in which were considered most of the cases cited by counsel here, and many others. In that case the petition of an insolvent assignee of a defendant company, to become a party defendant, was rejected; but the plaintiff was allowed to file his supplemental bill, for the reasons therein stated. The difference between an abatement of an action at law by a change of the interest of the parties, and that kind of a defect which is produced in a suit in equity by a purchase of the thing involved pendente lite, is considered by Mr. Justice Brown in the case of Electrical Accumulator Co. v. Brush Electric Co., 44 Fed. 602, 605, 606, and an analogous effect upon the jurisdiction of the court in Clarke v. Mathewson, 12 Pet. 164. In Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802, Mr. Justice Story remarks that a purchaser pendente lite may file a bill in equity like this; and Tappan v. Smith, 5 Biss. 73, Fed. Cas. No. 13,748, is directly in point,-that being the case of a general assignment by the plaintiffs in the equity bill, the assignee being required to file an original bill in the nature of a supplemental bill in order to be made a party, a demurrer being sustained to a bill which was only a supplemental bill; and there the learned court cites the case of Greenleaf v. Queen, 1 Pet. 138, as the only direct authority for the practice in the supreme court. In that case of a substituted trustee it was held that a supplemental bill in the nature of a bill of revivor was required, which is very analogous to an original bill in the nature of a supplemental bill. This is well illustrated by the case of Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932, where Mr. Justice Story considers the subject quite at length, in its most technical bearings; taking the distinctions between the different classes of privies in law and privies in deed, and holding that a devisee could not file a bill of revivor, strictly and technically so called, but must resort to an original bill in the nature of a bill of revivor, because he was a privy in deed, and not a privy in law, such as an heir at law or an administrator would have been. Considered on principle, that case is also a direct authority for the ruling I make in this case, which is that this new plaintiff, being, by virtue of the sale to him under the collateral pledge, a privy in deed, must resort to an original bill, but at the same time, for the reasons stated, has a right also to take the benefit of the former proceedings in this case, by way of supplement to that proceeding, and this cannot be denied him. The case of Campbell v. City of New York, 35 Fed. 14, is another case directly in point for this practice. In the case of Shaw v. Bill; 95 U. S. 10, a succeeding trustee was allowed to file merely a supplemental bill, and it was held to be an adjunct of the original bill, and that no further subpoena was required. Whether there is any conflict between the ruling in this case and that of Greenleaf v. Queen, supra, we need not inquire at this stage of the proceeding, for I shall not now undertake to determine whether new process is required or not. The order presented to me does not ask for any notice to the parties to defend this bill, nor proceed upon the theory that they may be now directed to do so without formal process, but simply grants leave to file the bill upon executing the ordinary bond for costs. In the case of Ex parte Railroad Co., 95 U. S. 221, the court remarks upon the effect of an assignment pendente lite of a defendant, and states that such an assignee may, by appropriate application, make himself a party, but it does not settle any question of practice like that we have. The case of Eyster v. Gaff, 91 U. S. 521, involved an assignee in bankruptcy of a mortgagor, appointed during the pendency of proceedings for foreclosure, and it was said that he might be substituted for the bankrupt or be made a defendant upon petition; but the question arose in an action of ejectment, and the case does not decide the question of practice with which we are concerned. Besides, these cases involving bankrupt assignees are somewhat peculiar, are often influenced by particular provisions of bankruptcy statutes, and, except in general principle, they need not be considered here. Mr. Foster, in his Federal Practice (page 269, § 186), also considers the rule that the assignee need not be made a party unless the assignment disables the assignor from taking a decree or performing a decree, and states the general rule, as here stated, of the right of such assignees to become parties plaintiff or defendant by appropriate proceedings for that purpose. It is said in Snead v. McCoull, 12 How. 407, 421, that amendments should not be allowed to make a new case after a hearing has been had, or after the case has been set down for hearing, and, if this interference arose in that way, I should have no doubt but what the court should refuse it; but, as shown by Mr. Justice Brown in Electrical Accumulator Co. v. Brush Electric Co., supra, where new facts asking affirmative relief by reason of a purchase pendente lite are shown, this rule does not apply. Technically, if the original plaintiff has been divested of the interest and title upon which this suit was founded, it cannot proceed until the real party in interest is in court to take the benefit of that decree to which it was entitled, but which now belongs to its alienee under any valid assignment. The result is that the application to file this original bill in the nature of a supplemental bill will be granted, upon giving bond for costs, but this bond should be large enough to include the costs already accumulated; for, if the assignee is to have the benefit of the former proceedings, he must take the place of the original plaintiff, in his liability for costs, and this being already a very large record, with accumulated costs more than $600, and as further litigation may ensue upon the filing of this new bill, the plaintiff will be required to give a cost bond in the sum of $1,000. As before suggested, counsel for the original plaintiff may take their choice of entering the decree which has been ordered in favor of the original plaintiff nunc pro tune, or this leave to file the new bill will be withheld until the decree in the original suit goes down. So ordered. CURRELL et al. v. VILLARS et al. (Circuit Court, W. D. Tennessee, W. D. February 28, 1896.) 1. EQUITY PRACTICE-ABATEMENT AND REVIVAL. When a suit in equity, which seeks, with other relief, the recovery of real estate, abates in consequence of the death of a complainant, whose interest in the real estate devolves upon other persons, the proper method of reinstating the suit is by a supplemental bill, or bill in the nature of a supplemental bill, and not by a bill of revivor. 2. WILLS-EFFECT AS CONVEYANCE-FOREIGN PROBATE-TENNESSEE CODE. When a will is executed in a foreign country, and is proven, as required by section 3012 of the Tennessee Code, before a foreign court having the requisite probate jurisdiction, the record of the probate affirmatively showing the probate by such proof, and authenticated as provided in section 4550, it will pass title to real estate in Tennessee, as a common-law conveyance, without registration. 3. SAME CONTENTS OF CERTIFICATE OF PROBATE. * A certificate of probate in a foreign court which states that the will was C. F. Vance, for complainants. W. M. Randolph & Sons, for respondents. TAFT, Circuit Judge. This is an action in equity for relief, part of which is the recovery of real estate situated in Memphis. Andrew Currell, one of the complainants, has died since the bringing of the bill, and the cause now comes on, upon a bill in the nature of a bill of revivor, to revive the cause in the name of the executor and trustee under the will of Andrew Currell. Section 955, Rev. St. U. S., provides as follows: "When either of the parties, whether plaintiff or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly, and the court shall hear and determine the cause, and render judgment for or against the executor or administrator as the case may require. And if such executor or administrator, having been duly served with a scire facias from the office of the clerk of the court where the suit is depending, twenty days beforehand, neglects or refuses to become party to the suit, the court may render judgment against the estate of the deceased party, in the same manner as if the executor or administrator had voluntarily made himself a party. The executor or administrator who becomes a party as aforesaid shall, upon motion to the court, be entitled to a continuance of the suit until the next term of said court." It is in reliance upon this statute that counsel for the complainants presses the bill for the revivor. A certified copy of the proceedings, in which the will of Andrew Currell was probated in Ireland, has been filed, and this bill of revivor is brought in the name of William Gihon, trustee and executor thereunder; the other executor, John Workman, named in the will, having renounced the office of executor and trustee. Objection is made to granting the revivor, on the ground that the will is not properly certified as a foreign will, and, secondly, on the ground that the will was not so proved in the court where it was probated in Ireland as to pass real estate under the law of Tennessee. A preliminary objection not made by counsel addresses itself to the court, and that is whether this cause can be revived at al' in the strict meaning of that term. It was held by the supreme court, in the case of Macker's Heirs v. Thomas, 7 Wheat. 530, that the section relied upon (section 955 of the Revised Statutes, which was the thirty-first section of Judiciary Act 1789, c. 20), related only to personal actions, because the power to prosecute or defend is given to the administrator of the deceased party, and not to the heir or devisee. It was also decided, in that case, that, in real actions, the death of either party abated the suit, and Green v. Watkins, 6 Wheat. 262, was cited in support of this conclusion. This is a real action in equity. It abated on the death of Andrew Currell. A new right of action arose of the same character in favor of the heirs or devisees of the deceased complainant. Equity rules 56, 57, and 58 are as follows: Rule 56: "Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and, upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule day, which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course." Rule 57: "Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the nature of a supplemental bill, may 'be necessary to be filed in the cause. leave to file the same may be granted by any judge of the court, on any rule day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto, on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court." Rule 58: "It shall not be necessary, in any bill of revivor or supplemental bill, to set forth any of the statements in the original suit, unless the special circumstances of the case may require it." It is clear that the proper course for the heirs and devisees of Currell is to file a supplemental bill, or a bill in the nature of a supplemental bill, under equity rule 57, instead of a bill of revivor under rule 56. The suit has become defective by a change of interest in the parties. Assuming that this will be done, I proceed to consider the question as to what is necessary, in Tennessee, to pass title by a will executed in a foreign country. Section 3003 of the Code of Tennessee provides that: "No will or testament shall be good or sufficient to convey or give an estate in lands, unless written in the testator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, neither of whom is interested in the devise of said lands." Section 3010 provides: "Wills shall be proved and recorded, and letters testamentary granted, in the court of the county where the testator had his usual residence at the time of his death, or in case he had fixed places of residence in more than one county, in either or any of said counties." Section 3012 provides: "Written wills, with witnesses thereto, when not contested, shall be proved by at least one of the subscribing witnesses, if living. And every last will and testament, written or nuncupative, when contested, shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to support it." Section 3022 provides that: "Wills executed in other states, or in any of the territories, or in the District of Columbia, shall be proved according to the laws of this state, and certified in the manner prescribed by the act of congress." Section 3023 provides that: "A copy of a will so certified shall be registered in the county where the land lies, and a copy from the books of the register duly certified shall be evidence." Section 3024 provides that: "And where the last will and testament of any person deceased is proved in a court of any state or territory of the United States, or before the mayor of any city, any person interested may present a copy thereof, duly authenticated, to the county court of any county in the state where the land or estate devised or disposed of by the will is situated; and thereupon such court may order the same to be filed and recorded, and said copy, when so recorded, shall have the same force and effect as if the original had been executed in this state, and proved and allowed in the courts of this state." Section 3025 provides that: "And said will, if proved according to the laws of this state as to wills, and executed within the limits of this state, shall be sufficient to pass lands and other estate." Section 3026 provides that: "In those cases where the will is proved before a court of any other state or territory, the copy shall be authenticated in the manner prescribed by the act of congress of 1790, section 2, chapter 11, for authenticating the records and judicial acts of any one state in order to give them validity in any other state." It appears that, previous to 1875, an alien was not permitted to hold or transmit real estate in Tennessee, but by chapter 2, § 2, of the Laws of that year, now incorporated as section 2804 of Milliken & Vertrees' Revised Code, it was provided that: "An alien, resident or nonresident, may take and hold property, real or personal, in this state, either by purchase, descent or devise, and dispose of and transmit same by sale, descent or devise, as a native citizen; and in all cases where aliens, resident or nonresident, have heretofore acquired title to property, real or personal, in this state, in a lawful manner, said aliens, their assigns, heirs, devisees or representatives shall hold and dispose of the same. in the same manner as 'native citizens." There is no specific provision in the statutes of Tennessee prescribing how a will executed and probated in a foreign country shall be authenticated for use as evidence and as a muniment of title; in Tennessee, and in the absence of such a provision, section 4550 of the Code of the state must have application to this case. That section provides that copies of the records and proceedings in the courts of a foreign country may be admitted in evidence upon being authenticated as follows: |
