ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE HARLAN delivered the opinion of the court.
This writ of error brings up for review a judgment of the Supreme Court of the District of Columbia, in general term, which affirmed a final order of the same court, in special term, admitting to probate and record a certain writing as the last will and testament of Levin M. Powell, who died in the city of Washington on the 15th day of January, 1885. That instrument provided for the disposition of property of the value of more than one hundred thousand dollars.
At October term, 1886, of this court a motion was made that the writ of error be dismissed for want of jurisdiction, "because the judgment of the Supreme Court of the District of Columbia to which said writ of error was directed is not a final judgment;" and, in the alternative, that the judgment be affirmed because the writ of error was sued out merely for delay. That motion was overruled. Ormsby v. Webb, 122 U.S. 630. At the present term a second motion to dismiss was made; this time, upon the ground that the case is one of equity jurisdiction, and could be brought here only by appeal.
The history of this litigation, as disclosed by the record, is as follows:
Sarah C. Colmesnil, one of the heirs at law of the deceased,
presented to the Supreme Court of the District of Columbia, holding a special term for probate business, a petition alleging that the above writing -- previously presented to that court for probate by the persons named therein as executors -- was not the last will and testament of Levin M. Powell; that by reason of his physical and mental condition he was incompetent to make a will; and that if his name was placed to that writing, it was not done by his will, but by the procurement, undue influence and fraud of Harriet C. Stewart, one of the persons named therein as a legatee.
It was thereupon ordered that the following issues be trans mitted 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 bys 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 Stat. 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 offences 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 reexamined 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 regulations, 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. § 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 ...