Mr. Justice SHIRAS, dissenting.
I am unable to concur in the judgment of the court, or in the reasoning used to support it.
If it be true, as is argued in the opinion, that in the case of an administration of the estate of a decedeng by proceedings in the probate court of a state the possession of the assets by the administrator is the possession of the court, and such assets, as to custody and control, are to be deemed to be in gremio legis, so as to bring the case within the doctrine of Covell v. Heyman, 111 U.S. 176, 4 Sup. Ct. Rep. 355, and kindred cases, then it would follow, as I think, that the plea of the administrator, wherein he set up the pendency of the proceedings in the orphans' court of the state as a bar to the bill of complaint, ought to have been sustained. Between the granting of the letters of admnistration and the final distribution of the fund realized by the administration there is no point of time when the jurisdiction and possession of the state court change their character, and hence, if it be the law that the possession and control of the administrator is that of the court appointing him, within the meaning of the cases cited by the majority, there can be no point of time or stage of the proceedings between their inception and conclusion when the process of another court can be legitimately invoked to take from the state court its power of control and decision.
In this view of the case, citizens of states other than that having possession and control of the estate through its officer, must, like the home residents, assert their claims in the state court; and, if their claims have a federal character, and if the state courts should disregard that feature of their rights, the remedy would be found in an ultimate appeal to the supreme court of the United States.
But it is certain that such a view of this question cannot prevail without reversing a long line of decisions, of which Payne v. Hook, 7 Wall. 425, may be cited as an early, and Borer v. Chapman, 119 U.S. 587, 7 Sup. Ct. Rep. 342, as a recent, case, and in which this court has held that the jurisdiction conferred on the federal court by the constitution and laws of the United States extends to controversies arising in the distribution of estates of decedents, where such jurisdiction is invoked by citizens of other states than that of the domicile, notwithstanding the peculiar structure of the local probate system.
The logic of the opinion of the majority, as I understand it, seems to require a reversal of the action of the court below in overruling the administrator's plea, setting up that he was an officer of the state court, proceeding in the due and regular performance of his duties as such officer.
As, however, the opinion refrains from accepting this conclusion, though apparently rendered necessary by its own reasoning, the next questions that arise are as to those particulars in which the opinion reverses the decree of the court below.
Having conceded that the jurisdiction of the circuit court had duly attached under a bill in equity brought by citizens of another state, alleging legitimate matters of controversy arising out of the distribution of the decedent's estate, the opinion of the majority proceeds to consider the propriety of the action of the court below in the exercise of that jurisdiction.
The matters of controversy which formed the subject of the bill of complaint were two. The first was as to the legal effect of that provision of the will of the decedent which devised the proceeds of certain real estate, situated in the city of Pittsburgh, in equal shares to the Home of the Friendless and the Home for Aged Protestant Destitute Women, two charitable institutions organized under the laws of the state of Pennsylvania. As the decedent left no husband, children, brothers, or sisters, but certain first cousins and second cousins, a dispute arose whether both these classes were entitled to share in the distribution of the estate, and this formed the second subjectmatter of the bill.
In respect to the first matter, the court below held that, while the will of the decedent could not operate as a testamentary disposition of the real estate in question, because such will had not been executed in conformity with certain statutory requirements, yet that it constituted a valid declaration of a trust, under which the two charitable institutions were entitled to the proceeds of the real estate.
The controversy between the two classes of cousins the court resolved in favor of the first cousins, following, in so doing, the construction put upon the Pennsylvania intestate laws by the supreme court of that state.