Holt v. King
| Decision Date | 16 December 1957 |
| Docket Number | No. 5631.,5631. |
| Citation | 250 F.2d 671 |
| Parties | Amanda HOLT and Alyce P. Woods, Appellants, v. Marjorie K. KING and Myrtle Perkins, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John E. Shamberg, Kansas City, Kan. (William H. Towers, Joseph Cohen, Charles S. Schnider, Thomas E. Joyce, Joseph P. Jenkins, and Albert M. Ross, Kansas City, Kan., were with him on the brief), for appellants.
J. W. Mahoney, Kansas City, Kan. (David W. Carson, Kansas City, Kan., William A. Smith, Topeka, Kan., and John K. Dear, Kansas City, Kan., were with him on the brief), for appellees.
Before PHILLIPS, MURRAH and BREITENSTEIN, Circuit Judges.
Appellants, plaintiffs below,1 brought suit to quiet title to certain real and personal property allegedly conveyed to them by their deceased brother, Edward Buckner.2 The appellees, defendants below, are Marjorie K. King who asserts a claim to the property as a devisee under the will of Buckner, and Myrtle Perkins as executrix of the Buckner estate.3 At the end of the plaintiffs' case the court sustained an oral motion to dismiss on jurisdictional grounds.
Jurisdiction is based on diversity of citizenship.4 It is conceded that the required jurisdictional amount is involved.
The motion to dismiss was based on two contentions, each of which was apparently upheld by the trial court. First, defendants urged that, so far as the real property is concerned, the plaintiffs claim as tenants in common with Grace Edwards, a Kansas citizen, who is an indispensable party and whose joinder would destroy the diversity basis of jurisdiction. In this regard defendants also urge that a decision in this case will be determinative of the rights of Pauline Franklin, also a Kansas citizen, to certain other property allegedly conveyed to her by Buckner. Second, plaintiffs assert that the issues presented are probate matters which are, under Kansas law, within the exclusive jurisdiction of the Kansas probate court and hence are not properly within the jurisdiction of the federal courts.
Buckner and his wife, Sarah, in 1949 made a joint and mutual will. Item II thereof provided:
"Upon the death of either of us, the survivor shall own and hold all property, real, personal and mixed, which either of us shall own at the time of said death without restrictions or limitations of any kind * * * with certain exceptions not pertinent hereto."
Item III, so far as the issues here presented are concerned, reads thus:
Sarah died in 1953. Her will was admitted to probate, distribution made thereunder, and decree of final settlement entered on April 27, 1954.
On September 14, 1954, Buckner made two conveyances of real property. One was to Pauline Franklin, not a party to this case, and the other to Grace Edwards, who also is not a party hereto, and the two plaintiffs. Each conveyance contained the following provision:
"The grantor, Edward Buckner, hereby reserves to himself a life estate in and to this property and during his lifetime shall be entitled to the use, rents and income thereof."
Buckner and his wife, Sarah, were interested in a corporate business known as Wyandotte Cab, Inc. Of the 10 shares of stock issued, Buckner held 4 shares, Sarah 5 shares, and Grace Edwards 1 share. On April 27, 1954, after the final settlement of Sarah's estate, Buckner transferred 3 1/3 shares to Plaintiff Holt, 3 1/3 shares to plaintiff Woods and 2 1/3 shares to Grace Edwards. In each case the transfer was to Buckner and the individual named "as joint tenants, with right of survivorship."
After the death of Buckner on September 7, 1955, his will was filed for probate in the Probate Court of Wyandotte County, Kansas. Grace Edwards was originally named executrix but she was removed and the defendant Perkins was appointed in her place.5 On December 21, 1955, the Kansas probate court granted the application of executrix Perkins for permission to bring suit in the District Court of Wyandotte County, Kansas, to set aside allegedly illegal transfers of property by Buckner to the two plaintiffs and to Grace Edwards and Pauline Franklin. The petition in the suit so authorized was verified on December 22, 1955, and filed in the state district court. The date of such filing does not appear in the record before us. The case now under consideration was filed in the United States District Court for the District of Kansas on December 22, 1955.
The trial court entered judgment for the defendants on February 18, 1957, and this appeal was taken on the next day. After the printed transcript of record and the appellants' brief were filed in this court, King and Perkins filed a motion to amend the record and a motion to dismiss the appeal. In the motion to amend it is averred that on March 8, 1957, King petitioned the probate court for construction of the Buckner will. The plaintiffs and Grace Edwards entered their appearances and asked that, pursuant to Kan.G.S.1955 Supp. § 59-2402a, the proceedings be transferred to the District Court of Wyandotte County, Kansas. The transfer was ordered and that matter is now pending in the district court. These facts are not contested.
The motion to dismiss the appeal is based on the theory that the plaintiffs, by voluntarily petitioning for the removal of the proceedings to construe the will to the state district court, acquiesced in the prior judgment of dismissal entered by the federal district court in the case now on appeal.
The Kansas rule, as stated in Rose v. Helstrom, 177 Kan. 209, 277 P.2d 633, 635-636, is that one who acquiesces in a judgment loses the right of appellate review. Accepting this as the controlling principle, we see nothing in the actions of the plaintiffs which constitutes any acquiescence in the judgment of the federal district court. Previously they had taken this appeal and they have prosecuted it diligently. The situation is simply one in which the adversaries are contending in two arenas with the resourcefulness that is characteristic of the legal profession.
As the facts set out in the motion to amend are admitted, there is no reason to amend and the motion to amend is denied. The motion to dismiss the appeal is likewise denied.
The question for consideration is solely whether the federal court has jurisdiction. The first ground of attack is that Grace Edwards, a Kansas citizen, is an indispensable party and her joinder destroys diversity. This is based on the fact that the deed, on which plaintiffs rely to support their claim to certain real property and which the defendants say is ineffective, conveys the property to Grace Edwards and the two plaintiffs.6
Rule 19(a), Federal Rules of Civil Procedure, 28 U.S.C.A., requires the joinder of all persons "having a joint interest." Plaintiffs assert title to the real property under a deed from Buckner to them and Grace Edwards. The deed contains no language indicating an intent to create a joint tenancy. The plaintiffs and Edwards are tenants in common.7 Tenancy in common is the holding of an estate in land by different persons under different titles, but there must be unity of possession, and each must have the right to occupy the whole in common with his cotenants.8
In Kansas less than all tenants in common may maintain as against third parties an action in ejectment9 and for forcible entry and detainer10 to establish his or their undivided interest in the real estate. The situation in effect is the same as that before this court in Skelly Oil Co. v. Wickham, 10 Cir., 202 F.2d 442, wherein it was held that an action to quiet title to Oklahoma land could be maintained by tenants in common who did not join all their cotenants as against the objection that the absent cotenants were indispensable parties.11 The plaintiffs have the right to have their title determined. The rights of Edwards and Pauline Franklin cannot be determined herein and consequently they will not be injuriously affected. Rule 19(b) makes it clear that the judgment will not "affect the rights or liabilities of absent persons." Neither Edwards nor Franklin is an indispensable party to this action.
The remaining contention is that the federal courts are without jurisdiction because this is a probate matter. The diversity jurisdiction in the federal courts is generally concurrent with courts of general jurisdiction of the state wherein the federal court sits.12 While a federal court has no jurisdiction to probate a will or administer an estate,13 questions relating to the interests of heirs, devisees or legatees, which may be determined without interfering with probate or assuming general probate jurisdiction, are within the jurisdiction of the federal courts where diversity of citizenship exists and the requisite amount is in controversy.14 As the jurisdiction of the courts of the United States is derived from the federal constitution and statutes, that jurisdiction is not subject to restraint or limitation by state legislation establishing courts of probate and giving them exclusive jurisdiction over the estates of decedents.15
In Miami County Nat. Bank v. Bancroft, 10 Cir., 121 F.2d 921, a case arising from Kansas, it was held that the plaintiffs had the right to maintain a federal court suit to determine their...
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