In re Foley

• Decision Date: 28 May 1897
• Docket Number: 605.
• Citation: 80 F. 949
• Parties: In re FOLEY. v. FOLEY. SMITH
• Court: U.S. District Court — District of Nevada

80 F. 949

In re FOLEY.

SMITH v. FOLEY.

No. 605.

United States Circuit Court, D. Nevada.

May 28, 1897

Robert M. Clarke, for petitioner.

G. W Baker and T. V. Julien, for respondents.

HAWLEY District Judge (orally).

Petitioner is the Minnie D. Foley mentioned in Foley v Hartley, 72 F. 571, as the widow of M. D. Foley deceased. She has since intermarried with Oscar J. Smith. On December 31, 1896, after her marriage, she filed in the state district court of Washoe county (having jurisdiction of probate matters) an amended petition for the partial distribution of the estate of M. D. Foley, deceased, in which, among other things, it is alleged that a portion of said estate is separate property of said deceased, and a portion community property, not subject to administration and distribution, except for the payment, pro rata, of the debts of said deceased, and pro rata expenses of administration that the other heirs of said estate, designated in Foley v. Hartley as the 'nonresident heirs,' claim that all of the property of said estate is separate property, subject to administration and distribution. And petitioner prays that it be adjudged and determined what portion of said estate is community property, and not subject to distribution and what portion is separate property, and subject to administration and distribution, etc. The nonresident heirs petitioned the state court to remove the proceedings to this court, which application was denied. They thereupon procured and caused to be made a transcript of the record on removal, and filed the same with the clerk of this court. The grounds of the motion to remand the cause are:

'(1) That the state court is in the possession of the property by its officer, the administrator, and is proceeding to administer the estate, and to determine, upon the petition for distribution, the persons who are entitled to share in the distribution of the estate, and the proportion that each is entitled to have; and having acquired jurisdiction, and being actually engaged in determining the question, its jurisdiction is exclusive, and, upon the principle of comity, the federal court will not interfere. (2) That the proceeding is a matter of probate jurisdiction and inquiry, and that the federal courts have no probate jurisdiction. (3) That the matter in controversy is not a suit 'of a civil nature at law or in equity,' within the meaning of the removal act of 1887-88. (4) That one of the petitioners is an alien, and is not entitled, under the removal act of 1887-88, to remove a cause. (5) That Vernon Harrison Hartley and George H. Thoma, guardian of Vernon Harrison Hartley, who were on the opposite side of the controversy from the petitioner, Mrs. Oscar J. Smith, are residents and citizens of the same state of which Mrs. Oscar J. Smith is a resident and citizen, and for this reason all the parties on one side of the controversy are not citizens of different states from the parties on the other side of the controversy.'

The interest and claim of Vernon Harrison Hartley, the alleged minor heir, is set forth in the petition, and the motion to remand applies to him as well as to the nonresident heirs; but he being dead, and there being no revival of the former proceedings as to him, this court cannot determine any question concerning his rights. But inasmuch as the state court has taken jurisdiction of the petition of Mrs. Smith, and is proceeding to determine the nature of the property,-- whether separate of community,-- and the interests of the respective parties in the distribution thereof, it is deemed advisable to dispose of the motion, in so far as it relates to the contest between Mrs. Smith and the nonresident heirs. In considering the question whether the petitioner is entitled to have the proceedings herein remanded to the state court, or whether respondents are entitled to have the issues tried in this court, it is deemed proper to refer to certain facts and some general principles of law which should be constantly kept in mind in determining questions of this character. The administrator of the estate of M. D. Foley, deceased, is a party respondent. He is an officer of the state court. As such officer, he is lawfully in the possession of the property of the estate. His possession thereof is virtually the possession of the state court. Naturally, the jurisdiction of that court has attached to the assets of the estate. They are in gremio legis. The law of the state in relation to the rights of all parties having any claims or demands against, or interest in the property of, an estate, will always be observed in the national courts. The property of the estate is not, during the progress of administration, subject to seizure or sale. The national courts cannot enforce any judgment or execute any decree against the estates of deceased persons, in the regular course of administration in the state courts, contrary to the law of the state upon the subject. It will readily be seen that the administrator or executor of an estate could not perform his duty under the law if the property placed in his charge could be taken away from him, and appropriated to the payment of one or more claims against the estate, to the injury of all others. These propositions have been frequently announced, followed, and, so far as this court is advised, always sustained, by the national courts. Vaughan v. Northup, 15 Pet. 1, 6; Williams v. Benedict, 8 How. 107, 112; Peale v. Phipps, 14 How. 368, 374: Bank v. Horn, 17 How. 157; Pulliam v. Osborne, Id. 471; Yonley v.

Lavender, 21 Wall. 276, 280; Heidritter v. Oil-Cloth Co., 112 U.S. 294, 304, 5 Sup.Ct. 135; Walker v. Brown, 11 C.C.A. 135, 63 F. 204, 212. It is a rule of general application in the United States courts that, where property is in the actual possession of one court of competent jurisdiction, such possession cannot be disturbed by process out of another court. Hagan v. Lucas. 10 Pet. 400; Peck v. Jenness, 7 How. 612, 625; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 450; Ellis v. Davis, 109 U.S. 485, 498, 3 Sup.Ct. 327; Krippendorf v. Hyde, 110 U.S. 276, 4 Sup.Ct. 27; Covell v. Heyman, 111 U.S. 176, 4 Sup.Ct. 355; Borer v. Chapman, 119 U.S. 587, 600, 7 Sup.Ct. 342; In re Tyler, 149 U.S. 164, 181, 13 Sup.Ct. 785; Byers v. McAuley, 149 U.S. 608, 614, 13 Sup.Ct. 906; In re Chetwood, 165 U.S. 443, 457, 17 Sup.Ct. 385; Ball v. Tompkins, 41 F. 486, 490; Compton v. Jesup, 15 C.C.A. 397, 68 F. 263, 279; Foley v. Hartley, 72 F. 570, 573; Gamble v. City of San Diego, 79 F. 487, 500. It follows from the views expressed in the foregoing authorities that the national courts have no jurisdiction in ordinary probate matters in the settlement of the estates of deceased persons. They cannot appoint administrators or executors, nor regulate the proceedings provided by the laws of the state for the discharge of the duties of their trust. They cannot probate a will. These and other matters that need not be further mentioned belong exclusively to the jurisdiction of the state courts that are invested with authority to act in the settlement of the estates of deceased persons. In re Cilley, 58 F. 977; In re Foley, 76 F. 390, 394; Armstrong v. Lear, 12 Wheat. 169; Fouvergne v. City of New Orleans, 18 How. 470. But, in the regular course of the administration of an estate, nonresidents may have the right to institute an independent action in the national courts to establish a claim or demand against the estate, or to have such matter adjudicated upon, if the requisite citizenship exists, by a removal from the state court, if there controverted. As was said in Hess v. Reynolds, 113 U.S. 73, 77, 5 Sup.Ct. 377, 378:

'It may be convenient that all debts to be paid out of the assets of the deceased man's estate shall be established in the court to which the law of the domicile has confided the general administration of these assets. And the courts of the United States will pay respect to this principle, in the execution of the process enforcing their judgments of these assets, so far as the demands of justice require. But neither the principle of convenience, nor the statute of a state, can deprive them of jurisdiction to hear and determine a

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