Fakouri v. Cadais

• Decision Date: 16 May 1945
• Docket Number: No. 10957.,10957.
• Citation: 147 F.2d 667
• Parties: FAKOURI v. CADAIS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

147 F.2d 667 (1945)

FAKOURI v. CADAIS et al.

No. 10957.

Circuit Court of Appeals, Fifth Circuit.

February 22, 1945.

Rehearing Denied May 16, 1945.

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Edward Dubuisson, of Opelousas, La., for appellant.

Wade O. Martin, Jr., and George M. Wallace, both of Baton Rouge, La., and John W. Lewis and Seth Lewis, both of Opelousas, La., for appellees.

Before McCORD, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

Appellees, citizens and residents of Brazil and alleging themselves to be the sole heirs at law of Elias Mansaur, deceased, brought this action against appellant, a citizen and resident of the State of Louisiana, and constituted the universal legatee under the last will and testament of said decedent duly probated, to have said will, the judgment of probate, and the judgment putting the appellant in possession of decedent's estate, decreed null and void, and for judgments recognizing appellees as the sole heirs of decedent, and as such entitled to the possession of his estate. From a judgment decreeing the will null, setting aside the probate thereof, and recognizing appellees as the heirs at law of the decedent and as such entitled to the possession of his estate, appellant prosecutes this appeal.

Appellant here contends:

(1) That the court below was without jurisdiction of the subject matter;

(2) That the court erred in permitting the appellees to introduce, over appellant's objection, fifteen documents purporting to show their capacity to sue and stand in judgment, their citizenship, and their heirship;

(3) That the court erred in holding the will invalid; and,

(4) In the alternative, that the court erred, if its judgment annulling the will is correct, in recognizing appellees as the sole heirs of decedent and as such entitled to his estate, instead of referring the matter back to the State probate court for further proceedings.

Appellant secured a supersedeas, in keeping with the court's order, by executing a personal bond without surety and depositing as security, with the court's approval, Certificates of Indebtedness of the United States of America, payable to bearer; Federal Farm Mortgage Corporation Bonds, payable to bearer; and Treasury Bonds of the United States of America, payable to bearer, of an aggregate face value of $75,000.

Appellees moved to dismiss the appeal on the grounds, first, that under Rule 73(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the stay of judgment on appeal may be had only upon filing, with the court's approval, a supersedeas bond "which shall have such surety or sureties as the court requires," and that no provision is made in this Rule for depositing cash or securities in lieu of a surety or sureties; and, second, that if securities in the form of Government bonds could be deposited in lieu of a surety bond, then the appellant had not complied with the order of the court because the securities deposited were: (1) Certificates of Indebtedness of the United States (2) Federal Farm Mortgage Corporation Bonds; and (3) Treasury Bonds of the United States.

The Rules of Civil Procedure clearly indicate a general policy to disregard technicalities and form, and to determine the rights of litigants on the merits. To this end the Rules are liberally construed. In the various statutes superseded by Rule 73(d), the term "security" is used instead of the term "surety." For examples see Bond in error and on appeal, 28 U.S.C.A. § 869, "good and sufficient security"; Supersedeas, 28 U.S.C.A. § 874, "Security required by law." The two terms as used in statutes providing for bonds are generally interpreted as interchangeable, and we think the term "security" in prior laws is synonymous with the term "surety" in Rule 73(d).

Under Title 6 U.S.C.A. § 15, wherever by law or regulations made pursuant thereto a person is required to furnish a bond with surety or sureties, such person may in lieu of such surety or sureties deposit as security, with the approval of the official having authority to approve, United States Liberty Bonds and other bonds or notes of the United States in a sum equal at their par value to the amount of the bond required to be furnished; and the phrase "bonds or notes of the United States" shall be deemed to mean any public debt or obligation of the United States and any bond, note, or other obligation that is unconditionally guaranteed as to both interest and principal by the United States.

The securities furnished by appellant fall within the provisions of this law, which clearly are supplementary to Rule 73 (d). We think the court below was authorized to approve the personal bond of the appellant with the securities furnished.

Appellees further complain that appellant failed to furnish or to file with the clerk of the court below, along with the bonds deposited as security, "an agreement authorizing such official to collect or sell such bonds or notes so deposited in case of any default in the performance of any of the conditions or stipulations of such penal bond."¹ As pointed out, the securities are payable to bearer, and the personal bond given by the appellant itself provides that failure on the part of the appellant to satisfy the judgment rendered against him on appeal, including costs, etc., shall be satisfied out of the proceeds of said securities. This is authority for converting the bonds into cash; and, since they were payable to bearer, no agreement authorizing the sale from appellant was necessary. The motion to dismiss is overruled.

Appellant's contention that the court below was without jurisdiction to set aside a will and the decree of a probate court ordering its execution and placing him in possession of the estate under the will is without merit. The correct rule, we think, is stated in 35 Corpus Juris Secundum, Federal Courts, § 12, p. 794, as follows: "* * * Where a state, by statute or custom, gives to parties interested the right to bring an action or suit inter partes, either at law or in equity, to annul a will or to set aside the probate, the courts of the United States, if diversity of citizenship and a sufficient amount in controversy appear, can enforce the same remedy, * * *." See also to the same effect Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664.

Under Louisiana law, the probate of a will and an order of the probate court for its execution are preliminary proceedings necessary for the administration of the estate, and are not binding on those who are not parties to them. When a testament with probate becomes the subject of controversy and suit is brought to set both aside, as here, the relief sought is not a probate action but an independent suit triable in a court of ordinary jurisdiction. Louisiana Code of Practice, Art. 983; O'Donogan v. Knox, 11 La. 384; Sharp v. Knox, 2 La. 23. The rule established by these old cases has been consistently followed and is applied by the courts of Louisiana today.

In Gaines v. Fuentes, 92 U.S. 10, 21, 23 L.Ed. 524, a suit to annul a will and a decree of probate by a Louisiana court, the Supreme Court said: "There are, it is true, in several decisions of this court, expressions of opinion that the Federal courts have no probate jurisdiction, referring particularly to the establishment of wills; and such is undoubtedly the case under the existing legislation of Congress. The reason lies in the nature of the proceeding to probate a will as one in rem, which does not necessarily involve any controversy between parties; indeed, in the majority of instances, no such controversy exists. In its initiation all persons are cited to appear, whether of the State where the will is offered, or of other States. From its nature, and from the want of parties * * *, the proceeding is not within the designation of cases at law or in equity between parties of different States, of which the Federal courts have concurrent jurisdiction with the State courts under the Judiciary Act 1 Stat. at L. 73; but whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties."

To the same effect, see Sutton v. English, supra; Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33-43, 30 S.Ct. 10, 54 L.Ed. 80; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762; O'Connor v. Slaker, 8 Cir., 22 F.2d 147.

Appellant further contends that, in the proceedings under which the will was probated, appellees were represented by an attorney for absent heirs appointed by the court. In speaking of the function of an attorney for absent heirs, the Supreme Court of Louisiana in Mix's Absent Heirs v. Mix's Executor and Legatees, 15 La. 66, 68, said: "* * * General authority `to take care of the interests of the absent heirs and to oppose everything which may prejudice them,' does not embrace the right standi in judicio, for any other purpose. His functions appear to us essentially conservative, and, in our opinion, the legislature never intended to authorize him to originate litigation either among the heirs themselves, or between them and the legatees, and that a judgment pronounced in such a case, could not have, as to them, the authority of res judicata."

Appellees lay claim to the decedent's estate as children of a predeceased brother of decedent who resided in the Republic of Brazil. The fact of such residence, the fact that appellees are legitimate children of the predeceased brother of the testator and that their mother was their duly qualified tutrix and legal representative and had authority to prosecute this suit and stand in judgment in their behalf, was sought to be established by fifteen certified copies in Portuguese of original...