Gilmore v. Gilmore

• Decision Date: 24 March 1927
• Docket Number: No. 18660.,18660.
• Citation: 18 F.2d 614
• Parties: GILMORE et al. v. GILMORE et al.
• Court: U.S. District Court — Eastern District of Louisiana

18 F.2d 614 (1927)

GILMORE et al. v. GILMORE et al.

No. 18660.

District Court, E. D. Louisiana.

March 24, 1927.

Charles Louque, of New Orleans, La., for complainants.

Spencer, Gidiere, Phelps & Dunbar and Warren V. Miller, all of New Orleans, La., for defendants Marchiz and Reiner.

Frank T. Doyle and Edw. Dinkelspiel, both of New Orleans, La., for defendants Elizabeth Gilmore, Walker, and Fink.

Thomas Gilmore, of New Orleans, La., for defendant J. C. Gilmore.

BURNS, District Judge.

The motions to dismiss for want of jurisdiction are directed against the bill of complaint, which recites that the plaintiffs are particular legatees of the decedent, whose succession is under administration in the civil district court for the parish of Orleans. The plaintiff legatees are citizens of the state of Mississippi, whereas the defendant executor and the defendant forced heirs are citizens of Louisiana. Their combined legacies amount to some $11,500. The jurisdiction of this court depends upon diversity of citizenship.

The question presented is whether or not it is within the power of this court, sitting as a court of equity, to assume jurisdiction of the subject-matter. Stripped of irrelevancies, the bill recites that the defendant executor has full seizin and is now in full possession of the estate of Hugh Gilmore, which consists of his undivided one-half of one piece of real estate, in New Orleans, valued at more than $50,000; that the said property had belonged to the community existing between the decedent and his first wife, predeceased; that this wife had died, leaving three children, who became vested, under the Louisiana doctrine of le mort saizit le vif, as the forced heirs of first their said mother, then of the deceased father, as of the dates of their respective deaths; that the latter, as testator, leaving three surviving children, could dispose by will of only the disposable portion, or one-third of his estate; that, if this real estate did not bring more than the sum of $50,000, the testator's half would be $25,000, and two-thirds of this descending by law to the defendant forced heirs would not leave sufficient funds to pay these particular or special legacies in full by $3,166.67, making no allowance for debts; that a "cloud is now resting on the property," growing out of an option inserted in a lease executed during the lifetime of the decedent testator, by the terms of which the property was leased for a period of 10 years at a monthly rental of $300 per month, containing an option in favor of the lessees, which cannot be exercised by them before the end of the lease on March 21, 1931.

The prayer for relief is as follows: "That a decree be rendered herein, ordering the property above described to be sold at public auction by a master appointed for that purpose by the court, and that the defendants Harry Marchiz and Nathan Reiner be ordered to receive and accept the sum of $2,000 tendered herein, and that the agreement of sale be canceled and set aside, and that said property be transferred to the purchaser at public auction free from said agreement, and that the parties be referred to the master to make a proper distribution of the proceeds of sale and pay your complainants their legacies out of proceeds of said sale, and complainants pray for such further relief as may be necessary in the premises and for general relief."

From the foregoing it is clear that two questions are presented; i. e., whether this court may assume jurisdiction of the whole administration of the res, which is already in the custody of a state probate court under administration, or, in the alternative, assume jurisdiction of the issue arising out of the attack on the alleged option, in which the nonresident legatees have an interest.

The first question must be answered in the negative. The leading cases on this point, decided by the United States Supreme Court, are Byers v. McAuley, 149 U. S. 608, 13 S. Ct. 906, 37 L. Ed. 867, and Waterman v. Canal Louisiana Bank Co., 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80. These seem to conclude that it is settled law, and a rule of general application, that,...