
    Erwin Davis, Respondent, v. Ellen S. Cornue, and Joshua G. Cornue, Appellants, Impleaded with Others.
    
      Jurisdiction over property devised by a resident of another State, whose will 7ias been duly admitted to probate there:
    
    The complaint in an action alleged that the .plaintiff had made an agreement, with certain heirs of a deceased person, who at the. time of his death resided in the State of Montana, and with a legatee- and devisee under his will, under which the plaintiff was to obtain a portion of the estate; that the defendants, who as it appeared were not parties to the agreement nor affected by it> but who had filed objections to the probate Of the will, entered into a corrupt conspiracy, in pursuance of which they withdrew their objections and .consented to the probate of the will to the great "detriment of the plaintiff, and demanded that the defendant Ellen'S. Cornue be restrained from receiving a portion of the estate Which had been adjudged to belong to her by a court of the State of Montana, which had jurisdiction of the subject-matter.
    
      Hbld, that a demurrer interposed by the defendants to the complaint should be . sustained; ’ ,
    That the courts of the State of New York had no jurisdiction to administer upon the estate of a person -who was a resident" of the State of Montana, nor to determine whether his will was properly admitted to probate there, nor to distribute the assets;
    That the proper course of the plaintiff Was to apply for relief to the -courts of Montana.
    Appeal by the defendants, Ellen S. Cornue and another,; from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New-York on the fth day of December, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the complaint.
    
      Charles E. Ruskmore, for the appellants. ■
    
      Robert M. Morse and Walter S. Zogcm, for the" respondent.
   Ingraham, J.:

This appears to be a rather novel action, by which plaintiff seeks to reverse the judgment of a court of the State of Montana, which admitted the will of a deceased resident .of that State to probate, and" a decree of that court directing a distribution of the assets of the estate of the deceased (the court plainly having jurisdiction), on the ground that he (the plaintiff) had made an agreement with certain of the heirs at law of the deceased, and also with a legatee and devisee under the will of the deceased, by which he was to obtain a portion of the estate of the deceased, and that the said judgment' and decree were obtained by fraud and in violation of the rights of the plaintiff. The complaint is demurred to by these defendants, who were not parties to that agreement, and the agreement did not assume to affect these defendants’ share of the estate.

The complaint alleges a wicked and corrupt conspiracy, by which these defendants, who had filed objections to the probate of the will, withdrew the objections and consented to the probate of the will upon being allowed a certain portion of the estate, and that the withdrawal of such objections operated to the great injury of the plaintiff. But it is a little difficult to see upon what principle these defendants were prohibited from withdrawing such objections to the admission of the will to probate, or why this court should prevent the decree of a court of competent jurisdiction, in fact having exclusive jurisdiction of the subject-matter of the proceeding, from being carried out. This court has no jurisdiction to administer upon the estate of the deceased, has no power to determine whether or not the will of the deceased was properly admitted to probate in the State of Montana, or to distribute the assets of the decedent, who was a resident of the State of Montana. We could not determine here whether the plaintiff would have got under his agreement more than the decree of the court of Montana has awarded to him or to those whom he represents if the defendants’ objections to the probate of the will had not been withdrawn, and the question ' as to whether or not the will should be probated had been contested. And if this court should grant the injunction which the plaintiff asks, the defendant Ellen S. Cornue would simply be restrained from receiving a portion of the decedent’s estate which the judgment of a competent court- has decreed that she is entitled to, without being provided with any method by which it could be determined what she was entitled to or what her rights were. Here the only remedy asked for is that the defendants be restrained from accepting any portion of said estate under a decree of a court of competent jurisdiction, which decrees that the said defendant is entitled' to á portion of it.' fío- judgment is asked determining how much this defendant is entitled to receive, and'it is clear that this court could not, in this action, determine that question. ■ Upon the granting of this relief the condition of the parties "Would be that a large amount of property exists which a court of competent jurisdiction has determined should be divided among the parties to the action, but which this court adjudged should not be divided until they had bought the plaintiff off. We are not asked to determine the rights of the plaintiff 'in and to any of the property of the deceased, and, as before stated, we would have no power to determine that question. •

" " The ■•learned judge at Special Term, in deciding this motion, expressly disclaimed any power or authority to interfere with the decree of the foreign court, but held that it was competent for this ■court to act upon the persons of the defendants and" restrain them from taking the benefit of certain provisions of that decree when it was clearly shown that they were inserted by fraud and collusion, without notice' to the plaintiff, and for the evident purpose of despoiling him of' that share of the decedent’s estate to which he was entitled. But we think it quite clear that, where this Court neither has power to determine to whom the estate should go, nor power to set aside the decree on the ground of collusion or fraud,- or for any other reason, it would be manifestly improper to grant an injunction ’ restraining the parties from receiving the share under .the'decree, thus leaving the decree in fófcé but restraining any of the parties' from executing it, and thus preventing the property of the decedent’s estate from being distributed according to law. It is hardly the province of a court of equity to compel the persons interested in. an estate to buy off one.who claims an interest in the estate, by .an injunction which could be of no use to the plaintiff except so.far yás it would compel others to buy him off.

The plaintiff has a complete remedy by an application to the proper court in Montana which has ■ jurisdiction of the subject-matter of the action, which can summons all the parties interested before .it, and give to the plaintiff such relief as he is entitled to. .

We think, therefore, that this complaint alleges no causé of action .against these demurring defendants, who were not parties to or bound in any way by the agreement set up in the complaint. ■

The- interlocutory judgment must be reversed and the demurrer sustained, with leave to the plaintiff to amend the complaint within twenty days, upon payment of costs in the court below and in this court.

Van Brunt, P. J., Williams and O’Bbien, JJ., concurred.

. Interlocutory judgment reversed, and demurrer sustained, with leave to plaintiff to amend in twenty days on payment of costs in court below and in this court.  