“ If a suit be commenced in a State court against an alien, or by a citizen of the State in which a suit is brought against a citizen of another State, and the matter in dispute exceed the value of five hundred dollars, exclusive of costs, and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for trial into the next circuit court, to be held in the district where the suit is pending, and offer sufficient surety for his entering, in such court, on the first day of its session, copies of the process against him, and also for his there appearing, and entering Special bail in the cause, if special bail was originally requisite therein, the State court shall accept the surety, and proceed no further in the cause.” U. S. Judiciary Act, 1789, sec. 12.
The parties agree that the defendant is a citizen of Massachusetts within the meaning of the statute, but they raise the question whether the suit is to be regarded as brought by a citizen of Massachusetts or a citizen of New Hampshire.
“A trustee who holds the legal interest, is competent to sue in right of his own character as a citizen or alien, as the case may be, in the federal courts, and without reference to the character or domicil of his cestui que trust, unless he was created trustee for the fraudulent purpose of giving jurisdiction. This rule equally applies to executors and administrators, who are considered as the real parties in interest.” 1 Kent Com. 349.
The defendant claims that the widow is the plaintiff in interest, and that the case falls within the principle of Browne & a. v. Strode, 5 Cranch 303, and McNutt v. Bland & a., 2 How. (U. S.) 9. Browne & a. v. Strode “ was an aetion on a bond given by an executor for the faithful execution of his testator’s will, in conformity with the statute of Virginia. The object of the suit was to recover a debt due from the testator in his lifetime to a British subject. The defendant was a citizen of Virginia. The persons named in the declaration as plaintiffs were the justices of the peace for the county of Strafford, and were all citizens of Virginia.” It was decided that the United States court had. jurisdiction in the case. The law of Virginia required all such bonds to be payable to the justices of the county court where administration was granted, but they might be put in suit and prosecuted by, and at the costs of, the party injured. McNutt v. Bland & a., 2 How. (U. S.) 9, 14. “ The jurisdiction of the circuit court (in Browne $ a. v. Strode) was sustained on the ground that though the plaintiffs and defendants were citizens of the same State, the former were mere nominal parties, without any interest or responsibility, and made by the law of Virginia the mere instruments or conduits through whom the legal right of the real plaintiff could be asserted; as such their names must be used, for the bond must be given to them in their official capacity: but as the person to whom the debt was due was a British subject, he was properly considered as the only party plaintiff in the *234action. Whatever right of action existed in virtue of the bond, passed by the operation of the law of Virginia directly to the person for whose benefit it was given, through the conduit appointed for that purpose. For such and kindred cases, the person or officer thus selected by the law as its agent is not a party to the suit.” Irvine v. Lowry, 14 Pet. 293, 300. McNutt v. Bland & a. was an action brought by citizens of New York, in the name of the governor of Mississippi, against citizens of Mississippi, upon a sheriff’s bond given, as required by the law of that State, to the governor and his successors, conditioned for the faithful performance of the duties of the sheriff’s office. The bond might be put in suit and prosecuted, at the costs and charges of any party injured. “ He (the governor) is a mere conduit through whom the law affords a reinedy to the person injured by the acts or omissions of the sheriff; the governor cannot prevent the institution or prosecution of the suit, nor has he any control over it. The real and only plaintiffs are the plaintiffs in the execution, who have a legal right to make the bond available for their indemnity. * * *» In this case, there is a controversy and suit between citizens of New York and Mississippi ; there is neither between the governor and the defendants ; as the instrument of the State law to afford a remedy against the sheriff and his sureties, his name is in the bond and to the suit upon it, but in no just view of the constitution or law can he be considered as a litigant party ; both look to things, not names — to the actors in controversies and suits, not to the mere forms or inactive instruments used in conducting them in virtue of some positive law. * * * Where the real and only controversy is between citizens of different States, or an alien and a citizen, and the plaintiff’ is by some positive law compelled to use the name of a public officer who has not, or ever had, any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than .the persons between whom the litigation before them exists. Executors and administrators are not in this position: they are the actors in suits brought by them; the personal property of the decedent is vested in them; the persons to whom they are accountable, for whose benefit they act, can bring no suit to assert their rights against third persons, be the cause of action what it may ; nor can they interfere with the conducting of the suit to assert their rights to the property of the decedent, which do not vest in them. The personal representative is, therefore, the real party in interest before the court, 12 Pet. 171, and succeeds to all the rights of those they represent, by operation of law; and no other persons are capable, as representatives of the personalty, of suing and being sued.” 2 How. (U. S.) 9, 14, 15.
It does not appear that this suit, in fact, was brought, or is prosecuted, by the widow in the name of the administrator, or is in' any measure under her control, or that she will be liable for the costs or expenses of either party in any event. She is interested as beneficiary, and the administrator is interested as trustee. He has a duty to perform in regard to this claim against the defendant. The policies are payable to him according to contracts made by. his intestate ; andjfit *235was Ms duty to decide whether this suit should be brought and prosecuted by himself. Apparently he is doing what he regards as his duty, in prosecuting it upon his own responsibility. He is none the less a trustee because the fund, if recovered, will be for the use of the widow instead of all persons interested in the estate. In contemplation of law, the mstitution and control of the suit are entrusted to his discretion, and not to hers. If she might be admitted as a party in interest to prosecute the suit in his name upon giving security for costs, it does not appear that this has been done; and it is not necessary to consider the effect of such a proceeding upon this petition,, Neither is there any occasion to inquire whether, if the estate were insolvent, it would be the duty or the right of the administrator, as between himself and the estate, to prosecute this suit for her benefit, without indemnity, and at the risk and expense of the estate. However his rights and duties might be modified by circumstances of that kind, he is, according to our understanding of the authorities, not a mere nominal party, but a trustee holding the legal interest and the legal and actual control, with the power and responsibility of a party; and therefore he is the party by whom the suit was brought, within the meaning of the 12th section- of the statute. We think he is not an assignee within the 11th section.
jPetition dismissed.