Berg v. Merchant

• Decision Date: 09 November 1926
• Docket Number: No. 4610.,4610.
• Citation: 15 F.2d 990
• Parties: BERG et al. v. MERCHANT et al.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.2d 990 (1926)

BERG et al. v. MERCHANT et al.^*

No. 4610.

Circuit Court of Appeals, Sixth Circuit.

November 9, 1926.

I. J. Ringolsky, of Kansas City, Mo., and Harold W. Fraser, of Toledo, Ohio (Ringolsky, Friedman & Boatright and Johnson & Lucas, all of Kansas City, Mo., Wm. P. Maloney, of Marion, Ohio, and Fraser, Hiett, Wall & Effler, of Toledo, Ohio, on the brief), for plaintiffs in error.

John H. Bartram, J. H. Eymon, Mouser, Young & Mouser, and Guthery, Strelitz & Guthery, all of Marion, Ohio, for defendants in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge.

Plaintiffs in error, who are nonresidents of the state of Ohio, brought an action to contest the will of Burr Raichley, deceased, who, at the time of his death, was a resident of Marion county, Ohio, to which action the executors of the will, legatees, next of kin, and heirs at law of Burr Raichley were made parties defendants. The executors and some of the other defendants filed a demurrer to this petition upon two grounds: First, that the court had no jurisdiction of the subject-matter of this action; second, that the petition on its face shows that a number of the defendants, who are next of kin and heirs at law of the testator, are residents of the state of Ohio, and that "each of them are parties identical in interest in this cause, and that the interest of the plaintiffs in the subject-matter of this action is not adverse to the interest of said defendants resident of and having their domicile in the state of Ohio as aforesaid, or adverse to the interest of any one of them." The trial court overruled the demurrer upon the first ground, but sustained it upon the second.

It appears from the petition that a number of the defendants, who are next of kin and heirs at law of Burr Raichley, deceased, are residents of the state of Ohio, and that some of them have received nothing under the will, but would inherit with plaintiffs under the Ohio statutes of descent and distribution if the will were set aside, and for that reason their interest in this controversy is identical with the interest of plaintiffs, and equally adverse to the interest of the executors, devisees, and legatees.

Where diversity of citizenship is the sole ground of jurisdiction, the parties will be aligned in accordance with their real interest in the controversy, and if, upon such alignment, there is no diversity of citizenship, the action will be dismissed. Niles-Bement Co. v. Iron Moulders Union, 254 U. S. 77, 41 S. Ct. 39, 65 L. Ed. 145; Steele v. Culver, 211 U. S. 26, 29, 29 S. Ct. 9, 53 L. Ed. 74; Dawson v. Columbia Trust Co., 197 U. S. 178, 180, 181, 25 S. Ct. 420, 49 L. Ed. 713; Davis et al. v. Henry (C. C. A. 6) 266 F. 261, and cases there cited.

It is claimed, however, on the part of plaintiffs in error, that notwithstanding they have made these heirs at law, who are citizens of the same state as the executors and legatees under the will, parties defendant to this action, yet they are not indispensable parties, and that relief may be given against the executors and legatees without the presence of these defendant heirs.

The right to contest a will is not a right existing at common law, but a right conferred solely by statute. G. C. § 12079. Without such a statute in Ohio, the order admitting the will to probate would be final upon all parties. It necessarily follows that, where a plaintiff seeks to enforce a statutory right or a statutory remedy, the essential conditions imposed by the statute creating the right or providing the remedy must control, regardless of whether the action is pending in the state or federal courts. Farrell v. O'Brien, 199 U. S. 89, 25 S. Ct. 727, 50 L. Ed. 101, and cases there cited.

Section 12080 of the General Code of Ohio provides that "all the...