Albuquerque Nat. Bank v. Citizens Nat. Bank in Abilene

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: STRUM and RIVES, Circuit , and DAWKINS
• Citation: Albuquerque Nat. Bank v. Citizens Nat. Bank in Abilene, 212 F.2d 943 (5th Cir. 1954)
• Decision Date: 25 June 1954
• Docket Number: No. 14949.,14949.
• Parties: ALBUQUERQUE NAT. BANK v. CITIZENS NAT. BANK IN ABILENE et al.

212 F.2d 943 (1954)

ALBUQUERQUE NAT. BANK v. CITIZENS NAT. BANK IN ABILENE et al.

No. 14949.

United States Court of Appeals Fifth Circuit.

May 14, 1954.

Rehearing Denied June 25, 1954.

COPYRIGHT MATERIAL OMITTED

T. J. McMahon, Abilene, Tex., Hamilton E. McRae, F. H. Pannill, W. B. Browder, Jr., Midland, Tex., McMahon, Springer, Smart & Walter, Abilene, Tex., Stubbeman, McRae & Sealy, Midland, Tex., of counsel, for appellant.

William E. Collins, Dallas, Tex., Dallas Scarborough, Abilene, Tex., Thompson, Knight, Wright & Simmons, Dallas, Tex., of counsel, for appellee Condor Petroleum Co.

E. L. Harwell, Abilene, Tex., Frank A. Liddell, Paul Port, Houston, Tex., Wagstaff, Harwell, Alvis & Pope, Abilene, Tex., Liddell, Austin, Dawson & Huggins, Houston, Tex., of counsel, for other appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

The controversy is between two banks, one in Texas and one in New Mexico, each named as executor and as trustee in the will of Ellis A. Hall, deceased, over which shall administer certain corporate stock constituting the major asset in his estate. This appeal is from an interlocutory order granting an injunction, appealable under 28 U.S.C.A. § 1292(1), and the questions raised by the appellant relate to the jurisdiction of the district court and to the propriety of the injunction.

On August 8, 1953, evidently anticipating the dangers incident to a long trip by airplane, Ellis A. Hall executed his last will and testament. Nine days later, on August 17, 1953, Hall, his wife, Virginia H. Hall, a daughter, a daughter of his wife by a former marriage, and a young friend were all killed while Hall was flying his own airplane over Alaska.

By the terms of his will, Hall devised and bequeathed unto the Texas bank, The Citizens National Bank of Abilene, Texas, as trustee, "all the real and personal property I may own or be entitled to in the State of Texas at the time of my death." He devised and bequeathed unto the New Mexico bank, Albuquerque National Bank of Albuquerque, New Mexico, as trustee, "all the real and personal property I may own or be entitled to in the State of New Mexico at the time of my death." The terms of the trusts are identical and the surviving beneficiaries are the same, namely: the four Hall children, Richard A. Hall, age 24, James E. Hall, age 18, Charles Layton Hall, age 14, and Betty Jean Hall, age between 2 and 3.^* As to executors, the will provided as follows:

"I hereby nominate and appoint Albuquerque National Bank, of Albuquerque, New Mexico, and Virginia Hockenhull Hall, as Co-Executors under this will, to serve without bond, giving and granting unto them full and complete power to do any and all things requisite to carry out the terms hereof; and in the event it shall be necessary to have ancillary administration in Texas, I hereby nominate Citizens National Bank of Abilene, Texas, to serve as Executor for the purpose of administration in Texas, without bond."

The will was executed at Albuquerque, New Mexico, and described the testator as residing at that place, and it is not questioned by any of the parties that that was his domicile at the time of the execution of the will and at the time of his death.

A very large part of the estate of the decedent consisted of shares of stock in the Condor Petroleum Company, a Texas corporation, which shares of stock had a value of several million dollars. The certificates representing the shares were in the decedent's safety deposit box in the New Mexico bank, and after his death passed into the possession of that bank. The New Mexico bank obtained possession of the will and on or about September 23, 1953, filed it for probate in the probate court of the County of Bernalillo, New Mexico, and had the hearing for probate set for October 20, 1953. Without awaiting that hearing, the New Mexico bank had itself appointed as special administrator by said probate court and on October 3 made written request upon Condor Petroleum Company to transfer the shares of stock of said corporation registered in the name of the decedent, Ellis A. Hall, to three named individuals and to the New Mexico bank as special administrator; and further requested that a stockholder's meeting be called in Abilene, Texas, on October 10, 1953, for the purpose of electing four new directors. On October 5, 1953, the Condor Petroleum Company returned the certificates to the New Mexico bank, stating that "upon the advice of our attorneys, we are not at this time in position to transfer the above certificates of stock as outlined in your letter of October 3, 1953."

On October 20, 1953, the will was probated, and immediately thereafter the New Mexico bank filed in the same probate court a "Petition for Construction of Will and Directions to Executor", in which it called for decision of the question as to whether the shares of stock in Condor Petroleum Company, and also other shares of stock in other Texas corporations, passed under the will to the Texas bank, as trustee, or to the New Mexico bank, as trustee. This action was later transferred to the District Court of Bernalillo County, New Mexico, where it is still pending.

On the same day, October 20, 1953, and a short time before the petition for construction of the will was filed in New Mexico, the Texas bank had itself appointed temporary administrator of the estate in Texas and obtained an ex parte order authorizing it to take possession of and to preserve the estate in Texas, and to bring suits for injunction against the Condor Petroleum Company and the New Mexico bank with respect to the shares of stock in Condor Petroleum Company. Later on the same day, but still before the petition for construction of the will was filed in New Mexico, the Texas bank filed in the District Court of Taylor County, Texas, a bill seeking to assure its possession of the estate located in Texas, to enjoin Condor Petroleum Company from issuing new certificates to the New Mexico bank, and to enjoin the New Mexico bank from transferring, selling or assigning said shares of stock or the certificates which represent them. The bill prayed also that the plaintiff have judgment for general relief. On the same day, the judge of the Texas state court entered an ex parte order commanding the New Mexico bank to appear on October 30, 1953, to show cause why a temporary injunction should not be granted. On October 29, 1953, the New Mexico bank removed this suit to the United States District Court for the Northern District of Texas, and it was in this suit that the judgment here appealed from was subsequently rendered.

On the same day on which it removed the Texas state court case to the United States District Court for the Northern District of Texas, October 29, 1953, the New Mexico bank filed in the United States District Court for the District of New Mexico a Civil Action seeking to establish its title to and to remove a cloud on its title to the certificates of stock representing shares of Condor Petroleum Company, and, also, to certificates of stock representing shares in two Texas banks. Pursuant to 28 U.S.C.A. § 1655, said District Court ordered the Texas bank to appear or plead to the complaint by November 23, 1953.

On November 9, 1953, the Texas bank filed its amended complaint in the United States District Court for the Northern District of Texas in which it sought to enjoin the New Mexico bank from prosecuting either of the suits then pending in the State of New Mexico and sought to enforce the Texas bank's claim and title to the shares of stock as temporary administrator, as executor, and as trustee, free from any claims of the New Mexico bank. The next day, November 10, 1953, was the day that had been set for the hearing of the construction of will suit in the district court of Bernalillo County, New Mexico. Also, on November 9, 1953, the Condor Petroleum Company filed in the cause then pending in the United States District Court for the Northern District of Texas its answer in the nature of a bill of interpleader, asking that the court order the administration of the personal property belonging to the estate in Texas to include the stock of Condor Petroleum Company and praying that both banks be enjoined and restrained from further prosecuting the suits then pending or any other suits they might file. The judge of the District Court of the United States for the Northern District of Texas thereupon on the same day, November 9, 1953, issued a temporary restraining order, restraining the New Mexico bank from continuing the prosecution of the construction of will suit pending before the District Court of Bernalillo County, New Mexico, and of the Civil Action brought by the New Mexico bank in the United States District Court for the District of New Mexico, and an order to show cause returnable on November 20, 1953, as to why the New Mexico bank should not be temporarily enjoined from prosecuting any other suit or proceeding involving the issues before the court in said case.

On November 20 and 21, 1953, a full hearing was had in the United States District Court for the Northern District of Texas on the matter of the granting vel non of the interlocutory injunction, and at the conclusion of that hearing the District Court granted the interlocutory injunction enjoining the New Mexico bank, its officers, agents, employees and attorneys, from continuing the prosecution of the construction of will suit before the District Court of Bernalillo County, New Mexico, and the Civil Action filed by said bank before the United States District Court for the District of New Mexico, or from filing or prosecuting any other suit or proceeding other than the action in which the injunction was issued insofar as the same involves the issue of title and right to possession of shares of stock in Condor Petroleum Company. There were further related terms of the injunction. This appeal is...