Buder v. Fiske, 14294.

• Decision Date: 13 September 1951
• Docket Number: No. 14294.,14294.
• Citation: 191 F.2d 321
• Parties: BUDER et al. v. FISKE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F.2d 321 (1951)

BUDER et al. v. FISKE et al.

No. 14294.

United States Court of Appeals Eighth Circuit.

September 13, 1951.

Harry C. Blanton, Sikeston, Mo. (G. A. Buder, Jr., St. Louis, Mo., on the brief), for appellants.

Jesse T. Friday and Samuel H. Liberman, St. Louis, Mo. (E. J. Doerner, Tulsa, Okl., on the brief), for appellees.

Before WOODROUGH, THOMAS and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

In No. 13,595, Buder v. Fiske, 8 Cir., 174 F.2d 260, to prevent the possibility of a double payment being received, by the remainder interests under the will of Sophie Franz, of that portion of the recovery allowed against the trustees involved, for what constituted in effect unauthorized advancements made by them, we entered a modificatory order on petition for rehearing, 177 F.2d 907, 908, that "each of the nine remainder interests entitled to share in the Sophie Franz estate shall execute and deliver assignments of their interests (as hereinafter defined) in said estate to appellants".

We indicated in our per curiam opinion that, since the record before us contained no information as to the status and condition of the Sophie Franz estate, it was not possible or necessary for us at that time, in the fixing of the "interests" which we intended the ordered assignments to cover, to go farther than to state in general terms what deductions or subtractions should be made from the amount which the trustees might be entitled to have returned to them as an augmentation of the remainder interests of the Sophie Franz estate from the unauthorized advancements — and we accordingly stated the deductions or subtractions in that manner only.

We prescribed a skeleton form of assignment for execution by each of the nine remainder interests, in order to permit and to enable such remainder interests to receive payment of that portion of the judgment allowed on account of the unauthorized advancements without any delay. Under the skeleton form, any remainder interest executing the assignment was, however, made to "agree to execute any further instruments which may be necessary to effectuate a recognition in the Probate Court, where the estate of Sophie Franz is being administered, of the assignment hereby intended and to compel a distribution to the said assignees of any amount which the remaindermen might otherwise receive out of the estate of Sophie Franz by virtue of such repayment of the so-called Advances having been made, including any net earnings which may have resulted from the possession of the funds by the Sophie Franz estate."

Thus, the effect of our modificatory order necessarily was to impose a condition, and a continued obligation of making that condition practicably effective, upon the right of the remainder interests of the Sophie Franz estate to receive payment or satisfaction of that portion of the judgment allowed for the advancements.

Subsequent to the issuance of our mandate and the entry of judgment thereon by the District Court, the trustees paid into that court the amount necessary to satisfy the entire judgment allowed against them, including the portion covering the unauthorized advancements, the receiving of which by the remainder interests had been conditioned. Five of the nine remainder interests promptly executed the skeleton form of assignment and received payment through order of the District Court of the conditioned judgment proceeds (as well as, of course, of the unconditioned portion of the judgment). The other four remainder interests have never taken any steps one way or the other with respect to the conditioned judgment proceeds. They neither have made acceptance of such proceeds by executing the assignment required, nor have they made rejection thereof by indication of their desire to take instead their full remainder share in the Sophie Franz estate as augmented by the unauthorized advancements, and so to abandon their right to the conditioned portion of the judgment.

The result has been that the money has now lain barrenly in court for more than a year and a half, with no opportunity to the trustees to move forward in protection of their own pecuniary interest, by being able to take steps in the Sophie Franz estate to establish any recoupment right in relation to the funds, or by being able to have their judgment liability satisfied of record through a rejection by the remaindermen, with an accompanying right in the trustees to have returned to them their unaccepted and unproductive judgment deposit.

In this situation the trustees made application to the District Court for an order fixing a reasonable time within which the non-complying remaindermen would be required to execute the ordered assignment, if they desired to do so, or by failing to do so would indicate their intention to reject the conditioned proceeds and to take instead their full remainder share in the Sophie Franz estate. The District Court denied the application on the ground that it had no jurisdiction.

We think the court either wrongly viewed the purpose of the application or took too narrow a view of its own powers in relation to our mandate. All that we had done was to impose a condition upon the right of the remaindermen to receive the proceeds involved and in this respect only had w...