Breault v. Feigenholtz, No. 16048.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtSCHNACKENBERG, CASTLE and FAIRCHILD, Circuit
Citation380 F.2d 90
PartiesWilliam Joseph BREAULT and Bonnie Jo Ellen Kathryn Breault, Plaintiffs-Appellants, v. Harold L. FEIGENHOLTZ, Executor of the Will of Oscar J. Breault, deceased, Estelle Angela Breault, Kenneth Breault, Wesley Memorial Hospital, a corporation, and Harold L. Feigenholtz, individually and as Trustee under the Last Will and Testament of Oscar J. Breault, deceased, Defendants-Appellees.
Docket NumberNo. 16048.
Decision Date23 July 1967

380 F.2d 90 (1967)

William Joseph BREAULT and Bonnie Jo Ellen Kathryn Breault, Plaintiffs-Appellants,
v.
Harold L. FEIGENHOLTZ, Executor of the Will of Oscar J. Breault, deceased, Estelle Angela Breault, Kenneth Breault, Wesley Memorial Hospital, a corporation, and Harold L. Feigenholtz, individually and as Trustee under the Last Will and Testament of Oscar J. Breault, deceased, Defendants-Appellees.

No. 16048.

United States Court of Appeals Seventh Circuit.

June 13, 1967.

Rehearing Denied July 23, 1967.

Rehearing Denied July 23, 1967.


G. Kent Yowell, Chicago, Ill., John J. Yowell, Chicago, Ill., Yowell & Cessna, Chicago, Ill., of counsel, for appellants.

Richard P. Fredo, Hirsch E. Soble, Chicago, Ill., J. Glenn Shehee, Wheaton, Ill., for appellee.

Before SCHNACKENBERG, CASTLE and FAIRCHILD, Circuit Judges.

Rehearing Denied July 23, 1967, en banc.

CASTLE, Circuit Judge.

Plaintiffs-appellants, William Joseph Breault and Bonnie Jo Ellen Kathryn Breault, two of the heirs of Oscar J. Breault, deceased, brought this proceeding

380 F.2d 91
in the District Court to set aside the Will of Oscar J. Breault as the product of undue influence. Plaintiffs' complaint, filed July 1, 1960, alleged diversity of citizenship and that "the amount involved herein exceeds the sum of $10,000.00 exclusive of interest and costs". The complaint also alleged that if the instrument purported to be the last will and testament of Oscar J. Breault "is found and held to be invalid as herein prayed, plaintiffs, as heirs, will be entitled to money and property exceeding in value the amount devised and bequeathed to them under said instrument by more than $10,000.00 exclusive of interest and costs". The defendant, Harold L. Feigenholtz, individually, and as executor and trustee under the Will of Oscar J. Breault, filed a motion to dismiss the complaint1 on the ground that the court lacked jurisdiction because the matter in controversy is less than the requisite jurisdictional sum or value. The motion was supported by affidavit that Oscar's estate was insolvent. At a hearing before the court on March 30, 1961, various exhibits were introduced in evidence and testimony adduced on the issue of solvency of Oscar's estate as bearing on the existence of the requisite jurisdictional value. On November 13, 1961, the court entered an order remitting the plaintiffs to the State courts for such proceedings as would result in a final determination of whether at the date of the filing of the complaint the estate of Oscar was entitled to an accounting from the executors or trustees of the estate of Kathryn M. Breault, Oscar's mother, as claimed by plaintiffs, and if so, the amount thereof, and whether Oscar's estate was solvent or insolvent. Hearing on the motion to dismiss for want of jurisdiction was suspended pending such proceedings. No review of this order was sought

The provisions of Oscar's will, and the provisions of the will of his mother, Kathryn M. Breault, insofar as they are pertinent to the instant litigation, are set forth in Breault v. Feigenholtz, 7 Cir., 358 F.2d 39, 41-42, cert. den. 385 U.S. 824, 87 S.Ct. 52, 17 L.Ed.2d 61, and need not be repeated here.

The record discloses that following the November 13, 1961, order the plaintiffs participated in state court actions culminating in final determinations that the provisions of Oscar's will exercising his testamentary power of appointment over the property in his mother's testamentary trust did not constitute such trust property a part of Oscar's estate (In re Estate of Breault, 29 Ill.2d 165, 193 N.E.2d 824) and that Oscar's estate was insolvent (In re Estate of Breault, 63 Ill.App.2d 246, 263, 211 N.E.2d 424).

On October 6, 1966, the plaintiffs moved for leave to file a tendered amended and supplemental complaint represented as setting forth "with particularity" an additional allegation, made on information and belief, that the estate of Oscar has an uninventoried claim against Harold L. Feigenholtz...

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29 practice notes
  • Yonofsky v. Wernick, No. 64 Civ. 417.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1973
    ...Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Nelson v. Keefer, 451 F.2d 289, 296 (3d Cir. 1971); Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967); Post v. Payton, 323 F.Supp. 799, 804 (E.D.N.Y.1971); National Au......
  • McCarty v. Amoco Pipeline Co., No. 78-2104
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 2, 1979
    ...P 0.91(1), p. 846 (1978). As for the prior decisions of this court, there is no holding squarely on point. 7 In Breault v. Feighenholtz, 380 F.2d 90 (7th Cir.), Cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967), a diversity case seeking to set aside a will, defendants challen......
  • Guerrero v. Schmidt, No. 71-C-470.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 8, 1973
    ...allegations from which it might reasonably be inferred that this action involves "value" in the necessary amount. Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir. 1967), cert. denied 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967). Consequently, 28 U.S.C. § 1331 does not confer jurisdic......
  • Davis v. Shultz, No. 19330.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 27, 1971
    ...is rejected. 15 McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967). Plaintiffs assume this burden since the question of ju......
  • Request a trial to view additional results
29 cases
  • Yonofsky v. Wernick, No. 64 Civ. 417.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1973
    ...Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Nelson v. Keefer, 451 F.2d 289, 296 (3d Cir. 1971); Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967); Post v. Payton, 323 F.Supp. 799, 804 (E.D.N.Y.1971); National Au......
  • McCarty v. Amoco Pipeline Co., No. 78-2104
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 2, 1979
    ...P 0.91(1), p. 846 (1978). As for the prior decisions of this court, there is no holding squarely on point. 7 In Breault v. Feighenholtz, 380 F.2d 90 (7th Cir.), Cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967), a diversity case seeking to set aside a will, defendants challen......
  • Guerrero v. Schmidt, No. 71-C-470.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 8, 1973
    ...allegations from which it might reasonably be inferred that this action involves "value" in the necessary amount. Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir. 1967), cert. denied 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967). Consequently, 28 U.S.C. § 1331 does not confer jurisdic......
  • Davis v. Shultz, No. 19330.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 27, 1971
    ...is rejected. 15 McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967). Plaintiffs assume this burden since the question of ju......
  • Request a trial to view additional results

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