Breault v. Feigenholtz

• Decision Date: 23 July 1967
• Docket Number: No. 16048.,16048.
• Citation: 380 F.2d 90
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

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 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 and Richard Dahm² in excess of $1,000,000.00. The defendants filed objections to the motion for leave to file on the ground, inter alia, that the averments of the tendered complaint are inadequate to confer jurisdiction. The court treated the objections as a motion to dismiss on the basis of which the court denied leave to file the tendered amended and supplemental complaint and entered an order dismissing plaintiffs' action for want of federal jurisdictional amount. The plaintiffs' motion to vacate the order of dismissal was denied, and plaintiffs appealed.

In the posture in which this case reaches us it is clear that the assets of Kathryn M. Breault's testamentary trust are not a part of Oscar's estate. In re Estate of Breault, 29 Ill.2d 165, 193 N.E.2d 824. And it is equally clear from the record herein, as well as from the determination made in In re Estate of Breault, 63 Ill.App.2d 246, 211 N.E.2d 424, that from the standpoint of inventoried assets and of the claims subsequently filed in and allowed by the Illinois probate court Oscar's estate has at all times been insolvent. Thus, unless, as plaintiffs contend, the allegations of the tendered amended and supplemental complaint are of themselves adequate, in the face of the challenge to jurisdiction made by defendants, to establish the existence of the requisite jurisdictional "value"³ it was not error for the District Court to deny the motion for leave to file and to dismiss the action.

The federal diversity action the plaintiffs seek to maintain is a proceeding to set aside a will. The action seeks only an adjudication as to whether or not the instrument produced is the will of the testator. Strachan v. Nisbet, 7 Cir., 202 F.2d 216, 219; Ill.Rev.Stat. 1965, ch. 3, § 92. It is not an action for a money judgment or decree, in which instance the "sum" claimed controls the existence of the requisite jurisdictional amount if the claim is apparently made in good faith, and under the rule of St. Paul Mercury Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845, "it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal". Here, as in Hague v. C. I. O., 307 U.S. 496, 507, 59 S.Ct. 954, 83 L.Ed. 1423, the relief sought is of a nature that a motion to dismiss based upon the absence of jurisdictional amount calls for substantial proof on the part of the...