Carrau v. O'Calligan

• Decision Date: 14 September 1903
• Docket Number: 925.
• Citation: 125 F. 657
• Parties: CARRAU v. O'CALLIGAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

125 F. 657

CARRAU v. O'CALLIGAN et al.

No. 925.

United States Court of Appeals, Ninth Circuit.

September 14, 1903

Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.

The appellees were complainants in the court below in a suit to which Terrence O'Brien, as administrator of the estate of John Sullivan, deceased, and Marie Carrau, were made defendants. In their bill, after alleging the complainants to be British subjects and the defendants to be citizens of the United States and residents of the state of Washington, and the defendant Terrence O'Brien to be the duly appointed qualified, and acting administrator of the estate of the deceased, Sullivan, they averred: That on the 26th day of September, 1900, Sullivan died in the city of Seattle, state of Washington, intestate, leaving therein real property of the value of over $400,000, and personal property of the value of more than $20,000. That Sullivan left surviving him no widow, children, or lineal descendants, nor father mother, sister, brother, uncle, aunt, nephew, niece, nor any granduncle nor grandaunt, nor any grandnephew or grandniece nor any ancestor, lineal or collateral, nor any first cousins other than the complainants, nor any relative whomsoever as nearly related to him as the complainants. That each of the complainants is a first cousin of the deceased, Sullivan, and that they are his only heirs at law and next of kin. That shortly after Sullivan's death a special administrator of his estate was appointed by the superior court of King county, Wash., who took charge of the estate until some time in November, 1900, when the defendant O'Brien was by that court duly appointed general administrator of the estate. That O'Brien immediately qualified as such administrator and entered upon the discharge of his duties as such.

That the defendant Marie Carrau, and a relative of hers by the name of Louis Daussat, shortly after the appointment of the special administrator of the estate of Sullivan, filed a petition in the superior court of King county, wherein they alleged that Sullivan died in that county without leaving any will, and seized of an estate in the county, consisting of real and personal property, exceeding in value the sum of $400,000, and claiming that Sullivan was indebted to them in about $35 for board, and as such creditors they prayed that on I. D. McCutcheon be appointed administrator of the estate. That various other persons, some of whom are named in the bill, filed petitions alleging that Sullivan died seised and possessed of real and personal property in King county, that he left no will, and praying the appointment of other persons than McCutcheon as administrator of the estate. That the several petitions came on for hearing before the court, and at such hearing McCutcheon declined to be appointed administrator, and at the request and in behalf of Daussat and Marie Carrau asked the appointment of one B. R. Brierly as such administrator. That upon the hearing of the proofs offered in support of the various petitions the superior court of King county appointed the defendant Terrence O'Brien administrator of the estate, and denied the prayers of all the other petitions. That after the appointment and qualification of O'Brien as such administrator the defendant Marie Carrau and Louis Daussat, and their relatives, Augustine Daussat and Hermance Carrau, combined and confederated together for the purpose of manufacturing a pretended nuncupative will of Sullivan in favor of Marie Carrau, under which pretended nuncupative will Marie Carrau is claiming to be the sole legatee and devisee of all the property of the deceased, Sullivan; and that it is and has been the intention of the said Marie Carrau, Hermance Carrau, Louis Daussat, and Augustine Daussat to carry out such conspiracy, and thereby obtain for themselves all the property of Sullivan by means of false testimony, and by the manufacture of evidence to support the pretended nuncupative will. That Sullivan at the time of his death was a bachelor, of the age of 60 years, and had had only a very short acquaintance with Marie Carrau, Hermance Carrau, Louis Daussat, and Augustine Daussat, but that at the time of his death he was temporarily lodging at the house of Daussat, at which house Marie Carrau also resided, and at which time she was teaching Sullivan French, he then contemplating a trip to France, from which country he had but recently returned with the intention of revisiting it at an early date. That, after failing to procure the appointment of the person whom they had nominated a administrator, the said Louis Daussat and Marie Carrau began to circulate reports that Sullivan had made a nuncupative will at 11 o'clock on the night of the 25th day of September, 1900. That such pretended nuncupative will had been reduced to writing at half past 11 o'clock that night, and had been signed by the said Marie Carrau, Louis Daussat, Augustine Daussat, and Hermance Carrau as witnesses after the death of Sullivan on the 26th day of September, 1900. That on the 8th day of March, 1901, the said Marie Carrau filed in the superior court of King county, Wash., a verified petition, wherein she stated that she had heard the said petition read, knew the contents thereof, and knew the same to be true, which petition alleged: 'That said John Sullivan died on the 26th day of September, A.D. 1900, at Seattle, county of King, state of Washington, and was at the time of his death of sound mind and disposing memory. That he left a last will and testament, to wit, a nuncupative will. That six months have not elapsed since the testamentary words were spoken by decedent. That said testamentary words, or the substance thereof, were addressed to Louis Daussat, Augustine Daussat, and Hermance Carrau at about eleven o'clock p.m. of the 25th day of September, 1900, and were as follows: 'I want you to remember and witness that I will all my property and personal effects, worth many thousands of dollars, to be the money and property of your sister, Marie Carrau. I am sick, and we know not what may happen.' That said testamentary words were thereafter reduced to writing, which said writing accompanies this petition. That such testamentary words were spoken and such nuncupative will was made at the time of the last sickness, and at the dwelling house of deceased, wherein deceased had resided for more than ten days immediately preceding his death and the speaking of said words. That said will was made at or about the hour of eleven o'clock p.m. on the 25th day of September, 1900, the night before decedent's death, and at the time of his last sickness, and while decedent was in actual contemplation, expectation, and fear of death, and at the time of pronouncing such testamentary words constituting such nuncupative will as aforesaid the decedent did bid the three following named persons, who were then and there present by and at his request, to bear witness that such was his will, to wit, Louis Daussat, Augustine Daussat, Hermance Carrau. That decedent had been sick for several days immediately preceding the making of said will, and was still sick at said time, and in his last sickness as aforesaid, and died within twelve hours after said will was made, published, and declared. That no one was named in said will as the executor thereof. That decedent was a bachelor, and left no widow, heirs, or next of kin, so far as known to your petitioner. That decedent left personal property of the value of fifty thousand dollars ($50,000), and real estate in said county of King of the probable value of four hundred and fifty thousand dollars ($450,000). Wherefore petitioner prays that said will be admitted to probate. (Signed) Marie Carrau, Proponer and Petitioner.'

The bill further alleges that immediately upon the filing of that petition a citation was issued by order of the superior court of King county, Wash., and placed in the hands of the sheriff of that county for service upon the widow and next of kin of the deceased, Sullivan, and that the sheriff immediately returned the citation with his return indorsed thereon to the effect that he was unable to find such persons or any of them in King county, and immediately thereupon the superior court of King county assumed to admit the pretended nuncupative will to probate, and that said pretended nuncupative will now stands as legally probated in the records of the superior court of King county, state of Washington; that the said superior court, in assuming to probate the said nuncupative will, acted wholly without jurisdiction in the premises; that it was without jurisdiction to hear any evidence or to take any steps for the probate of such nuncupative will wherein the estate bequeathed exceeded the value of $200; that the said superior court was also without jurisdiction for the reason that no legal citation had been issued out of the court, and because 10 days had not elapsed between the filing of the pretended will and the hearing of the pretended proof offered in its support; that under the laws of the state of Washington a nuncupative will is invalid where the estate bequeathed exceeds the value of $200, and that a nuncupative will, even if valid, cannot dispose of real estate; that the said Marie Carrau has filed a petition in the superior court of King county, Wash., wherein she prays that the whole of the estate of the deceased, Sullivan, be distributed to her and it is alleged upon the information and belief of the complainants that the said court will, on the 21st day of June, 1901, make and enter a decree of distribution distributing the whole of the estate to said Marie Carrau upon her executing a bond for the payment of her proportion...