Central Nat. Bank v. Fitzgerald
| Decision Date | 15 May 1899 |
| Citation | 94 F. 16 |
| Parties | CENTRAL NAT. BANK OF CAMBRIDGE, OHIO, v. FITZGERALD et al. |
| Court | U.S. District Court — District of Nebraska |
Burr & Burr for complainant.
Harwood & Ames and James Manahan, for defendants.
The bill in this case was filed by the Central National Bank of Cambridge, Ohio, on its own behalf and on behalf of such other creditors of John Fitzgerald, now deceased, who may desire to participate in the benefits of the litigation, it being averred in the bill that the complainant is a creditor of the estate of John Fitzgerald; that Fitzgerald died in the city of Lincoln, Neb., on the 30th day of December, 1894 intestate; that early in 1895 letters of administration were duly issued by the county court of Lancaster county, Neb., to Mary Fitzgerald, widow of the decedent, and that she is now acting as the administratrix of the estate of her late husband; that complainant, being a creditor of said John Fitzgerald, duly filed in the county court of Lancaster county its claim against the said estate and the same was allowed in due form, and judgment thereon in favor of complainant and against Mary Fitzgerald, administratrix, was entered in the sum of $5,103.33, and that the claim thus allowed remains wholly unpaid. The bill then proceeds to charge that the administratrix, in violation of her duty, has in several ways combined with the other defendants to defraud the creditors of the estate of John Fitzgerald, including complainant; that part of the assets of the estate consisted of a judgment in favor of John Fitzgerald against the Fitzgerald-Mallory Construction Company, amounting in all, including interest, to the sum of $72,000; that by an arrangement and combination between the First National Bank of Lincoln, one of the defendants herein, and the administratrix, Mary Fitzgerald, the money realized on this judgment, being some $72,000, was paid over to the First National Bank in payment of the claim held by the bank against the estate of John Fitzgerald, thereby giving the bank an unlawful preference over complainant and the other creditors of John Fitzgerald. It is also charged in the bill that during the lifetime of John Fitzgerald, he was appointed administrator of the estate of Edward L. Cagney, deceased, and in that capacity received some $20,000, for which he had not accounted at the time of his death; that Mary Fitzgerald claimed to be entitled to this sum under a will executed by Cagney, which will was probated in the county court of Lancaster county, and thereupon she presented her claim against the estate of John Fitzgerald in said county court, and obtained an order declaring that John Fitzgerald held this sum in trust, and that her estate must account for the same as trust funds. It is further averred that Mary Fitzgerald thereupon assigned and transferred in form this claim thus allowed to her attorney, James Manahan, and that Manahan and Mrs. Fitzgerald have instituted proceedings in Cook county, Ill., to subject certain realty belonging to the estate of John Fitzgerald, and situated in Illinois, to the payment of this claim, intending thereby to secure the payment of the claim in full, and also to deprive the creditors of the Fitzgerald estate of any benefit from this property situated in Illinois. It is also charged in the bill that the estate of Fitzgerald is insolvent; that it has been largely absorbed by improvident allowances to the family; and that the complainant and the other creditors, unless aid is given them to reach the funds and property already described, will receive nothing upon their just claims. To this bill the defendants, including Mary Fitzgerald, the First National Bank of Lincoln, and James Manahan, interpose a demurrer on the grounds that this court is without jurisdiction in the premises, in that it appears that the estate of John Fitzgerald is yet in process of administration in the county court of Lancaster county, and that the complainant should apply to that court for relief against any wrongful acts of the administratrix; that the bill does not disclose a case for equitable relief; and that it is multifarious, in that it embraces distinct causes of action.
Upon the ground that this court is without jurisdiction for the reason that the administration of the estate of John Fitzgerald has not yet been closed, but is still in progress in the proper probate court, to wit, the county court of Lancaster county, I agree with the views advanced by counsel for defendants with regard to many of the general allegations of the bill, which charge that improvident allowances are being made to the widow and family of the deceased, and to the attorneys acting for the estate. It is open to complainant and the other...
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