Green v. Green

• Decision Date: 20 January 1955
• Docket Number: No. 11124.,11124.
• Citation: 218 F.2d 130
• Parties: Oscar L. GREEN, Robert A. Green, Quentin L. Green and Alice Green, Plaintiffs-Appellees, v. Herschel S. GREEN and Madge Green, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

218 F.2d 130 (1954)

Oscar L. GREEN, Robert A. Green, Quentin L. Green and Alice Green, Plaintiffs-Appellees, v. Herschel S. GREEN and Madge Green, Defendants-Appellants.

No. 11124.

United States Court of Appeals, Seventh Circuit.

December 20, 1954.

Rehearing Denied January 20, 1955.

August F. Brandt, Grosse Pointe, Mich., Jackson R. Hutton, Hutton, Clark & Hutton, Danville, Ill., for plaintiffs-appellees.

G. William Horsley, L. H. Lenz, Springfield, Ill., for defendants-appellants.

Before DUFFY, Chief Judge, and MAJOR and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Defendants appeal from an order entered by the District Court on January 26, 1954.

On November 2, 1935, James A. Green, the father of Oscar L. Green and Herschel S. Green, died, leaving a will wherein he left all of his estate to his wife, Martha Green, for her life with power to sell or dispose of the same as she thought best, provided she secured the consent of the trustee therein named, Herschel S. Green. All of the residue of his estate, which remained at the death of his wife Martha, was bequeathed to Herschel in trust. The income of this trust was to be paid in equal shares to Oscar and Herschel at such times as the trustee might think best for the estate. In the event that either son died, his portion of the income was to be paid to his children, if any, and upon the death of both of the sons, the estate was to be divided equally between the children. Herschel was appointed both executor and trustee under the terms of this will. The will was probated in the County Court of Crawford County, Illinois, and on May 22, 1939, the estate of James A. Green was closed and the executor discharged. At the time of his death testator owned certain farms and his wife Martha likewise owned farm land.

On April 9, 1942, Martha Green died, leaving a will and a codicil, which were duly probated in the County Court of Crawford County, Illinois. The will of Martha was identical with that of her husband James, in that it provided that James should have a life estate in all of her properties, with the residue remaining on the death of James left to Herschel in trust, with provisions similar to those contained in the will of her husband. Her codicil made one change, however, in that upon the death of either Herschel or Oscar without any children surviving, his widow was given a life estate in the income of the trust until she died or remarried. Herschel was appointed both executor and the trustee under the will and codicil of Martha. Letters were issued to Herschel by the County Court of Crawford County on July 9, 1942. This estate has not been closed and he is still the executor.

After the death of James, Oscar continued to operate all of the farm properties, until about September 15, 1936, when Herschel took over their operation. On February 23, 1938, Herschel entered into an agreement with his mother Martha for the operation of all of these farm properties as one unit and thereupon continued to so operate them. After her death he continued such operation.

On July 13, 1949, Oscar filed a petition in the Circuit Court of Crawford County, Illinois, seeking an order requiring Herschel to file an accounting of all his acts and doings as trustee under the will of Martha. This petition is entitled "In the Matter of Herschel S. Green, Trustee under the Will of Martha Green, Deceased." It alleges the death of Martha Green, unmarried widow of James A. Green, leaving a last will, with a codicil thereto attached, appointing defendant Herschel S. Green as trustee under a certain trust therein created; the admission of the will and codicil to probate in the County Court of Crawford County and the qualification and assumption of duties by Herschel as trustee thereunder; that Oscar is a beneficiary of the trust created by said will and codicil; that thereunder the trustee was authorized and directed to take charge of, manage, operate and control all personal property and all farm lands, all of which was part of the trust estate, and to receive all income therefrom and from such income to pay all necessary expenses, taxes, and other items of upkeep and after the payment thereof the trustee of said trust estate was directed to divide the net balance remaining, in equal parts, between the petitioner and the said Herschel S. Green at such time as the said Herschel S. Green, trustee thought best for said estate; that all of the trust estate consists of real and personal property located within the State of Illinois.

Petitioner also charged that the trustee herein in the administration of his trust, and in the performance of his duties as such trustee, has received various amounts of money as income, profits, and rents of such trust estate; that petitioner had repeatedly demanded an accounting from the trustee but trustee refused to make an accounting of his acts and doings. No parties to the suit are named except Oscar and Herschel. Summons was served on Herschel, the trustee, on July 19, 1949, and beginning on September 30, 1949 and ending August 31, 1953, he filed in said court a series of reports of his acts. All of the foregoing reports were entitled "In the matter of Herschel S. Green, Trustee of the Estates of James Green, deceased, and Martha Green, Deceased" and said reports were combined as to all of the said assets of the two estates and the expenditures therefrom.

The complaint in the District Court was filed on November 8, 1951. In this complaint the plaintiffs sought an accounting of Herschel, as to the estates of both James and Martha. Plaintiffs named in this suit were Oscar and his two children, Robert A. Green and Quentin L. Green, who were remaindermen under the wills of both James and Martha, and the defendants were Herschel, the trustee of both trusts, and his wife, Madge, who is a contingent life income beneficiary under the terms of the codicil of Martha.

The amended complaint, filed on January 9, 1952, alleges that plaintiffs are residents and citizens of the State of Texas and that the defendants are residents and citizens of the County of Crawford, State of Illinois, and that the ground upon which the jurisdiction of the District Court depends is diversity of citizenship between the parties, the amount in controversy exceeding the sum of $3,000. It also alleges that Robert and Quentin, sons of Oscar, and Madge, wife of Herschel, are the only living, successive heirs, beneficiaries and remaindermen under the terms of the testamentary trusts set up by the will of James and the will and codicil of Martha. It also charges Herschel with having exclusive possession of all of the farm lands in question and his wrongful refusal to furnish plaintiffs with correct information concerning the trust properties. It refers to the petition for accounting filed by Oscar in the Circuit Court of Crawford County and the filing of reports therein by Herschel. It charges that Herschel in said reports wrongfully combined his personal items with those of both trusts, making it impossible to determine the true total receipts or disbursements of either trust. It charges Herschel with fraudulent concealment of the true income of both trusts and with wrongfully transferring assets from the James trust to the Martha trust, as well as other misconduct.

The amended complaint demands that the District Court assume jurisdiction over all property belonging to the James trust and that an accounting be required of Herschel, who should be required by the court to "immediately restore" to the James trust all money found due from Herschel together with interest thereon; that Herschel be removed as trustee under the James will and some other person appointed to succeed him; that the District Court determine what money Herschel has wrongfully paid to himself as co-beneficiary under the terms of the James and Martha trusts respectively, and that the court award to Oscar his just portion thereof with interest. It also demands that Herschel be required to restore to the Martha trust any money or property lost thereto "by virtue of his fraudulent, illegal, and negligent conduct," and that judgment be entered personally against Herschel in favor of Oscar, for the amount which should have been distributed by Herschel as trustee under the will of Martha. It contains a general prayer for relief.

Madge is not mentioned in any part of the amended complaint or in the prayer for relief therein, except in the opening paragraph where it is recited that plaintiffs "complain of Herschel S. Green and Madge Green, defendants, * * *."

On December 17, 1951, the defendants filed a motion to dismiss the complaint or to stay all proceedings until the determination of the Crawford County case, which motion was later ordered to stand to the amended complaint. That motion is based on the contention that the District Court action and the Crawford County action are for identical relief and between substantially the same parties, that no relief can be obtained in the District Court that could not be obtained in the Circuit Court suit. Attached to the motion are copies of the pleadings and proceedings filed and entered in the Circuit Court case. On January 14, 1952, the District Court denied the motion.

On February 2, 1952, defendants filed an answer to the amended complaint, in which they say that Alice Green, the wife of Oscar, is now alive and has as much interest under said trust as the defendant Madge. The answer denies all misconduct charged against Herschel.

On the same day the defendants Madge individually, and Herschel, individually and as trustee under the James and Martha wills and as executor of the Martha estate, filed a counter-complaint praying for an order requiring Oscar to account relative to his acts in operating said estates, and to the said Herschel individually, and that a personal judgment be entered against Oscar and in favor of counter-complainants or Herschel as...