Barker v. Eastman

• Decision Date: 22 August 1913
• Docket Number: 990.
• Citation: 206 F. 865
• Court: U.S. Court of Appeals — First Circuit
• Parties: BARKER et al. v. EASTMAN et al.

206 F. 865

BARKER et al. v. EASTMAN et al.

No. 990.

United States Court of Appeals, First Circuit.

August 22, 1913

Alvah G. Sleeper, of Boston, Mass., for appellants.

Edwin G. Eastman, of Exeter, N.H. (Eastman, Scammon & Gardner, of Exeter, N.H., on the brief), for appellees.

Before PUTNAM and DODGE, Circuit Judges, and BROWN, District Judge.

PUTNAM Circuit Judge.

This is a bill in equity, brought by persons entitled under the will of Hiram Barker against the existing sole trustee under that will. It was filed by three citizens of the state of Massachusetts, in behalf of themselves, and also in behalf of Charles B. Barker, another citizen of Massachusetts, if he should choose to join. The only respondent named in the bill was the trustee, Eastman, a citizen of New Hampshire.

Subsequent to the filing of the bill, a motion was made by the complainants to make Ella M. Barker, another citizen of Massachusetts, a party plaintiff. This motion was immediately granted. The bill alleged that under the will the trustee was to pay Clara Barker Berry, the only daughter of the testator $2,000 annually during her life, 'and a further sum if in the opinion of the trustee it should be necessary'; and it further alleged that 'neither the said Clara Barker Berry, nor the said Ella M. Barker, is a necessary party to this bill, as they are not entitled to any distributive share out of the estate.' Subsequently, however, the complainants made a motion to make Clara Barker Berry a party respondent, because, as they alleged, she was one of the legatees mentioned in the will concerned, and also 'interested in the distribution of the estate.' Thereupon an order was entered that she be made a party respondent for the reasons stated in the motion. Clara Barker Berry filed a plea, which she afterwards withdrew, and subsequently an answer, admitting the allegations of the bill, and making no denial of her distributive interest, but alleging that the time for distribution had not arrived. The motion for joining her described her as a citizen of the state of New Hampshire.

The bill was dismissed without prejudice, and the complainants thereupon appealed to us. The appeal is described as by 'the above-named plaintiffs,' without further designation of who was meant by 'the above-named plaintiffs'; but, as the bond on appeal was signed by Will T. Barker, Eda F. Barker, Hiram H. Barker, and Ella M Barker, it is to be assumed that all the original complainants, as well as Ella M. Barker, are included in the words 'the above-named plaintiffs.'

Eastman is a testamentary trustee, with reference to whose accounts and other proceedings full provision is made by the statutes of New Hampshire, which statutes give ample remedy in reference thereto. Public Statutes N.H. 1901, c. 198.

The bill is drawn in all respects like the bill sustained in Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260, except that there is no charge of misfeasance against the trustee as there was in Payne v. Hook. Indeed, it is doubtful whether the bill sets out any controversy whatever. It makes no question about the construction of the will, or about the rights of the various persons in interest under it. It fails to make any charge against the trustee, in so far, indeed, that it fails to allege that he has either omitted or delayed or declined to render accounts according to the statutes of New Hampshire referred to, or has been requested to do so.

The record shows that a bill of a similar purport was filed in the state courts of New Hampshire, but subsequently to the filing of the bill with reference to which this appeal was taken; so that it cannot, as is thoroughly settled, in any way affect jurisdiction with reference to the matter now before us. The same is true with reference to certain other proceedings commenced in the state courts to which we need not refer particularly.

Inasmuch as the claim is made that certain proceedings subsequent to the filing of the bill here gave the Circuit Court jurisdiction, all we need say in reference to that is that the general principle stated in Railway Company v. Lewis, 173 U.S. 457, 19 Sup.Ct. 451, 43 L.Ed. 766, is thoroughly settled that, if it does not appear at the outset that a suit is one of which the Circuit Court, at the time its jurisdiction was invoked, could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defense. This is reaffirmed in Omaha Electric & Power Company v. Omaha, 230 U.S. 123, 33 Sup.Ct. 974, 57 L.Ed. . . . . This does not, of course, bar amending a bill or other proceedings in such way as to show jurisdiction, if in fact the court had jurisdiction.

The prayer of the bill is as follows:

'To the end, therefore, that your orators

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