Allen v. Markham, 10760.

Decision Date24 January 1945
Docket NumberNo. 10760.,10760.
Citation147 F.2d 136
PartiesALLEN et al. v. MARKHAM.
CourtU.S. Court of Appeals — Ninth Circuit

S. C. Masterson, of Richmond, Cal., for appellants.

Robert W. Kenny, Atty. Gen., and Everett W. Mattoon, Deputy Atty. Gen., for amicus curiæ Atty. Gen., of Cal.

Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., George A. McNulty, Chief Alien Property Unit, Wallace H. Walker, Richard P. Lott, and Clarice Grosshandler, Atty., all of Washington, D. C., and Arthur J. DeLorimier, Asst. U. S. Atty., of San Francisco, Cal. (John Ernest Roe, Gen. Counsel to Alien Property Custodian, of Washington, D. C., of counsel), for appellee.

Before WILBUR, GARRECHT, and STEPHENS, Circuit Judges.

WILBUR, Circuit Judge.

The alien property custodian brought this action for a declaratory judgment against certain relatives of Alvina Wagner, alleging that the property involved had been covered by a vesting order and that he was entitled to possession thereof. He alleged that probate proceedings were in process in the superior court and that in that action a proceeding to determine heirship, Cal.Prob.Code, §§ 1080-1082, had been filed and was pending at the time he brought his complaint.

Decedent left a will in which she devised and bequeathed the property to a brother, two sisters and one niece, who were at the time this action was brought, residents of Germany and alien enemies of the United States. The custodian sought an order that none of the heirs, either those who were residents or non-residents, were entitled to take any part of the estate and upon that basis asked the court to order the executor to pay the entire net estate to the plaintiff upon the allowance of his final account as executor. The trial court so ordered and this appeal followed.

The most important question is that of jurisdiction. The custody of the property, according to the allegations of the complaint, is in the executor acting for the probate court. That court is charged with the responsibility of determining the heirship and also of determining the effect of the will left by the deceased. Such proceeding had been inaugurated and was pending at the time the proceeding herein was filed. The custodian claims the right to invoke the jurisdiction of the federal court on the ground that he is acting for the government of the United States and under the provisions of 28 U.S.C.A. § 41 (1) he is entitled to prosecute his proceeding in the federal district court. The section relied upon does not give...

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6 cases
  • Markham v. Allen
    • United States
    • U.S. Supreme Court
    • January 7, 1946
    ...and ordered the cause dismissed, upon the ground that the district court was without jurisdiction of the subject matter of the action. 147 F.2d 136. The court thought that since 'the matter is within probate jurisdiction and that court is in possession of the property, its right to proceed ......
  • Tait v. Anderson Banking Company
    • United States
    • U.S. District Court — Southern District of Indiana
    • March 5, 1959
    ...speaking for the court said at page 493 of 326 U.S., at page 298 of 66 S.Ct. in reversing the Court of Appeals for the Ninth Circuit 147 F.2d 136 and sustaining the district "It is not denied that the present suit is a suit `of a civil nature * * * in equity,' brought by an officer of the U......
  • Clark v. Allen
    • United States
    • U.S. Supreme Court
    • June 9, 1947
    ...850. The Circuit Court of Appeals reversed holding that the District Court was without jurisdiction of the subject matter. Allen v. Markham, 9 Cir., 147 F.2d 136. The case came here on certiorari. We held that the District Court had jurisdiction of the suit and remanded the cause to the Cir......
  • Allen v. Markham
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 17, 1946
    ...its jurisdiction, Crowley v. Allen 52 F.Supp. 850, and without consideration of the merits of the case we reversed the District Court. 147 F.2d 136. On certiorari, the Supreme Court sustained the jurisdiction of the District Court, 66 S. Ct. 296, on the ground that the action was one of a k......
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