225 U.S. 79 (1912), 1045, Chase v. Wetzlar

Docket Nº:No. 1045
Citation:225 U.S. 79, 32 S.Ct. 659, 56 L.Ed. 990
Party Name:Chase v. Wetzlar
Case Date:May 27, 1912
Court:United States Supreme Court
 
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225 U.S. 79 (1912)

32 S.Ct. 659, 56 L.Ed. 990

Chase

v.

Wetzlar

No. 1045

United States Supreme Court

May 27, 1912

Submitted April 22, 1912

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

Where the jurisdiction of the Circuit Court is dependent, under § 8 of the Act of 1875, upon property affected being within the jurisdiction, the defendants not being therein, the fact that the bill was dismissed because complainants failed to prove the existence of any property within the jurisdiction does not affect the right of a direct appeal to this Court under § 5 of the Act of 1891.

The burden of proof as to the existence of property to be affected by the decree within the jurisdiction of the Circuit Court in order to give it jurisdiction under § 8 of the Act of March 3, 1875, c. 137, 18 Stat. 472, is on the complainant.

While averments of some jurisdictional facts may prima facie be taken as true where the questions do not address themselves to want of all foundation of jurisdiction, and in such cases the burden is on the one assailing sufficiency or verity, the burden of proving an averment of a fact absolutely necessary to the exertion of the power of the court to render a binding decree is on the party pleading.

The jurisdiction conferred by § 8 of the Act of 1875 rests upon a real, and not an imaginary or constructive, basis.

The circuit court does not have jurisdiction of a suit against an absent executor in the state where the will was probated unless the property to be affected by the decree is actually within the jurisdiction of the court.

The fact that the state court might, by virtue of its authority in a particular contingency, exert jurisdiction over an absent executor

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of a will probated in the courts of that state as to the disposition of property beyond its territorial jurisdiction does not clothe a circuit court of the United States with jurisdiction under § 8 of the Act of 1875.

The facts, which involve the jurisdiction of this Court under § 5 of the Act of 1891 and of the Circuit Court under § 8 of the Act of 1875, are stated in the opinion.

WHITE, J., lead opinion

MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.

Suing as a citizen of Pennsylvania, Chase, who was complainant below, made defendants to the bill by which this cause was commenced Emil Wetzlar and William P. Bonn, alleged to be "alien subjects of the Emperor of Germany, residing in Frankfort-on-the-Main, executors of the estate of Gustave J. Wetzlar, deceased." It was averred that the testator, a naturalized citizen of the United States and a resident of the City of New York, died in 1898; that his will was probated on February 1, 1899, in the Surrogate's Court of the County of New York, and that letters testamentary were duly issued to the defendants. It was further averred that, by virtue of the fourth paragraph of the will, Julius G. Wetzlar, a son of the testator, was entitled, on reaching the age of twenty-five years, to receive a sixth part of the principal of the residuary estate; that such share was invested by the defendants, as executors, in railroad bonds, and they "held the said bonds in the City of New York as executors, subject to the jurisdiction of your honorable court" (the circuit court). It was further averred that Julius G. Wetzlar

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reached the age of twenty-five years on August 23, 1908, at which time the one-sixth part of the entire residuary estate exceeded in value the sum of $100,000, and that, about three years theretofore, Julius had mortgaged an undivided one-third interest of such share to secure the payment of a promissory note for $5,000, bearing interest. On default in payment, it was alleged, the interest so mortgaged was sold in February, 1909 at public auction, for the sum of $3,000, and Chase, claiming through the purchaser at the sale, became vested on June 20, 1910, with and entitled to the immediate possession of the said one-third of one-sixth of such residuary estate. The defendants, as executors, it was charged, neglected and refused to pay to Chase the share of the estate in question. A copy of the will was attached to the bill as a part thereof. In the will, the defendants were stated to be residents of the German Empire, and express power was conferred upon them to remove the trust estate at any time from the State of New York. The specific relief asked was that complainant might be declared entitled to the immediate possession of one-third of one-sixth of the residuary estate of Gustave J. Wetzlar, deceased, and also to payments of income of the said one-third interest from August 23, 1908, "and may pay your orator the said portion of the said share of Julius G. Wetzlar as may be found to have been unlawfully withheld or diverted from him." There was also a prayer for general relief.

To obtain an order for service outside of [32 S.Ct. 661] the district, an affidavit was made in which it was averred that the bill had been filed to determine disputed claims to a fund which the defendants, as executors and trustees, held within the jurisdiction of the court, and that defendants were alien subjects of the Emperor of Germany, and resided within that Empire, and that neither was within the district, and neither had voluntarily appeared in the action.

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The court, reciting that it appeared

both by the averments contained in the bill . . . and by the affidavit of . . . complainant . . . that the suit was commenced to enforce equitable liens upon, or claims to the title of, personal property within this district, and that all of the defendants are not inhabitants thereof,

entered an order on October 25, 1910, requiring the defendants, on or before a date named, to appear, plead, answer, or demur to the bill, and that, on or before a named date, a certified copy of the order and of the bill should be served upon them wherever found. Presumably in consequence of such service's having been made upon him at his residence in Germany, Emil Wetzlar, one of the defendants, appearing specially for the sole purpose of challenging the jurisdiction of the court, filed a plea verified by his attorney, and moved the dismissal of the cause upon the ground

that no portion of the property of the estate of Gustave J. Wetzlar, and no portion of the trust fund of said estate referred to in the bill herein, is now or has been, for at least five years prior hereto, within the City, County, or State of New York, nor within the Southern District of New York, nor within the United States, but is and has been in Germany, in the possession and control of the said Emil Wetzlar, there residing.

Argument was heard before Circuit Judge Lacombe upon the sufficiency of the plea. It was held to be "sufficient in law and form," and complainant was allowed to file a general replication thereto.

No proceeding for the examination of witnesses out of court having been taken by either party within thirty days after replication, the complainant set the cause down for hearing upon the pleadings, as authorized by court rule 109. The case was heard before Hazel, District Judge. The previous ruling of Judge Lacombe was followed. It was held that the plea was but a negative one, and that the burden was on the complainant to establish the existence

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of the...

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