GRUBB, District Judge
("after stating the facts as above). [1,2] The solution of the question presented by the appeal depends upon the extent of the jurisdiction of a United States District Court, sitting in equity, over the general administration of the estates of decedents, in cases where a state court of general jurisdiction in matters of probate 'has already acquired jurisdiction of the estate. That tire courts of the United States, sitting in equity, have no general jurisdiction in matters of probate and the administration of the estates of decedents, is lyell settled. In the case of Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599, the Supreme Court denied jurisdiction to the Circuit Court of the-United States to set aside the probate of a will for fraud. In the case of Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867, the Supreme Court held that: •
“The federal courts have no original jurisdiction in respect to the administration of decedents’ estates, and they cannot by entertaining jurisdiction of a suit against the administrator, which they have the power to do in certain eases, draw to themselves thé full possession of the res, or invest themselves with the authority of determining all claims against it.”
Again, in the same case (149 U. S. on page 619, 13 Sup. Ct. 910, 37 L. Ed. 867), the Supreme Court said:
“If original jurisdiction of the administration of estates of deceased persons were in the federal court, it might by instituting such an administration and taking possession of the estate, through an administrator appointed by itself, draw to itself all controversies affecting that estate, irrespective of the citizenship of the respective parties. But it has no original jurisdiction in respect to the administration of a deceased person. It did not in this case assume to take possession of the estate in the first instance, and it cannot, by entertaining jurisdiction of a suit against the administrator, draw to itself the full possession of the estate, or the power of determining all claims against or to it.”
And (149 U. S. on page 620, 13 Sup. Ct. 910, 37 L. Ed. 867) the court said:
“Our conclusion, therefore, is that the federal court erred in taking any action or making any decree looking to the mere administration of the estate, or in attempting to adjudicate the rights of citizens of the state, as between themselves. The state court had proceeded so far as the administration of the estate carries it forward to the time when distribution may be had. In other words, the debts of the estate had been paid, and the estate was ready for distribution, but no adjudication had been made as to the distributees, and in that exigency the Circuit Court might entertain jurisdiction, in favor of all citizens of other states, to determine and award their shares in the estate. Further than that it was not at liberty to go.”
In the case of Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054, the Supreme Court held that:
“A court of equity will not entertain jurisdiction to set aside the granting of letters of administration upon a succession in Louisiana on the ground of fraud, and will not give relief by charging purchasers at a sale made by the administrator under order of the court, and those deriving title from them, as, trustees in favor of alleged heirs or representatives of the deceased.”
[53] Referring to the case of Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599, the court said (138 U. S. 460, 11 Sup. Ct. 376, 34 L. Ed. 1054):
“With the single exception that that case was brought to set aside, the probate of a will, and this was brought to set aside the granting of letters of administration upon a succession, the two cases are as much alike as two photographs of the same person, the lineaments of * * * fraud being more distinctly brought out in the bill in the Broderick Case than in the bill in this case. Both were bills in equity, brought by the alleged heirs at law of a decedent to set aside and annul a decree of a court of pi-obate, and all the subsequent proceedings, including the order of sale and the sale itself. Both alleged fraud in the procurement of the respective decrees, and knowledge of the fraud by the defendants — actual knowledge in the Broderick Case, and constructive knowledge in this case. * * * We think the decision in that case is applicable to the whole of this case upon the question of fraud, and thus obviates the necessity .of adverting any further to the question of the establishment of a trust, as against the defendant, in favor of the complainants.”
In the case of Garzot v. De Rubio, 209 U. S. 283-302, 28 Sup. Ct. 548, 556 (52 L. Ed. 794), the Supreme Court said:
“But this does not tend in any way to establish that it was the purpose of Congress, in creating the District Court of the United States for Porto Rico, to endow that court with an authority, not possessed by the courts of the United States (Farrell v. O’Brien, 199 U. S. 89 [25 Sup. Ct. 727, 50 L. Ed. 101]) to exercise purely probate jurisdiction to administer and settle estates in disregard of the authority of the local court as created and defined by law.”
In the case of Goodrich v. Ferris, 214 U. S. 71-80, 29 Sup. Ct. 580, 583 (53 L. Ed. 914), the Supreme Court said:
“Manifestly, that case (Roller v. Holly, 176 U. S. 398 [20 Sup. Ct. 410, 44 L. Ed. 520]) is not in any particular analogous to the one under consideration, which is a case involving the devolution and administration of the estate of a decedent, a subject peculiarly within state control. Case of Broderick’s Will, 21 Wall. 503-519 [22 L. Ed. 599].”
These citations make it plain that, even in cases where the state court of proper probate jurisdiction has not acquired, pfior jurisdiction, the jurisdiction of a federal court in equity has well defined limitations. It cannot draw to itself the general administration of the estate of a decedent, nor can it adjudicate the claims of parties thereto, unless there is present the necessary diversity of citizenship and the requisite amount to confer jurisdiction. When the jurisdictional requirements are present, the court stops with the adjudication as. between such of the parties as have the jurisdictional qualification. Having determined their claims to a share in the estate, the parties are remitted to enforce their claim to the state jurisdiction where the estate is being administered. So that in this case, if there had been no question of prior jurisdiction in the court of ordinary of Oglethorpe county, it would still not have followed that the District Court could have drawn to itself the full administration of the estate of the decedent, James M. Smith, as it attempted to do by the appointment of receivers of the assets of the estate, and the direction to the temporary administrators to surrender the assets in their hands to the receiver of the District Court. The bill also sought to enjoin the appointment of permanent administrators by the ordinary, and to require all persons having claims against or an interest in the estate of the decedent to propound their [54] claims in the District Court. The relief sought was the settlement of decedent’s estate in the District Court, and the appointment of receivers was to effectuate that end. Our conclusion in this respect is that the jurisdiction of the District Court could have been properly invoked, even had the state court' of ordinary not first acquired jurisdiction, but for two purposes: (a) To preserve the assets of the estate, pending administration in a state court of competent probate jurisdiction, when they were shown 'to be in danger of waste or dissipation; and (b) to adjudicate claims of creditors or next of kin or heirs to share in the estate, where the necessary parties were citizens of different states, and the amount involved conferred jurisdiction in the federal court.
[3] • However, when the bill was filed in the District Court, the court of ordinary of Oglethorpe county had already taken jurisdiction of the administration of the estate of James M.. Smith. The court of ordinary was a court of competent jurisdiction to administer the estates 'of decedents. It had jurisdiction of the estate of James M. Smith, who was a resident of and died in Oglethorpe county, leaving assets therein.
[4] We think the record shows that the court of ordinary was in the actual possession of the assets of the estate when the bill was filed, through its temporary administrators. That they were in actual possession is clear. It is claimed that, owing to irregularities and fraud in their appointment, they should not be considered officers of the court which appointed them, and hence that 'their possession was not its possession. It is claimed that to procure their appointment and qualification they misrepresented to the ordinary their status as creditors of the intestate and the amount of the personal assets of the estate. We do not think that such irregularities, if proven, would divest the temporary administrators of their official character in a collateral proceeding in a court of concurrent jurisdiction, though it might subject them to removal by the court of their appointment.
In the case of Simmons v. Saul, 138 U. S. 439-457, 11 Sup. Ct. 369, 375 (34 L. Ed. 1054), the Supreme Court, speaking approvingly of the case of Duson v. Dupre, 32 La. Ann. 896, in which the right of a personal representative to maintain a suit was collaterally denied by the trial court for irregularities in his appointment, said:
“The case was tried on those exceptions, and the district court held them sufficient, and thereupon dismissed the actions. Upon appeal, th'e Supreme Court [of Louisiana] reversed the judgment and held: ‘In our opinion the district judge erred in allowing this collateral attack on the judgment of the probate court. The late parish court of St. Landry had probate jurisdiction, and was exclusively competent to grant and issue letters of administration in all successions properly opened in that court. Defendants contend that this succession was not properly opened in that court, for the reasons urged in their exceptions. This denial presents a question of fact, that the deceased was not a resident of this parish, and that, having left heirs who were residents of .this state, his succession was not vacant, so as to necessitate or justify the appointment of a curator. These questions can be looked into and adjudicated upon only in a direct action before the same court, or before the tribunal now vested with original probate jurisdiction in the parish of St. Landry. No principle of our jurisprudence is more firmly established than the following: “Letters of administration make full proof of the party’s capacity until they be revoked. They must have their effect, and the regularity of the proceedings on which they issue cannot be examined collaterally.” .This rule [55] was laid, down in early days, * * * and has been sanctioned, confirmed, and consecrated by an unbroken line of decisions of this court down to the present day.’ ”
We think the District Court, while the temporary letters of administration were outstanding and unrevoked by the court granting them, should have recognized the official character of the temporary administrators, and that their possession of the assets of the estate of James M. Smith was by virtue of their office as temporary administrators, and hence was that of the court of ordinary. In the case of Byers v. McAuley, 149 U. S. 608, 615, 13 Sup. Ct. 906, 908 (37 L. Ed. 867), the Supreme; Court said:
“An administrator appointed by a state court is an officer of that court; his possession of the decedent’s property is the possession taken in obedience to the orders of that court; it is the possession of the court, and it is á possession which cannot be disturbed by any other courti Upon this proposition we have direct decisions of this court.”
[5] Nor do we think that the fact that the administrators were acting under temporary letters, which might have been issued by the clerk, though they were not, makes them less the officers of the court granting the letters, or their possession of the assets of the estate they represented less than of the court appointing them.
[6] However, it is not necessary that the court of ordinary should have been in the actual possession of the res, when the bilí was filed, to give it the prior right to possession of the res. It is enough that it first acquired jurisdiction of the administration of the estate of James M. Smith, and that the possession of the assets of the estate was necessary to its proper administration in the court of ordinary. This is the settled rule of the federal courts. Adams v. Mercantile Trust Co., 66 Fed. 617, 15 C. C. A. 1; Empire Trust Co. v. Brooks, 232 Fed. 641, 146 C. C. A. 567; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; Farmers’ Loan Co. v. Lake St. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667; Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 28 Slip. Ct. 182, 52 L. Ed. 379; Palmer v. Texas, 212 U. S. 118, 29 Sup. Ct. 230, 53 L. Ed. 435.
Citation had issued upon the application of L. K. Smith, N. D. Arnold, and A. C. Erwin for permanent letters of administration before the bill of complaint was filed in the District Court, and the hearing upon the citation and certain caveats, subsequently interposed to it, was then set in the court of ordinary. This gave the court of ordinary prior jurisdiction of the administration of the estate, without regard to the actual possession of the temporary administrators. That possession of the assets of the estate by the court of ordinary was necessary to its administration in that court goes without argument. Having first acquired jurisdiction of the res, and the possession of the res being essential to the exercise of its jurisdiction, the court of ordinary was entitled to such possession as against the District Court. With reference to the administration of estates of decedents, the court of ordinary was a court of competent general jurisdiction.
[7] It is said that, conceding the right of the court of ordinary to retain its prior jurisdiction of the administration of .the estate and to [56] the possesssion of the assets thereof after the appointment of an administrator, yet the interposition of a court of equity was necessary, pending the granting of permanent letters, to preserve the assets from waste and dissipation, and to be surrendered to the personal representative when appointed. The jurisdiction of a court of equity to protect the assets of an estate from loss is settled. There are; however, two conditions to its exercise: The administration must be vacant, and the danger of loss imminent.
• In the case of Underground Electric Railway Co. v. Owsley, 176 Fed. 26, 99 C. C. A. 500, the Court of Appeals for the Second Circuit held that:
“A Circuit Court oí the United States, as a court of equity, has no jurisdiction of a purely probate proceeding, which is not a matter of equity cognizance, nor has it the power to undertake the general administration of the estate of a deceased person, but it may, as a court of equity, having the full jurisdiction of the English Courts of Chancery, as they existed at the time of the adoption of the Constitution, in a suit where it has jurisdiction of the parties, appoint a receiver of an estate pending the probate of a will, in the absence of the appointment of a custodian by the probate court, and this although proceedings for the probate of the will and the appointment of an executor are pending in such court, which have been delayed by reason of litigation between parties in interest.”
In that case, no temporary administrators had been appointed in New York, where ancillary letters liad been applied for, the primary administration pending in Illinois, though the New York statute authorized such appointment. Of that statute the court said (176 Fed. 38, 99 C. C. A. 512):
“In our opinion, the appointment of a temporary administrator under this statute would adequately protect the interest of the complainant and other creditors.”
The court appointed a receiver to hold the ássets until a temporary administrator was applied for and appointed by the Surrogate’s Court, and then to turn the assets over to him; if none was appointed, then to hold the assets till the permanent letters issued and surrender them to the permanent administrator. Circuit Judge Coxe, dissenting, expressed the view that the pendency of the administration in the Surrogate’s Court gave that court jurisdiction of the assets of the estate, and no receiver should for that reason have been appointed by the Circuit Court.
[8] The appellees contend that (a) the administration was vacant, and (b) the assets in danger of dissipation and loss.
(a) The contention in this respect is that the appointment of the temporary administrators was a nullity because of fraud in the representations made as to the'qualifications of the applicants and the amount of personal property of the estate. At the time the receivers were appointed by the District Court, the temporary administrators were acting as such and in possession of the assets of the estate; they had then given bond adequate in amount and surety, and additional temporary administrators had been appointed, who were qualified to act. Under these circumstances, we do not think that the administration of the estate should'have been treated as vacant, so as to justify the in-[57] terposltion of a court of equity, through a receivership, for its protection. Until removed in a direct proceeding, in the court of their appointment, we think the temporary administrators were to be regarded as officers of that court, upon collateral attack.
[9] It is said, however, that the Georgia statute authorizing courts of ordinary to issue temporary letters of administration, as construed by the Georgia courts, confers such limited authority on temporary administrators as to make them inadequate to manage an estate like that in controversy. The statute states the purpose of the appointment to be “for the purpose of collecting and taking care of the effects of the deceased.” It has been held that a temporary administrator has no power to continue the business of the intestate, though the permanent administrator is given that power. Irvine v. Wiley, Ordinary (Ga.) 90 S. E. 69. The record does not show the necessity for the continuance of any of intestate’s businesses, except the conduct of his plantation. His other enterprises were not being conducted by intestate at the time of his death. His farming operations were conducted by tenants. Some latitude is to be allowed the temporary administrator. His general duty is to take care of and collect the effects of the deceased. He'has'the implied authority to do what is necessary to accomplish the duty imposed, and the extent of his authority will vary with the character of the estate. We think the powers conferred on temporary administrators should be held adequate to accomplish the. purpose of their appointment, viz., the collection and taking care of the effects of the intestate, and in the usual and customary way. A receiver, appointed as a mere custodian, could do no more.-
[10] (b) The appellees also contend that the record makes out a case of waste and dissipation of the estate, calling for the appointment of a receiver. The bill contains some general averments with relation to danger of loss and dissipation. When examined, the facts show no more than acts alleged to have been done in excess of the authority of temporary administrators in the management of the estate. There is no sufficient showing of a wasting or destruction of assets. At least two of the temporary administrators are men of property ; they are all under a bond in tibe sufficient amount of $1,000,000, in addition to their personal responsibility. Any irregularities committed by them should be redressed by the court which appointed them. If waste and dissipation is ever a ground of interference by a court of equity, where the administration is not vacant, but subsisting, no such case is made out by the record here. It is also to be observed that while the superior court of Georgia,. exercising chancery jurisdiction, is given superintending power over the court of ordinary in matters of the administration of estates, no such supervisory jurisdiction is vested in the federal courts. They are courts of concurrent, not •of superior, jurisdiction to the state courts of ordinary. The superior court might, therefore, well interfere in cases where a federal court would not.
[11, 12] The appellees also contend that the District Court had jurisdiction to entertain the bill for the purpose of setting aside a judgment of the state court, obtained by fraud of the parties, citing Simon [58] v. Southern Ry. Co., 236 U. S. 115, 35 S6up. Ct. 255, 59 L. Ed. 492. Such relief can only be had, as against a final judgment of the state court, when there is an attempt to enforce it. The federal courts have no authority to stay proceedings of state courts, while they are in progress and before they are concluded by final judgment or decree, except in aid of bankruptcy proceedings or of their own previously acquired jurisdiction. In the case of Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054, the Supreme Court held that:
“A court of equity will not entertain jurisdiction to set aside tire granting of letters of administration upon a succession in Louisiana on the ground of fraud.”
Much less will it arrest -the state court in proceeding to grant permanent letters of administration because of a possibility that the state court will not do justice. The presumption is just the other way. Nor will it move to set aside the grant of mere temporary letters of administration because of alleged irregularity or fraud in their procurement, and appoint receivers to supplant the temporary administrators. Alleged irregularities or fraud in the appointment of receivers by a federal court would be no ground of interposition by a state court ,of equity, where the federal court had first obtained jurisdiction.
For these reasons, we think the District Court erred in appointing receivers of the estate of the decedent, and in enjoining and directing 'the temporary administrators to surrender the assets of the estate in .their hands as administrators to the receivers, i
The District Court, in a proper case, under the bill filed, if the necessary parties can be brought into court without defeating its jurisdiction by reason of there being no diversity of citizenship, has jurisdiction to.entertain and determine tire respective rights of citizens of different states, claiming an interest in the estate of the intestate. Whether, even for that purpose, the bill can be maintained successfully, in the absence of the permanent administrators as parties defendant to represent the estate, and, if not, whether they can be made parties to the pending bill, upon their appointment are questions that may require consideration. For these reasons, we will not direct the dismissal of the bill, but leave counsel to take such further steps, if any, as they may be advised.
The orders appealed from will be reversed, and the cause remanded for further proceeding not inconsistent with this opinion.