Asher v. Bone

• Decision Date: 13 December 1938
• Docket Number: No. 8864.,8864.
• Citation: 100 F.2d 315
• Parties: ASHER et al. v. BONE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F.2d 315 (1938)

ASHER et al. v. BONE et al.

No. 8864.

Circuit Court of Appeals, Ninth Circuit.

December 13, 1938.

Whitla & Knudson, of Coeur d'Alene, Idaho, for appellants.

Roy O. Samson, of Denver, Colo., and H. J. Hull, of Wallace, Idaho, for appellee Lulah J. Bone.

James A. Wayne, of Wallace, Idaho, for appellees H. E. Worstell, etc., Aetna Casualty & Surety Co., and Mineral Point Mining Co.

Before WILBUR, HANEY, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This action was brought by appellee Lulah J. Bone, a citizen of the state of Illinois, hereinafter called the "complainant", against H. E. Worstell, executor of the estate of Stephen V. Osburn, a citizen of Idaho, the Aetna Casualty & Surety Company, a Connecticut corporation, the surety upon the executor's bond, and the Mineral Point Mining Company, an Idaho corporation.

In the complaint it was charged that Lulah J. Bone was deprived of a one-seventh interest in the residue of the estate of Stephen V. Osburn by what is claimed to be extrinsic fraud. The fraud claimed is that of procuring an erroneous decree of distribution of the property of said estate by causing an erroneous construction to be placed upon the terms of the will of Stephen V. Osburn by the probate court of Shoshone County, State of Idaho, sitting in probate in the matter of said estate, and the making of an undervaluation of the estate. The alleged fraudulent conduct was charged against the executor Worstell and Walter G. Asher who, it was alleged, had been appointed by "all or substantially all" of the heirs and legatees of Stephen V. Osburn except complainant, and Georgia Mullaney, Nell Osburn Schwarberg, William Osburn, Roy Osburn, Clarence Jack Osburn and Jackson Osburn, to represent them in all matters concerning the estate and to receive and receipt for their respective portions of the estate. It was alleged that the fraud charged against Asher was committed by him on behalf of the heirs and legatees he represented. Asher, not being within the jurisdiction of the court, was not made a party to this suit but on November 20, 1937, thirteen days before the trial, he and the other appellants herein intervened in the action.

On November 27, 1937, Georgia Mullaney, Nell Schwarberg, William Osburn, Roy Osburn and Clarence Jack Osburn, each having a small interest in the estate, also intervened and joined in the prayer of complainant that the executor Worstell be required to account for all property that came into his possession as executor and that complainant be decreed the owner of an undivided one-seventh interest, less $1,000, in the estate and that a trust for the benefit of complainant be impressed upon the property in whomsoever's possession it is.

During the pendency of the action, the complainant became incompetent and Mildred Pickrell was appointed her guardian ad litem and authorized to appear herein.

No fraud was charged against the Mineral Point Mining Company. It was joined as a defendant on the theory that making it a party vested the court with jurisdiction over certain capital stock of that company, which was part of the Stephen V. Osburn estate.

In his will Stephen V. Osburn made a specific bequest of $1,000 to his sister Farrinda P. Bone, who was the mother of the complainant. Farrinda P. Bone bequeathed to complainant all of her interest in the Stephen V. Osburn estate.

The residuary clause of the will of Stephen V. Osburn is as follows:

"Fifthly: I give and bequeath unto my brothers and sisters all the rest and residue of my estate, share and share alike; and in the event that any of my brothers or sisters shall have died before me, leaving lawful issue him or her surviving, the share of such deceased brother or sister shall be distributed among such issue, share and share alike, per stirpes and not per capita; provided, however, that the bequest of Farrinda P. Bone mentioned above shall be deducted from her share under the bequest named in this paragraph in the event that her share under this paragraph shall exceed the sum of one thousand dollars."

Complainant in this action seeks to avoid the effect of a decree of distribution of the probate court of Shoshone County, Idaho, which has become final. By the decree of that court the provisions of the will of Stephen V. Osburn were construed as bequeathing to Farrinda P. Bone $1,000 only, unless the remainder of the estate of Stephen V. Osburn was of such amount that the remaining brothers and sisters of the testator, or their heirs, would receive more than said sum ($1,000) each, and the probate court also determined by its decree that the value of the estate was such that the remaining brothers and sisters of the decedent, or their heirs, would not receive more than $1,000 each, consequently the residuum of the estate was distributed to the brothers and sisters, or their heirs, other than Farrinda P. Bone.

It does appear that the probate court's construction of the will was erroneous and it may be, as is claimed, that other errors also occurred in the probate proceedings that would have called for a reversal on a direct appeal. In view of the decree of the probate court the power of this court to declare a trust in the proceeds of the estate in the hands of the distributees named in the decree depends upon proof of extrinsic fraud in the procurement of that decree, and of such a diversity of citizenship as gives the court jurisdiction of the action. It is not for this court to determine that the probate court has erroneously interpreted the will of Stephen V. Osburn and for that reason to correct its error. The jurisdiction to determine the interest of respective claimants of an estate in Idaho is exclusively in the probate courts of that state having jurisdiction of the proceeding and the determination thereof by such probate court, whether right or wrong, is conclusive and subject only to be reversed, set aside or modified on appeal. Article 5, § 21, Constitution of Idaho; § 15-1307, Idaho Codes Annotated; § 15-1706, Idaho Codes Annotated; Miller v. Mitcham, 21 Idaho 741, 123 P. 941; Larsen v. Larsen, 44 Idaho 211, 256 P. 369.

A court of equity cannot invalidate or modify the probate court's decree of distribution. It can, however, declare that the fraudulent recipients of the property of the estate hold the proceeds in trust for those who have been defrauded by their extrinsic fraud.

At the outset it should be noted that the decree in this case is directed against intervener Walter G. Asher and the Mineral Point Mining Company, whose mine has been sold and whose assets are awaiting distribution to its stockholders. The decree declares that Walter G. Asher is holding the stocks, residue of the estate, in trust for complainant to the extent of a one-seventh interest therein, and orders the Mineral Point Mining Company to pay to complainant one-seventh of the portion of its distributive assets (less $1,000, the amount of specific bequest already paid to her) which have been or shall be allocated to the 355,138 shares of its capital stock owned by the estate of Stephen V. Osburn. The effect of the decree is to redistribute the estate of Stephen V. Osburn in accordance with what the trial court holds is the proper interpretation of the will. It is clear, however, that jurisdiction obtained over the Mineral Point Mining Company, a corporation, did not give the district court jurisdiction to adjudicate the rights of the legatees to its capital stock owned by Stephen V. Osburn and distributed to them by the probate court of Idaho. Jellenik v. Huron Copper Min. Co., 177 U.S. 1, 20 S.Ct. 559, 44 L.Ed. 647; Tappan v. Merchants' Nat'l. Bank, 19 Wall. 490, 22 L.Ed. 189; Wells v. Price, 6 Idaho 490, 56 P. 266; State ex rel. Peterson v. Dunlap, 28 Idaho 784, 156 P. 1141, Ann.Cas.1918A, 546; 7 R.C.L. p. 196, § 166; 14 C.J. 387, § 510, p. 390, § 515. Although some of the legatees and heirs of Stephen V. Osburn became parties to this suit by intervention, it appears that other legatees have not been made parties and have not intervened. Others, who join with complainant, are, with the exception of Clarence Jack Osburn, of the same citizenship as complainant, being citizens of the state of Illinois. These latter heirs have no interest with complainant but set up no claim antagonistic to her. They concede her right to recover so far as they are concerned. But a decree against them places them on a side opposed to complainant and as to them (except Clarence Jack Osburn, as aforementioned) the suit must be dismissed for lack of jurisdiction. It also appears that appellant Mary Horner is a resident of Illinois. As to her the suit must be dismissed. Horn v. Lockhart, 17 Wall. 570, 21 L.Ed. 657; Smith v. Consumers' Cotton-Oil Co., 5 Cir., 86 F. 359; Seeley v. Cornell, 5 Cir., 74 F.2d 353; State of Washington v. United States, 9 Cir., 87 F.2d 421.

In regard to appellants' claim that all the legatees and distributees have not been made parties to the suit, complainant contends that the suit may be considered as a class suit, that the interest of the absent distributees has been fully presented and protected. It is clear that the proceeding in the case at bar in no sense purports to be a class suit and it was not prosecuted or defended as one. It cannot now be considered as one. McArthur v. Scott, 113 U. S. 340, 395, 5 S.Ct. 652, 28 L.Ed. 1015. Legatees not actual parties to the suit and not otherwise appearing cannot be bound by the decree. This fact alone would require reversal of the decree affecting them and the reframing of the decree to exclude them from its effect.

Appellants claim that all legatees are indispensable parties and that a failure to join them all requires a dismissal of the suit. We are of opinion, however, that although the legatees would be necessary parties — necessary in order to give complete relief — they are not indispensable parties in the sense that the cause could not proceed...