Caylor v. Cooper

• Decision Date: 22 December 1908
• Citation: 165 F. 757
• Parties: CAYLOR v. COOPER et al.
• Court: U.S. District Court — Southern District of New York

165 F. 757

CAYLOR v. COOPER et al.

United States Circuit Court, S.D. New York.

December 22, 1908

James B. Curtis, for complainant.

Richard S. Newcombe, for defendants Buckley, Nightingale and Mae Cooper.

Austin E. Pressinger, for defendant Mae Cooper, individually.

RAY District Judge.

The bill of complaint shows that the complainant, Worth E Caylor, resides at the city of Chicago, state of Illinois and is a citizen of that state. The defendants are all residents and citizens of the state of New York. April 25 1904, Frank H. Cooper, William H. Cooper, Edward C. Cooper Charles A. Cooper, Garrett D. Cooper, Eda R. Wolff, and Wallace B. Wolff severally made and executed their certain written indenture or deed of trust, a copy of which is set out in the bill of complaint, whereby they, as parties of the first part, made and constituted Charles A. Cooper and Worth E. Caylor trustees of certain property therein mentioned and described, and transferred such property to them as trustees upon certain trusts specified in such deed of trust.

The property is described in certain schedules. Schedule A described property of Frank H. Cooper; schedule B described property of William H. Cooper; schedule C described the property of Edward C. Cooper; schedule D described the property of Charles A. Cooper; schedule E described the property of Garrett D. Cooper; and schedule F described the property of Eda R. Wolff. The deed of trust provided that Charles A. Cooper and Worth E. Caylor, trustees, were to hold such property during the period of the lives of William H. Cooper and Edward C. Cooper, and to continue and endure until the time of the death of the surviving one of the said William H. Cooper and Edward C. Cooper, it being understood that, in either or both of said persons living and surviving for a period of five years from the date of such deed of trust, at the time of the expiration of said five years the trust should cease and determine.

It was further provided that physical possession of the funds, and the evidence of ownership of the real and personal property constituting the trust estate, should be held by Charles A. Cooper as trustee; that Worth E. Caylor, trustee, should examine into the condition of things every two months, and upon the first sign of negligence or fraud on the part of his co-trustee take possession of all the trust property. The property was all turned over to the possession of said Charles A. Cooper and Worth E. Caylor, as trustees, who accepted the trust.

Edward C. Cooper died February 23, 1907, and left him surviving Mae Cooper, his widow, but no issue. He left a last will and testament, which is set out in the bill of complaint. He made certain gifts, and the rest, residue, and remainder of his estate he gave to his wife, Mae Cooper, and the defendants Buckley and Nightingale and Mae Cooper, upon certain trusts. The bill of complaint alleges that said Edward C. Cooper in his lifetime, and after the execution of said deed of trust and pursuant thereto, designated Charles A. Cooper to take, for the uses and purposes mentioned in his declaration, all the property which the person designated would be entitled to take from the trustees named in said deed of trust; and further alleges that the said Charles A. Cooper now claims to take and receive from the said trustees named in the deed of trust under the same by virtue of the said declaration. The bill of complaint also alleges that Mae Cooper, Buckley, and Nightingale claim that said Edward C. Cooper designated them to take all of such property.

The bill of complaint then alleges that the complainant, Worth E. Caylor, trustee, and the defendant Charles A. Cooper, trustee, now desire to distribute and pay the sum of $10,000 out of the funds in their possession as trustees as aforesaid to said Charles A. Cooper, or to Mae Cooper, Dennis P. Buckley, and William Nightingale, or whichever person or persons is lawfully entitled to receive the same because of the declarations of the said Edward C. Cooper. The bill alleges that because of these conflicting claims the complainant is unable to determine who is entitled to receive that part of the trust estate formerly belonging to Edward C. Cooper of which the complainant is one of the trustees. Presumably, I think the sum ready to be distributed consists of income, rents, and profits, as the trust is not ended and the trust term has not expired.

By the third subdivision of the deed of trust the trustees were to pay to Frank H. Cooper in quarterly payments the sum of $25,000, annually from the incomes, etc., and to make other small payments; and by the fourth subdivision of the deed of trust said trustees were to pay during the life of the trust one-fifth part of the remaining net income and profits of the trust estate to each of the following: William H. Cooper, Edward C. Cooper, Charles A. Cooper, Garrett D. Cooper, and Eda Wolff.

It may fairly be assumed that the amount in controversy is this sum of $10,000, which the trustees named in the deed of trust desire to pay over to the ones entitled thereto. The actual controversy seems to be between Charles A. Cooper, on the one hand, and Mae Cooper, Dennis P. Buckley, and William Nightingale, on the other. Edward C. Cooper in his lifetime seems to have made conflicting designations as to the disposition of that part of the rents and incomes to which he or his estate was or should become entitled. Mae Cooper, Dennis P. Buckley, and William Nightingale claim as executors and trustees under the will fo Edward C. Cooper. Charles A. Cooper claims under another instrument. The actual or real controversy is between citizens of the state of New York. However, both sets of claimants to the funds claim same of and from the complainant here, Worth E. Caylor, and Charles A. Cooper, as trustees under the deed of trust. But Charles A. Cooper individually lays claim to the $10,000, as against the complainant Worth E. Caylor, as well as against himself as trustee While Mae Cooper, Buckley, and Nightingale claim the fund as against Charles A. Cooper individually, they also lay claim to the same as against the complainant Worth E. Caylor, as trustee, and Charles A. Cooper, as trustee.

Not knowing or being certain who is entitled to the $10,000, the complainant brings this suit to have it determined whether Charles A. Cooper is entitled to the $10,000, or whether the same should be paid to Mae Cooper, Buckley, and Nightingale, as executors and trustees under the will of Edward C. Cooper.

The jurisdiction this court is denied. It is claimed that for purposes of jurisdiction this court is to align the parties complainant and defendant as complainants or defendants according to their interests, irrespective of the place given them by the complainant in his bill of complaint, and that, so aligning them, the complainant, Worth E. Caylor, trustee, and the defendant Charles A. Cooper, trustee, are in fact complainants, and should be so considered, and that therefore, as all the complainants are nto residents of a different state from that of all the defendants, there is not the necessary diversity of citizenship. If this be so, it is contended we have a citizen of Illinois, a plaintiff, and a citizen of New York, also a necessary plaintiff, with all the defendants citizens of New York, and the diversity of citizenship necessary and indispensable to the jurisdiction of the Circuit Court no longer exists. I find no allegation in the bill of complaint that Charles A. Cooper, trustee, has been requested to bring or to join in bringing an action to settle the existing controversy. It is contended that, therefore, he, as trustee, is not a necessary or a proper party defendant, but is a necessary and indispensable party complainant. Where two executors or trustees have the right, and it is their duty, to bring an action or institute a suit, and one refuses to join as plaintiff or complainant, the other may bring the suit or action making his coexecutor or co-trustee a party defendant. This question was presented in Venner v. Great Northern Railway and James J. Hill, 209 U.S. 24, 28 Sup.Ct. 328, 52 L.Ed. 666, decided by the Supreme Court of the United States February 24, 1908, where the railway company, made defendant, refused to bring suit, and hence the complainant Venner, a stockholder, commenced the action, making the railway company a defendant.

It was contended that as the railway company had the interests of a complainant, was pecuniarily interested in the recovery, it must be aligned as a complainant, and that so aligning it there would be a citizen of New York and a citizen of Minnesota (the railway being a citizen of Minnesota, where its president, defendant James J. Hill, also resided) plaintiffs, and a citizen of Minnesota defendant, and the necessary diversity of citizenship did not exist. The court held that, assuming Venner had the right to bring and maintain the suit as stockholder (the railway company having refused so to do), the railway company must be regarded and considered as a defendant. The court said:

'It would doubtless be for the financial interests of the defendant railroad that the plaintiff should prevail. But that is not enough. Both defendants unite, as sufficiently appears by the petition and other proceedings, in resisting the plaintiff's claim of illegality and fraud. They are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action. The plaintiff's controversy is with both, and both are rightfully and necessarily made defendants, and neither can, for jurisdictional purposes, be regarded otherwise than as a defendant. Davenport v. Dows, 18 Wall. 626, 21 L.Ed. 938;

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