CLIFFORD, Circuit Justice.
Assuming all to be true that is alleged in the motion, still the argument in support of it is based upon the assumption, that the questions arising under the local law are undertermined; and of course it concedes that, if the fact be otherwise, that if no such questions are involved, or, if involved, that they have already been determined, the court here may properly proceed to hear and determine the cause. The theory of the motion is that the construction of the will and devise referred to in the motion depend upon the local law, and that the cause should be continued until the state court shall determine what is the true intent and meaning of the local law upon that subject, and not that there is any conflict of jurisdiction, arising out of the fact that the bill of interpleader was filed in the state court two days before the bill of complaint was filed in this court. Careful attention to the precise theory of the written motion will very much facilitate the proper application of decided cases to the question presented for decision.
“When a testator omits to provide in his will for any of his children, or for the issue of a deceased child,” the Massachusetts statute of wills provides that “they shall take the same shares of his estate, both real and personal, that they would have been entitled to if he had died intestate, unless they shall have been provided for by the testator in his lifetime, or unless it appears that such omission was intentional, and not occasioned by accident or mistake. Gen. St. § 25, p. 478; Rev. St. c. 62, § 21. The theory of the complainants here is that the devise for the benefit of the poor, under the circumstances disclosed in the pleadings, cannot be executed, and that in fact it is null and void. They also insist that under the provision referred to in the Massachusetts statute of wills, they take the same share of the estate, both real and personal, that they would have been entitled to, if the testatrix had died intestate. The respondents deny both propositions, and insist that the devise in question has been duly executed and that it is neither void nor voidable; and they also deny that the statute of wills gives the complainants any portion of the property, real or personal, of the deceased. Where a child has no share given him or her in the will, the supreme court of the state hold that he shall have a share, unless it is manifest from the other parts of the will or other evidence that the omission was intentional, and not occasioned by accident or mistake. Wilson v. Fosket, 6 Metc. [Mass.] 400. The supreme court of the state have also held that the provision in the statute of wills already recited applies to a child or children born after the making of the will, and before the death of the father, and gives him or them the same rights as those have who were born before the will was made. Able counsel maintained the contrary, but the court was of the opinion that, in adopting that provision, it was not the intention of the legislature to alter the law in that respect, but only to give effect to the old statute, and give the authority of positive law to the construction which had previously been put upon it by the courts of the state. The proposition attempted to be maintained in the argument was, that by the term “omits to provide in his will,” was meant a child then living, but the court held otherwise, and the chief justice, who delivered the opinion, remarked that a man’s will is ambulatory until his decease, as it may be revoked, republished, altered, or modified by any codicil or number of codicils, quite up to the time of his death. The conclusion of the court was, that the time to which the question of omission applies is the time of the testator’s decease, and the construction upon that subject may be regarded as settled beyond dispute. Bancroft v. Ives, 3 Gray, 367. Children, therefore, born after the will of their father was made, if before his death, • unless provided for in some subsequent codicil, are as much entitled to the benefit of that provision as those who were born before the will was made. Granting that to be so, still the respondents insist that the construction given does not authorize the conclusion that the complainants, who are grandchildren of the testatrix, must come within the same rule, although the case shows that they were severally born, and that their father deceased in the lifetime of the testatrix. Looking at the whole case, it is clear that there are questions presented in this record which are not involved in the record in the state court, and which cannot be decided there under the pleadings exhibited in this case. On the other hand, it is equally clear that there is a question common to both cases, and that that question is [902]*902one "which has not been directly decided by the state court, and that it depends upon the construction of the local law. Taking the case as stated, the question is, what is the proper course to be pursued? The counsel of the respondents insist that the cause should be continued; but the counsel of the complainants resist that proposition, and contend that, if granted, it is a denial of justice. The circuit courts have, under the judiciary act, original cognizance, with the courts of the several states, of all suits of a civil nature, at common law, or in equity, where the matter in dispute exceeds the sum or value of $500, and the suit is between the citizens of the state where the suit is brought and citizens of another state. 1 Stat. 78. The record shows that the complainants are citizens of the state of New York, and that the respondents are citizens of this commonwealth. Evidently, therefore, the case is one within the jurisdiction of the court, unless some new condition be interpolated into the provision in the act of congress. by which jurisuiction is conferred. The continuance, if granted, must be to the next term, and from term to term indefinitely, until the expected adjudication is made. The principal respondent in this suit is tne complainant in the suit in the state court. The service there has not been completed, and it may never be made, or the complainant may dismiss his bill of complaint or fail to prosecute it with effect. Pending controversies, whether at law or in equity, are subject to many contingencies by which they may be retarded or prevented from being prosecuted to judgment, and yet the argument is that the cause must be continued indefinitely, until the question depending upon the local law is determined by the state court. The industry of counsel, however. has not furnished the court with any decided case which supports any such proposition, and the researches of the court in that behalf have not been attended with any better success. Undoubtedly the rule is that the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, are to be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. 1 Stat. 92. Consequently it was very early held, and has been so determined on many occasions, that in cases depending upon the statute of a state, especially in those respecting the titles to land, the federal courts will adopt the construction of the state courts, where that construction is settled or can be ascertained. Polk v. Wendall. 9 Cranch [13 U. S.] 87. The same rule prevails in suits in equity as at law. and in both it is the settled practice of the supreme court in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 157.
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CLIFFORD, Circuit Justice.
Assuming all to be true that is alleged in the motion, still the argument in support of it is based upon the assumption, that the questions arising under the local law are undertermined; and of course it concedes that, if the fact be otherwise, that if no such questions are involved, or, if involved, that they have already been determined, the court here may properly proceed to hear and determine the cause. The theory of the motion is that the construction of the will and devise referred to in the motion depend upon the local law, and that the cause should be continued until the state court shall determine what is the true intent and meaning of the local law upon that subject, and not that there is any conflict of jurisdiction, arising out of the fact that the bill of interpleader was filed in the state court two days before the bill of complaint was filed in this court. Careful attention to the precise theory of the written motion will very much facilitate the proper application of decided cases to the question presented for decision.
“When a testator omits to provide in his will for any of his children, or for the issue of a deceased child,” the Massachusetts statute of wills provides that “they shall take the same shares of his estate, both real and personal, that they would have been entitled to if he had died intestate, unless they shall have been provided for by the testator in his lifetime, or unless it appears that such omission was intentional, and not occasioned by accident or mistake. Gen. St. § 25, p. 478; Rev. St. c. 62, § 21. The theory of the complainants here is that the devise for the benefit of the poor, under the circumstances disclosed in the pleadings, cannot be executed, and that in fact it is null and void. They also insist that under the provision referred to in the Massachusetts statute of wills, they take the same share of the estate, both real and personal, that they would have been entitled to, if the testatrix had died intestate. The respondents deny both propositions, and insist that the devise in question has been duly executed and that it is neither void nor voidable; and they also deny that the statute of wills gives the complainants any portion of the property, real or personal, of the deceased. Where a child has no share given him or her in the will, the supreme court of the state hold that he shall have a share, unless it is manifest from the other parts of the will or other evidence that the omission was intentional, and not occasioned by accident or mistake. Wilson v. Fosket, 6 Metc. [Mass.] 400. The supreme court of the state have also held that the provision in the statute of wills already recited applies to a child or children born after the making of the will, and before the death of the father, and gives him or them the same rights as those have who were born before the will was made. Able counsel maintained the contrary, but the court was of the opinion that, in adopting that provision, it was not the intention of the legislature to alter the law in that respect, but only to give effect to the old statute, and give the authority of positive law to the construction which had previously been put upon it by the courts of the state. The proposition attempted to be maintained in the argument was, that by the term “omits to provide in his will,” was meant a child then living, but the court held otherwise, and the chief justice, who delivered the opinion, remarked that a man’s will is ambulatory until his decease, as it may be revoked, republished, altered, or modified by any codicil or number of codicils, quite up to the time of his death. The conclusion of the court was, that the time to which the question of omission applies is the time of the testator’s decease, and the construction upon that subject may be regarded as settled beyond dispute. Bancroft v. Ives, 3 Gray, 367. Children, therefore, born after the will of their father was made, if before his death, • unless provided for in some subsequent codicil, are as much entitled to the benefit of that provision as those who were born before the will was made. Granting that to be so, still the respondents insist that the construction given does not authorize the conclusion that the complainants, who are grandchildren of the testatrix, must come within the same rule, although the case shows that they were severally born, and that their father deceased in the lifetime of the testatrix. Looking at the whole case, it is clear that there are questions presented in this record which are not involved in the record in the state court, and which cannot be decided there under the pleadings exhibited in this case. On the other hand, it is equally clear that there is a question common to both cases, and that that question is [902]*902one "which has not been directly decided by the state court, and that it depends upon the construction of the local law. Taking the case as stated, the question is, what is the proper course to be pursued? The counsel of the respondents insist that the cause should be continued; but the counsel of the complainants resist that proposition, and contend that, if granted, it is a denial of justice. The circuit courts have, under the judiciary act, original cognizance, with the courts of the several states, of all suits of a civil nature, at common law, or in equity, where the matter in dispute exceeds the sum or value of $500, and the suit is between the citizens of the state where the suit is brought and citizens of another state. 1 Stat. 78. The record shows that the complainants are citizens of the state of New York, and that the respondents are citizens of this commonwealth. Evidently, therefore, the case is one within the jurisdiction of the court, unless some new condition be interpolated into the provision in the act of congress. by which jurisuiction is conferred. The continuance, if granted, must be to the next term, and from term to term indefinitely, until the expected adjudication is made. The principal respondent in this suit is tne complainant in the suit in the state court. The service there has not been completed, and it may never be made, or the complainant may dismiss his bill of complaint or fail to prosecute it with effect. Pending controversies, whether at law or in equity, are subject to many contingencies by which they may be retarded or prevented from being prosecuted to judgment, and yet the argument is that the cause must be continued indefinitely, until the question depending upon the local law is determined by the state court. The industry of counsel, however. has not furnished the court with any decided case which supports any such proposition, and the researches of the court in that behalf have not been attended with any better success. Undoubtedly the rule is that the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, are to be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. 1 Stat. 92. Consequently it was very early held, and has been so determined on many occasions, that in cases depending upon the statute of a state, especially in those respecting the titles to land, the federal courts will adopt the construction of the state courts, where that construction is settled or can be ascertained. Polk v. Wendall. 9 Cranch [13 U. S.] 87. The same rule prevails in suits in equity as at law. and in both it is the settled practice of the supreme court in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 157. Justice to the citizens of the several states required this to be done, and the natural import of the words in the act of congress includes the laws in relation to evidence as well as the laws in relation to property. Vance v. Campbell. 1 Black. [66 U. S.] 430; Wright v. Bales, 2 Black. [67 U. S.] 535. The construction given to a state statute of the description mentioned, by the state court, is regarded as a part of the statute, and is as obligatory on the courts of the United States as the text; and if the state court adopts new views as to the construction of such a statute, the federal courts will follow the latest settled adjudication. Leffingwell v. Warren, Id. 599; U. S. v. Morrison, 4 Pet. [29 U. S.] 124; Green v. Neal, 6 Tet. [31 U. S.] 291. Decisions of the state courts, however, cannot be allowed to retro-act upon the judgments of the federal courts, and consequently the supreme court will not reverse its own judgment, even in a case depending upon the local law, if correctly rendered at the time, in accordance with the settled construction given to the law by the state court, although it may appear that the state court subsequently changed its views, and has adopted a different construction. The established rule also is that the judgment of the circuit court will not be reversed under like circumstances. Morgan v. Curtenias. 20 How. [61 U. S.] 3. Guides for the construction of the laws of congress are furnished in the rules of the common law. and the same rules apply in the construction of a state statute, except in cases where the courts of the state have ali-eady furnished the construction. Rice v. Railroad Co., 1 Black. [66 U. S.] 374. The supreme court held, in Charles River Bridge v. Warren Bridge, 11 Pet. [36 U. S.] 545, that the rules of the federal courts for the construction of statutes were borrowed from the common law, and that rule is undoubtedly correct in all cases except where the courts of the state have previously determined the construction of a local law. See, also, 1 Story, Comm. (3d Ed.) § 158.
Applying those rules to the present case, there is no occasion for a continuance of the cause, because this court must follow the construction given to the provision by the state court, if it can be ascertained, a.nd if not. then the duty of determining in this case what is the true construction is devolved in the first place upon this court, and finally upon the supreme court. Such has been the uniform practice of the court, and it is not perceived that there is any necessity for any change. Attempts have been made to maintain the proposition that, where there is a concurrent jurisdiction in the state court and in the circuit court, the latter has a discretionary power either to stay the suit or to refuse jurisdiction, but such attempts in this circuit have never been attended with any success. An example of such an attempt is to be found in the case of Wadleigli [903]*903v. Veazie [Case No. 17.031], which -was a writ of entry for the recovery of certain land situated in the state of Maine. The defendant pleaded in abatement the pend-ency of a prior suit in the state court between the same parties for the same tract of land. Judge Story held that a plea in abatement to a suit in the circuit court for the recovery of land, that another action in which the present defendant was plaintiff and the present plaintiff was defendant, was pending in the state court, was not a good plea, and, in disposing of the cause, he adverted to the suggestion made in the argument that it was competent for the court to order a stay of the suit, or to refuse jurisdiction. He remarked that he knew of no such authority; and if none such existed in that case where the only difference between the two suits consisted in the fact that the parties in the circuit court were reversed, it may well be assumed that none such can arise in any ease within the jurisdiction of the court. “If the parties are rightfully before the court,” said that learned judge, “in a case within its jurisdiction, however unpleasant it may be to entertain a suit here in regard to which there may possibly be a diversity both of verdict and judgment from those given in the state court, I know not how that is to be avoided.” Attention has very properly been called, since the argument, to the case of Board of Foreign Missions of the Presbyterian Church v. McMaster [Case No. 1,586], as asserting a contrary doctrine. The bill of complaint in that case was filed in the circuit court of the United States by the complainants against Samuel ■S. MeMaster, the administrator de bonis non with the will annexed. The facts are not very clearly stated, but the purpose of the suit was to enforce the payment of a bequest contained in the will. The defendant. it seems, had paid the debts of the deceased, and the other legacies mentioned in the will, and had on hand a certain sum to be applied to the bequest in question, it the same was valid. The answer alleged that the said amount was claimed by other persons, on the ground that the bequest was void, and that the respondent had filed a bill of interpleader in the county court, against all the parties, and that the same was still pending.
Under that state of the case the district judge, sitting in the circuit court, held that the rule of comity in such a case required that paramount authority should be yielded to the court before which the proceedings were first instituted; but he afterwards proceeded to examine the merits of the case, and having come to the conclusion that the bequest was void, entered a final decree, dismissing the bill of complaint with costs. “Courtesy requires,” says the learned judge, “that paramount authority should be yielded to the court before which the proceedings were first instituted.”
Doubts are entertained as to what is meant by the district judge in that part of the opinion; but if it must be understood as affirming that there is any discretionary authority vested in the circuit court to stay the suit under such circumstances or to refuse jurisdiction, it will be sufficient to say that it is not possible for this court to yield its assent to the proposition, and none of the authorities cited support it Cases may unquestionably be found where it is held that the mere pendency of another suit for the same matter between the same parties in’ another jurisdiction, may be pleaded in abatement or in bar to a second suit. The decision in Hart v. Granger, 1 Conn. 154, was of that class, but the case has recently been distinctly overruled by the court in which it was made. Hatch v. Spofford, 22 Conn. 495. The English cases go no further than to hold that the plea of another suit depending will be good, if the first suit was instituted in the same jurisdiction. Such a plea is not a good one in the courts of that country, if the first suit is pending in another country, nor in the colonies of the parent country. Maule v. Murray, 7 Term R. 470; Imlay v. Ellefsen, 2 East. 453; Dillon v. Alvares, 4 Ves. 357; Foster v. Vassal, 3 Atk. 587; Bayley v. Edwards, 3 Swanst. 703; Howell v. Waldron, 2 Ch. Cas. 85; 2 Daniell, Ch. Prac. 721; Story, Eq. PI. § 741. The weight of American authority also is decidedly to the same effect. The undeviating rule in this circuit has been that the pendency of another action for the same cause in a state court is not a good plea in abatement. White v. Whitman [Case No. 17,561]; Lyman v. Brown [Id. 8,627]; Wadleigh v. Veazie [supra]. The same rule is established in most of the states. Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Johns. 99; McJilton v. Love, 13 Ill. 486; Mitchell v. Bunch, 2 Paige, 606. Much consideration was given to the whole subject in the case of Salmon v. Wootton, 9 Dana, 422, to which reference is specially made, for a clear and full exposition of the reasons on which the rule is founded. Expressions are to be found in some of the eases decided in the supreme court, which until carefully examined may seem to favor the opposite rule. Take, for example, the case of Smith v. McIver, 9 Wheat. [22 U. S.] 532, where the opinion was delivered by the chief justice. He says that in all cases of concurrent jurisdiction, the court which first has the possession of the subject-matter must decide it; but that remark was made in a case where all the questions had been decided in a court of law. and the proposition was to have them reviewed on the chancery side cf the court.
Another rule is, where there are several authorities equally competent to bind the goods of a party when executed by the proper officer, that they in general shall be considered as effectually bound by the au[904]*904thority which first actually attaches upon them and takes them into custody. Numerous cases have arisen where that principle is involved; and in enforcing it there will be found expressions which, if separated from the facts to which they were applied, would seem to conflict with the present rule. Hagan v. Lucas, 10 Pet. [39 U. S.] 400, is of this class; and so also are Wallace v. McConnell, 13 Pet. [38 U. S.] 151, and Taylor v. Carryl, 20 How. [61 U. S.] 583. The strongest case of the description mentioned is that of Shelby v. Bacon, 10 How. [51 U. S.] 68, in which the opinion was given by Mr. Justice McLean. But the remarks of the learned judge were not necessary to the decision of the ease, and clearly cannot be regarded as a judicial determination. The case of Suydam v. Broadnax, 14 Pet. [39 U. S.] 67, also contains an expression which may or may not be construed in the same way. None of these cases, however, decide the question under consideration, and I am of the opinion that the pendency of a suit in the state court cannot be pleaded in bar or abatement to a suit between the same parties in this court. Suppose it were otherwise. however, still the rule would not apply in this cause, because the nature of the proceedings is different, the parties are not the same, and there are questions presented for decision here which are not involved in the suit in the state court. The motion for a continuance is, therefore, denied.
[NOTE. The case was subsequently heard on its merits upon bill and pleadings, and was dismissed, with costs. Case' No. 8.515. Prom this decision the complainants took an appeal to the supreme court, which affirmed the decree below. 6 Wall. (73 U. S.) 337.]
The second branch of the motion is, that the cause may be referred to a master, with directions that he shall look into the two cases and report whether or not they are both upon the same matter and between the same parties. Where the defendant pleads the pendency of another suit, it is said in the practice of the parent country, that the plaintiff ought not to reply to such a plea, even if he disputes the fact, but that he should obtain a reference to a master. 2 Daniell, Ch. Prac. 726, 797. Strong doubts are entertained whether that rule ever had any application where the alleged prior suit was not pending in the same jurisdiction, because the learned author speaks of the plea as being clearly a good plea, whereas he had previously stated, in the same section of the same chapter, that the plea of another suit depending is not a good plea in the court of another country, or in Ireland, or in the colonies. Id. 65S, 726. But it is unnecessary to decide that question, as there is no plea of any kind in this case. The docket entries show that the cause was set down for hearing upon bill, answer, replication, and proofs. The practice of the circuit courts is chiefly regulated by the printed rules prescribed by the supreme court. A reference to the course of proceeding where pleas are filed is not necessary, because, as before stated, there is no plea in the ease of any kind. The process of subpoena cannot issue from the clerk’s office in any suit in equity until the bill of complaint is filed at the office. Whenever the bill is filed, the clerk is required to issue the process of subpoena, as of course, upon the application of the complainant, which shall be returnable into the clerk’s office the next rule-day or the next rule-day but one, at the option of the complainant. The appearance-day of the respondent is the rule-day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day. The answer, plea, or demurrer must be filed by the respondent, unless the time for it is enlarged on the rule-day succeeding that of • entering his appearance. The former rule, that, if a respondent submits to answer, he shall answer fully to all the matters of the bill, is repealed in cases where he might by plea protect himself from such answer and discovery. But he is entitled in all cases by answer to insist upon all matters of de-fence, except such as are dilatory, in bar, or to the merits of the bill of complaint, of which he could avail himself by a plea in bar. After an answer is filed on any rule-day, the complainant is allowed until the next succeeding rule-day to file exceptions thereto for insufficiency, and no longer; but if no exception shall be filed thereto within that period, the rule is that the answer shall be deemed and taken to be sufficient. Whenever the answer shall not be excepted to. or shall be adjudged sufficient, the complainant shall file the general replication thereto on or before the next succeeding rule-day thereafter; and in all cases where the general replication • is filed, the cause shall be deemed, to all intents and purposes at issue, without any rejoinder or other pleading on either side. The dismissal of the suit follows if the complainant omits or refuses to file such replication within the prescribed period. The proceedings in this case have been in conformity to those rules, and they are correct. No exceptions were taken to the answer of the respondents, and consequently, when the prescribed period had elapsed, it became the duty of the complainants to file the general replication. The motion is denied.