
    NATIONAL SPIRITUAL ASS’N v. VESTAL et al. 
    
    (Circuit Court of Appeals, Fifth Circuit.
    November 19, 1926.)
    No. 4897.
    1. Judgment <§=>828(3) — Where order denying probate of will was affirmed by highest state court, federal District Court could not aid sole legatee therein by setting aside settlement agreement between such legatee and alleged widow and heirs of testator (Rev. St. Tex. 1925, art. 3348).
    Where order denying probate of will because of testator’s mental incapacity was affirmed by highest state court, held that, in view of Rev. St. Tex. 1925, art. 3348, federal District Court could not aid sole legatee in will by setting aside settlement agreement between such legatee and alleged widow and heirs, on ground that they had falsely claimed relationship to testator.
    2. Judgment <§=>828(3).
    Remedy of unsuccessful litigant in highest state court is by appeal to 'United States Supreme Court, and he cannot begin over again in federal courts.
    Appeal from tbe District Court of the United States for tbe Northern District of Texas; James C. Wilson, Judge.
    Suit by tbe National Spiritual Association against Sarah A. Vestal and others. Decree for defendants, and plaintiff appeals.
    Affirmed.
    Will C. Austin, of Fort Worth, Tex. (Alonzo M. Griffen, of Chicago, 111., and Mark A. Barwise, of Bangor, Me., on tbe brief), for appellant.
    W. P. McLean, Jr., of Fort Worth, Tex., for appellees.
    Before WALKER, BRYAN, and FOS- . TER, Circuit Judges.
    
      
      Rehearing denied December 13, 1926.
    
   BRYAN, Circuit Judge.

This is an appeal from a decree dismissing tbe bill of complaint of tbe National Spiritual Association. Tbe bill contains allegations to the following effect: Jobn L. Jackson, deceased, by bis will left to" appellant bis entire estate, valued at more than $500,000. Probate of tbe will was contested by those claiming to be Jackson’s widow and heirs, and was refused by tbe trial court. An appeal was taken, first to tbe district court, and then to tbe Court of Civil Appeals. Tbe last-named court dismissed tbe appeal because of tbe association’s failure to give an appeal bond. Warne v. Jackson, 230 S. W. 242. A settlement was thereupon arrived at, whereby tbe association received $75,000, and tbe balance of tbe estate was divided between tbe contestants, who claimed to be Jackson’s widow and heirs. That settlement was approved by tbe judge of probate, but about a year thereafter tbe appellant association filed its petition to bave tbe settlement set aside on tbe ground that tbe contestants bad falsely and fraudulently claimed to be next of kin to Jackson. Tbe petition was denied on the ground, among others, that Jackson did not possess testamentary capacity at tbe time be made bis will. On appeal this action was sustained by tbe Court of Civil Appeals (Warne v. Jackson, 273 S. W. 315), and has since been sustained by tbe Supreme Court of Texas. That petition is substantially tbe same as tbe bill in this ease.

It thus appears that probate of Jackson’s purported will has been denied by the-appropriate state court, and that tbe order denying probate was not successfully appealed from and has become final. This being so, appellant has been adjudicated not to have any interest in Jackson’s estate by virtue of tbe will, and does not claim an interest otherwise. If, therefore, it be true, as claimed, that appellees falsely claimed relationship to Jackson, with the consequent right to inherit bis estate, a situation would be presented of which tbe true heirs might complain, but with which appellant has no concern. It was made the duty of the county judge to refuse to probate the will if Jackson was of unsound mind, even though no contest were made. Revised Civil Statutes of Texas 1925, art. 3348. Unless there were a valid will, which had been duly probated, the federal District Court was without power to grant any relief to appellant. We are therefore of opinion that on the merits the decree appealed from is correct.

Besides that, appellant presented the same questions to the state courts, and, if it desired to litigate further, it could and should have taken an appeal from the Supreme Court of Texas to the Supreme Court of the United States. It cannot try out its rights to a finality in the state courts, and, being unsuccessful, begin all over again in the federal courts. The doctrine of res judicata prevents that.

The decree is affirmed.  