CBANCH, Chief Judge.
This is an appeal from the order of the orphans’ court, of the District of Columbia, of the 6th of February, 1849, revoking the probate of the will of General Thadeus Kosciusko, of the 5th of May, 1798, and 28th of June, 1806, by which last mentioned will a legacy of $3704 was bequeathed to -the appellant Kosciusko Armstrong. The proceeding was by petition to the orphans’ court of the District of Columbia, filed on the-day of-, by.Hyp-poletus Estko and others, next of kin of General Kosciusko, stating that in December, 1845, the then petitioners filed a petition in the orphans’ court, praying: 1st. That the validity of a certain paper writing, dated 28th of June, 1806, which at the instance of a certain Kosciusko Armstrong, was, on the 19th of November, 1828, proved as, and for the last will of the said Thadeus Kosciusko, might be allowed to contest the same, and that probate thereof might be revoked; and 2nd. That George Bomford, administrator de bonis non, with the will of the 5th of May, 1798, annexed, might be ordered to pay over to the petitioners the fund deposited by General Kosciusko with Mr. Jefferson. The petitioners further state that the orphans’ court, acting upon the said former petition on the 17th of February, 1846, ordered the register of wills to make up and transmit to the law side of the circuit court, District of Columbia, to be there tried, an issue, “Whether the writing produced by the said Kosciusko Armstrong, and admitted to probate on the 19th of November, 1828, is the last' will and testament of the said Thadeus Kosciusko or not.” The petitioners state further that some of the former petitioners died, and S. S. Williams and John F. Ennis have obtained letters of administration of their effects; that Colonel Bomford also died, and Lewis Johnson became administrator de bonis non in his place: that while the issue at law was pending in the circuit court in January, 1847, the will of June 28th, 1806, more fully described in the said former petition, was produced, proved and recorded among the wills of the orphans' court, by which will the testator expressly revoked “all the wills which he might have hitherto-fore made;” that the issue sent to the circuit, court is now an issue at law and npt of fact, and is -cognizable in the orphans’ court only: “Upon these grounds, and others which will be more fully set forth during the hearing of the case,” they pray that “further proceedings in that court may be resumed, and that citations may be issued: 1st. To the said Kosciusko Armstrong, or his . counsel of record, to show cause why the probate of the paper writing, purporting to be a will of General Thadeus , Kosciusko of the 28th of June, 1806, should not be revoked and annulled. 2nd. To the said Lewis Johnson, administrator de bonis non of said Kosciusko’» estate, to show cause why the paper writing, purporting to be a will of said Thadeus Kosciusko, of the 5th of May, 1798, and the probate thereof, recorded among the wills of this court, should not be stricken out from the records of this court, and declared null and void.” This petition is signed by “B. Johnson, Gaspar Tocman, for the Petitioners.”
Nothing appears by the records to have been done until the filing of another petition by Boman Estko and others, claiming, with the former petitioners, Hyppoletus Estko and others, to .be next of kin of General Kosciusko; which new petition sets forth all the preceding proceedings in the orphans’' court, and in the supreme court of the United States; and also circumstances to account for the delay of the petitioners in prosecuting their claim. They also pray “that the validity of the said instrument of writing” (of June 2Sth, 1806), “may be inquired into; that they may be allowed to-contest the same, and that the probate thereof be revoked; and that the said instrument of writing be declared null and void, as a testamentary paper.” “And they further pray that the said George Bomford, administrator de bonis non as aforesaid, be-ordered to pay over.and deliver to the petitioners all and every sum and sums of money which he now hath, or for which he is-accountable as administrator de bonis non of said Thadeus Kosciusko.” This petition is signed by “Joseph H. Bradley, G. Toc-mau.”
Whereupon the following order was made by the judge of the orphans’ court, viz.:
“On the petition filed in this court, this 2nd day of December, 1845, of Boman Estko- and others, claiming to be next of kin and distributees of Thadeus Kosciusko, praying that the decision of this court heretofore made, admitting to probate a paper writing propounded by Kosciusko Armstrong, as the last will of the said Kosciusko be again examined, and that the matter thereof be [955] again heard by this court It is this 2nd day • of December, 1845, ordered that the said case be again examined and heard, and that notice be given to the said Kosciusko Armstrong to appear in this court on or before the 3rd Tuesday of January next, in person or by solicitor, to show cause why the said probate of the said will shall not be set aside, and the said paper writing therein propounded by him as the last will of the said Thadeus Kosciusko be declared null and void; and provided that a copy of this order be published in the National In-telligencer once a week for three successive weeks previous to the 3rd Tuesday in January, 1846. Nathaniel P. Causin.”
No further proceeding appears upon the records of the orphans’ court until the 22d of December, 1848, when the judge made the following order, viz.:
“It is ordered that the Register of Wills ¡ issue citations. 1st. To Richard S. Coxe, i Esq., counsel of Kosciusko Armstrong, to ¡ appear in this court on the 5th day of January, 1849, to show cause why the probate i of the paper writing, purporting to be a will of General Thadeus Kosciusko, of the • 22d of June, 1806, should not be revoked and annulled. 2d. To Lewis Johnson, ad- j ministrator de bonis non of Kosciusko’s es- Í tate, to appear on the same day, on the 5th of January, 1849, to show cause why the , paper writing, purporting to be a will of j Thadeus Kosciusko, of the 5th of May, 1798, j and the probate thereof recorded among the ; wills of this court, should not be stricken j out from the records of this court and declared null and void. Nathaniel P. Causin, 22d Dec., 1848.”
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CBANCH, Chief Judge.
This is an appeal from the order of the orphans’ court, of the District of Columbia, of the 6th of February, 1849, revoking the probate of the will of General Thadeus Kosciusko, of the 5th of May, 1798, and 28th of June, 1806, by which last mentioned will a legacy of $3704 was bequeathed to -the appellant Kosciusko Armstrong. The proceeding was by petition to the orphans’ court of the District of Columbia, filed on the-day of-, by.Hyp-poletus Estko and others, next of kin of General Kosciusko, stating that in December, 1845, the then petitioners filed a petition in the orphans’ court, praying: 1st. That the validity of a certain paper writing, dated 28th of June, 1806, which at the instance of a certain Kosciusko Armstrong, was, on the 19th of November, 1828, proved as, and for the last will of the said Thadeus Kosciusko, might be allowed to contest the same, and that probate thereof might be revoked; and 2nd. That George Bomford, administrator de bonis non, with the will of the 5th of May, 1798, annexed, might be ordered to pay over to the petitioners the fund deposited by General Kosciusko with Mr. Jefferson. The petitioners further state that the orphans’ court, acting upon the said former petition on the 17th of February, 1846, ordered the register of wills to make up and transmit to the law side of the circuit court, District of Columbia, to be there tried, an issue, “Whether the writing produced by the said Kosciusko Armstrong, and admitted to probate on the 19th of November, 1828, is the last' will and testament of the said Thadeus Kosciusko or not.” The petitioners state further that some of the former petitioners died, and S. S. Williams and John F. Ennis have obtained letters of administration of their effects; that Colonel Bomford also died, and Lewis Johnson became administrator de bonis non in his place: that while the issue at law was pending in the circuit court in January, 1847, the will of June 28th, 1806, more fully described in the said former petition, was produced, proved and recorded among the wills of the orphans' court, by which will the testator expressly revoked “all the wills which he might have hitherto-fore made;” that the issue sent to the circuit, court is now an issue at law and npt of fact, and is -cognizable in the orphans’ court only: “Upon these grounds, and others which will be more fully set forth during the hearing of the case,” they pray that “further proceedings in that court may be resumed, and that citations may be issued: 1st. To the said Kosciusko Armstrong, or his . counsel of record, to show cause why the probate of the paper writing, purporting to be a will of General Thadeus , Kosciusko of the 28th of June, 1806, should not be revoked and annulled. 2nd. To the said Lewis Johnson, administrator de bonis non of said Kosciusko’» estate, to show cause why the paper writing, purporting to be a will of said Thadeus Kosciusko, of the 5th of May, 1798, and the probate thereof, recorded among the wills of this court, should not be stricken out from the records of this court, and declared null and void.” This petition is signed by “B. Johnson, Gaspar Tocman, for the Petitioners.”
Nothing appears by the records to have been done until the filing of another petition by Boman Estko and others, claiming, with the former petitioners, Hyppoletus Estko and others, to .be next of kin of General Kosciusko; which new petition sets forth all the preceding proceedings in the orphans’' court, and in the supreme court of the United States; and also circumstances to account for the delay of the petitioners in prosecuting their claim. They also pray “that the validity of the said instrument of writing” (of June 2Sth, 1806), “may be inquired into; that they may be allowed to-contest the same, and that the probate thereof be revoked; and that the said instrument of writing be declared null and void, as a testamentary paper.” “And they further pray that the said George Bomford, administrator de bonis non as aforesaid, be-ordered to pay over.and deliver to the petitioners all and every sum and sums of money which he now hath, or for which he is-accountable as administrator de bonis non of said Thadeus Kosciusko.” This petition is signed by “Joseph H. Bradley, G. Toc-mau.”
Whereupon the following order was made by the judge of the orphans’ court, viz.:
“On the petition filed in this court, this 2nd day of December, 1845, of Boman Estko- and others, claiming to be next of kin and distributees of Thadeus Kosciusko, praying that the decision of this court heretofore made, admitting to probate a paper writing propounded by Kosciusko Armstrong, as the last will of the said Kosciusko be again examined, and that the matter thereof be [955] again heard by this court It is this 2nd day • of December, 1845, ordered that the said case be again examined and heard, and that notice be given to the said Kosciusko Armstrong to appear in this court on or before the 3rd Tuesday of January next, in person or by solicitor, to show cause why the said probate of the said will shall not be set aside, and the said paper writing therein propounded by him as the last will of the said Thadeus Kosciusko be declared null and void; and provided that a copy of this order be published in the National In-telligencer once a week for three successive weeks previous to the 3rd Tuesday in January, 1846. Nathaniel P. Causin.”
No further proceeding appears upon the records of the orphans’ court until the 22d of December, 1848, when the judge made the following order, viz.:
“It is ordered that the Register of Wills ¡ issue citations. 1st. To Richard S. Coxe, i Esq., counsel of Kosciusko Armstrong, to ¡ appear in this court on the 5th day of January, 1849, to show cause why the probate i of the paper writing, purporting to be a will of General Thadeus Kosciusko, of the • 22d of June, 1806, should not be revoked and annulled. 2d. To Lewis Johnson, ad- j ministrator de bonis non of Kosciusko’s es- Í tate, to appear on the same day, on the 5th of January, 1849, to show cause why the , paper writing, purporting to be a will of j Thadeus Kosciusko, of the 5th of May, 1798, j and the probate thereof recorded among the ; wills of this court, should not be stricken j out from the records of this court and declared null and void. Nathaniel P. Causin, 22d Dec., 1848.”
The citations seem to have been issued and served on the same day, 22d Dec., 1848. On the day appointed (January 5th, 1849), Lewis Johnson, the administrator de bonis j non appeared, by Mr. Morfit, his counsel, I and objected, “that the orphans’ court should | not hold or entertain jurisdiction of this j 'cause at this time, or in the present form of ' this application.” 1st. Because an issue is still pending on the law side of the circuit | court of the District of Columbia, as to the validity of the respective wills named in the application of the parties for the citations, and that the said issue was taken on a petition before the orphans’ court upon the same questions which are now presented; and the effect of the present petition, if sustained, will be to bring back a question be- : fore this court which has, by having been • put in issue elsewhere, passed beyond its present control. 2d. If the issue should be ! stricken off the docket of the circuit court, it would be a surprise upon the parties. 3d. ' That the testator re-establish the will of 179S by a subsequent will, but of this this j respondent has no evidence. -4th. That there is a bill in equity pending in the circuit court, and involving all the matters contained in the proceedings in the orphans’ court in this case, &c. 5th. That this respondent is ready to pay over the money to any person authorized to receive it. 6th. That there should not be a decision in any one of the cases until all are brought together.
Upon consideration of this case as it is now brought before this court, I am of the opinion that the orphans’ court, by sending an issue to this court, to be tried at law, “whether the writing produced by the said Kosciusko Armstrong, and admitted to probate on the 29th of November, 182S, is the last will and testament of the said Thadeus Kosciusko or not,” had divested itself of the jurisdiction of that question, so long as it remains undecided by this court the case was coram non judice, and the sentence of the orphans’ court of the 6th of February, 1849, must be reversed.
Upon appeal from the sentence of the orphans’ court of the District of Columbia, passed on the 6th of February, 1849, declaring it to be the opinion of that court that the will executed by Thadeus Kosciusko on the 4th of June, 1816, and recorded in that court in 1847, revokes the wills of the 28th of June, 1806, and of the 5th of May, 1798, of the said Kosciusko, deceased, and revoking the probate of the same.
It is considered and adjudged by this circuit court of the District of Columbia, this 5th day of November, 1850, that the said sentence of the said orphans’ court be, and the same is hereby reversed with costs; the said sentence having been passed by the said orphans’ court, while an issue sent by that court to the circuit court aforesaid to be tried at law, whether the writing produced by the said Kosciusko, and admitted to probate on the 19th of November, 182S, is the last will and testament of the said Thad-eus Kosciusko or not, was and is pending undecided in said circuit court.
DUNLOP, Circuit Judge, dissented.