Brendel v. Charch
| Decision Date | 01 September 1897 |
| Parties | BRENDEL v. CHARCH et al. |
| Court | U.S. District Court — Southern District of Ohio |
Harmon Colston, Goldsmith & Hoadly, for complainant.
Gunckel Rowe, & Shuey, and Oscar M. Gottschall, for respondents.
The complainant, a citizen of Texas, files her bill to compel the executor of John S. Charch, deceased, to account for and to pay over to her the remainder of a legacy of $5,000 left to her by will of the testator, upon which she has already received $3,000, and also the amount due her as her share under a residuary bequest in the same will to herself and others. The executor, and the other legatees under the will who are all citizens of other states than Texas, are made parties defendant. Demurrers to the bill are filed by the executor and by one of the defendant legatees. The demurrers raise three objections to the bill. The first is that the action is not of equitable cognizance; the second is that the same cause is pending in the state court; and the third is that, as the estate is being settled in the probate court of Montgomery county, the jurisdiction of this court is ousted on principles of comity.
1. It is a question somewhat controverted whether an action for a legacy is of equitable cognizance, and authorities differ. The supreme court of the United States, however, has assumed the affirmative of the question to be correct (Association v Hart, 4 Wheat. 1; Armstrong v. Lear, 12 Wheat. 169; Lewis v. Darling, 16 How. 1); and such seems to have been the view of the Ohio supreme court before the adoption of the new constitution fusing law and equity and providing for the modern organization of probate courts (Cram v. Green, 6 Ohio, 429; Grosvenor v. Austin's Adm'r, Id. 104). In this jurisdiction, therefore, it must be held that the cause of action stated in the bill justifies equitable relief.
2. It does not appear from the bill that the complainant is a party to any proceeding in any other court to obtain the same relief here asked. But, if it did, it would not be aground for abatement of this suit. City of North Muskegon v. Clark, 22 U.S.App. 522, 10 C.C.A. 591, and 62 F. 694; Gordon v. Gilfoil, 99 U.S. 168.
3. The pendency of the proceeding to settle the estate in the probate court of Montgomery county does prevent this court from taking the estate out of the hands of that court, and administering it, and distributing the same according to the old equity practice, but it does not and cannot prevent the citizen of another state, entitled under a will to share in a estate, or to a legacy under a will, from litigating his right to the same in the forum provided by the constitution and laws of the United States for the litigation of suits between citizens of different states, and from obtaining a decree against the resident administrator or executor for the amount...
To continue reading
Request your trial
-
Trimble v. Kansas City, Pittsburg & Gulf R. Co.
...Co. v. Scutt, 22 F. 710; Rodgers v. Pitt, 96 F. 677; Leidigh Carriage Co. v. Stengel, 95 F. 642; Ryan v. Railroad, 69 F. 407; Brendell v. Charch, 82 F. 262; Chaw Lyman, 79 F. 3; Gamble v. San Diego, 79 F. 500; Deming v. Ins. Co., 78 F. 4; Gassman v. Jarvis, 100 F. 146; City of Muskegon v. C......
-
United States v. Eisenbeis
...v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867; Wickham v. Hull (C.C.) 60 F. 326, 330; In re Foley (C.C.) 76 F. 390; Brendel v. Charch (C.C.) 82 F. 262. In v. Colbath, supra, the court said: 'But it is not true that a court, having obtained jurisdiction of a subject-matter of a suit......
-
Vanderwater v. CITY NAT. BANK OF KANKAKEE, ILL.
...in no way affect the equity jurisdiction of the Federal Courts. Such announcements are to be found in the following cases: Brendel v. Charch et al., C.C., 82 F. 262; Hayes v. Pratt, 147 U.S. 557, 13 S.Ct. 503, 37 L.Ed. 279; Kendall v. Creighton, 23 How. 90, 64 U.S. 90, 15 L. Ed. 419; Lawren......
-
Puder v. Agler
... ... property was before the court, and the matters involved were ... not within the exclusive jurisdiction of a probate court ... Brendel ... v. Charch (C.C.) 82 F. 262, is authority only for the ... proposition that a legatee or distributee may sue in the ... federal court to ... ...