De Korwin v. First Nat. Bank of Chicago, 8924.

Citation156 F.2d 858
Decision Date11 September 1946
Docket NumberNo. 8924.,8924.
PartiesDE KORWIN v. FIRST NAT. BANK OF CHICAGO et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Charles R. Aiken and Aiken, McCurry, Bennett & Cleary, all of Chicago, Ill., for appellant.

John W. Kearns, Wm. B. McIlvaine, Jr., J. F. Dammann, Winfield T. Durbin, Cranston Spray, Howard D. Moses, David A. Watts, Frank L. Paul, and Gilbert H. Osgood, all of Chicago, Ill. (Wilson & McIlvaine, Amberg, Livingston, Kearns & Dahlin, Scott, MacLeish & Falk, and Bell, Boyd & Marshall, all of Chicago, Ill., of counsel), for appellees.

Adams, Moses & Culver, of Chicago, Ill., for guardian ad litem.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from a decree dismissing a bill in equity for lack of jurisdiction. The lower court also denied plaintiff's motion for leave to dismiss the cause as to certain defendants and also denied plaintiff's motion to file an amended complaint. Plaintiff challenges the propriety of these rulings.

The complaint alleges that the plaintiff,1 Joseph Maria de Korwin, is a citizen of the Republic of Poland; the individual defendants are citizens of the States of California, Florida, Illinois, Maryland, Michigan, New Jersey and Pennsylvania; the defendant First National Bank of Chicago is a national banking association; the defendant charitable institutions are Illinois corporations.

It further alleges that Otto Young, a wealthy Chicago resident, died in 1906 leaving him surviving his wife and four daughters. By his will, after individual bequests and annuities, he created a trust estate for the benefit of his wife and daughters and their issue. The will directed that the widow receive $100,000 annually, and the daughters receive life annuities of $36,000. The will provides: "In the event that either of my daughters shall die, either before or after my decease, leaving issue her surviving, such issue shall be entitled to receive so long as they shall continue to survive, the same share of the net income of said trust estate which deceased daughter would if living have been entitled to receive under the provisions of this will, by way of annuity or otherwise." The trust was to be terminated and distributed "when the last survivor of my daughters shall have deceased and the youngest surviving child of my daughters shall have attained the age of twenty-one (21) years all of said trust estate then remaining in the hands of said trustee shall be divided in equal shares between my grandchildren, the surviving issue of any deceased grandchild to stand in the place of and receive the share which such deceased grandchild would have been entitled to receive if then living." It is apparent that during the life of the trust the entire income was to be distributed or held for the benefit of the widow and daughters or their issue and that upon the trust's termination the principal remaining was to be distributed to Otto Young's grandchildren and the issue of any deceased grandchild.

The complaint shows that the First Trust and Savings Bank of Chicago was nominated as trustee and accepted such nomination. In 1929, while still acting as trustee, the First Trust and Savings Bank was consolidated with the Union Trust Company, an Illinois corporation, and changed its name to the First Union Trust and Savings Bank, an Illinois corporation. The consolidated corporation then took over the administration of the estate. In 1933, the First Union Trust and Savings Bank merged with the First National Bank of Chicago, and since this merger the latter has served as trustee.

The complaint further shows that the plaintiff married Selma Cecile Young, one of the daughters of Otto Young, the testator, and by her had a son, Stanislaus Stephen de Korwin. Selma Cecile Young died intestate after divorcing plaintiff. The son died intestate in 1940 without having any children born to him. It is through this deceased grandchild of Otto Young that the plaintiff claims an interest in the estate.

The plaintiff also alleges that he is a member of a large class of persons who are commonly and generally interested in the subject matter of the suit and that he represents the class. He names as defendants a great many persons — devisees or legatees under the will of Otto Young or beneficiaries of the trust created by the will. He also includes as parties persons unknown and persons not in being who might become entitled to or claim an interest in the property upon coming into being.

By the first count of the complaint plaintiff alleges that the trust created by the will is void as violative of the rule against perpetuities and that the trust property is therefore intestate property and should be distributed to the heirs of Otto Young, including plaintiff. By this count plaintiff asks the court to interpret the will.

In the second count, plaintiff alleges that even if the trust is valid he has an interest in a certain amount of the trust property which must eventually be distributed as intestate property. He also alleges in this count that he is a member of a class entitled to share in this distribution and asks for an accounting.

By the third count, plaintiff makes the charge that the present trustee is acting as trustee de son tort because of the failure of the successor trust companies to comply with the provisions of the will relative to appointment of successor trustees.

The prayer of the complaint following the three counts outlined above seeks the following relief: (1) That a guardian ad litem be appointed for the infant and incompetent defendants; (2) that the devise in trust be held void as violative of the rule against perpetuities; (3) that the corpus of the testamentary trust be ruled intestate property and distributed to plaintiff and other heirs at law of Otto Young; (4) that the plaintiff be adjudged issue of his son and as such entitled to a beneficial interest in the trust estate; (5) that, if the trust be held valid, the First National Bank of Chicago be held trustee de son tort and be required to account and be surcharged with all losses and fees paid to it under its trusteeship; (6) that the trust estate be divided and partitioned and distributed to the heirs at law of Otto Young, including plaintiff, and (7) that the plaintiff be adjudged to represent a class and that the action is properly brought by him as such representative.

The court appointed a guardian ad litem who appeared and answered the complaint and also filed a counter and cross claim to the complaint. Several of the named defendants filed their answers and some also moved to dismiss the complaint.

The defendants' motion to dismiss was based upon lack of jurisdiction on the grounds that (1) diversity of citizenship was not alleged specifically, (2) a realignment of the parties destroyed diversity and (3) an alien cannot sue the citizens of more than one state.

After argument on the motion to dismiss and before the decree dismissing was entered, plaintiff sought to dismiss certain party defendants who were asserted to have the same interest as plaintiff and therefore should be realigned. Upon such realignment it was claimed diversity would be destroyed. Plaintiff also asked leave at that time to file an amended complaint instanter. By this complaint plaintiff removed the first ground mentioned above as defeating jurisdiction and sought to remove the second by not including the parties whom defendants sought to realign. The lower court denied plaintiff's motion to dismiss as to certain defendants, denied his motion for leave to file an amended complaint instanter and dismissed his bill for want of jurisdiction.

The defendants urge that the order of dismissal was proper because indispensable parties were made defendants in plaintiff's original bill and such parties were, upon proper alignment, on the plaintiff's side of the litigation, and when thus realigned citizens of Illinois are on opposite sides of the controversy and diversity jurisdiction destroyed. It is also urged that this jurisdictional defect was not cured by the omission of such parties in the proposed amended complaint. Further, it is insisted that plaintiff, an alien, cannot sue citizens of more than one state.

It is apparent that the propriety of the lower court's action hinges largely upon the determination of whether certain defendants were indispensable parties. The parties named in the original bill as defendants sought to be...

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22 cases
  • De Korwin v. First Nat. Bank of Chicago, General No. 43 C 1043.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 19, 1949
    ...of Appeals reversed, however, holding that this Court had jurisdiction and remanded for further proceedings. De Korwin v. First Nat. Bank of Chicago, 7 Cir., 156 F. 2d 858. Certiorari was denied First National Bank of Chicago v. De Korwin, 329 U.S. 795, 67 S.Ct. 481, 91 L.Ed. The pertinent ......
  • De Korwin v. First National Bank of Chicago
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 12, 1958
    ...was commenced in 1943. Several phases of it have been decided by this court and by the Court of Appeals. De Korwin v. First National Bank of Chicago, 7 Cir., 156 F.2d 858, certiorari denied 329 U.S. 795, 67 S.Ct. 481, 91 L.Ed. 680; D.C., 84 F.Supp. 918; 7 Cir., 179 F.2d 347, certiorari deni......
  • De Korwin v. First Nat. Bank of Chicago
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 1, 1950
    ...v. First National Bank of Chicago, D.C., 84 F.Supp. 918. Related details appear in the decision of this court in De Korwin v. First National Bank, 7 Cir., 156 F.2d 858. Consequently we shall not reiterate except so far as necessary to clarify our reasons and Appellants' contention that plai......
  • Elbert v. LUMBERMAN'S MUTUAL CASUALTY COMPANY
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 17, 1953
    ...which the federal courts must determine for themselves." Ford v. Adkins, D.C., 39 F.Supp. 472, 474. See also De Korwin v. First National Bank of Chicago, 7 Cir., 156 F.2d 858; 3 Moore's Federal Practice, 2d Ed., Sec. 19.07, pages 2152, The principles announced by Mr. Justice Curtis in Shiel......
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