The two
bills of complaint at issue were instituted in the state
court, and were directed against a fund in one of the probate
courts of Massachusetts upon which a lien had been
established under direction of the Supreme Court of the
United States, in favor of Eva A. Ingersoll, administratrix
of the estate of Robert G. Ingersoll.
Identity
of subject-matter, and the complainants' knowledge of the
pendency and progress of the lien proceeding in the federal
courts, and of the 'judgments and decrees therein,'
are shown by the allegations of the bills.
Among
the allegations which appear in each bill are the following:
'Fourth.
* * * And thereupon said contestant party duly executed an
assignment agreement and power of attorney, a copy whereof
is hereunto annexed, marked 'Exhibit 1,' and made a
part hereof, by the terms of which said Cummings, Ladd
Dunbar, and Cornue assigned to said Root and one Gideon
Wells, now deceased, one-third (1/3) of their several
interests in said estate out of which to reimburse said
Root for all sums expended or to be expended on account of
the settlement of said estate and opposing the probate of
said will, the said Root to have the remainder of said
one-third (1/3) as compensation for his time and services.
* * * ' (Exhibit 1 is dated September 25, 1890.)
'Forty-fifth.
Said cause proceeded in said Circuit Court of the United
States and in the Circuit Court of Appeals thereof, and on
certiorari in the Supreme Court of the United States; and
said Supreme Court remanded said cause with directions for
the entry of a decree establishing said debt and subjecting
three hundred sixty-eight and three-fourteenths
eleven-hundredths (368 3/14/1100) of such fund as might be
distributed in Massachusetts under the order of the probate
court of the county of Suffolk in said estate of Andrew J
Davis, deceased.
'Forty-sixth.
In said cause no evidence was presented to said courts, or
any of them, to show the fact aforesaid that said Root and
said Coram had already, from the prior distributions of said
estate, withdrawn their entire portion of said five hundred
fifteen and one-half eleven-hundredths (515 1/2/ 1100) of
said estate, and said courts did not pass upon, or have
jurisdiction to pass upon, the rights of said Cummings and
said Cornue in the premises, and said suit and the
proceedings therein, and the judgments and decrees therein,
are wholly without effect upon the rights of said Cummings
and said Cornue.'
'Forty-ninth.
As against the complainant there is no debt due to the
administrator of the estate of Robert G. Ingersoll from any
person by reason of anything done by said Ingersoll in
connection with the estate of said Andrew J. Davis,
deceased.'
Exhibit
1, referred to in paragraph 4, contains the following:
'And
we, the said Sarah Maria Cummings, Elizabeth S. Ladd, Ellen
Cornue, and M. Louise Dunbar, do hereby severally
constitute and appoint the said Henry A. Root and Gideon
Wells our attorneys in fact, irrevocable, for us, and each
of us, and in our and each of our names, place, and stead,
jointly to demand, sue for, collect, receive, compound,
receipt for, and full acquittance give for our and each of
our interests in said estate.'
The
prayers of the bills were as follows:
'First.
That it be determined by this court to what extent the
complainant is entitled to have and retain the funds
aforesaid upon and after the distribution of them under the
order of the probate court, and that the complainant have a
decree awarding said funds to complainant, as claimed in the
bill of complaint.
'Second.
That it be determined by the decree of this court in what
manner any deficiency in said funds shall fall upon said
Ellen S. Cornue and said Herbert P. Cummings as executor as
aforesaid.
'Third.
That the conflicting claims of the respondents upon the funds
to which the complainant is entitled as aforesaid be denied.
'Fourth.
That a receiver be appointed by this court to take, on behalf
of the distributees designated by the probate court or said
District Court, from said John H. Leyson the funds as
aforesaid to the extent of five hundred fifteen and one-half
eleven-hundredths (515 1/2/1100) thereof, and that said
receiver hold said portion of said funds and distribute the
same in accordance with the decree of this court.
'Fifth.
That said five hundred fifteen and one-half eleven-hundredths
(515 1/2/1100) of said fund be charged by decree of this
court with a trust in favor of the complainant to the extent
of the portion in equity due the complainant as set forth in
the bill of complaint, and that any of the respondents to
whom said five hundred fifteen and one-half eleven-hundredths
(515 1/2/1100) or any part thereof may come shall hold the
same in trust for the complainant to the extent of the sum in
equity due the complainant as aforesaid, and shall pay the
same over to the complainant to such extent.
'Sixth.
That the respondent Leyson be enjoined from removing said
funds or any part thereof from this commonwealth, or
otherwise dealing with the same, except as he may be so
ordered by the probate court for Suffolk county.
'Seventh.
That the remaining respondents, and each of them, be
forthwith enjoined from receiving five hundred fifteen and
one-half eleven-hundredths (515 1/2/1100) of said fund or any
part thereof except through a receiver or other officer of
this court.
'Eighth.
That this cause proceed to hearing and final decree in the
absence of those respondents who are not residents of this
commonwealth and who do not appear in this suit.
'Ninth.
That the complainant have such other and further relief and
such process as this court deems meet and proper.'
These
cases were removed from the state courts upon the ground of
diverse citizenship, together with allegations as to the
nature of the prior proceedings in the United States courts
and the present proceedings in the state courts with
reference to the same supposed subject-matter, which, it is
claimed, raised a federal question. On the 25th of May, 1909,
they were under hearing upon motion to remand, and were
dismissed, and a final decree was entered as follows:
'Putnam, Circuit Judge. On hearing before the court,
ordered, motion to remand bill denied, and bill dismissed,
with costs, but without prejudice to any proceedings arising
between persons interested in the estate of Andrew J. Davis,
deceased, after the final decree in Ingersoll v. Coram
entered by this court has been fully performed.'
Subsequently
the following rescript was filed as of May 25th, which shows
the ground upon which the cases were dismissed:
'Putnam,
Circuit Judge. The above cases came before us on motions to
remand to the state court. On hearing the motions we denied
them. We also entered summary decrees dismissing each bill,
with costs, but without prejudice to any questions arising
between the parties interested in the estate of Andrew J.
Davis, deceased, after the decree in Ingersoll v. Coram,
entered by this court, has been fully performed. These
orders and decrees were entered with an oral expression of
our views in reference to them; but, inasmuch as the
complainants in each of those cases have signified to us an
intention to take an appeal to the Circuit Court of
Appeals, we now deem it proper to file this brief statement
of the oral views thus expressed.
'We
sufficiently identified the proceedings in Ingersoll v.
Coram by a reference to the mandate from the Supreme Court
in that case, which was filed in this court on January 25,
1909, pursuant to which mandate established the of
Ingersoll v. Coram was made by this court. That mandate
established the judgment of this court in favor of
Ingersoll, administratrix, with a modification which
appears therein, and which need not be stated particularly
in this rescript.
'The
bill in equity in the foregoing cases described quite fully
the proceedings in Ingersoll v. Coram and the result in
this court as we have stated it. The view we took of each
of those bills was that on their face they not only set out
the proceedings in Ingersoll v. Coram and the final
judgment therein, but also on their face operated to delay,
embarrass, and, perhaps, to some extent defeat, the
appropriate execution of our judgment in accordance with
the mandate to which we have referred; and we were of the
opinion that it appeared on the face of each of those bills
that such was the purpose of each of them. At any rate, we
were of the opinion that they did so operate as a matter of
fact, and that on their face they set out sufficient to
establish that they operated in the manner we have said,
and that, therefore, on their face each raises such a
federal question as justified removal to this court. We
were also of the opinion that, as they were at least by
implication of law contemptuous in their nature, we were
justified in taking and maintaining jurisdiction over the
same even in a summary manner. Therefore we refused each
motion to remand.
'Also
we were of the opinion, by reason of the operation of each
with reference to the judgment of this court, especially
with reference to the mandate from the Supreme Court, and
from their contemptuous nature in implication of law, that
the court in which the bill was originally filed had no
jurisdiction over the subject-matter of either of them, and
that, therefore, each bill should be dismissed. Moreover,
in order to prevent their practical operation in delaying
and embarrassing the execution of the judgment and mandate
aforesaid, which would result if we permitted the
litigation to be continued even in this court, we were of
the opinion that the only
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