Hardenberg v. Ray
| Decision Date | 23 January 1888 |
| Citation | 33 F. 812 |
| Parties | HARDENBERG v. RAY et al. |
| Court | U.S. District Court — District of Oregon |
At Law. Action to recover possession of real property.
A residuary devise of real property, under the Oregon statute of wills, (section 1,) may and will pass after-acquired property, if such appears to have been the intention of the testator.
H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ray all the rest of his lands wherever situate and all his 'personal property and estate of whatever kind or nature,' after which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will. Held, that the intention of the testator to make his sister Ellen his residuary devisee was manifest, and that she took the after-acquired property under the devise in the will.
Syllabus by the Court
A residuary devise of real property, under the Oregon statute of wills, (section 1,) may and will pass after-acquired property, if such appears to have been the intention of the testator.
H., an unmarried man living in Portland, made his will, and, after making two specific devises of real property situate in New York, devised and bequeathed to his sister Ellen E. Ray all the rest of his lands wherever situate and all his 'personal property and estate of whatever kind or nature,' after which he purchased other real property, of which he died seized, leaving brothers, including the plaintiff, not mentioned in his will. Held, that the intention of the testator to make his sister Ellen his residuary devisee was manifest, and that she took the after-acquired property under the devise in the will.
F. A. E. Starr and Benton Killin, for plaintiff.
James K. Kelly, C. E. S. Wood, George H. Williams, and Robert L. McKee, for defendants.
This action is brought to recover possession of the south half of lots numbered 2 and 7, in block 39, of Portland, according to the plat thereof, alleged to be worth over $5,000.
The plaintiff is a citizen of the state of New York. The action was brought against Charles Sliter, J. C. Miller, and W. H. West, the persons in the possession of the premises, who answered that they were in possession only as tenants of Thomas L. Ray, Rachel L. Ray, H. E. Ray, Mary E. Arbuckle, John De Witt Ray, and Sarah A. Ray, giving their residence, and asking that they might be substituted as defendants in the action.
A defendant may answer that he is in possession only as the tenant of another, naming him and his place of residence, but it is both impertinent and improper to go further and ask that such person be made defendant. When he declines the controversy, as he may do, he should not further meddle with it. See McDonald v. Cooper, 32 F. 745.
These parties were afterwards made defendants, in place of the tenants, on their own motion, and answered, admitting they were all citizens of Oregon, excepting John De Witt Ray, who is a citizen of Illinois, and Sarah A. Ray, who is a citizen of New York.
It is alleged in the complaint that the plaintiff is the owner in fee-simple of an undivided one-third of the premises, and entitled to the immediate possession thereof. The answer contains a denial of the plaintiff's ownership of any interest in the premises, or his right to the possession thereof; and also a defense to the effect that the defendants are the owners in fee-simple of the premises. The reply contains a denial of the defendant's ownership of the premises except the undivided one-sixth thereof.
By a stipulation duly filed the parties consented that the cause might be tried by the court without the intervention of a jury.
It was also stipulated that a certain agreed statement might be used on the trial as evidence, from which the following facts appear:
On May 15, 1872, Peter De Witt Hardenberg made and published his last will and testament, whereby he devised and bequeathed (1) to Thomas H. and Jacob H. Tremper, of Ulster county, New York, and Thomas L. and John De Witt Ray, of Belvidere, Illinois, all his interest in a certain farm in said county; (2) to Catherine L. Tremper, of said county, all his lands lying therein; and (3) to Ellen E. Ray, of said Belvidere, 'all my right, title, and interest in and to all my lands, lots, and real estate lying and being in the state of Oregon, or elsewhere, except as aforesaid, also all my personal property and estate of whatever kind or nature.'
After the death of the testator-- the time of which is not stated-- this will was duly admitted to probate, and, as such, is now in full force and effect.
On January 9, 1882, the testator purchased and became the owner in fee-simple of the premises in controversy, and so continued until his death.
At his death the testator left the following heirs: T. Rutzen, Herman R. and Philip L. Hardenberg, his brothers; Catherine L. Tremper, his sister; Mary E. Arbuckle, Samuel A., Hylah E., Rachel L., Thomas L. and John De Witt Ray, the children and only heirs of Ellen E. Ray, aforesaid, who died in December, 1873; and Rachel F. Lefevre, the daughter and only heir of a sister of the testator's before that time deceased.
When this action was commenced the defendants Mary E. Arbuckle, Thomas L., Rachel L., and Hylah E. Ray were citizens of the state of Oregon, the defendant, John De Witt Ray was a citizen of Illinois, and Sarah A. Ray was a citizen of New York.
On the trial, the plaintiff proved that, prior to the commencement of the action, he demanded of the defendants to be let into possession with them, which they refused; and that, on September 24, 1885, Rachel F. Lefevre, for the consideration of one dollar, conveyed and assigned all her interest in the estate of the deceased to Herman R. Hardenberg, the plaintiff, while the defendants proved that said Rachel F., on November 3, 1886, in consideration of $200, released and quitclaimed to them all her interest in the premises in controversy. It was also proved that the testator owned other valuable real property in Portland, at the time of making the will, of which he died seized.
It is objected in limine, that the court is without jurisdiction of the case, because two of the present defendants-- John De Witt Ray and Sarah A. Ray-- are not citizens of Oregon, but of Illinois and New York, respectively. If this objection is well taken, it only goes to the jurisdiction of the court over these two defendants. The parties being tenants in common of the property, the plaintiff has a separate cause of action against each of them, in respect to the ouster or deprivation of possession, on which he may sue them separately or jointly. Code Civil. Proc. Sec. 91.
Prior to the judiciary act of March 3, 1887, (24 St. 552,) a person could only be sued in a circuit court in the district whereof he was an inhabitant, or in which he might be found at the commencement of the action. But it has always been held that this exemption is the personal privilege of the defendant, which he may waive and does waive by a voluntary appearance. Dunlap v. Stetson, 4 Mason, 360; Toland v. Sprague, 12 Pet. 331; Kendall v. U.S., Id. 623; Herndon v. Ridgway, 17 How. 425.
By the act of 1887 a person may be used in a circuit court in the district in which he or the plaintiff resides; but he can no longer be sued in any district in which he may be found. But I see no reason why the old rule of construction should not apply, so that if a party defendant voluntarily appears in an action brought in a district other than that in which he or the plaintiff resides, he may do so, and the court thereby acquire jurisdiction of his person. In such case, the plaintiff and John De Witt Ray, being citizens of different states and the latter having voluntarily appeared in the action, the court would acquire jurisdiction.
But as to Sarah A. Ray this suggestion is not applicable. She is a citizen of the same state with the plaintiff, and the court has not and cannot acquire jurisdiction over a controversy between such parties. Where the jurisdiction of the court depends on the diverse citizenship of the parties, and such diversity does not exist, consent cannot confer it.
But I do not think this objection well taken as to either of these parties on another ground.
When the summons in this action was served on the original defendants,--Sliter, Miller, and West,-- the persons in possession, the court acquired jurisdiction of the controversy and the parties to the action, and no subsequent change in the citizenship or personnel thereof can affect such jurisdiction. As was said by Mr. Chief Justice MARSHALL in Mollan v. Torrance, 9 Wheat. 539: 'The jurisdiction of the court depends on the state of things at the time of the action brought, and, after vesting, it cannot be ousted by subsequent events. ' To the same effect is the ruling of the court in Dunn v. Clarke, 8 Pet. 1; Clarke v. Mathewson, 12 Pet. 164; Whyte v. Gibbes, 20 How. 542. For instance, it is held in Clarke v. Mathewson, supra, that where the plaintiff, a citizen of Connecticut, died pending a suit in the circuit court for the District of Rhode Island against citizens of the latter state, his administrator, also a citizen of Rhode Island, could continue the suit. In delivering the opinion of the court, Mr. Justice STRONG said:
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In re Pape's Estate
...Estate, 85 Or. 604, 167 P. 580; Scott v. Ford, 52 Or. 288, 97 P. 99; Morse v. Macrum, 22 Or. 229, 29 P. 615, 30 P. 73; Hardenberg v. Ray (C. C.) 33 F. 812. decedent, prior to his death, sold and conveyed the one-third interest in the property in question. Hence he did not own any interest t......