PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN A. TURJA; RICHARD H. TURJA,

Plaintiffs-Appellants,

v.

No. 96-2413

STEPHEN F. TURJA, Individually and

as executor of the estate of Marion

A. Turja,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CA-95-1178-A)

Argued: May 7, 1997

Decided: July 8, 1997

Before MURNAGHAN and MOTZ, Circuit Judges, and STAMP,

Chief United States District Judge for the Northern District of

West

Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Murnaghan and Chief Judge Stamp joined.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Scott Larson, Angelo I. Castelli, Greenbelt, Maryland, for Appellants. James Carlton Howard, Jr., BEAN, KINNEY &

KORMAN, P.C., Arlington, Virginia, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The appeal involves the venerable, but infrequently discussed, probate exception to a federal court's diversity jurisdiction. Two

brothers

brought this action against a third brother alleging that he

exercised

undue influence over their mother, which led her to execute a will,

a

trust agreement, and related documents in his favor. After a bench

trial, the district court concluded that the mother lacked the

requisite

mental capacity and was unduly influenced in executing the trust

documents, and so voided them. The district court, finding that it

lacked

jurisdiction because of the probate exception, refused to exercise

jurisdiction over the will or rule on the mother's capacity to

execute

it. The contesting brothers appeal, asserting that the district

court

erred in refusing to exercise jurisdiction over the will, and in

not

awarding them attorneys' fees under the trust agreement. We affirm.

I.

John, Richard, and Stephen Turja are the only children of Dick and

Marion Turja. John, a resident of Hawaii, and Richard, a resident

of

Utah, brought this suit, based on diversity of citizenship, against

Stephen, a Virginia resident.

The family originally understood that the Turja estate (primarily

the family home with a stipulated present value of $301,000) would

go to the surviving parent, and after that parent's death, be split

among the three sons. Since 1978, Stephen has lived with his

parents,

and in more recent years spent a substantial portion of his time

caring

for their needs. Indeed, in 1983, Stephen quit his full time job to

assist

his parents, who were becoming disabled. By 1986 Marion Turja,

who had been close to all of her children and grandchildren, had

become increasingly disoriented, confused, and drew away from

them. At the time her husband died in 1991, Marion was quite

disoriented and likely suffering from Alzheimer's disease.

2

On August 5, 1992, Marion executed a will bequeathing her china

to John, forgiving a $10,000 loan to Richard, and leaving her house

and residuary estate to Stephen. Later in the same month, Stephen

took his mother to see a trusts and estates lawyer, Warren

Grossman;

Grossman was told that Marion wished to establish a living trust in

which she would place most of her property, and at her death leave

her china to John, forgive Richard's debt, and leave the house and

her

residuary estate to Stephen. Concerned that Marion was incompetent,

Grossman contacted Marion's doctor and asked him to assess her testamentary capacity. After several visits, that doctor determined

that

Marion suffered from dementia and lacked the capacity to execute

legal documents. Grossman then refused to create the trust.

However,

Stephen managed nonetheless to have a trust created that would mirror the distribution set out in the August 5 will; Marion executed

the

trust in November 1992 and additional related documents in January

1993, apparently again at Stephen's urging.

Marion died in August 1993. Stephen did not contact his brothers

or his mother's sisters to inform them of his mother's death, and

was

the only person who attended her burial. A month later, he conveyed

the family residence to himself pursuant to the trust agreement.

Richard first learned of his mother's death through one of his wife's

friends, who worked for the insurance company that handled Marion's death benefits.

After discovering what had happened, on November 1, 1993, John

and Richard brought suit in the Circuit Court of Arlington County,

Virginia. On December 30, 1993, Stephen offered Marion's will for

probate in that court. Subsequently, John and Richard nonsuited

their

state action and, on August 24, 1995, filed this action in federal

court

against Stephen, individually and as executor of their mother's

estate.

The complaint alleged six counts: Count I, lack of testamentary

capacity; Count II, undue influence; Count III, fraud; Count IV,

action to set aside deed and other transfers; Count V, constructive

trust; and Count VI, unjust enrichment. The district court

dismissed

the first two counts without prejudice insofar as they involved

Marion's will; the court reasoned that it had no subject matter

jurisdiction

over those claims because "federal courts may not hear probate matters as part of their diversity jurisdiction."
3
The court tried the remainder of the case. After a two-day bench

trial, the court found: that Marion lacked the mental capacity to

execute the trust documents, that Stephen exercised undue influence

over

his mother in order to get her to execute them, and"[t]hat the

amendment to the Turja trust and other related legal documents...

should

be set aside as null and void." The court did not reach the other

causes

of action, finding resolution of them unnecessary to its holding.

John and Richard moved for attorneys' fees, under a provision in

the trust agreement that provided for attorneys' fees to a

prevailing

party in the case of "any dispute arising out of this trust." The

district

court denied fees, holding that because it had invalidated the

trust

agreement, the provision in it regarding attorneys' fees could not

be

enforced.

John and Richard appeal; Stephen filed no cross appeal.

II.

John and Richard assert that the district court erred in refusing

to

exercise jurisdiction over their claims that Marion lacked

testamentary capacity and was unduly influenced in executing her will.

They concede that this court has recognized the"probate exception" as a jurisprudential limit on diversity jurisdiction. See

Foster v.

Carlin, 200 F.2d 943 (4th Cir. 1952). However, they contend that

the

probate exception does not apply here because the relief they seek

in

connection with the will, which at the time the suit was filed only

controlled personal property worth $100, was "incidental" to the

other

relief sought here. John and Richard rely on recent, out-of-circuit

cases limiting the probate exception and argue that it would be a

waste of judicial resources, as well as prejudicial to them, as

nonVirginia residents, to relitigate questions as to the validity of

the will

in the state probate court.

It is hardly clear that the relief they seek with regard to the
will is

"incidental" to the other relief requested. True, if the district

court had

upheld the trust documents, most of Marion's assets would have

passed through the trust. However, now that the district court has

4
invalidated the trust documents, indisputably all of Marion's

property

will pass through her will. Thus, as soon as John and Richard

accomplished the very result they sought as to the trust, Marion's will

and

their claim that she lacked testamentary capacity and was unduly

influenced by Stephen in its execution became central -- rather

than

incidental -- to this litigation.

Moreover, a federal court does not gain jurisdiction to determine

a will's validity merely because the issue is "incidental" to other

claims.1

Instead, we must look at the contours of the "probate exception,"

for

if John and Richard's claims regarding their mother's will fall

within

this exception to federal diversity jurisdiction, the district

court may

not address them no matter how close their connection to claims

(like

those involving creation of the trust) over which a federal court

does

have jurisdiction.

The leading Supreme Court precedent is Markham v. Allen, 326

U.S. 490 (1946). In Markham, the Court determined that although "a

federal court has no jurisdiction to probate a will or administer

an

estate . . . federal courts of equity have jurisdiction to

entertain suits

`in favor of creditors, legatees and heirs' and other claimants

against

a decedent's estate `to establish their claims' so long as the

federal

court does not interfere with the probate or assume general

jurisdiction of the probate or control of the property in the custody of

the

state court." Id. at 494 (citations omitted).

In Foster, 200 F.2d at 947, we further explained that: _________________________________________________________________

1 Notwithstanding the arguments of John and Richard, Foster, 200

F.2d

at 948, is not to the contrary. There we simply noted that "[t]he

fact that

complainant prays for incidental relief which the federal court is

without

jurisdiction to grant does not prevent an adjudication by the

federal court
of the rights of the respective parties in an estate." Id. The

district court

followed that principle here and did not hold that the probate

exception

prevented adjudication of the rights of the parties under the trust

documents. Nothing in Foster suggests that a federal court can ignore

the probate exception and assume jurisdiction over a claim over which it

would

otherwise not have jurisdiction, if the relief sought is

"incidental" to the

principal remedy requested in the litigation.

5
The law is well settled that the federal courts have no

jurisdiction over matters within the exclusive jurisdiction of

state probate courts. However, as to matters which do not

involve administration of an estate or the probate of a will,

but which may be determined in a separate action inter

partes in the courts of general jurisdiction of the state, the

federal courts do have jurisdiction if the requisite diversity

of citizenship exists.

See also Farrell v. O'Brien, 199 U.S. 89, 112 (1905) (asking

whether

"a will contest under the laws of Washington[is] an ordinary action

or suit between parties [in which case the federal court has

jurisdiction] or a special probate proceeding directly ancillary to or

concerning the probate of the will," in which there is no federal

jurisdiction).

Thus we must examine the nature of John and Richard's undue influence and lack of testamentary capacity claims under Virginia law.

In Virginia, the probate court has jurisdiction to determine

"whether the writing, or any part of it, is the true will of the

deceased

and whether the writing is testamentary in character." Smith v.

Mustian, 234 S.E.2d 292, 296 (Va. 1977). A "proper" issue "to be

decided during probate," is whether "the decedent possessed testamentary capacity at the time the writing was executed." Id. See

also

Redford v. Booker, 185 S.E. 879, 884-85 (Va. 1936) (exercising probate jurisdiction over undue influence claim). This jurisdiction is

exclusive. See Tate v. Chumbley, 57 S.E.2d 151, 157 (Va. 1950)

("The issue of whether or not a testator had mental capacity to

make

a particular will can be rendered res adjudicata in a probate

proceeding and none other."). We have previously recognized this feature

of

Virginia law, holding that federal courts have no jurisdiction over

a

suit brought to set aside a will based on claims of undue influence

and

mental incompetence. See Guilfoil v. Hayes, 86 F.2d 544, 545-46

(4th

Cir. 1936) (finding claim brought "to impeach or establish the

will"

was "but supplementary to, and a continuation of, the original proceeding in probate," and thus the federal court lacked

jurisdiction).2

_________________________________________________________________

2 In view of this well established law and the district court's

clear pretrial ruling, John and Richard's argument that the court wrongly
amended its memorandum order post-trial to exclude mention of the

will

is meritless. When the court originally included"wills" among the

legal

documents that Marion "lacked testamentary capacity" to execute in

its

order, it essentially made a clerical error which could be

corrected by the

court sua sponte. See Fed. R. Civ. P. 60(a).

6
Recent out-of-circuit precedent suggests that the probate exception

to federal diversity jurisdiction may lack strong historical roots,

see

Dragan v. Miller, 679 F.2d 712, 713 (7th Cir. 1982), and limits its

reach in certain circumstances. See Glickstein v. Sun Bank/Miami

N.A., 922 F.2d 666, 672-73 (11th Cir. 1991); Ashton v. Josephine

Bay

Paul & C. Michael Paul Found., 918 F.2d 1065, 1071-72 (2d Cir.

1990). However, the parties have not cited, and we have not

located,

a single case in which a federal court has found jurisdiction to

invalidate a will due to lack of testamentary capacity or undue

influence,

much less a case involving Virginia law. Rather, all of the

precedent

is to the contrary. See, e.g., Michigan Tech Fund v. Century Nat'l

Bank, 680 F.2d 736, 739 (11th Cir. 1982) (concluding that "[a]

challenge to the validity of a will is not within the jurisdiction of

the federal courts under the probate exception"); Dragan, 679 F.2d at

714-17

(finding probate exception bars jurisdiction to hear action to

declare

will invalid "because of undue influence" and to have decedent's

property pass through state intestacy statute); Kausch v. First

Wichita

Nat'l Bank, 470 F.2d 1068 (5th Cir. 1972) (finding federal district

court had no diversity jurisdiction in suit to set aside will on

grounds

of lack of testamentary capacity and undue influence).

There are good reasons for the probate exception's limit on federal

jurisdiction. As Judge Posner explained in one of the cases upon

which John and Richard principally rely, reserving probate matters

to

state courts generally promotes legal certainty, judicial economy,

and

resolution by a court expert in those matters. Dragan, 679 F.2d at

714-16. Although in this case, honoring the probate exception will

result in a somewhat inefficient use of judicial resources, in most

lawsuits that will not be the case. Furthermore, we note that John and

Richard could have avoided the duplication here by pursuing their

case where they originally initiated it -- in state court. Finally,

we are

confident that the Virginia probate court will take into account

the

district court's factual findings regarding the trust documents

when

evaluating Marion's testamentary capacity to execute her will. 3

_________________________________________________________________
3 Throughout this case, Stephen has unequivocally asserted that the

probate of his mother's will has not been closed, but simply has

"remained dormant depending on the outcome of th[e federal]

litigation."

Brief of Appellee at 6. In his appellate brief he further asserted

that

7
III.

John and Richard also appeal the district court's order denying

them attorneys' fees. Under Virginia law, "[o]rdinarily, in the

absence

of a statutory or contractual provision to the contrary, attorneys'

fees

are not recoverable by the prevailing litigant." Gilmore v. Basic

Indus., Inc., 357 S.E.2d 514, 517 (Va. 1987).

The trust agreement provided:

In any dispute arising out of this trust, the losing party

shall

pay to the prevailing party reasonable costs and expenses

incurred in connection with any suit . . . including

attorneys'

fees . . . .

John and Richard assert that this clause provides them with a contractual right to fees since they were undisputably prevailing

parties

_________________________________________________________________

"when this litigation is final, there will be active probate issues

to deal

with in Arlington County [probate court]." Id. At oral argument,

however, Stephen suggested for the first time that he would argue in

probate

court that the two-year statute of limitations in Va. Code Ann. §

64.1-90

(Michie 1995) (governing actions by out of state residents to

impeach

wills) had now expired and barred John and Richard from asserting

their

claims of undue influence and lack of testamentary capacity. The

probate

court will, of course, have to address this argument. However, it

may be

meritless, in view of Va. Code Ann. § 8.01-229(E)(1) (Michie Supp.

1996), which provides that a limitations period is tolled by an

action

"commenced within the prescribed limitation period" and "dismissed

without determining the merits." Stephen offered Marion's will for

probate on December 30, 1993; John and Richard instituted the present

action (which was dismissed "without determining the merits" of all

challenges to the will) on August 24, 1995, well within the

two-year limitations period in § 64.1-90. Apparently, John and Richard also

filed an

earlier action in state court on November 1, 1993, see Turja v.
Turja, Ch.

No. 93-950 (Cir. Ct. Arlington County filed November 1, 1993),

which

they subsequently nonsuited; however, since that action was filed

prior

to the time the will was offered for probate, it presumably has no

effect

at all on the limitations period for challenging the will. Cf. Va.

Code

Ann. § 8.01.229(E)(3) (Michie Supp. 1996).

8
in their suit to invalidate the trust.4 The district court,

however, concluded that since it had declared the trust agreement "null and

void,"

this clause in the trust agreement could not provide a contractual

basis

for attorneys' fees.

The clause providing for attorneys' fees is not severable from the

voided trust agreement. As John and Richard note, under Virginia

law, a contract that is invalidated can sometimes be enforced

against

a breaching party. Cohen v. Mayflower Corp., 86 S.E.2d 860 (Va.

1955). However, a testamentary instrument created by an individual

who lacks testamentary capacity is void in its entirety. See 1

William

J. Bowe & Douglas H. Parker, Page on the Law of Wills § 12.46

(1960) ("If the testator lacks mental capacity, the will is void .

. . . It

cannot be valid in part and void in part.") (footnotes omitted).

John

and Richard do not argue that Marion's incapacity only affected a

portion of the trust documents. Absent such a showing, the district

court was correct to find that the attorneys' fees provision, like

the

remainder of the trust agreement, was void and could not provide a

contractual basis for attorneys' fees.

_________________________________________________________________

4 On appeal, John and Richard assert two additional arguments.

First,

they claim that under Virginia law, a trustee must bear the costs

of litigation when he is its cause. See Wiglesworth v. Taylor, 391 S.E.2d

299,

303-304 (Va. 1990) (finding trustee may not be reimbursed for

attorneys'

fees from trust when he causes litigation). However, they cite no

Virginia

case holding that a trustee is liable for fees incurred by

challengers to a

trust, absent a contractual or statutory provision. Second, they

urge us to

make an exception to Virginia's rule of no attorneys' fees absent

statutory or contractual authority for "public policy" reasons. See

generally

American-LaFrance & Foamite Indus., Inc. v. Arlington County , 192

S.E. 758, 763-64 (Va. 1937). Again they cite no Virginia case on

point

-- or indeed a case from any jurisdiction supporting a public

policy

exception in a situation similar to that at hand. Since John and
Richard

made neither of these arguments before the district court and since

they

have offered no persuasive authority for either argument, we

decline to

address them on appeal. See United States v. Bornstein, 977 F.2d

112,

115 (4th Cir. 1992) (finding this court can not address issue

raised for

the first time on appeal absent plain error or miscarriage of

justice).

9
Thus the judgment of the district court is

AFFIRMED.

10