
    SAMUEL B. AMORY ard JOHN AMORY, Executors, etc., of JAMES AMORY, deceased, Plaintiffs and Respondents, v. PETER B. AMORY, Defendant and Appellant.
    Before Barbour, Ch. J., Curtis and Var Vorst, JJ.
    
      Decided December 31, 1874.
    Under the acts of Congress,of 1789, 1866, and 1867 relating to the removal of causes from a State court to a United States court, it must affirmatively appear that the controversy or action is between a citizen of the State in which the action is brought and á citizen of another State.
    The fact that the plaintiffs arre executors, and have taken out letters testamentary in the State of Rew York, does not confer upon the plaintiffs the ahari'acter of citizens of the State of New York, so that they can be considered as such for the operation of this statute. The powers conferred by this statute can be exercised only by the most strict, literal, and perfect compliance with every provision required by the act.
    Appeal from a judgment.
    The only points for a reversal are based upon the defendant’s application to remove the cause to the U. S. Circuit Court, and the denial of the court of the same, and the subsequent trial of the cause.
    
      Geo. E. Horne, for appellant.
    I. The defendant having taken all the necessary and proper steps under the statute to effect the removal of the suit, and having filed in this court the petition and affidavit, together with a bond which was accepted by the court as good and sufficient security, the cause was Tby operation of the statute removed to the IT. S. Court, and this court had no further jurisdiction. The jurisdiction of the IT. S. Court attaches, and no subsequent event can divest it (Act of Congress, July 27, 1866; Stevens v. Phoenix Ins. Co., 41 N. Y. 149 ; Roberts v. Nelson, 40 How. Pr. 387).
    This court had no power or authority to permit plaintiffs to controvert the allegations in the moving papers, and could not inquire into the truth or falsehood of the facts alleged in defendant’s petition.
    The proper and only place for plaintiffs to raise that issue is in the IT. S. Court (Kanouse v. Martin, 15 How. U. S. 198; Stevens v. Phoenix Ins. Co., 41 N. Y. 149 ; Bell v. Dix, 49 N. Y. 232.
    II. This court having acted without having jurisdiction in the case, all its proceedings subsequent to such filing (of which the court had proper notice), the trial and verdict were without authority of law and are void, and the judgment appealed from should therefore be reversed.
    
      Fullerton, Knox & Crosby, for respondents.
    I. While we insist upon the inefficacy of the application, it is still proper to examine the case upon its own merits.
    A removal of the cause can be had only when the 61 controversy is between a citizen of the State in which 
      “ the action is brought, and a citizen of another State.”
    In all the statutes relating merely to civilians this, distinctive feature is observed. The controversy must be between a citizen of the State in which the action is brought and a citizen of another State.
    In such case the party who is a citizen of such other State may apply for and obtain the removal (Act of March 2, 1867; 1 Abb. U. S. Pr. 122).
    The law is construed so strictly that the court will not remove a cause brought against more than one defendant, if any defendant is a citizen of the State in which the action is brought (Fisk v. Chic., etc., R. R. Co., 2 Abb. Pr., N. S., 453 ; S. C., 53 Barb. 472),
    To show the proper jealousy with which the State courts guard their jurisdiction, reference is made to the following case, where it is held that—
    Upon an application to remove, it is necessary for defendant to show as well that the suit was commenced “by a citizen of the State in which the suit is brought, ’ ’ as that it was commenced “ against a citizen of another State.” A petition, therefore, stating that plaintiff “is a citizen,” is insufficient. Ho legal presumption arises from it that he was a citizen at the time of the commencement of the action (Holden v. Putman, etc., Co., 46 N. Y. 1).
    If the proceedings on the part of the defendant to remove the case to the Circuit Court of the United States were in accordance with the twelfth section of the act of Congress referred to, and if the facts presented to the court upon that application established a case within the act, then the State court, eo instanti, lost jurisdiction of the case, and it was, by operation of law, vested in the federal court, and all subsequent proceedings in the action in the State court were void (Id. p. 4 [Opinion of Andrews, J.] citing: Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. U. S.198).
    It necessarily follows that if the proceedings are not 
      “in accordance, etc., or if the facts presented do not “ establish a case, etc.,” then the cause is not removed, and the State court ought to retain jurisdiction.
    The same position is held by the Circuit Court itself.
    “On the presentation of such petition in a State court, no affidavits can be read in opposition. If the jpapers are regular, and conform to the requirements of the act, the court has no discretion (Fisk v. Union P. R. R. Co., 8 Blatchf. 243).
    It follows that otherwise the State court retains jurisdiction, and the cause is not eo instanti removed.
    In this case, Peter B. Amory, a citizen of Bew Jersey, applies for a removal of a suit brought against him, in this court, by Samuel B. Amory and John Amory, who are not “citizens of the State in which the suit is brought,” but who are citizens of Wisconsin.
    
    They sue as executors of the will of James Amory, which was first admitted to probate in Wisconsin, and afterwards in Bew York, as a foreign will, having letters testamentary from the courts of both States. James Amory was at the time of his death a citizen of Wisconsin. It also appears, without dispute, that both of the plaintiffs, as individuals, were citizens of the State of Wisconsin.
    So far, then, it appears that this is not an action between a citizen of the State in which it is "brought against a citizen of another State. It is brought in a court of the State of Bew York by citizens of the State of Wisconsin against a citizen of Bew Jersey.
    II. But the pretense for saying that the plaintiffs are citizens of Bew York is that they, having taken out letters testamentary in the State of Bew York, “ as such executors, are citizens of the State of Bew York.”
    This is an idle pretense. A citizen of Great Britain or of France may take out letters in this State on a foreign will, but who ever supposed that act made him a citizen of the State of Bew York?
    
      If it can be demonstrated that the plaintiffs, who are in fact citizens of Wisconsin, could, as such, and by virtue of their office or title as executors derived from the probate of the will of the testator in the Surrogate’s Court of the county of Hew York, sue a citizen of the State of Hew York in the United States Circuit Court for the Southern District of this State, then it is obvious that they are still, in their capacity as executors, citizens of Wisconsin.
    Being citizens of Wisconsin, and executors of the will under the authority of that State, they could not sue in the United States court in Hew York, unless appointed executors under the authority of this State ; but being so appointed, under its authority, they can sue in such court as citizens of Wisconsin and as executors of James Amory (Noonan v. Bradley, 9 Wall. 394 ; Dixon’s Exrs. v. Ramsay’s Exrs., 3 Cranch. 319).
    III. So, too, the Circuit Court of the United States has jurisdiction of suits by executors, if citizens of other States, though their testators were citizens of the same State with the defendant (Childress v. Emory, 8 Wheat. 642; Carter v. Treadwell, 3 Story C. C. 25).
    But, as above seen, they must obtain letters testamentary under authority of the State in which they sue (Noonan v. Bradley, supra; Dixon’s Exrs. v. Ramsay’s Exrs., supra).
    
    And it is equally true that if the plaintiffs are citizens of Hew York, they may, in right of their testator, who was a citizen of Wisconsin, prosecute in the United States courts, in Hew York, an action against a citizen of the latter state (Clark v. Matthewson, 12 Peters, 164 ; Hatfield v. Bushnell, 1 Blatch. 393).
    IV. Therefore, in any view which may properly be taken of this case, the plaintiffs must be taken and held to be citizens of Wisconsin, and not of Hew York, and this, too, whether they be regarded either in their personal or in their representative capacity; and this "being so, they are not “citizens of the State in which the suit is "brought,” and therefore it is not removable to the United States Court under the act of Congress relied on.
    V. It is obvious from the frame of the Act of 1867, that the question whether the citizenship of the parties is such as to allow of a removal, is traversable and open to inquiry in the court where the petition is presented; while the question whether “he has reason to, and does, believe that from prejudice, etc., he cannot get justice where the cause is pending,” is not traversable (1 Abb. U. S. Pr. 122).
    
   By the Court.—Barbour, C. J.

The Act "of 1866, like its predecessor of 1789, invests a party who is entitled to the benefit of its provisions with a tremendous power—the power of ousting a high court of a sovereign State of all jurisdiction, without its own consent or even interposition. For, upon the" filing of the petition and other papers required by the act, the State court is ipso facto, eo instanti, wholly and forever divested of its jurisdiction, and the action must thenceforth proceed, if at all, before a tribunal of another and different government. So extraordinary a power and operating such consequences, it is easy to see, can be exercised only upon and by the most strict, literal, and perfect compliance with every provision required by the act.

The statute in question was not intended for the benefit of either of the parties when both the plaintiff and the defendant are citizens of the same State or of different States other than that in which the action is pending, but only where the plaintiff in a case like this is a citizen of the State in which the suit is brought, and the defendant a citizen of another State. Indeed, it is the fact that the parties are thus situated in regard to their citizenship respectively, and nothing else,- that gives authority to Congress under the constitution to legislate upon the subject, and of course it is of the highest importance that the papers should show clearly and conclusively that the party seeking to remove the cause is a citizen of some State other than that in which the action is brought, and that his opponent is a citizen of the latter State; and so the statute requires. In this case, however, the petition did not state that the plaintiffs either then, or when the action was brought, were residents or citizens of the State of Hew York, without qualification or limitation, but only alleged that the suit was-instituted by them as executors, under letters testamentary issued to them here, and further averred that the plaintiffs, as such executors, were citizens of this State, which in effect is the mere averment of a legal conclusion that they were citizens of this State because letters testamentary had been granted to them by a surrogate of Hew York.

It is not necessary to consider whether the defendant is right in supposing that a surrogate has power thus to make a citizen. It is sufficient to say that the averment, as it stands, raises a question for judicial decision, and is not the unqualified statement of the fact of citizenship which is required by the act of 1866.

The fact, too, which I understand to have been established during the progress of the action, that the plaintiffs were and still remain residents and citizens of Wisconsin, is wholly unimportant so far as concerns the question before us. If the requisite facts had been set forth in the petition, the cause, as we have seen, would have been removed from the jurisdiction of the court upon and by the filing of the papers, whether those facts were true or false.

The result of my conclusions is that the filing of the petition and other papers in this case did not oust the court of its jurisdiction. The judgment should therefore be affirmed, with costs. The other case between the same parties involves the same question, and the judgment therein should be affirmed, with costs.

Curtis and Van Yorst, JJ., concurred.  