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, Mary-
land, 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, pro-
bate 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
doc-
uments, 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
Ste-
phen, 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
disori-
ented 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 tes-
tamentary 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 mir-
ror 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.
Rich-
ard first learned of his mother's death through one of his wife's
friends, who worked for the insurance company that handled Mari-
on'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
Mari-
on's will; the court reasoned that it had no subject matter
jurisdiction
over those claims because "federal courts may not hear probate mat-
ters 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
exe-
cute the trust documents, that Stephen exercised undue influence
over
his mother in order to get her to execute them, and"[t]hat the
amend-
ment 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
testamen-
tary capacity and was unduly influenced in executing her will.

They concede that this court has recognized the"probate excep-
tion" 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
non-
Virginia 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
accom-
plished 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
jurisdic-
tion 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
docu-
ments. Nothing in Foster suggests that a federal court can ignore
the pro-
bate 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
jurisdic-
tion] or a special probate proceeding directly ancillary to or
concern-
ing the probate of the will," in which there is no federal
jurisdiction).
Thus we must examine the nature of John and Richard's undue influ-
ence 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 testa-
mentary capacity at the time the writing was executed." Id. See
also
Redford v. Booker, 185 S.E. 879, 884-85 (Va. 1936) (exercising pro-
bate 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
proceed-
ing 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 pro-
ceeding in probate," and thus the federal court lacked
jurisdiction).2
_________________________________________________________________
2 In view of this well established law and the district court's
clear pre-
trial 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
invali-
date 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]
chal-
lenge to the validity of a will is not within the jurisdiction of
the fed-
eral 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
law-
suits 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
"re-
mained 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 con-
tractual 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,
how-
ever, 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
pro-
bate 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 lim-
itations 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, con-
cluded 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 litiga-
tion 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
statu-
tory 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
