This was an action brought te cancel a certain deed purported to have been made by Philinda Terwilliger to her daughter, Julia Terwilliger, and also a certain will devising to said daughter certain real estate. Said instru< ments, among other charges concerning the same, are alleged tn be forged, and for this reason their cancellation is sought. The bill of complaint is as follows:

Then follows Uto prayer io the bill, anil-also some seven interrogatories propounded to defendants as to their knowledge of said dot'd or will or both, and as to whore the same are, and as to whether they claim to own an interest, in said land, etc. To this bill defendants filed a demurrer, on the grounds: ‘¡first, that Uie matter specified (herein is within (he jurisdiction o£ courts of probate, and is not within the jurisdiction of the circuit, court; and, further, because there Is not in the bill such a statement of such a case as entitled plaintiffs to any discovery from defendants, or to any relief against them, or either of them. This demurrer was overruled by Judge JDeady. Subsequently defendants filed their plea in bar to said bill, setting forth the execution of the will by Philinda, Terwilliger, and the probal,e of the same by the county court of Multnomah county, slate of Oregon, on the 27th day of March, 1880. This was overruled. Defendants then filed their answer to the bill, denying the allegations of the same as to the forgery of the will and deed, and alleged that both were duly executed, and then alleged (hat tin* will was probated as set forth in the plea. Upon ihe bill, answer, and replication, the cause went to trial, and upon the finds the court found that; both deed and will were forgeries. It will be seen that the parties have changed somewhat since the commencement of the cause, Julia Richardson having died in the mean time, and two of the plaintiffs having married.

The first: question for consideration: Did the circuit, court have jurisdiction of this cause, or was it within the exclusive jurisdiction of the county' court of Multnomah county, Or., where Philinda Terwilliger died? The constitution of the state of Oregon provides that “ihe county court shall have the jurisdiction pertaining to probate courts,” etc, Oonsl. art. 7, § 12. The laws of Oregon provide: “The county court has the exclusive jurisdiction in the first instance pertaining to a court of probate, that is, (1) to take proof of will.” There is no definition which describes generally the jurisdiction pertaining to prohate courts. They are courts created, as a rule, by statute, and (heir jurisdiction defined by *426 statute. ' In each state where such courts exist their powers are defined by its laws. Often powers are given to thera which are different from those which pertain to such courts in any other state. There is no common-law definition which applies to such courts. In considering the constitution of Oregon, then, we must have recourse to the legislation of that state to determine what jurisdiction pertains to probate courts. The territory of Oregon had, by virtue of its organic act, probate courts, and I think in determining what is meant by the clause in the constitution of Oregon we may refer to the laws of that territory in limiting the jurisdiction of the same. I have not found them, so far as they pertain to the question here presented, different from the present laws of Oregon. In determining what is the probate of a will under the laws of Oregon, I find no better guide for this court than the decisions of the highest court of that state.

In the case of Hubbard v. Hubbard, 7 Or. 42 , the supreme court said:

The same conclusion was reached in Luper v. Werts, 19 Or. 122 -126, 23 Pac. 850 . In this last case the court urges that it would be better for the legislative authority to require the probate court to issue citation to be served on parties interested in the estate, and have a contest concerning any will. This, I think, shows there was no law in Oregon, when this action was commenced, to warrant any contest upon the validity of a will at the time the same was being probated. What was the effect of probating a will in this manner? The supreme court of Oregon has held that in that state the will could not be attacked in any collateral proceeding. Hubbard v. Hubbard, supra. Under the English law, and in most of the states, a will devising real estate, so far as it affected the same, could be attacked collaterally, such as in an action of ejectment. The probating of a will in the common form had no effect as regards real estate in England. 1 Jarm. Wills, p. 51 (*28). This is a rule in most of the states, but in Oregon a different rule has been established. Under the decisions of the supreme court of Oregon, after a will has been probated, then any one interested in the estate can attack the will in what is called a “direct proceeding.” Jones v. Dove, 6 Or. 188 ; Hubbard v. Hubbard, 7 Or. 42 ; Brown v. Brown, Id. 299; Clark’s Heirs v. Ellis, 9 Or. 133 ; Chrisman v. Chrisman, 16 Or. 128 , 18 Pac. 6 ; Luper v. Werts, 19 Or. 122 , 23 Pac. 850 ; Potter v. Jones, 20 Or. 240 , 25 Pac. 769 ; Rothrock v. Rothrock, 22 Or. 551 , 30 Pac. 453 . It is important to determine the nature of this proceeding. In the first place, we find that there are parties to the same (see the style of the above causes); that it is not an *427 action in rem, in which a contest is made against the validity of che will, and no parties in the sense that one is plaintiff and the other defendant. In the case of Clark’s Heirs v. Ellis, supra, we find in the statement of facts the following:

In the case of Luper v. Werts, supra, I find that there Sarah L. Luper filed a petition ‘in the county court to vacate the order admitting the will to probate, and alleging therein that the pretended will was void, etc. The administrators with the will annexed, one of whom was a devisee in the will, and-the other the husband of one of the devisees, filed an answer to this petition. It is evident that this was a trial between the parties. In the supreme, court one party is termed the appellant and the other the respondent. In the petitions named, as far as can he observed, the same facts are set forth as would be under the same circumstances in a bill in equity.

We now come to the question, can this proceeding be classed as a suit of a civil nature at common law, or in equity? It is provided in section 629, Rev. St. U. S., that:

In the case of Weston v. City Council, 2 Pet. 449 , Chief Justice Marshall said of the term “suit”:

In the case of Gaines v. Fuentes, 92 U. S. 10 , Justice Field, in delivering ihe opinion of the court, said:

An examination of the dissenting opinion of Justice Bradley in this case will show that the question as to whether such an action was a suit in equity of a civil nature was the one under discussion. The court held it was such a suit. In this case, also, we observe pointed out the difference between a proceeding in a probate court to prove and establish a. will and a case where the validity of a will is lidgated between parties. After stating that a federal court has uo jurisdiction of the proceeding to probate a will, Justice Field says:

An examination of the case of Ellis v. Davis, 109 U. S. 485 , 8 Sup. Ot. 327, will show that the supreme court again makes a distinction between the probate of a will and an action to try the validity of a will between parties, and when there is a decree or judgment which affects only the parties to the action.

In the Broderick Wül Case, 21 Wall. 503 , it is stated that ordinarily the probate of a will is a proceeding in rem. It should be observed that in California the proof of a will is of a solemn character, and much different from the ex parte mode' of probating a will in Oregon. The suit for contesting a will after the probating of the same in Oregon is undoubtedly one between parties, and binding only the parties thereto, and hence is such a one as a circuit court of the United States could take jurisdiction of when the amount in controversy is sufficient, and the parties plaintiff and defendant citizens of different states.

In the suit of Gaines v. Fuentes, supra, after stating that a suit to annul a will and limit the operation of its probate was in the nature of a suit for equitable relief, the supreme court again says:

Here it will be seen that if a suit is essentially a suit of a civil nature for equitable relief, and it is customary to prosecute the same in any state court where the action arose, whether the same is a county court or a probate court or a district or circuit court, the proper federal court will have concurrent jurisdiction of the same with such state courts, where the amount is sufficient and the parties are citizens of different states, as prescribed by the United States statutes. It should be observed, also, that when it is customary for such state courts to hear and determine such equitable suits, a United States court, under proper conditions, may hear them. It is not necessary that a statute should exist authorizing the same. The suit in the county court of Oregon in such matters is not authorized directly by any statute, but is a customary exercise of jurisdiction. It was, I think, the intention of the court to approve of the above view in the case of Ellis v. Davis, supra. In it the court said:

*429 In the Broderick Will Case it was admitted, if a state by statute authorized the bringing of a suit to declare a will void in its courts of law or equity, the same could he maintained in a proper case in a federal court. The views here expressed are supported by the case of Brodhead v. Shoemaker, 11 Fed. 518 . 1 do not think the casi; of In re Cilley, 58 Fed. 977 , can be considered as an authority against, (bom. That, was an at tempt to remove si proceeding probating a will, and which had been appealed from the probate court to a higher court. As near as can be colledod from the statement of the facts, it was a proceeding in rem, in which a contest was presented, and not a suit between parlies. The title of the cause, In re Gilley, clearly indicates this.

It. is urged hy appellants that this suit cannot be maintained, because the appellees had a plain, speedy, and adequate remedy at law. No such remedy lias been pointed out to this court under the laws of Oregon. 1! is true that, iu Ellis v. Davis, supra, the court decided that under the laws of Louisiana the complainant had a remedy at law' in an adion of revindication. This action would seem to be somewhat; In the nature of an action of ejectment at common law, and the adion to recover possession of real estate under the code practice. The will devising real estate could he thus attacked in England and many of the states, hut in Oregon, when a will is probated, it cannot be attacked in any collateral proceeding. James Terwilliger had the right to the possession of the property as a tenant by curtesy, and no action could be maintained against him for the possession of the premises. There seems to be a dispute between the counsel for the opposite parties in lilis case as to the right the plaintiff would have, under the laws of Oregon, to compel the production of the will in the probate court, and the probating of the same. Whether or not such right would exist depends upon the construction of a statute of that state which does not; seem to have boon interpreted by the highest court thereof. But let, it be granted that plaintiffs could have caused the production of the will in the probate court, what relief would that have afforded them? As we have seen, the probating of the will would have been in the common form,—ex parte. They would not have been a party to the proceeding. What relief the course suggested would have afforded plaintiffs it is difficult to see.

There is another question of more moment and difficulty presented in the fact that at the time the hill was filed in this action the will had not been probated. Justice Matthews, in the case of Ellis v. Davis, supra, says:

The statement here would seem too broad. The truth is that, a valid will, before it is probated, devises the title to the lands described in the will, which takes effect upon the death of the testator. The probating of a will in common form, as we have seen, in England, has no effect upon real estate. 1 Jarm. Wills, *28. By *430 some statute in England, passed in 1857, it would seem the probate of a will furnished prima facie evidence of its validity and contents. The only effect of probating a will in common form in most of the states is that it can be introduced in evidence. This, I think, is the effect of the decisions in Oregon. As a valid will conveys title to real estate to the devisees named therein, it would appear that the assertion of the devising by will of certain real estate by parties residing on the land would be a cloud upon the title of the heirs, and there ought to be some remedy for removing that cloud. In this case plaintiffs had no remedy at law. They could not bring an action to recover the possession of the property. The probating of the will afforded no relief to them. They would not be a party to the proceeding. It would be ex parte. Philinda Terwilliger died in 1873. This action was commenced in 1889. Sixteen years had elapsed since her death, and the deed had not been recorded, and the will was not probated. All this time there was a vague assertion of title to the premises in Julia Terwilliger, now by virtue of a deed, and again by virtue of a will. Plaintiffs had never seen these instruments. They had not been exhibited to them. The only remedy that could be afforded them would be to compel the probating of this will in an ex parte manner, so that they might bring the very suit they have in this case. It will be observed that under the decisions in Oregon, when a will is attacked as a forgery, after it is probated, the probating amounts to nothing, and the burden is cast upon the parties claiming under the will to prove the validity of the will. Hubbard v. Hubbard, supra. This is analogous to the rule that prevails in those states where a will to real estate can be attacked in a collateral action in a suit at law, such as ejectment. It would seem like demanding of plaintiffs a vain thing to institute proceedings to compel the probating of a will under such circumstances. It is true, there are decisions which hold that a court of equity will not try the validity of a will. Such is the rule expressed in 1 Story, Eq. Jur. 184, and 2 Story, Eq. Jur. 1445, 1446. This rule is based upon the ground that, as far as personal property is concerned, the probate of the will was vested in courts having the same powers as the ecclesiastical courts of England, and was conclusive; and, as to the real estate, the probating was not conclusive, and there was a remedy at law, namely, ejectment, in which the validity could be tried. At the time this rule was adopted no such conditions were presented as we find in Oregon. Considering the conditions of this case, that time was passing, and witnesses liable to die, and it would seem that a remedy ought to be afforded in a court of equity for the wrongs alleged on the part of plaintiffs. As Judge Sawyer said in the case of Sharon v. Hill, 10 Sawy. 48 , 20 Fed. 1 :

*431 But let it be conceded that as a rule of law the relief asked in this bill could not be granted until the will was probated, that no rights in relation to it capable of being contested between the parties could arise, then how stands this case? The bill does not show that the will had been probated. But the plea and the answer in the case both show that on the 28th day of March, 1889,—24 days after the bill was filed,—said will was filed and probated in the county court in and for Multnomah county, state of Oregon. At this time the bill in the case could have been amended, and this fact set forth, although it was a fact that, occurred after the bill was filed, and a condition of bringing the suit. Equity rule 28; Story, Eq. PL § 885, note 6; Fost. Fed. Pr. (1st Ed.) 240; Buck v. Buck, 11 Paige, 170 . The appearance of defendants was made on the day the will was probated. There is a rule that when a complaint is defective in some material allegation, and that allegation is supplied by the answer, the defect in the complaint is cured. Pom. Rem. & Rem. Rights, § 579; Bate v. Graham, 11 N. Y. 237 ; White v. Joy, 13 N. Y. 83 -86; Vernam v. Smith, 15 N. Y. 327 . It is true, these decisions arose under the code pleading, but I see no reason why the same rule should not apply under any system of pleading. It would seem highly technical for a court to reverse a cause, and compel a new trial, when all the fagts necessary for the proper determination of the cause are before it in the record. I find the same principle is maintained in the federal courts. In the case of Hagan v. Walker, 14 How. 29 -35, facts stated in an answer were held to show that what would appear to have been a defective statement in the bill was not essential on account of the existence of these facts. In the case of Johnson v. Waters, 111 U. S. 640 , 4 Sup. Ct. 619, it was held that the statement of facts in the answer could be called into requisition to show that a claim was not prescribed as stated. In the case of Cavender v. Cavender, 114 U. S. 464 , 5 Sup. Ct. 955, a demurrer had been interposed to the bill for a defective statement of the cause of action, and overruled. The defendant answered. The supreme court said, in considering the error in overruling the demurrer: “If there was any defect in the statement in the bill, it was rendered immaterial by statements in the answer, and is not ground of complaint.” The demurrer in this case, under such circumstances, must be considered as waived. The plea stated the very facts which made the bill good, if it. was necessary that the will should be probated before the action was commenced. There were other reasons for overruling the plea, which, on account of the position I have taken as to the right to maintain the action in the circuit court, it is not necessary now to discuss.

Appellants urge that the appellees were guilty of laches in not bringing this suit at an earlier date, and tliat the bill should have stated facts showing the cause of the delay. In support of this proposition several decisions of the supreme court have been cited. These cases were all different as to the facts from the case at bar. In the ease of Badger v. Badger, 2 Wall. 94 , there was a sale of real estate at administrator’s sale. It was a public sale, well known to the widows, heirs, and guardian. It was bid in by a friend of one *432 of the administrators, and soon after conveyed to him. This administrator was Daniel Badger, a brother of the other heirs. It was, some 25 years afterwards, claimed that this sale was void as fraudulent. Fraud in such a transaction does not make the sale void, but only voidable. A failure to avoid the same within a reasonable time is construed into a waiver of the fraud. It also appeared that the most important witnesses in the case had died, and that the brother who purchased the property had gone into possession of the same. The case of Marsh v. Whitmore, 21 Wall. 184 , was a case where fraud was charged in a sale, and time had elapsed. The sale was a voidable one, and no sufficient excuse for the delay in seeking to avoid the sale appeared in the bill. The case of Wood v. Carpenter, 101 U. S. 140 , was a case of the fraudulent confession of judgments and assignment of property. These were transactions which, if not disaffirmed, amounted to a waiver of the fraud. In this case at bar, the charge is that the deed and will are forgeries. The beneficiary in each instrument never took possession of the property under the same. It does not appear that any third person, under the strength of these instruments, has acquired any of the property described therein. The instruments have never been made records, as they should have been if genuine. Time will not make a forged instrument valid. It might be that a party might so conduct himself as to be estopped from asserting that an instrument was forged. It is stated in Pomeroy’s Equity Jurisprudence (section 918) that when a person is deprived of his property by a forgery he can recover it from an innocent purchaser, if he has done nothing to estop him from asserting his right. In some' cases it has been held that only when the adverse party has been lulled into doing something which, he would not have done but for the neglect or delay in asserting a right will the doctrine of laches apply. Gibbons v. Hoag, 95 Ill. 45 ; Daggers v. Van Dyck, 37 N. J. Eq. 130; 12 Am. & Eng. Enc. Law, “Laches,” p. 544. It would seem hardly to comport with a court appeáling to right and conscience to hold that, unless an heir should bring a suit within what might be termed a reasonable time to cancel a forged will which had not been probated, still in the hands of those implicated in its forgery, and having done nothing to estop him from asserting his rights, he would be held to have waived or affirmed, the forgery; and, further, that under such circumstances, unless he should give full and particular reasons for not bringing ah fiction within a limited time in his bill, he would have no standing in a court of equity. The bare statement of such propositions ought to be their own refutation. But, if it should be granted that the position as to laches of appellant is correct, still, in this case, considering the position that this action could not be maintained until the will was probated, there is no room for the doctrine of laches in the case. The suit was actually commenced be: fore the will was probated or the deed recorded.

There appears to have been some complaint as to the evidence of experts giving evidence from a comparison of handwritings. This is permitted by section 765 of Hill’s Annotated Laws of Oregon, and the case of Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 *433 U. S. 250 , 5 Sup. Ct. 119, sets the matter at rest, as far as this court is concerned, in favor of the admission of such evidence. We have found as a fact that both the deed and will were never executed by Phi linda Terwilliger, and are forgeries. We have reached this conclusion from a comparison of the acknowledged handwriting ol! said Phil inda, Terwilliger with, that exhibited in the signatures of said instruments. We have been guided in reaching this conclusion by our own inspection, guided somewhat by the evidence of the experts in the case. There are quite a number of circumstances, independent, of this comparison of handwritings, which lead to the same conclusion. Julia Terwilliger Richardson, on March 21, 1875, wrote her brother, William O. Green, a, letter. To this letter James Terwilliger added a note, in which he stated, among other things, as follows: “If there is anything more that can be done for you, it shall be done, as your mother deeded all her property here to Julia, after her and my death.” This corresponding with the language in the deed, there can be no doubt, but this note was written by him. Why did he then fail to state anything about; the will, if there was one? The will bears date the day Galvin Green, one of her sons, was killed in Eureka, Eev. lie is not named in the will, but her other son is. It is evident that the naming of this son in the will was with the vie>w of preventing him from contesting the will under the laws of Oregon. Waterman, who swears he wrote the will, testifies that Phi Linda Terwilliger knew it was necessary to mention her sons in the will, or, under the laws of Oregon, they would come in for their share in the estate as though no will had been executed. Is it; probable that, remembering one son, she should forget the other under such circumstances? Is it not more probable that the one who wrote this will knew at the time there was but one son living, and did not recall, or did not know, that Philinda Terwilliger could not have known of the death of the other, at the date given to the will? Then there is the important circumstance that the will and deed were kept for near 1(5 years without; giving any publicity thereto. Eo record was made of them. It does not seem reasonable that James Terwilliger would have kept the will in his possession for near 16 years without taking legal advice concerning the same, and having it probated, if he felt that it was genuine. His evidence upon the subject, of keeping this will as he did, and not communicating the fact to Ms daughter, is not satisfactory. The daughter, Julia, testifies that she did not know of this will until in 1881, some eight years after her mother died, when she,was told of it by her uncle, John Terwilliger. James Terwilliger says he found this will, after the death of his wife, among her papers and “knickknacks.” lie does not say he knew of this will before this iiine. Taking human beings as we find them, we feel sure that any man of ordinary intelligence would have made known the fact of finding this will as he swears he did. Any one called upon to weigh human testimony must judge of its probability iu connection with Ms knowledge of human nature, and the probalde conduct of any human being under a given state of circumstances. We should say that it would be the natural act of *434 any reasonable person finding so important an instrument, under such circumstances, to make it known to those interested. But he, according to his own testimony, said nothing- to any one. When he wrote to William O. Green, some two years after his mother’s death, he says nothing about it, under circumstances that would have induced' a declaration on the subject, for in that letter he mentions the deed. The reasons it is said Philinda Terwilliger gave for disinheriting her sons are not satisfactory. “She said that her sons had had their time to make money, and that, therefore, she would give them nothing.” Again, it is said that she urged that they had got all the property got by her first husband, Green. We do not know what the law of Oregon was, at the time she reached there, upon the right of the wife in the personal property of her husband; at common law, upon a distribution of the same, she would have been entitled to only one-third thereof. 2 Bl. Comm. 515. Green had been drowned in the Indian country, in what is now part of the state of Idaho. The value of this property was not much, at all events. Then it is claimed that all the estate of Calvin Green was given to William O. Green. This proves to be untrue. It further appears that the estate of Calvin Green was of no value to his brother William. These matters exhibit that James Terwilliger, his daughter, and friends were seeking for some motive for the unnatural act of a mother disinheriting her sons. For a mother to do this should require some strong motive, when we consider the unfaltering love of a mother for her offspring. Philinda Terwilliger was no exception, as we view the evidence, in this regard, among mothers. The motives assigned for this act seem not to be based upon facts, and are illusory. It would seem that Waterman wrote the will, and yet he does not remember that there was an erasure in the signature of Philinda Terwilliger. He remembers many minute circumstances, according to his evidence, in regard to writing the will, but nothing as to this fact. It looks somewhat as though this was a fact he would prefer not to have investigated. One would think, when his mind was called to so important a fact, he would have remembered it. After this will was made there is no doubt there was some talk about it; not open talk, but information given secretly of the fact that such an instrument existed. This would be the natural conduct of human beings, under the circumstances, considering that the will was forged. Julia hears of it first from her uncle, John, in 1881, eight years after her mother’s death, and not from her father. It is singular, after having received this information, she says nothing to her father upon the subject, or he to her. Yet when Mary F. Green came to the house about this time she speaks to her father, requesting that he exhibit the will and deed to Mrs. Green, as though familiar with the fact that he possessed the instruments, and he was aware that she knew he possessed them. In some points the evidence of Julia and her father does not fully agree. In considering the evidence of the witnesses who are relatives of Julia Terwilliger, we find it quite manifest that they thought it perfectly just that her mother, Philinda, should give her all the property she had become possessed of after *435 her marriage with James Terwilliger. They seem in some way to have been impressed with the idea, that this property liad been acquired by the joint action of the father and mother. The truth is, however, that this 150 acres of land was a gift of the United States to Philinda Terwilliger as a reward for her becoming a pioneer in the settlement of its distant possessions, and that the means which enabled her to reach Oregon she derived from her first husband, Oreen. We find, therefore, that the opinion that the will is a forgery, judging from the handwriting, is corroborated by many circumstances bearing upon the question. When we consider that the deed is defective, we find a motive for the forging of the will; and when we find that the will is a forgery, we feel that interested parties were willing to commit any forgeries in order to vest the title to this real estate in Julia Terwilliger. Judging from the handwriting in the signature to the deed, we feel confident Philinda Terwilliger never wrote it.

The evidence in this case was so fully and ably discussed by Judge Hawley, presiding upon the trial of the cause in the district of Oregon. we cannot hope to say more than he has upon the facts in the case which led him to the conclusion that both deed and will were forgeries. 56 Ped. 384. We concur fully in his views upon this point, and hence feel that it is unnecessary to more fully present them ourselves.

It is ordered that the judgment of the circuit court be, and the same is hereby, affirmed, with costs.