Falsetti v. Indiana Oil Purchasing Co.

• Decision Date: 21 March 1963
• Docket Number: Civ. A. No. 8827.
• Citation: Falsetti v. Indiana Oil Purchasing Co., 215 F.Supp. 420 (N.D. Tex. 1963)
• Parties: Louie A. FALSETTI, Successor Administrator with Will Annexed to the Estate of B. F. Guido, Deceased, et al., Plaintiffs, v. INDIANA OIL PURCHASING CO., Pan American Petroleum Co., Stella Marie Lowman and her husband, Lawrence Gilbert Lowman and John (Johnnie) Frank, Trustee, et al.
• Court: U.S. District Court — Northern District of Texas

215 F. Supp. 420

Louie A. FALSETTI, Successor Administrator with Will Annexed to the Estate of B. F. Guido, Deceased, et al., Plaintiffs, v. INDIANA OIL PURCHASING CO., Pan American Petroleum Co., Stella Marie Lowman and her husband, Lawrence Gilbert Lowman and John (Johnnie) Frank, Trustee, et al.

Civ. A. No. 8827.

United States District Court N. D. Texas, Dallas Division.

March 21, 1963.

Cecil Woodgate, Dallas, Tex., for plaintiff-administrator.

Willard B. Wagner, Jr., Houston, Tex., for Stella Marie Lowman and others.

D. E. Suhr, Houston, Tex., for Mrs. Alice Frank, a widow, and others.

HUGHES, District Judge.

This suit was instituted by Louie A. Falsetti, as successor administrator with will annexed of the Estate of B. F. Guido, deceased, against the Indiana Oil Purchasing Company, Pan American Petroleum Company, Stella Marie Lowman and her husband, Lawrence Gilbert Lowman, and John (Johnnie) Frank, Trustee, to recover for the Estate of B. F. Guido, deceased, certain oil royalty payments in excess of $10,000.00 held in suspense by the Defendant oil companies.

Doris C. M. Falsetti, formerly Doris C. M. Guido, joined by her husband, Louie A. Falsetti, in his individual capacity rather than his representative capacity, intervened seeking judgment that the funds on deposit be paid to the Plaintiff-Administrator.

Plaintiff-Administrator in his complaint alleges that the Defendants, Stella Marie Lowman and her husband Lawrence Gilbert Lowman and John (Johnnie) Frank, Trustee, were claiming the funds in possession of the Defendant oil companies by virtue of a judgment of the District Court of Brazoria County, Texas, purporting to impose a constructive trust against the Estate of B. F. Guido, deceased, upon all assets of the estate.

Defendants, Stella Marie Lowman and her husband, Lawrence Gilbert Lowman, and John (Johnnie) Frank, Trustee, filed a counter-claim seeking the funds held in suspense based upon the aforesaid judgment of the District Court of Brazoria County, Texas, rendered September 18, 1960, in their favor, purporting to decree an agreement on the part of B. F. Guido, deceased, to execute a mutual will with his former wife, Dora Frank Guido, and to enforce the constructive trust under such mutual will upon all the assets of the Estate of B. F. Guido, deceased.

Plaintiff-Administrator alleges that this judgment was a nullity because the administrator of the Estate of B. F. Guido, deceased, was not a party to the judgment and that there was no agreement to execute mutual wills.

Plaintiff and Intervenors are citizens of the State of California. The individual Defendants are citizens of Texas. Defendants, Pan American Petroleum Company and Indiana Oil Purchasing Company, incorporated under the laws of Delaware and Nevada respectively, are licensed to do business in Texas and are doing business in the Northern District of Texas.

The oil companies upon proper plea and order of court paid all funds into the registry of the Court. Their answer admitted that the funds involved were derived from royalty interests in the lands belonging to the Estate of B. F. Guido, deceased. Interpleader was properly invoked under 28 U.S.C. §§ 1335, 1397 and 2361.

The essential facts are as follows: Plaintiff-Administrator, Louie A. Falsetti, was appointed and duly qualified as successor ancillary administrator with will annexed of the Estate of B. F. Guido, deceased, in the Probate Court of Brazoria County, Texas, and was duly authorized and empowered to institute this suit by said court.

Plaintiff-Intervenor, Doris C. M. Falsetti, is the former Doris C. M. Guido, surviving widow of B. F. Guido, deceased, and presently the wife of Louie Falsetti.

Dora Frank Guido, mother of the defendant, Stella Marie Lowman, and B. F. Guido were legally married on July 31, 1929, and remained husband and wife until the death of Dora Frank Guido in 1949.

On or about May 31, 1934, Dora Frank Guido and her husband, B. F. Guido, executed an oil, gas, and mineral lease to Gillette Hill covering the Brazoria County property involved in this law suit and alleged to be assets of the Estate of B. F. Guido, deceased. The lease is now owned and held by the Defendant, Pan American Petroleum Corporation under and by virtue of mesne assignments.

On December 3, 1942, Dora Frank Guido executed her last will and testament, leaving all her property, both real and personal, to her husband B. F. Guido. This will provided, inter alia, "This will is made in consideration of the making on this same day by my husband, B. F. Guido, of a will with the same terms and provisions, and it is our intention to create a trust estate as herein provided for the benefit of Mrs. Stella Marie Lowman and her husband, after her death, and for the distribution of the trust estate after termination of the trust in the manner and terms herein set forth."

On or about September 16, 1949, Dora Frank Guido died in Houston, Harris County, Texas, survived by her husband, B. F. Guido, and her daughter, the Defendant, Stella Marie Lowman. On or about October 27, 1949, the surviving husband, B. F. Guido, caused the will of Dora Frank Guido to be probated in the Probate Court of Harris County, Texas, and on or about January 11, 1950, an order was entered admitting said will to probate, appointing B. F. Guido as independent executor of said estate without bond. B. F. Guido duly qualified as the law required.

On or about April 21, 1951, B. F. Guido married Doris C. M. Guido (now Falsetti) Plaintiff-Intervenor. On or about July 3, 1951, B. F. Guido executed his last will and testament leaving 49% of his property to his wife, Plaintiff-Intervenor, Doris C. M. Guido, 49% to the Defendant, Stella Marie Lowman, and 1% to each of two Roman Catholic Parish Churches.

B. F. Guido died in Los Angeles County, California, on or about June 14, 1957. At the time of his death he was a resident of Orange County, California. The will of B. F. Guido, deceased, was admitted to probate in the Superior Court of Orange County, California, and Plaintiff-Intervenor, Doris C. M. Guido Falsetti, was appointed administratrix with will annexed. On January 14, 1959, she was appointed ancillary administratrix with will annexed in the County Court of Brazoria County, Texas, and qualified as the law required.

The judgment in question in this case was the result of a suit instituted in the District Court of Brazoria County, Texas, by Stella Marie Lowman and her husband, Lawrence Gilbert Lowman, against Doris C. M. Guido, individually and as Administratrix with will annexed of the Estate of B. F. Guido, deceased, and others seeking to establish an alleged agreement on the part of B. F. Guido, deceased, to execute a mutual will and to impose a trust upon all assets of the Estate of B. F. Guido, deceased, in favor of Stella Marie Lowman and her husband, Lawrence Gilbert Lowman, in accordance with the provisions of the alleged agreement and under the terms of the alleged mutual will. On September 16, 1960, the District Court of Brazoria County, Texas, entered judgment purporting to enforce the alleged contractual will and to impose a constructive trust upon all property of the estate, which included the land leased by the two oil company defendants.

Originally the Administrator of the Estate of B. F. Guido was a party, but prior to judgment, on motion of Plaintiff Lowman the case was dismissed as to Doris C. M. Guido, in her capacity as administratrix of the Estate of B. F. Guido, deceased, in the Superior Court of Orange County, California, and also in her capacity as Administratrix of the Estate of B. F. Guido, deceased, in the County Court of Brazoria County, Texas.

Neither the judgment nor the pleadings in the Brazoria County District Court case contain any allegation or statement that no administration was pending on the estate of B. F. Guido, deceased, or that administration was not necessary. In fact the judgment shows on its face that administration on the Estate of B. F. Guido, deceased, was still pending in the Superior Court of Orange County, California, and ancillary administration was still pending in the County Court of Brazoria County, Texas.

With respect to the issue as to whether there was a mutual will executed by B. F. Guido, no document purporting to be a will was introduced in this case nor was there any evidence that such a will was ever in existence. There was no evidence of an agreement to make a mutual will other than the aforesaid language contained in the will of Dora Frank Guido.

This Court has jurisdiction over the subject matter and the parties by reason of diversity of citizenship and the amount involved being in excess of $10,000.00.

It is the contention of the Defendants Lowman that Plaintiff Falsetti has no power to sue in the federal court as a foreign administrator. He is, however, a citizen of California and his appointment as administrator in California and in Texas does not rob him of his citizenship. In McWilliams v. Dawson, et al., 48 F.Supp. 538, Northern District of Texas, the Court said that an administratrix who was a resident of Oklahoma although appointed by the Probate Court in Texas, is not robbed of her citizenship by reason of such. She is still a resident of Oklahoma and is entitled to sue in this court. "Residence rather than her appointment is the determining factor in diversity."

In Mecom v. Fitzsimmons Drilling Company, 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904, the United States Court said:

"It is settled that the federal courts have jurisdiction of suits by and against executors and administrators if their citizenship be diverse from that of the opposing party, although their testators or intestates might not have been entitled to sue or been liable to suit in those courts for want of diversity of citizenship."

Defendants Lowman also contend in their motion to dismiss that this is a suit for settlement and distribution of a...