Drexel v. Berney

• Decision Date: 27 May 1887
• Citation: 122 U.S. 241,30 L.Ed. 1219,7 S.Ct. 1200
• Parties: DREXEL and others v. BERNEY. 1
• Court: U.S. Supreme Court

122 U.S. 241

7 S.Ct. 1200

30 L.Ed. 1219

DREXEL and others v. BERNEY.¹

May 27, 1887.

This is a bill in equity filed by the appellants, some of whom are citizens of Pennsylvania and others of New York, against the appellee, who is an alien, a citizen of the republic of France, and William Berney, a citizen of Texas, and Saffold Berney, Chollet Berney, Robert Berney, Phillipa Rousseau, Sophia White, Ann M. Ball, Phillipa E. Harley, Laurent B. Hallonquist, Robert L. Hallonquist, and William C. Hallonquist, citizens of the state of Alabama. Of these defendants, none were served with process or appeared, except the appellee Louise Berney. The cause was heard in the circuit court on general demurrer filed by the appellee to the bill. The demurrer was sustained, and the bill dismissed for want of equity. The complainants appealed.

The following statement of the case, as made by the bill, is taken from the brief filed by counsel for the appellants. The bill alleges, in substance:

(1) That said Robert Berney, the decedent, made his will, november 2, 1864, at Croydon, England, whereby he bequeathed his residuary estate to his executors therein named as trustees and upon trusts, among others, for the benefit of his widow, the defendant Louise Berney, and of the other persons named as defendants; and afterwards, on the twenty-fifth of September, 1874, a codicil thereto, making changes in some of the bequests in his will, and appointing as executors and trustees of his will the defendant Louise Berney; also James Berney, his brother; a Mr. Messier de St. James, of Paris, France; and John Drummond and William Drummond.

(2) That Robert Berney died at Paris, France, November 19, 1874, leaving him surviving his widow, the defendant Louise Berney, his said brother, James Berney, and nephews and nieces, who are named as defendants in the bill of complaint. His widow was a native of France, and was with him at the time of his death, but his said brother James and his nephews and nieces were all citizens and residents of Montgomery county, Alabama. Said St. James was a resident of France, and the Messrs. Drummond, of England. The decedent left personal estate in France, England, and the United States.

(3) At the time of his death, Robert Berney, the decedent, was a citizen of the United States, who had lived abroad for some years, but had never acquired a domicile in France under or in accordance with its laws. Upon his death, his widow, the defendant Louise Berney, presented the will and codicil of the decedent to the proper judicial authority in France, and, in accordance with French law, the administration of the estate was committed to a notary by competent judicial authority, December 4, 1874.

(4) Subsequently, and before anything else was done, and on the application of said James Berney, the brother of decedent, and one of his executors, the will and codicil were formally admitted to probate, and letters testamentary thereon issued to said James Berney alone, by competent judicial authority, at Montgomery, Alabama, on the eighth of February, 1875; the decree of the Alabama court being that the decedent was domiciled at Montgomery, Alabama, and that it had full jurisdiction in the premises. All of the heirs at law and next of kin of the decedent, except the widow, the defendant Louise Berney, were at that time citizens and residents of Alabama, and by the laws of Alabama such probate and issue of letters testamentary cannot be impeached collaterally, and are concu sive upon all persons and parties.

(5) That said James Berney, having been thus constituted sole executor, gave a full power of attorney to said St. James, empowering him, among other things, to reduce the decedent's estate to possession, and to sell any and all property, etc. About the same time and on the ninth of March, 1875, said James Berney, being thus sole executor by reason of the Alabama probate, obtained the issue to himself, by the surrogate or court of probate in the city of New York, of ancillary letters testamentary, based upon the Alabama probate. This adjudication is in due form, and also remains unimpaired and in full force. All of the said proceedings of said James Berney were known to the defendant Louise Berney, and the other persons named as executors, as well as to the legatees under the will, the other defendants in the bill of complaint.

(6) That, at the time of the decedent's death, certain evidences of title of the personal property left by him were in his possession at Paris, France, and the purpose and intention of the proceedings above mentioned was to secure immunity of the decedent's estate from taxation in France, and to provide for the due and lawful administration of the assets, which were then actually in the possession of the widow, the defendant Louise Berney, and said St. James; and by the joint action of the sole qualified executor, said James Berney said St. James and said defendant Louise Berney, before the notary to whom the matter had been so judicially committed in France, as aforesaid, the whole estate, and its administration, was intrusted to said St. James, as attorney for said James Berney, executor with the knowledge and approval of all parties in interest, including the defendants. Formal proceedings were afterwards had before the notary at Paris, on the thirtieth and thirty-first of March and third and the fourth of May, 1875, and afterwards on the eleventh of June, 1875, and on those dates formal documents or records were duly executed by the parties before the notary; the first by the widow, the defendant Louise Berney, and said St. James, and the second by the same persons in connection with said James Berney, the qualified executor, in person. At these proceedings, and in the notarial instruments or records, it was formally evidenced and declared that the decedent was, at the time of his death, domiciled at Montgomery, Alabama; that the probate of the will in Alabama was regular and valid; and that said James Berney was the sole qualified executor, and his power of attorney substituted said St. James in all the executor's functions and rights, and the defendant Louise Berney acknowledged receipt of the legacies given to her by the will from the administration of the estate thus constituted. By the laws of France, neither the defendant Louise Berney, nor any other of the persons named as executors in the will, nor any one claiming under them, are permitted to assert the contrary of any of the matters thereby established.

(7) That, among other assets, the decedent left $200,000 in United States bonds, $12,500 in stock of the United States Mortgage Company, $58,200 in stock of the New York Central & Hudson River Railroad Company, 8,000 in bonds of the New York & Canada Railroad Company, 3,000 bond and mortgage on real estate in England, and moneys on deposit with bankers at London. Of these items said James Berney in person took possession of and sold the $12,500 in stock of the United States Mortgage Company and the $58,200 in stock of the New York Central & Hudson River Railroad Company. On the fifteenth of June, 1875, the defendant Louise Berney and said St James procured proof of the will and codicil in common form, and the issue of letters testamentary to them by a competent court in England, and having taken possession of the 8,000 in bonds of the New York & Canada Railroad Company, and the 3,000 bond and mortgage on real estate in England, by virtue of their English letters goti n and converted into money the assets in England, as to the last-mentioned item, an instrument having been jointly executed by all three of the parties, Louise Berney, St. James, and James Berney. All these proceedings were had without objection on the part of any of the defendants. The $200,000 of United States bonds were sent to this country, and by agents of said St. James at the city of New York presented to complainants, with directions to change the bonds from registered to bearer bonds, by selling the registered bonds, and with the proceeds buying bearer or coupon bonds of the same issue,—the only method of effecting such exchange. The agents of said St. James furnished to the officers of the United States treasury satisfactory evidence of their authority to transfer the bonds, and upon which the bonds were transferred, and the complainants sold the registered bonds, and with the proceeds bought $195,000 of coupon bonds, and with a sum of money representing the difference delivered the same to the agents of said St. James, who, in their turn, delivered the same to said St. James himself after he and the defendant Louise Berney had taken out their letters testamentary in England.

(8) That legacies given by the will and codicil to several of the defendants were duly received by them from James Berney or said St. James under the administration of the estate so established, and during all the times mentioned said James Berney was the agent for, and actual guardian of, the defendants, and had full knowledge of all the aforesaid transactions.

(9) That in the year 1880 said James Berney sent his son, the defendant Saffold Berney, to France, who then and there, acting as attorney and agent for his father in his quality of executor, and for himself and defendants as legatees, instituted judicial proceedings against said St. James for an account of his administration of the decedent's estate, and finally received from said St. James, in full satisfaction and discharge of his liability...