Hewitt v. Hewitt
| Citation | 17 F.2d 716 |
| Decision Date | 28 February 1927 |
| Docket Number | No. 5008.,5008. |
| Parties | HEWITT v. HEWITT et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Jefferson P. Chandler, of Los Angeles, Cal., and B. Hudson and Douglas Hudson, both of Ft. Scott, Kan., for appellant.
Wood, Janeway & Pratt and George B. Ross, all of Los Angeles, Cal., for appellees.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
This was a suit by one of the heirs of David H. Hewitt, deceased, against the remaining heirs and the distributees of his estate. The relief sought was a decree declaring the defendants trustees of the plaintiff for an undivided one-third interest in the estate, for appropriate conveyances, and for an accounting. From a decree in favor of the defendants, the plaintiff has appealed.
The uncontroverted facts are substantially as follows:
The appellant was adopted by Hewitt on December 20, 1872, in the probate court of Bourbon county, Kan., and by such adoption was declared to be his child and heir. The appellant lived with Hewitt for about two years following the adoption, when he was taken from his custody by an order of the probate court because of cruel and inhuman treatment. After this separation the appellant did not communicate with Hewitt and purposely avoided giving him any notice of his whereabouts, or of the fact that he was living, believing that, if Hewitt knew of his whereabouts, or the fact that he was living, he would disinherit him by will. Some years after the separation, the appellant employed attorneys at Ft. Scott, Kan., to look after his interest and to keep track of Hewitt. On April 29, 1921, the attorneys so employed communicated with an attorney in Los Angeles, requesting information as to whether Hewitt was living or dead. Upon receipt of this communication, the probate records of Los Angeles county were searched; but they disclosed that no administration had been had upon the Hewitt estate. The telephone directory of Los Angeles was likewise examined, and it was found that Hewitt resided at 940 Fresno street. This residence number was called, and a woman answering the telephone stated that Hewitt was down town and would return shortly. The attorneys in Kansas were thereupon notified as to what had transpired; the attorney in Los Angeles stating that he was satisfied from the inquiries made that Hewitt was still living. On January 9, 1922, Hewitt died at Los Angeles, leaving as his sole and only heirs at law his widow, Elvira A. Hewitt, a daughter by a former marriage, Elverna O. Gillons, and the appellant his adopted son.
On August 26, 1922, about 7 months after the death of Hewitt, the attorney in Los Angeles received a second letter of inquiry from the attorneys in Kansas, of the same import as the former. Upon receipt of this letter, the attorney at Los Angeles called up the same telephone number, and a woman answering the call stated that Hewitt lived there, but was out of town for about two weeks. At the time of this telephone call, the widow of the deceased was absent in the East, returning to Los Angeles about a week later. During her absence a friend cared for the property, but who answered the telephone call does not appear, nor does it appear that either of the appellees was in any wise responsible for the information given. The appellant first learned of the death of Hewitt in June, 1925. In the meantime letters testamentary had been taken out on his estate, the administration had been closed, and the estate distributed to the widow and daughter as the sole heirs at law. In the petition for letters of administration filed by the widow, and in the petition for distribution of the estate, no reference was made to the fact that the appellant was an heir of the deceased, or that he had ever existed. The widow married Hewitt in 1916, and had been acquainted with him for about a year and a half prior to the marriage.
During his lifetime Hewitt had executed three wills — the first bearing date May 4, 1896; the second September 10, 1897; and the third undated, but executed some time after June 10, 1920. In each of these wills, Hewitt had devised the sum of $10 to the appellant, his adopted son. The widow had seen these wills after the marriage and was familiar with their contents. She questioned Hewitt in reference to the adopted son, and was informed by him that he had such a son, but that he had been given back to his parents, and he had heard that the son was dead. The knowledge thus gained by the widow was not communicated to the attorney who had charge of the settlement of the estate, nor to the court in which the estate was administered. The other appellee, the daughter, had no notice, prior to the distribution of the estate, that the appellant had been adopted by her father, or that any such person existed. Such in brief are the admitted facts, with whatever inferences are properly and legitimately deducible therefrom.
The appellant contends that he was entitled to the relief claimed on two grounds: First, because of fraud on the part of the appellee Elvira A. Hewitt, as administratrix, in concealing facts from the court in the course of the administration of the estate; and, second, because of mistake based on the false or erroneous information received over the telephone after the death of the intestate. The appellees, on the other hand, contend that there was no fraud on the part of the administratrix, but, if fraud existed, it was intrinsic fraud, against which equity will not relieve; and, second, that there was no mistake, but, if a mistake, it was not unmixed with negligence on the part of the appellant and his agents.
It is well settled that a court of the United States, in the exercise of its equity powers and where diversity of citizenship gives jurisdiction over the parties, may deprive a party of the benefit of a judgment or decree fraudulently obtained in a state court, as the decree of the federal court operates on the parties, and not on the state court. Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870. Was there, then, such fraud in this case as will warrant...
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