fraud of Harriet C. Stewart, one of the persons named therein as a legatee.

It was thereupon ordered that the following issues be transmitted, to be tried in the circuit court before a jury:

"First. Whether the said paper writing purporting to be the last will and testament of the said Levin M. Powell, bearing date on the 27th of October, 1884, was executed and attested in due form of law.

"Second. Whether the contents of said paper writing were read to or by the said Levin M. Powell at or before the alleged execution thereof by him.

"Third. Whether the said Levin M. Powell, at the time of the alleged signing of said paper writing, was of sound and disposing mind, and capable of executing a valid deed or contract.

"Fourth. Whether the said writing was executed by the said Levin M. Powell under the influence of suggestions, importunities and undue persuasion of the said Harriet C. Stewart, or any other person or persons, when his mind, from its disordered, diseased, and enfeebled state, was unable to resist the same.

"Fifth. Whether the execution of said paper writing was procured by fraud, misrepresentation, or undue influence or persuasion of the said Harriet C. Stewart, or any other person or persons acting of their own volition or under the direction of the said Stewart.

Subsequently in the supreme court of the District, holding a circuit court, an order was made that, upon the trial of the above issues before a jury, Mrs. Colmesnil, and others who had filed caveats, should be plaintiffs, and Charles D. Drake and William B. Webb, as the proponents of the last will and testament of the deceased, and who were named as his executors, should be defendants.

The verdict of the jury consisted of answers to the above questions. The first, second, and third were answered in the affirmative; the fourth and fifth, in the negative. A motion for a new trial having been overruled, the caveators prosecuted an appeal to the general term, which affirmed the action of the special term.

At a subsequent date the caveators filed in the supreme court of the District, holding a special term for what is called "orphans' court business," the record of the trial of the issues submitted to the jury, and moved that the verdict be set aside, upon the ground that the court trying those issues erred in rejecting competent testimony, in its instructions to the jury, In refusing to instruct the jury as requested by the caveators, and in rulings during the trial to which they took exceptions. This motion was overruled, and an order was made admitting the writing in question to probate and record as the will of Levin M. Powell, and directing letters testamentary to issue to the persons named therein as executors. From this last order an appeal was taken to the general term, which affirmed the order of the special term overruling the motion to set aside the verdict of the jury, as well as the order admitting the above writing to probate as the last will of the deceased.

The question raised by the first motion

to dismiss for want of jurisdiction in this court, having been reargued, will be again examined in connection with the motion to dismiss upon the ground that the case, in any event, is one of equity cognizance, to be brought here only by appeal. We do this because no opinion was delivered when this motion was overruled at a former term.

The defendants in error contend, in effect, that this court is without jurisdiction to review an order of the supreme court of the District, by virtue of which a writing is finally admitted to probate as the last will and testament of the person signing it, whatever may be the value of the matter in dispute. This, it is argued, results from the statutes regulating the jurisdiction of the courts of the District, and the decisions of this court declaring their scope and effect.

The act of February 27, 1801, concerning the District of Columbia, (2 St. 103,) created the circuit court of the district, with all the powers in such court, and the judges thereof, that were vested by law in the circuit courts and judges of the circuit courts of the United States, and with jurisdiction of all crimes and offenses committed in the District, and of all cases, in law and equity, between parties, both or either of which shall be residents thereof. The eighth section of the act provided that “any final judgment, order, or decree in said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined and reversed or affirmed in the supreme court of the United States, by writ of error or appeal, which shall be prosecuted in the same manner, under the same regula. tions, and the same proceedings shall be had therein, as is or shall be provided in the case of writs of error on judgments, or appeals upon orders or decrees, rendered in the circuit court of the United States. The same act created an orphans' court in each of the counties of Washington and Alexandria, that should have the powers and perform the duties prescribed in reference to such courts in Maryland, appeals therefrom to be to the circuit court of the District, which should therein have all the powers of the chancellor of that state. Section 12.

Among the statutes of Maryland then in force was the act of 1798, which authorized the orphans' court, whenever required by either party to a contest therein, to direct a plenary proceeding by bill or petition, to which there should be an answer on oath or affirmation, and which made it the duty of the court, when either party required it, to direct an issue or issues to be made up and sent to the court of law most convenient for trying the same. The act provided that such courts of law "shall have power to direct the jury, and grant a new trial, as if the issue or issues were in a suit therein instituted, and a certificate from such court, or any judge thereof of the verdict or finding of the jury, under the seal thereof, shall be admitted by the orphans' court to establish or destroy the claim or any part thereof;" also that "the orphans' court shall give judgment or decree upon the bill and answer, or upon bill,

answer, deposition, or finding of the jury. 2 Kilty's Laws Md. c. 101, subc. 8, § 20; Dennis' Probate Laws D. C. 67.

By the act of March 3, 1863, (12 St. 762,) the circuit, district, and criminal courts of the District were abolished, and the supreme court of the District was established, with general jurisdiction in law and equity, and with the powers and jurisdiction then possessed and exercised by the circuit court. That act provided that one of the justices might hold a district court of the United States for the District of Columbia in the same manner, and with the same powers and jurisdiction, possessed and exercised by other district courts of the United States, and a criminal court with the same powers as were exercised by the criminal court of the District; that special terms of such supreme court should be held by one of the justices, at such time as the court in general term should direct, and by which non-enumerated motions in suits and proceedings at law and in equity, and suits in equity, not triable by jury, should be heard and determined, such justice, however, having the power to order any such motion or suit to be heard, in the first instance, at the general term; and that "any party aggrieved by any order, judgment, or decree, made or pronounced at any such special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term of said supreme court, and upon such appeal the general term shall review such order, judgment, or decree, and affirm, reverse, or modify the same, as shall be just. Section 5. It also provided that "all issues of fact triable by a jury or by the court shall be tried before a single justice; when the trial is by a jury, at a circuit court; and when the trial is without jury, at a circuit court or special term." Section 7.

The eighth and ninth sections of that act are as follows:

"Sec. 8. If, upon the trial of a cause, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised, but such case or bill of exceptions need not be sealed or signed. The justice who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages: provided, that such motion be made at the same term or circuit at which the trial was had. When such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.

"Sec. 9. A motion for a new trial on a case or bill of exceptions, and an application for Judgment on a special verdict or a verdict taken subject to the opinion of the court, shall be heard in the first instance at a genral term.

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The next act of congress having any

bearing upon the question before us is that of June 21, 1870, which provides that the several general and special terms authorized by the act of March, 3, 1863, “which have been or may be held, shall be, and are declared to be, severally, terms of the supreme court of the District of Columbia; and the judgments, decrees, sentences, orders, proceedings, and acts of said general terms, special terms, circuit courts, district courts, and criminal courts, theretofore or hereafter rendered, made, or had, shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of said sureme court: provided, that nothing herein contained shall affect the right of appeal, as provided by law." The same act abolished the orphans' court, and invested the justice holding the special term of the supreme court for that purpose with the powers and jurisdiction then held and exercised by the former court, subject, however, to the provisions of the fifth section of the act of March 3, 1863, giving an appeal to the general term from any order involving the merits. 16 St. 160.

The provisions of the acts of 1863 and 1870, so far as they regulate the jurisdiction and practice in the courts of this district," are embodied in chapter 23 of the Revised Statutes of the District, without any material change.

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When the Revised Statutes of 1874 were enacted, the jurisdiction of this court as to judgments or decrees of the supreme court of the District was thus defined: "The final judgment or decree of the supreme court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs of errors on judgments, or appeals from decrees rendered in a circuit court.' Rev. St. § 705. But by an act approved February 25, 1879, (20 St. 320,) such power of review was extended to cases where the matter in dispute exceeded the value of $2,500, exclusive of costs; and by an act passed March 3, 1885, the amount was increased to $5,000, with the reservation of the right of appeal or writ of error, without regard to the sum or value in dispute, in cases involving the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States. 23 St. 443.

It is contended, on behalf of the appellees that although this court has jurisdiction to re-examine and reverse or affirm the final judgment or decree of the supreme court of the District of Columbia, in any case where the value of the matter in dispute, exclusive of costs, exceeds $5,000, it has not jurisdiction to re-examine the final judgment of that court, in general term, affirming an order of the same court, in special term, admitting a will to probate and record, although such final judgment and order, unless reversed, may affect the ownership or disposition of property of a greater value than that amount. And this view, it is argued, is sustained by the

decisions in Van Ness v. Van Ness, 6 How. 62, 67, and Brown v. Wiley, 4 Wall. 165. We are of opinion that this point was neither involved nor decided in those cases.

Before examining those cases our attention will be first given to that of Carter's Heirs v. Cutting, 8 Cranch, 251. That was an appeal, under the act of 1801, from a judgment of the circuit court of this district, affirming a judgment of the orphans' court of Alexandria county, (which court had the same jurisdiction, and was created by the same act, as the orphans' court of Washington county,) dismissing a petition filed for the revocation and repeal of the probate of a will. Two objections to the appeal were urged in this court: (1) That by the act of 1801 the circuit court had only the power of the chancellor of Maryland, and that by the laws of Maryland the decree of the chancellor was final; (2) that the decree of dismissal was not a final judgment, order, or decree of the circuit court, wherein the matter in dispute, exclusive of costs, exceeded $100. Mr. Justice STORY, speaking for the court, said as to the first objection: "We are of opinion that the conclusiveness of its sentence forms no part of the essence of the powers of the court. Its powers to act are as ample, independent of their final quality, as with it. Besides, the act of February 27, 1801, has expressly allowed an appeal from ‘all final judgments, orders, and decrees of the circuit courts,' where the matter in dispute exceeds the limited value, and there is nothing in the context to narrow the ordinary import of the language. We cannot admit that construction to be a sound one, which seeks by remote inferences to withdraw a case from the general provisions of a statute, which is clearly within its words and perfectly consistent with its intent. The case of Young v. Bank, 4 Cranch, 384, is, in our judgment, decisive against this objection." In reference to the second objection, it was said: "It is conceded by both parties that the estate devised to the respondent, Sally C. Cutting, is worth several thousand dollars. If, then, the probate of the will had any legal operation, and was not merely void, the controversy as to the validity of that probate was a matter in dispute equal to the value of the estate devised away from the heirs." The decree of the circuit court in that case, dismissing the petition, was reversed, and the cause remanded to that court, with directions to proceed to a hearing upon the merits. The circuit court was thus required to determine, upon its merits, the validity of the probate of a will.

The case of Van Ness v. Van Ness also arose under the act of 1801. It involved the question whether a particular person was the widow of an intestate, and upon that question depended the right of that person to have letters of administration granted to her. This issue, having been raised in the orphans' court by petition, was, pursuant to the Maryland statute of 1798, sent to the circuit court, as originally established, for trial by jury. Under the instructions of that court, a verdict was returned against the petitioner; and by Its order the finding of the jury was certiv.10s.c.-31

fied, under seal, to the orphans' court, where the petition was dismissed. From that order a writ of error was brought, raising the question whether this court could take cognizance of the case, and inquire whether the circuit court erred in its instruction to the jury. Chief Justice TANEY, speaking for the court, said: "It is true the orphans' court has no power to grant a new trial, and is bound to consider the fact to be as found by the jury: and consequently the judgment of that court must be against the plaintiff. But the matter in contest in the orphans' court is the right to the letters of administration. And it is the province of that court to apply the law upon that subject to the fact, as established by the verdict of the jury, and to make their decree accordingly; refusing to revoke the letters granted to the defendant, and dismissing the petition of the plaintiff. The suit between the parties must remain still pending until that decree is pronounced. The certificate from the circuit court is nothing more than evidence of the finding of the jury upon the trial of the issue. It merely certifies a fact; that is to say, that the jury had so found. And the order of the circuit court, directing a fact to be certified to another court to enable it to proceed to judgment, can hardly be regarded as a judgment, order, or decree, in the legal sense of these terms as used in the act of congress. Certainly it is not a final judgment or order, for it does not put an end to the suit in the orphans' court, as that court alone can dismiss the petition of the plaintiff which is there pending, and no other court has the power to pass a judgment upon it. A verdict in any court of common law, if not set aside, is in all cases conclusive as to *the fact found by the jury, and the judgment of the court must follow it, as the orphans' court must follow the verdict in this case. Yet a writ of error will not lie upon the verdict."

The case of Brown v. Wiley is to the same effect. That case arose upon a petition filed in the orphans' court before the act of 1863 was passed, raising the question whether the petitioner was a child of the intestate, and as such entitled to a certain fund in the hands of an administratrix. After that act was in force the issues were submitted to a jury impaneled in the supreme court of the District, at special term, and was determined in favor of the petitioner. A motion for a new trial, on exceptions duly taken, was heard at general term, and overruled. The cause was then remanded, with direction to proceed according to law. Thereupon an order was made that the finding of the jury be certified by the clerk to the orphans' court, which was still in existence. From that order a writ of error was brought, and this court, holding that it was not a final order, dismissed the writ. That this was the utmost extent of the decision is manifest from the following extracts from the opinion delivered by Chief Justice CHASE:

"The case, in almost every particular, is identical with that of Van Ness v. Van Ness. In that case, as in this, an issue of fact was sent out of the orphans' court to the circuit court to be tried by a jury; was

*

tried, and found in the negative. Excep- | tions were taken to the rulings upon the trial, and an order was made certifying the finding to the orphans' court. The proceeding was brought into this court by writ of error, which was dismissed for want of jurisdiction. The order certifying the finding to the orphans' court, in the case of Van Ness, was identical in effect with the two orders overruling the motion for new trial, and certifying the finding in the case before us. In each case the exceptions taken at the trial before the jury were overruled, and nothing was left for action in the court before which the issues were tried, but the cause went to the orphans' court for final judgment. In that case it was held that the order was not one which could,"under the act, be re-examined on writ of error, and we see no reason for a different ruling in this.

Neither of the above cases involved the precise question now under examination. The decision in Carter's Heirs v. Cutting was that the final order of the orphans' court, dismissing a petition which sought the revocation of the probate of a will, could be reviewed upon its merits in the circuit court, and that the final order of the latter court could be re-examined in this court. The decision in both Van Ness v. Van Ness and Brown v. Wiley was that an order by the circuit court in the first case, and by the supreme court of the District in the other case, which directed the finding of the jury to be certified, simply directed a fact to be certified, and therefore was not a final judgment, reviewable by this court. In none of the above cases did the question arise whether a final order, -made after the trial before the jury of the issue of will or no will,-admitting to probate a paper presented as the last will of the decedent, was reviewable upon its merits; by the circuit court while the act of 1801 was in force, or by the supreme court of the District after the passage of the act of 1863. Nor did either of those cases involve any question as to the jurisdiction of this court to re-examine a final judg ment affirming an order of probate. The latter question is now, for the first time, presented for determination.

That an order in the supreme court of the District, at special term, admitting a will to probate and record is a final judgment, cannot, it seems to us, be disputed. It was so declared in Van Ness v. Van Ness and Brown v. Wiley. A will, admitted to probate and record by a court of competent jurisdiction, is a muniment of title for all receiving property under it; and until the order so admitting it to probate is, by some appropriate proceeding, set aside or reversed, stands in the way of those who may have resisted the probate. In every sense, it is a final adjudication. And that an order of probate made in the supreme court of the District, special term, is reviewable by the general term, is made clear by the provision that a party aggrieved by any order, judgment, or decree in a special term, involving the merits of the action or proceeding, may appeal to the general term, which "shall review such order, judgment, or decree, and affirm, reverse, modify the same, as shall be just." Rev.

or

St. D. C. § 772, (12 St. p. 763, c. 91, § 5.) Clearly, an order of probate, based upon a finding by the jury upon issues as to the competency of the testator to make a will, is one involving the merits. If so, how is it possible, in view of the express words of the statute, to question the jurisdiction of the general term to review such final order of probate?

In respect to the authority of this court to re-examine the final judgments and decrees of the supreme court of this District, the words of the statute are quite as clear as those defining the jurisdiction of the general term to review the orders and judgments of the special term. It embraces the final judgment or decree of that court "in any case" involving a specified amount. It is true that this re-examination must be upon writ of error or appeal, "in the same manner and under the same regulations as are provided in cases of writs of error on judgments, or appeals from decrees rendered in a circuit court." But this language does not determine the nature of the

case" in the supreme court of the district, the final judgment in which is subject to re-examination by this court. It only indicates the mode in which a case may be brought here for review. So that the only question is whether issues framed by the supreme court of the District, and which involve an inquiry as to whether the decedent was or was not incompetent, from unsoundness of mind or because of undue influencce exerted upon him, to make a will,-issues to which there are adversary parties,-constitutes a "case," within the meaning of the act of congress defining the jurisdiction of this court over the final judgments and decrees of the court below. If it does not, then it would follow that a proceeding in the supreme court of the District to revoke the probate of a will is a "case," the final judgment in which, as held in Carter's Heirs v. Cutting, may be re-examined by this court, when the value of the matter in dispute is sufficient; while a proceeding in the same court,*involving the validity, as a last will and testament, of an instrument offered for probate, and therefore its admission to probate, is not a "case," the final judgment in which can be here reviewed. We cannot assent to this view. The latter proceeding is as much a "case" as the former. One involves the validity of the probate of a will; the other, the validity as a will of a paper offered for probate. Upon the determination of each depends rights of property, and in each are adversary parties. There can be no reason why congress should extend the jurisdiction of this court to proceedings involving the validity of the probate of wills, and not to proceedings involving the validity of an instrument offered for probate as a will. That the issues in the former may be heard and determined, in the first instance, without a jury, and upon evidence before a court, while the issues in the latter may, and, if the parties require, must, be tried, in the first instance, by a jury, with the right in the parties to have bills of exceptions showing the rulings of the court, cannot affect the nature of the