267 F.2d 337 (7th Cir. 1959), 12314, De Korwin v. First Nat. Bank of Chicago

Docket Nº:12314-12316, 12395.
Citation:267 F.2d 337
Party Name:Margaret DE KORWIN, etc., Plaintiff, v. FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants. FIRST NATIONAL BANK OF CHICAGO, as Trustee under the Will of Otto Young, Deceased, Petitioner-Appellee, v. Graveraet Young KAUFMAN, Respondent-Appellee, and .karl C. Jacobs et al., Respondents (Appellants in No. 12314) and Dr. Louis Ruttenberg et al.,
Case Date:March 30, 1959
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 337

267 F.2d 337 (7th Cir. 1959)

Margaret DE KORWIN, etc., Plaintiff,

v.

FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants.

FIRST NATIONAL BANK OF CHICAGO, as Trustee under the Will of Otto Young, Deceased, Petitioner-Appellee,

v.

Graveraet Young KAUFMAN, Respondent-Appellee, and .karl C. Jacobs et al., Respondents (Appellants in No. 12314) and Dr. Louis Ruttenberg et al., Respondents (Appellant in No. 12315) and Robert S. Berson et al., Respondents(Appellants in No. 12316).

Margaret DE KORWIN etc., Plaintiff-Appellee (No. 12395)

v.

FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants-Appellees (No. 12395).

Appeal of Oscar BENNES et al. (Appellants in No. 12395).

Nos. 12314-12316, 12395.

United States Court of Appeals, Seventh Circuit.

March 30, 1959

Rehearing Denied June 10, 1959.

Page 338

Hamilton Smith, Louis L Kahn, Jack A. Diamond, Daniel M. Schuyler, Jay Stough, Joseph R. Julin, Thomas Hart Fisher, Norman Crawford, Chicago, Ill., for appellants.

Bartlett S. Marimon, William B. McIlvaine, A. Leslie Hodson, Chicago, Ill. (Robert H. Bork, Frederick W. Temple, Howard G. Krane, Clarence E. Fox, George W. Thompson, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., Wilson & McIlvaine, Chicago, Ill., of counsel), Charles R. Aiken, Richard F. Watt, Chicago, Ill. (Cotton, Fruchtman & Watt, Chicago, Ill., of counsel), Frank E. McDonald, A. Bradley Eben, Harold A. Smith, Chicago, Ill. (Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel), Jack I. Levy, Chicago, Ill. (Sonnenschein, Lautmann, Levinson, Rieser, Carlin & Nath, Chicago, Ill., of counsel), for appellees.

Before DUFFY, Chief Judge, and PARKINSON and KNOCH, Circuit Judges.

PARKINSON, Circuit Judge.

These four appeals have been consolidated in this opinion inasmuch as they emanate from the same proceeding below and, to some extent, do or may affect the interests of all parties. No. 12314 challenges the validity and seeks reversal of a protective order entered on February 20, 1958 pursuant to Rule 30(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The appellants in No. 12315 have adopted the brief of appellants in No. 12314 and have also adopted the brief of appellants in No. 12316, in which the jurisdiction of the District Court is assailed, and which jurisdictional challenge is carried through in No. 12395, wherein a decree of May 22, 1958 is also placed under attack.

This proceeding has been pending in the District Court since 1943 when a complaint was filed to construe the will of Otto Young, deceased, and praying, inter alia, for an accounting and distribution by the trustee. It has been here on appeal involving other issues on three prior occasions, sub nom. DeKorwin v. First National Bank of Chicago, 7 Cir., 1946, 156 F.2d 858; 7 Cir., 1950, 179 F.2d 347; 7 Cir., 1956, 235 F.2d 156.

Graveraet Y. Kaufman, Jane Kaufman Harding, Juliet Graveraet Kaufman de Manio and Marie Louise Brill, four grandchildren of Otto Young, each became vested with an 1/18 share in the remainder of the trust estate administered by the petitioner, First National Bank of Chicago, as trustee under the will of Otto Young, deceased, and also with an 1/18 share, respectively, of the liquidation trust estate, under the conveyance and liquidation trust agreement of November 14, 1951.

The District Court entered a decree on December 14, 1951 pursuant to and approving a family settlement agreement and the conveyance and liquidation trust agreement of November 14, 1951 wherein its jurisdiction was continued and expressly reserved to administer the trust and, inter alia, 'to supervise and direct the distribution of the income and principal

Page 339

of the testamentary trust estate of Otto Young, deceased, * * *.'

The trust is a large one, a great portion of which consisted of real estate and lease holds which had to be managed and liquidated. Acting under the orders of the District Court herein this was done and liquidation has been completed.

After the death of the last life tenant on August 17, 1956 distribution was in order. However, prior thereto the four beneficiaries named above made various partial assignments of their respective shares in the trust estate.

On September 14, 1956 the District Court ordered the trustee to create segregated share accounts into which the shares of the four assigning grandchildren were to be made and held subject to the further order and direction of the Court. Subsequently, on October 29, 1956, the District Court ordered the trustee to file a petition listing the names of the persons claiming by way of assignment and to cause all of them to be made parties defendant thereto and, on or before June 18, 1957, to appear or plead to the trustee's petition for instructions as to the distribution of the remaining shares. The assignees live in some seven states. None of them lives in Illinois and the majority of them reside in New York.

On Frbruary 20, 1958 the District Court entered an order pursuant to Rule 30(b), Federal Rules of Civil Procedure, 28 U.S.C.A., directing the First National Bank of Chicago, as trustee of the testamentary trust estate of Otto Young, deceased, to pay to Graveraet Y. Kaufman, one of the assigning grandchildren, from funds that are here claimed by the assignees, $14, 500 immediately and $1, 250 monthly thereafter for his support.

On May 22, 1958 theDistrict Court entered a decree confirming a Master's Report, dated May 7, 1958, approving the account and actions of the testamentary trustee during the period from May 26, 1916 to August 17, 1956. It approved certain sums allowed as costs of administration for fees and expense of the trustees and their attorneys. The Court also retained jurisdiction of the segregated shares aforementioned 'for the sole purpose of determining the claims and controversies between Graveraet, Juliet, Marie and Jane and the parties claiming by, through or under them as to the ownership of the segregated shares.'

The three questions that are now presented to this Court are:

1. Whether the District Court has jurisdiction to adjudicate the opposing claims to the segregated shares.

2. Whether the assignees now claiming all or part of the segregated shares are bound by the decree of May 22, 1958.

3. Whether the District Court had authority to enter the protective order of February 20, 1958 under Rule 30(b) of the Federal Rules of Civil Procedure.

As a matter of convenience we will treat all three questions as if raised by all appellants without further distinction for to do otherwise would serve no purpose other than to create needless confusion.

In the matter of the District Court's jurisdiction appellants concede 'that any in rem claims against property that actually is in custodia legis must be presented to the court which has the property in custody' and 'recognize that it is no longer necessary for property to be in the physical possession of an officer of the Court, such as a receiver or a Clerk of the Court, in order to be in effect in custodia legis.' However, they contend that...

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