Avery v. Bender, 1043

Decision Date24 June 1964
Docket NumberNo. 1043,1043
Citation124 Vt. 309,204 A.2d 314
PartiesAlbert G. AVERY v. Emilie B. BENDER, Katharine A. Feuerlicht et al.
CourtVermont Supreme Court

Bernard R. Dick, Rutland, and Ronald O. Dederick, New York City, for plaintiff.

Edwin W. Lawrence, Rutland, and Robert W. Owens, Jr., New York City, for defendants.

Bishop & Jeffords, Rutland, for Administrator C.T.A.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.

BARNEY, Justice.

Two questions are before us in this appeal:

1. Did the trial court, as a matter of law, err in granting the motion of defendant Arthur B. Crowley, Administrator c. t. a. of the Estate of Josephine Gray Avery, to dismiss the action as to him?

2. Did the trial court, as a matter of law, err in granting the motion to vacate service of process and dismiss proceedings as to Emilie B. Bender and Katharine A. Feuerlicht, individually and as successor trustees, under deed of trust dated September 12, 1921?

The defendants interposed these motions in connection with special appearances timely entered by defendants Bender and Feuerlicht. No pleadings in response to the plaintiff's petition have yet been filed. At the request of the plaintiff, the Chancellor certified these questions here before advancing the proceedings any further.

The litigation derives from claims centered upon a certain trust instrument that has brought the plaintiff Avery and the defendants Bender and Feuerlicht before this Court once before. Avery v. Bender, 119 Vt. 313, 126 A.2d 99. This case, like the previous one, was commenced as a declaratory judgment proceeding. The petition seeks, generally, for a determination of the interests and duties of the living trustees and beneficiaries of the trust, and an accounting, for purposes of distribution, by those in possession of trust property. Also joined is the administrator c. t. a. of the estate of a deceased trustee, Josephine Gray Avery, one of the original settlors of the trust. Other than the administrator, all parties are non-residents.

According to the petition, at Josephine Avery's death, the corpus of the trust was all in Vermont, where it had been for more than twenty-two years. Briefly described, it consisted of eighteen acres of real estate with buildings on it, and personalty of an estimated worth of $6000, located in Middletown Springs; some $158,000 worth of securities in a Rutland bank; and a savings account of about $1000 in the same bank.

The petition further sets forth that defendants Bender and Feuerlicht contend that they, with the plaintiff, each became entitled to one-third of the trust property upon the termination of the trust with the death of Josephine Avery. The plaintiff's claim is that the defendant Bender has previously, by a formal instrument of release, relinquished her share, and that the trust res should therefore be divided equally between the plaintiff and defendant Feuerlicht. Assuming to act as a trustee charged with distribution of the trust assets, defendant Bender, after the death of Josephine Avery, in some manner obtained possession of some part of the trust assets in the Rutland Bank, removing them to New The plaintiff challenges on two grounds the ruling vacating the service of process on defendants Bender and Feuerlicht and dismissing the proceedings against them. This is the second question certified, but since it is the principal issue of the litigation, we will deal with it first.

York. After this litigation was commenced and notice of it had been personally served in New York State on defendants Bender an Feuerlicht, defendant Bender caused the removal of the remaining trust assets in the Rutland bank. In response to a petition by the plaintiff the Chancellor then ordered the trust assets sequestered.

Plaintiff first asserts that personal jurisdiction of these defendants was obtained by the service made in New York, in accordance with the provisions of 12 V.S.A. §§ 911-913. The significant portion of section 911 reads as follows:

'When an action is commenced at law or in equity [or in probate court], an absent defendant, residing or being without the state so that process cannot be served on him, may be notified of the pendency of such action and given opportunity to make defense therein, by the delivery to him personally, at any place within or without the state, of copies of the process and pleading, and of an order for such delivery * * *.'

Section 912 is not at issue here, since it relates merely to the mode of service and the manner of proving service by way of return and affidavit. Section 913 reads:

'Upon such notice so given to a party at least twenty-one days before the time when he is required to appear, the same proceedings may be had, so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state, as if such process or pleading had been served on a party in the state before entry.'

The plaintiff's claim of personal jurisdiction is generated by the argument of the defendants in support of the ruling below that the petition was demonstrably an action in personam because it sought to require the performance of particular acts on the part of the defendants. As a determinative test of what constitutes an in personam action, the defendants' argument overlooks a great deal, since the petition seeks actions on the part of the defendants based on a fiduciary relationship. Even the defendants claim to be acting in such a capacity. This capacity is not personal, but one where another can be substituted by a court in justifiable circumstances to insure the performance of trust provisions relating to trust property. Any personal liability derives from the fiduciary capacity, just as, for example, a receiver may so act as to create personal liability. But this does not convert the receivership into an action in personam. See Perrine v. Pennroad Corp., 19 Del.Ch. 368, 380-381, 168 A. 196.

However, the plaintiff claims to have acquired in personam jurisdiction in any event. To reach this conclusion, he places 12 V.S.A. §§ 911-913, the statute prescribing the method for making service on defendants outside the state, in the same category as 12 V.S.A. §§ 853-854. These latter sections are so-called 'long-arm' statutes. They specifically provide a way for a resident plaintiff to reach a foreign corporation whose acts in this state have given a plaintiff a right of action. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 464, 194 A.2d 568; Smyth v. Twin State Improvement Corp., 116 Vt. 569, 577, 80 A.2d 664, 25 A.L.R.2d 1193.

There is no doubt that due process permits the similar reaching of out of state individuals on an in personam basis, also, where applicable statutes permit and sufficient contacts with the forum jurisdiction exist. International Shoe Co. v. Washington, etc., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95; Doherty & Co. v. Goodman, 294 U.S. 623, 628, 55 S.Ct. 553, 79 L.Ed. 1097. It is the prerogative of the legislature to decide whether or not it will award This is an in rem limitation, inappropriate to a statute intended to reach in personam claims. In terms of this proposition, the plaintiff has not established in personam jurisdiction here.

this extended jurisdiction to its courts. In special cases, by particular statutes, our Legislature has done so. 12 V.S.A. § 891 applies to motor vehicle cases; 12 V.S.A. § 855 applies to resident plaintiff's claims against foreign corporations; and 11 V.S.A. § 1630 applies to claims against non-resident individuals doing business in the state. The plaintiff bases his claim of in personam jurisdiction on a reading of 12 V.S.A. §§ 911-913 as a legislative grant of this extended jurisdiction to apply generally to out of state defendants. We do not so read it. Such a construction ignores the specific imitation placed upon the application of these sections by the language in section 913 reading, 'so far as to affect the title or right to the possession of goods, chattels, rights, credits, land, tenements or hereditaments in the state * * *.'

As his second challenge, the plaintiff claims the dismissal was error because the action can be supported as one in rem. More particularly, it is the plaintiff's position that this is an action quasi in rem. The generally accepted definition of quasi in rem proceedings is that it affects only the interest of particular persons in specific property; thus distinguishing it from proceedings in rem which determine interests in specific property as against the whole world. See Restatement, Judgments, § 32, comment a (1942). the Restatement classifies quasi in rem actions into two types: Those that represent the assertion of an existing interest in the property involved; and those in which the property is involved only as a random asset to be applied against a personal claim against a defendant. See Roller v. Holly, 176 U.S. 398, 405-406, 20 S.Ct. 410, 44 L.Ed. 520. The petition in this case, by its language, seeks a determination of competing interests in trust property, a part of which consists of real property located in this state. This puts the litigation plainly in the class of quasi in rem proceedings in which the property concerned is the pivot about which the competing interests circle. Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 312-313, 70 S.Ct. 652, 94 L.Ed. 865.

With a part of the trust property being land in Vermont, as recounted in the petition, the presence of a Vermont interest in the administration of that part of the trust, at least, is inescapable. The Restatement, Conflict of Laws, § 243 (1934), expresses the universally accepted principle that, 'The administration of a trust of land is governed by the law of the state where the land is,' and such a trust can be supervised only by the courts of the state where the real estate is located. Chief Justice ...

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  • Turner v. Evers
    • United States
    • California Superior Court
    • January 3, 1973
    ...Jurisdiction, § 167 at pp. 696--697.) He cites no California cases, but the proposition is supported by cases elsewhere, Avery v. Bender (1964) 124 Vt. 309, 204 A.2d 314; State v. District Court (1968) 79 N.M. 33, 439 P.2d 551. It is also supported by the actual results in Minichiello v. Ro......
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    ...tit. 12, § 913(b), 2 which was enacted in 1968 in response to the State Supreme Court's invitation in Avery v. Bender, 124 Vt. 309, 313, 204 A.2d 314, 316-17 (1964). The law provides for suit against a party served out of state who has, or to whom may be imputed contacts or activities withi......
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