Davis v. Davis

• Decision Date: 22 July 1898
• Citation: 89 F. 532
• Parties: DAVIS v. DAVIS et al.
• Court: U.S. District Court — District of Montana

89 F. 532

DAVIS v. DAVIS et al.

United States Circuit Court, D. Montana.

July 22, 1898

Walter S. Logan, C. P. Drennan, and O. M. Hall, for complainant.

J. B Clayberg, J. F. Forbis, and W. W. Dixon, for defendants.

DE HAVEN, District Judge.

This is an action brought by the complainant, a citizen of the state of New York, against the defendants, who are citizens of the state of Montana, and the questions to be decided at this time arise upon demurrers to the bill of complaint. The bill alleges, in substance, that one Andrew J. Davis died on March 11, 1890, in the state of Montana, leaving a large estate both real and personal, situated in Montana and elsewhere. He was unmarried, left no child, and it was supposed for some time after his death that he had died intestate. The complainant is his brother, and with other brothers and sisters, named in the bill, would have been entitled to the estate left by Andrew J. Davis, as his heirs at law, in the event of his having died intestate. Soon after his death however, one Thomas J. Davis appeared, and claimed to be the son of the deceased, and it is further alleged that 'there were various persons either claiming to be widows of said Andrew J. Davis, deceased, or claiming to be children, either legitimate or illegitimate, and various suits and claims were being made and threatened against said estate by such persons or some of them. ' Under these circumstances, the complainant, Erwin Davis, and certain of his brothers and sisters, entered into a contract in the month of May, 1890, by which it was agreed that the complainant should institute and prosecute to final judgment all actions necessary to establish the rights of the parties to that agreement as against the claims of Thomas J. Davis or of any other person pretending to be a child of Andrew J. Davis, and should also defend any action which might be brought by any such person involving the rights of the parties as heirs at law of Andrew J. Davis; the said Erwin Davis named in the agreement as party of the first part to bear all the expenses in any wise incident to said litigation, not exceeding the sum of $200,000. In consideration of this undertaking on the part of the complainant, the other parties appointed him as their agent to institute, prosecute, and defend the actions contemplated by the agreement, with authority to compromise any and all such controversies and actions; and the agreement contained the following additional covenant:

'That when, by final judgment of the courts in said litigation, or any of them, or by compromise or settlement, the parties hereto have realized and become entitled to have the said estate and property, each of the said second parties shall and will pay, grant, and convey to the said Erwin Davis one half of what each said party shall receive or be entitled to receive from or on account of said estate or the proceeds thereof, the other half being and remaining the property of each such party, free and clear of all claims by said Erwin Davis by reason of his services and expenditures aforesaid. * * * And the stipulations of the second parties shall be considered and taken to be several, and not one for the other. When the assets of the estate or any part thereof shall be realized and in the hands of the administrator or other custodian of the same ready for distribution among the parties entitled thereto, each party, his heirs, executors, administrators, or assigns, shall receive his or her share thereof as above provided, and no more; that is to say, the original share of each of the second parties shall be divided into two parts, and one part shall be payable and received by the first party hereto, without further order in his favor, from the second parties, and the other half shall be payable to and received by each proper second party, without further order in his favor, from the first.'

After the execution of this agreement, a paper purporting to be the will of Andrew J. Davis was discovered, and was propounded for probate in the proper court in the state of Montana by John A. Davis, one of the parties to the foregoing agreement. By the terms of this alleged will the entire estate of Andrew J. Davis, with the exception of three minor legacies, was given to said John A. Davis. After the commencement of the proceedings to prove this will, John A. Davis executed a power of attorney, authorizing the complainant to represent him in any proceeding in the courts of Massachusetts relating to the estate of Andrew J. Davis. This instrument contained the following recitals in relation to the former contract entered into between the complainant and the other heirs at law of Andrew J. Davis:

'Whereas, since the making of said agreement, an instrument purporting to be the will of said Andrew J. Davis has been found and has been presented by said John A. Davis for probate in the courts of Montana, and the proceedings therein are now pending; and whereas, it may be necessary to procure special administration of the estate of Andrew J. Davis in Massachusetts, and also, in the event of the probate of said will in Montana, to obtain ancillary letters of administration in Massachusetts on the estate of said Andrew J. Davis there situated, for the material benefit of said John A. Davis and Erwin Davis, as provided for by said agreement of May, 1890, which agreement, by the understanding of the parties hereto, is applicable to the estate coming to the said John A. Davis under said will, and the interests of Erwin Davis therein, and to the undertaking of said Erwin Davis to assist in the enforcement of the rights of said John A. Davis under said will, the same as if said will were specifically named in said agreement.' The bill alleges that the complainant has fully performed all the promises and stipulations on his part contained in each of the two agreements hereinbefore referred to. On January 24, 1893, John A. Davis died intestate, leaving him surviving as his only heirs at law the defendants Thea Jane Davis, Andrew J. Davis, Jr., John E. Davis, and Morris A. Davis, and three other sons, not citizens of the state of Montana, who are not made parties to this action. The defendant John E. Davis was on March 11, 1893, appointed administrator of the estate of John A. Davis, and as such administrator was thereafter substituted, in the place of his deceased father, as proponent of the alleged will of Andrew J. Davis. The probate of this will was contested by Sarah M. Cummings, a sister, and by Henry A. Root and Harriet Sheffield and Henry A. Davis, children of a deceased sister and brother of Andrew J. Davis. During the pendency of this contest the defendant Thea Jane Davis, widow of John A. Davis, deceased, and the defendants Andrew J. Davis, Jr., John E. Davis, Morris A. Davis, and the other sons of said John A. Davis, who are not made parties to this action, entered into a compromise agreement with the contestants of said will, and with Ellen S. Cornue, Mary Louise Dunbar, Elizabeth S. Ladd, heirs of Andrew J. Davis, and with Joshua G. Cornue, husband of Elizabeth S. Cornue, and with Charles S. Ladd, husband of Elizabeth S. Ladd, by the terms of which it was agreed that the objections to the probate of the alleged will of Andrew J. Davis should be withdrawn, and that 1/25 of his estate should be given to Harriet Sheffield and Henry A. Davis, and 19/44 of the remainder should be distributed to the widow and heirs at law of John A. Davis, and the remaining 25/44 of said estate should be distributed to the other parties thereto with notice of the complainant's rights under the contracts hereinbefore referred to, and with the corrupt and fraudulent intention of diving the estate of Andrew J. Davis among themselves, and defrauding the complainant of his rights under the contract of May, 1890, and his subsequent contract with John A. Davis. The alleged will of Andrew J. Davis was admitted to probate on the 27th day of March, 1895, and decree reciting the compromise agreement above referred to, and setting forth that it was based upon that agreement as well as upon proofs submitted to the court showing that the will was properly executed and was the last will of said Andrew J. Davis; and in the same decree it was further ordered and adjudged that, in pursuance of such compromise agreement, the parties thereto should, upon the distribution of the estate, have and receive the respective shares thereof provided for by such agreement. The bill alleges that all that part of the decree which assumes to adjudge that the estate should thereafter be distributed in accordance with the compromise agreement is absolutely void by reason of a want of jurisdiction in the court to so adjudge. The bill also alleges that the claims against the estate of Andrew J. Davis do not exceed $50,000, and that no reason exists why the legacy given by the will of Andrew J. Davis should not be immediately distributed to the administrator of the estate of John A. Davis; and it is further shown that the defendants threaten to divide the estate in accordance with the compromise agreement and decree of the court, and other facts are stated tending to show that if such division is made the share to which the complainant is entitled under his contract will become lost, etc. The prayer of the bill is that the court shall adjudge to be valid the agreements made by the complainant with John A. Davis and the other heirs of Andrew J. Davis, and that it shall set aside the compromise agreement, and adjudge as against the defendants that the complainant is entitled to receive one-half of the legacy given to John A. Davis under and by the will of Andrew J. Davis, deceased, and that the defendants Andrew J. Davis, Jr., John E. Davis, Morris A.

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