26 F.Supp. 894 (W.D.Tenn.), 4502, Baskin v. Montedonico

Docket Nº:4502.
Citation:26 F.Supp. 894
Court:United States District Courts, 6th Circuit, Western District of Tennessee

Page 894

26 F.Supp. 894 (W.D.Tenn.)




No. 4502.

United States District Court, W.D. Tennessee

Date Not Given

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

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

Page 895

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

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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...

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