndrews v. Burns, 10 Vroom, 117; Smith v. Oxford Iron Co., 13 Vroom, 467; Lehigh Valley Coal Co. v. Jones, 86 Penn. State, 432; Whaalan v. Mad River Railroad Co., 8 Ohio State, 249; Pittsburgh, Fort Wayne & Chicago Railway Co. v. Devinney, 17 Ohio State, 197; Slattery v. Toledo & Wabash Railway Co., 23 Indiana, 81; Smith v. Potter, 46 Mich. 258; Moseley v. Chamberlain, 18 Wis. 731; Cooper v. Milwaukee & Prairie du Chien Railway Co., 23 Wis. 668; Sullivan v. Mississippi & Missouri Railroad Co., 11 Iowa, 421; Peterson v. Whitebreast Coal Co., 50 Iowa, 673; Foster v. Minnesota Central Railroad Co., 14 Minn. 277; Ponton v. Wilmington & Weldon Railroad Co., 6 Jones, N. C. 245; Louisville Railroad Co. v. Robinson, 4 Bush, 507; Mobile & Montgomery Railroad Co. v. Smith, 59 Ala. 245; Hogan v. Central Pacific Railroad Co., 49 Cal. 128 ;. Kielley v. Belcher Mining Co., 3 Sawyer, 500; Hutchinson v. York, Newcastle & Berwick Railway Co., 5 Exch. 343; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, 3 Macq. 300; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Morgan v. Vale of Neath Railway Co., 5 B. & S. 570. 736 ; S. C. L. R. 1 Q. B. 149; Tunney v. Midland Railway Co., L. R. 1 C. P. 291; Charles v. Taylor, 3 L. R. C. P. D. 492; Conway v. Belfast & Northern Counties Railway Co., Ir. R. 9 C. L., 498, and Ir. R. 11 C. L. 345.

Syllabus.

for the negligence of another, and the first of which has been overruled by the later cases in the same State.

This action cannot, therefore, be maintained for the negligence of the engineman in running his engine too fast, or in not giving due notice of its approach.

3. The statute of West Virginia, on which the plaintiff relies, has no application to this case. There is no evidence that the engine which struck the plaintiff was about to cross a highway; and the main, if not the sole, object of the statute evidently was to protect travellers on the highway. O'Donnell v. Providence & Worcester Railroad Co., 6 R. I. 211; Harty v. Central Railroad Co., 42 N. Y. 468. It may perhaps.include passengers on the trains, or strangers not trespassers on the line of the road. But it does not supersede the general rule of law which exempts the corporation from liability to its own servants for the fault of their fellow servants.

Judgment affirmed.

ELLIS and Others v. DAVIS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.

Argued November 9th and 12th, 1883.-Decided December 10th, 1883.

Conflict of Laws-Constitutional Law-Jurisdiction-Louisiana-Practice

Probate of Wills— Wills.

1. When an heir at law brings a suit in equity to set aside the probate of a will in Louisiana as null and void, and to recover real estate; and prays for an accounting of rents and profits by an adverse party in possession, who claims under the will, this court will refuse to entertain the prayer for recovery of possession, if the complainant has a plain, adequate, and complete remedy at the common law. Hipp v. Babin, 19 Howard, 271, affirmed.

2. Circuit courts, as courts of equity, have no general jurisdiction for annulling or affirming the probate of a will. Broderick's Will, 21 Wall. 503, affirmed.

3. 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

Opinion of the Court.

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.

4. If by the law obtaining in a State, a suit whose object is to annul and set aside the probate of a will of real estate can be maintained, it may be maintained in a federal court, when the parties are on one side citizens of the State in which the will is proved, and on the other citizens of other States. Gaines v. Fuentes, 92 U. S. 18, approved.

5. By the laws of Louisiana an action of revendication is the proper one to be brought for the purpose of asserting the legal title and right of possession of the heir at law to the succession, when another is in possession under claim of title by virtue of a will admitted to probate. In a proper case as to parties this action can be brought in the Circuit Court of the United States. And as it furnishes a plain, adequate and complete remedy at law, it is a bar to the prosecution of a suit in chancery.

6. In regard to the transfer of the Beauvoir estate to the defendant by the testatrix in her lifetime, no fraud is shown to warrant the interference of a court of equity.

Bill in equity by the appellants as heirs at law and next of kin to recover possession of real estate, part of which was devised to the appellee, by Sarah Ann Dorsey, by will duly proved in the State of Louisiana, and part of which was situated in Mississippi and was given to him by Mrs. Dorsey in her lifetime, and to set aside the will as made under undue influence, and the conveyance as obtained by the exercise of undue and improper influence, and to have an accounting of rents and profits. Demurrer to the bill. The bill was dismissed below. The plaintiffs appealed.

Mr. William Reed Mills for the appellants.

Mr. John D. McPherson and Mr. Calderon Carlisle for the appellee.

MR. JUSTICE MATTHEWS delivered the opinion of the court. The appellants, who were complainants below, are alleged in the bill of complaint to be, respectively, citizens of New York or Missouri, or British subjects and aliens, the defendant being a citizen of Mississippi.

It is set forth in the bill that Sarah Ann Dorsey died on July 4th, 1879, seized in fee simple of certain real estate, consisting

Opinion of the Court.

of two plantations in Tensas Parish, in Louisiana, an estate called Beauvoir and other property in Harrison county, Mississippi, and real estate, not described, in Arkansas, besides a large amount of movable and personal property, rights, and credits, also not described; that she died, leaving no heirs in the ascending or descending lines, the appellants being her next of kin and sole legal heirs in the collateral line, entitled to succeed, in case of intestacy, to the whole of her estate; that during her lifetime, on May 10th, 1878, Mrs. Dorsey, by a notarial act of procuration, constituted the defendant her agent and attorney in fact, with full and special powers to take exclusive control, charge, and management of all her property and estate, and all transactions and business in any manner connected therewith, including the power,

"For. and in her name to sue and to be sued, to purchase, lease, alienate, or encumber real estate situate anywhere, to borrow money, execute notes, or other evidences of indebtedness.

"That, in virtue of said agency, the defendant entered upon and assumed the exclusive management of said property and business, and took possession of all account books, title deeds, and papers thereto appertaining, and continued in the exclusive control, management, and possession as said agent to the time said agency expired by the death of the principal, and since her said death has still continued in said exclusive possession, management, and control.

"That though,, on the expiration of said agency, it was incumbent on and the duty of said defendant to render to said heirs, all of whom, and their respective rights, were well known to him, a full, fair, and correct account of his administration of said agency, and to surrender to them, all and singular, the said property, account books, title deeds, papers, &c., which had then come into his possession, and which your orators had well hoped he would have done, yet, on the expiration of his said agency, said defendant, notwithstanding amicable demand, refuses still so to do."

It is further alleged in the bill that the defendant claims that the said Sarah Ann Dorsey, by her last will and testament,

Opinion of the Court.

bequeathed to him all her property, for his own sole use and benefit, and thereby constituted him her sole heir and executor, and that, by virtue thereof, he is entitled in his own right to said estate; and the bill admits that on July 15th, 1879, the defendant caused to be filed in the Second District Court for the Parish of Orleans an instrument written and signed by Sarah Ann Dorsey, of which the following is a copy:

"BEAUVOIR, HARRISON CO., MISS., Jan. 4, 1878. "I, Sarah Ann Dorsey, of Tensas Parish, La., being aware of the uncertainty of life, and being now in sound health in mind. and body, do make this my last will and testament, which I write, sign, and seal with my own hand, in the presence of three competent witnesses, as I possess property in the States of Louisiana, Mississippi, and Arkansas. I owe no obligation of any sort whatever to any relation of my own; I have done all I could for them during my life; I therefore give and bequeath all my property, real, personal, and mixed, wherever located and situated, wholly and entirely, and without hindrance or qualification, to my most honored and esteemed friend, Jefferson Davis, ex-president of the Confederate States, for his own sole use and benefit, in fee simple, forever; and I hereby constitute him my sole heir, executor, and administrator. If Jefferson Davis should not survive me, I give all that I have bequeathed to him to his youngest daughter, Varina.

"I do not intend to share the ingratitude of my country towards the man who is, in my eyes, the highest and noblest in existence.

"In testimony whereof I sign this will, written with my own hand, in presence of W. T. Watthall, F. S. Hewes, and John C. Craig, subscribing witnesses, resident in Harrison County, Mississippi.

"At Mississippi City, on the fourth day of January, eighteen hundred and seventy-eight, the above-named Sarah Ann Dorsey signed and sealed this instrument, and published and declared the same as and for her last will, and we, in her presence and at her request, and in the presence of each other, have hereunto subscribed our names as witnesses.

"W. T. WATTHALL.

"F. S. HEWES.

"JOHN C. CRAIG."