The question whether the petitions for removal present a case in which this court is obliged by the Constitution and laws of the United States to surrender its jurisdiction and proceed no further in the cause, is one which must be determined by this court in the first instance, though subject to revision by the Supreme Court of the United States on writ of error. Stone v. Sargent, 129 Mass. 503, and cases cited.
The only provision of the Constitution of the United States under which the jurisdiction of the Federal courts can be invoked in this case, is that which ordains that the judicial power of the United States “ shall extend to controversies between citizens of different States.” U. S. Const, art. 3, § 1. And one of the earliest amendments of that Constitution declares that “ the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const. Amendm. art. 10. Under the Constitution, therefore, it would seem that the jurisdiction of the courts of the United States, so far as it depends upon the citizenship of the parties, may extend to any controversy between citizens of different States, but cannot include controversies between citizens of the same State; and under every act of Congress passed before March 3, 1875, concerning the removal of causes from the State courts to the Federal courts, it was held that all the defendants who were real parties in interest must be citizens of a different State from the plaintiff, in order to entitle them, or either of them, to remove the cause. Bryant v. Rich, 106 Mass. 180, 192, and cases cited. Florence Sewing Machine Co. v. Grover & Baker Co. 110 Mass. 70, 80, and 18 Wall. 553.
The act of Congress of March 3, 1875, § 2, provides that a civil suit “ in which there shall be a controversy between citizens of different States ” may be removed by “ either party ” into the Circuit Court of the United States; and that when in any such suit “there shall be a controversy which is wholly *434between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit.” The opinion of the majority of the Supreme Court in Meyer v. Construction Co. 100 U. S. 457, and the unanimous judgment of that court in Ayers v. Chicago, 101 U. S. 184, have dispelled the doubts created by decisions in some of the Circuit Courts, and have authoritatively determined that no removal can be had under the act of 1875, unless all those on one side of the real controversy are citizens of different States from all those on the other side.
The material facts of the present case, as alleged in the bill, are as follows: The defendant Peirce, as trustee under the will of Seth Adams, holds the sum of $75,000, in trust to invest the same in such manner as to him may seem prudent, and to pay the net income thereof semiannually to the testator’s brother, Charles W. Adams (the other defendant) during his natural life, “ such payments to be made to him personally when convenient, otherwise upon his order or receipt in writing, in either case free from the interference or control of his creditors; my intention being that the use of said income shall not be anticipated by assignment; ” and at his death to pay the net income to his present wife for the benefit of herself and of his children, and the principal at her death or second marriage to the children and their representatives. The defendant Adams owes the plaintiff $10,000 for money lent. The plaintiff is a corporation established in this Commonwealth, the defendant Peirce is a citizen of Massachusetts, and the defendant Adams is a citizen of Texas, and, except his interest in this trust fund, has no means wherewith to pay his debt to the plaintiff, and has no property subject to attachment. The bill prays that the plaintiff may be allowed to reach and apply that interest in payment of his debt; that it may be sold and the proceeds applied to such payment, or Peirce be ordered to hold the fund in trust to pay the net income semiannually to the plaintiff until the debt is paid, or until the death of the defendant Adams; and for further relief.
If this bill is founded upon the general chancery jurisdiction of this court, the trustee is not merely a formal, but a necessary *435party, entitled to be heard upon the question whether he is under the duty and obligation of holding the fund during the lifetime of the defendant Adams for his exclusive benefit, free from all claims of his creditors. Sparhawk v. Cloon, 125 Mass. 263. Nichols v. Eaton, 91 U. S. 716. If, as some of the allegations and prayers of the bill indicate, it is founded on the special jurisdiction in equity conferred upon this court by the Gen. Sts. c. 113, § 2, cl. 11, “to reach and apply, in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, within this State, which cannot be come at to be attached or taken on execution in a suit at law against such debtor,” the jurisdiction of the court depends upon the existence of such an interest within this Commonwealth, and upon the joinder of the trustee as a defendant. Dearborn v. Kemble, 5 Allen, 372. Phœnix Ins. Co. v. Abbott, 127 Mass. 558.
In either aspect of the case, no judgment can be rendered upon the bill in its present form, nor the controversy as between the creditor and the debtor be fully determined, in favor of the creditor, without the presence of the trustee; and the trustee being a citizen of the same State with the plaintiff, neither the debtor alone, nor the debtor and the trustee jointly, can remove the case into the Circuit Court of the United States. Burnham v. Chicago, Dubuque & Minnesota Railroad, 4 Dil-lon, 503. Burke v. Flood, 1 Fed. Rep. 541, 551, 552. Bailey v. New York Savings Bank, 2 Fed. Rep. 14. Merchants’ Bank v. Thompson, 4 Fed. Rep. 876. Tremain v. Amory, C. C. U. S. Dist. Mass. May term 1879.
To the suggestion that, if it should be decided that the defendant Peirce holds no fund as trustee applicable to the payment of the plaintiff’s claim, yet, the court having obtained jurisdiction over the defendant Adams by his appearance, the plaintiff may, under the St. of 1865, c. 179, § 1, be allowed to amend by changing this suit into a suit at law, and, if successful in such suit, obtain a judgment therein against Adams, it is a sufficient answer, that no such amendment has as yet been allowed or asked for.
Petitions for removal denied.