The principal questions presented by the record in this case are-First, whether, by the laws of Oregon in force in 1872, a testator was authorized or empowered to devise after-acquired real property; and, second, whether, if such power existed, the after-acquired real estate in controversy passed by the testator's will in the present case.
The facts which give rise to these questions are as follows: Peter De Witt Hardenbergh, unmarried and without children, a citizen of Portland, Or., died in 1886, leaving a will executed by him May 15, 1872, which was duly probated, and remains in full force and effect. By the first clause of the will the testator devised to several nephews named therein a certain farm in Ulster county, N. Y.; by the second clause he devised to his sister Catherine L. Tremper all his right, title, and interest in and to all other lands in that county and state; and by the third and last clause he gave and bequeathed to his sister Ellen E. Ray 'all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the state of Oregon or elsewhere, except as aforesaid; also, all my personal property and estate, of whatsoever kind and nature.'
At the date of the will the testator owned certain real property in Portland, Or., and in January, 1882, some 10 years after the will was executed, he purchased, and at the time of his death owned, a parcel of land in the city of Portland, valued at $30,000, which is the subject of controversy in this suit.
Ellen E. Ray, the devisee under the third clause of the will, died intestate in 1873, leaving, as her heirs, Thomas L. Ray, Rachel L. Ray, Hylah E. Ray, and Mary E. Arbuckle, citizens of Oregon; John De Witt Ray, a citizen of Illinois; and Sarah A. Ray, a citizen of New York. Upon the death of the testator, these heirs of Ellen E. Ray, who, under the laws of Oregon, (section 3077, Hill's Ann. Laws Or.,) succeeded to her rights as devisee, took possession of the premises in controversy, as well as other real property in Oregon owned by the testator at the time the will was executed.
Herman R. Hardenbergh, a brother of the testator, claimed and demanded an interest in common with the heirs of Ellen E. Ray in the real property acquired after the execution of the testator's will, on the ground that as to those lands he died intestate. This claim was denied, and he thereupon brought an action at law in the nature of ejectment against Charles Sliter, J. C. Miller, and W. H. West, citizens of Oregon, who were in possession of the demanded premises as tenants of the heirs of Mrs. Ellen E. Ray.
Subsequently, on their own motion, these heirs were substituted as defendants in place of their tenants, against whom the action was originally brought, and by their answer set up that, by the law of Oregon, the land in question passed to them by the third clause of the will, and that the testator did not die intestate in respect thereto.
The heirs of Ellen E. Ray having thus made themselves parties to the suit, and one of them (Sarah A. Ray) being a citizen of the same state (New York) as the plaintiff, the point was made in the court below, and has been presented in this court, that the jurisdiction of the United States circuit court was thereby defeated.
This objection to the jurisdiction of the court is without merit, and was properly overruled by the lower court. When the original suit was brought against Sliter, Miller, and West, the persons in possession, the court acquired jurisdiction of the controversy, and no subsequent change of the parties could affect that jurisdiction. This is well settled by the authorities. Mollan v. Torrance, 9 Wheat. 537; Dunn v. Clarke, 8 Pet. 1; Clarke v. Matthewson, 12 Pet. 164; Whyte v. Gibbes, 20 How. 542; Phelps v. Oaks, 117 U.S. 236, 240, 6 Sup. Ct. 714. In this last case it was held that in ejectment against tenants in possession of real estate, whose landlord is a citizen of another state, the plaintiff has a real and substantial controversy with the defendant, within the meaning of the act for the removal of cause from state courts, which continues after the landlord is substituted and becomes a party for the purpose of protecting his own interests. The rule announced in this case clearly settles, in a case like the present, that, where the jurisdiction of the court has completely attached against the tenant in possession, the substitution of the landlord as a defendant for such tanant will in no way affect or defeat the jurisdiction of the court.