Camp v. Field

• Decision Date: 20 May 1911
• Docket Number: 1,327.
• Citation: 189 F. 285
• Parties: CAMP et al. v. FIELD.
• Court: U.S. District Court — Northern District of Georgia

189 F. 285

CAMP et al. v. FIELD.

No. 1,327.

United States Circuit Court, N.D. Georgia.

May 20, 1911

D. W Blair, for complainants.

R. H Field, for defendant.

NEWMAN District Judge.

This is a motion to remand. The suit, brought in the state court and removed to this court, was to compel Field, as one of the executors of George H. Camp, deceased, to assent to a legacy to the plaintiff, Mrs. Camp. The proceeding is instituted under a provision of the Code of Georgia, and the two sections of the Code which are material here are sections 3895 and 3896 of Hopkins' Code of Georgia of 1910. They are as follows:

'Sec 3895. Assets to Pay Debts. All property, both real and personal, in this state, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy.

'Sec. 3896. Effect of Assent. The assent of the executor may be presumed from his conduct, as well as his expressed consent; the executor, however, cannot, by assenting to legacies, interfere with the rights of creditors, nor can he, by capriciously withholding his assent, destroy the legacy. In equity the legatee may compel him to assent.' The last language of the latter section is the most material here; that is, 'in equity the legatee may compel him to assent.'

The motion to remand is on the ground that:

'The petition in said case is not a suit at common law, as contemplated by the statute conferring jurisdiction upon this honorable court; the petition in this case is not a suit in equity, as contemplated by the statute conferring jurisdiction upon this honorable court; the matter in dispute does not exceed the sum or value of $2,000 in the sense contemplated by said statute, in that no recovery is sought from the defendant therein. The petition does not seek a money judgment against the defendant, but simply to compel the performance of a duty assumed by him as executor of said deceased.'

No amount is stated in the suit brought in the state court as being involved, but the petition for removal states that the matter in dispute exceeds the value of $2,000 exclusive of interest and costs.

The facts stated in the petition for removal, which do not conflict with anything contained in the pleadings in the suit removed, will be taken as true unless traversed. Dishon v. Railroad Co., 133 F. 471, 66 C.C.A. 345; Atlanta, K. & N. Ry. Co. v. Southern Ry. Co., 153 F. 122, 82 C.C.A. 256; Waha-Lewiston Land & Water Co. v. Lewiston-Sweetwater Irrigation Co., Ltd. (C.C.) 158 F. 137.

The only real question for determination here is whether or...