Baskin v. Montedonico

• Decision Date: 31 December 1939
• Docket Number: No. 4502.,4502.
• Citation: 26 F. Supp. 894
• Parties: BASKIN v. MONTEDONICO.
• Court: U.S. District Court — Western District of Tennessee

26 F. Supp. 894

BASKIN v. MONTEDONICO.

No. 4502.

District Court, W. D. Tennessee, W. D.

Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., and Arthur Jordan, of Clearwater, Fla., for plaintiff.

King, Taylor & King, of Memphis, Tenn., for defendant.

MARTIN, District Judge.

This action at law was filed in this court on May 14, 1938, by J. D. Baskin, of Florida, as successor trustee, against Louis A. Montedonico, Sr., of Tennessee, to recover on a judgment for $13,000.00 rendered August 18, 1936, by the Circuit Court of the Sixth Judicial Circuit of the State of Florida, for Pinellas County, in Chancery Cause No. 16878, in favor of Jack F. White, substitute trustee of the estate of James A. Winkleman, deceased, against Louis A. Montedonico, Sr., who was designated trustee of said estate in the will of the decedent.

The transcript of the proceedings in the Florida Court is certified according to the Acts of Congress and shows that plaintiff, J. D. Baskin, was, in the aforesaid Chancery Cause No. 16878, appointed by court order of November 30, 1937, successor trustee in the place of Jack F. White, and duly qualified as such by making the required bond and taking the prescribed oath.

The record shows, however, that in the order entered by the Florida Court June 25, 1936, removing the defendant Louis A. Montedonico, Sr., as trustee, and appointing Jack F. White as successor, the direction was given that "said successor trustee shall file a bond in the penal sum of $5,000.00, said bond to be approved by this court and to be conditioned upon the faithful performance of the duties of successor trustee and a faithful accounting for all monies and assets coming into his hands." Notwithstanding this express direction, Jack F. White gave no bond, and his resignation in writing filed January 31, 1936, avers that "there has come into my hands no funds or other property and I have incurred no liabilities as such receiver and have done no act under such appointment."

And on the same date, the court in its order appointing J. D. Baskin, successor trustee to Jack F. White, says: "The court finds that the recitals contained in his (Jack F. White's) resignation are true and correct." Jack F. White never qualified and never assumed to act as trustee.

In the original bill filed in the Florida cause, No. 16878 Chancery, the sheriff's return shows service on the defendant, Louis A. Montedonico, Sr., as Executor and as Trustee of the Estate of James A. Winkleman, and likewise the appearance of the defendant is expressly made in such capacities.

In the amended bill, filed September 27, 1935, as well as in the original bill, the plaintiff, Theodocia B. Winkleman, sues Louis A. Montedonico, Sr., and herself as Executors of the Estate of James A. Winkleman, deceased, and Louis A. Montedonico, Sr., as Trustee of said estate. Among other things, she prays the removal of Montedonico as Trustee and for an accounting by him, both as Executor and as Trustee. The amended bill prays further that "defendants may be required by proper order of this court to pay such amounts as may be found to be due to this plaintiff".

After setting aside, on November 20, 1935, an order of November 7, 1935, removing Montedonico as Trustee and appointing the First National Bank of Memphis successor trustee, the court later entered the aforesaid order of June 25, 1936, removing Montedonico and appointing Jack F. White as Trustee.

In response to a court order requiring him to account for his acts as Trustee, Montedonico, on August 5th, 1936, filed his report, in which he stated that he had in his hands no funds and had received none as Trustee of any property located in Florida. He reported, further, that he held "as trustee, title to certain real estate located within the State of Tennessee, and has on hand as income derived therefrom certain funds which said property and funds are entirely out of the jurisdiction of this (Florida) Court and is within the jurisdiction of the Chancery and Probate Courts of Shelby County, Tennessee, which said courts have been and are now administering said trust, and therefore, that he, as such Trustee has no property or funds of any character or kind subject to the jurisdiction of this court for which he should account."

On August 17, 1936, an order signed August 13th by another Circuit Judge was filed directing Montedonico to show cause why he should not be adjudged in contempt, and a personal judgment for $17,500.00 entered against him "for failing and refusing to file in this court an accounting" in accordance with the previous court order, in response to which Montedonico had filed his report disclaiming any funds in his hands subject to the jurisdiction of the Florida Court. This show-cause order directed: "Let a copy of this order and a copy of the petition be served forthwith upon any of the attorneys of record for Louis A. Montedonico, Sr." No personal service of this show-cause order was had on Montedonico; but he appeared by counsel on written motion to dismiss and quash the aforesaid rule nisi, which was overruled; and, on August 18, 1936, judgment was entered by the Florida Court that "Jack F. White, Substitute Trustee, do have and recover of and from said Louis A. Montedonico, the sum of $13,000.00 for which let execution issue."

The controversy out of which the Florida litigation arose resulted from the appointment by James A. Winkleman, in his will executed June 23, 1933, of his friend, Louis A. Montedonico, Sr., as coexecutor and sole trustee. The testator bequeathed and devised all of his estate, both personal and real, to the trustee for the life of the testator's widow for her sole use and benefit, with broad powers vested in the trustee to sell all or any part of the corpus if at any time and for any reason the income from the trust estate should not be sufficient for the proper care of the testator's wife and to provide her with the necessities and comforts of life. The will provided that the trustee "shall collect and receive all of the income, dividends, rights, benefits, uses and rents arising from said trust estate in this item mentioned, and shall first pay out of same all of the proper costs, charges and expenses incurred on account of the administration of the said trust, and shall pay all the balance of the income to my said wife during her lifetime in such sums and at such times as she may request."

The most valuable property left by the testator, James A. Winkleman, was a piece of improved city real estate in his former home city, Memphis, Tennessee, known as 1042 Union Avenue, or the Union Chevrolet Building.

At the time of his death, Winkleman, with his wife, resided in Florida and was legally domiciled in the State of Florida. His will was probated originally in the Probate Court of Pinellas County, Florida, and on May 25, 1934, defendant Montedonico qualified there as coexecutor with Mrs. Winkleman.

On June 26, 1934, the defendant Montedonico qualified as Executor and Trustee of the Winkleman Estate, under ancillary letters in the Probate Court of Shelby County, Tennessee, where he has been and is now administering the estate under the orders of that Tennessee Court. All disbursements of the defendant as Executor and Trustee of the Winkleman Estate have been made in conformity with orders of the Tennessee Probate Court. By petition, he obtained in October 1934 court authority to pay taxes on the Memphis real estate and other debts arising from real estate out of real-estate rental collections. His inventory, filed on November 19, 1934, showed real estate but no personalty.

As Executor and Trustee, Montedonico filed a bill in the Chancery Court of Shelby County, Tennessee, for the collection of rents due him as executor and trustee from the Union Chevrolet Company, and for authority for the execution of a new lease of the Memphis Chevrolet building to the Union Chevrolet Company, and for authority to refinance a mortgage on the property. The relief prayed was granted. Publication was had for Mrs. Winkleman in that cause, wherein she appeared and surrendered certain rent notes pertaining to the real property involved. She was advised by Mr. Montedonico of these proceedings, and also of the proceedings in the Probate Court of Shelby County.

On January 30, 1935, Mrs. Theodocia B. Winkleman, widow of James A. Winkleman, filed her bill against Louis A. Montedonico, Sr., in the Circuit Court of Pinellas County, Florida, alleging violations of trust and failure to obey provisions of will as to her support, and praying for a receiver of the trust property and for the removal of Montedonico as Trustee and for a report by him as Executor and Trustee. The bill was twice amended.

L. A. Montedonico, Sr., was never sued personally or individually, never entered personal or individual appearance, and was never served personally in said cause of Theodocia B. Winkleman vs. Louis A. Montedonico, Sr., and Theodocia B. Winkleman, as executors of the estate of James A. Winkleman, and Louis A. Montedonico, Sr., as trustee of said estate, being case No. 16878 Chancery, in the Circuit Court of Pinellas County, Florida.

Bussey, Mann & Barton, attorneys, appeared for Montedonico in said cause in his representative capacity as executor and trustee under the will of Winkleman, and represented themselves as appearing for him in no other capacity.

The judgment of the Circuit Court of Pinellas County, Florida, sued on in this cause, pursuant to the full faith and credit clause of the Constitution, was rendered against Louis A. Montedonico, Sr., personally for a sum represented in the Florida Court before and at the time of the entry of the judgment as having come into his hands from property in Tennessee.

Moreover, at the time of the entry of said judgment, the defendant here, Louis A. Montedonico, Sr., as trustee under the will of James A. Winkleman, deceased, had made a report to the Circuit...