Investors Stock Fund, Inc. v. Roberts

Decision Date04 September 1959
Docket NumberCiv. No. 1821.
Citation179 F. Supp. 185
PartiesINVESTORS STOCK FUND, INC., a Nevada corporation, Plaintiff, v. Franklin H. ROBERTS; Loretto Lohman Roberts, and Oswald M. Johnson, Executrix and Executor, respectively, of the Estate of George W. Roberts, Deceased; and Loretto Lohman Roberts, widow and sole heir at law of George W. Roberts, Deceased, Defendants. Loretto Lohman ROBERTS, Plaintiff in Interpleader, v. Franklin H. ROBERTS, Defendant in Interpleader.
CourtU.S. District Court — District of Montana

COPYRIGHT MATERIAL OMITTED

Church, Harris, Johnson & Williams, Great Falls, Mont., for Investors Stock Fund, Inc., plaintiff.

Hall, Alexander & Kuenning, Great Falls, Mont., for defendants, Loretto Lohman Roberts and Oswald M. Johnson.

Wuerthner & Wuerthner, Great Falls, Mont., for defendant, Franklin H. Roberts.

MURRAY, Chief Judge.

Investors Stock Fund, Inc., hereinafter referred to as original plaintiff, filed this interpleader action against Franklin H. Roberts, Loretto Lohman Roberts and Oswald M. Johnson, Executrix and Executor, respectively, of the Estate of George W. Roberts, deceased; and Loretto Lohman Roberts, as widow and sole heir at law of George W. Roberts, deceased, praying that the defendants be required to interplead and settle between themselves their rights as to a certain stock certificate and the shares represented thereby.

In due course, upon motion of Investors Stock Fund, Inc., which motion was joined in by the respective defendants, an interlocutory order and decree for interpleader was entered, and after appropriate pleadings the case came to issue between Loretto Lohman Roberts as plaintiff in interpleader, hereinafter referred to as plaintiff, who claims the stock certificate and the shares of stock represented thereby, as the widow and sole heir of said George W. Roberts, deceased, and Franklin H. Roberts, defendant in interpleader, hereinafter referred to as defendant, and brother of the deceased, who claims the stock certificate and shares of stock represented thereby, as beneficiary of a revocable trust established by the said George M. Roberts in his lifetime. A disclaimer of any interest in the said certificate of stock was filed by Oswald M. Johnson, as executor of the estate of George W. Roberts, deceased. Thereafter the plaintiff Loretto Lohman Roberts, and the defendant Franklin H. Roberts, each moved for summary judgment based upon the admissions in the pleadings and admissions made by the parties in response to requests for admissions.

Before considering the motions for summary judgment, there are two other motions which the Court must dispose of. After the motions for summary judgment on behalf of Loretto Lohman Roberts and Franklin H. Roberts had been filed, the original plaintiff, Investors Stock Fund, Inc., filed a motion for leave to file a brief amicus curiae, and as a result of that motion, Loretto Roberts, plaintiff, moved to vacate the interlocutory order and decree and to dismiss the action upon the ground that by seeking to file a brief amicus curiae, Investors Stock Fund, Inc., demonstrated that it was not such a disinterested party as was entitled to bring an interpleader action.

The point upon which Investors Stock Fund, Inc., seeks to advise the Court as amicus curiae is as to the validity of the declaration of trust made by George W. Roberts and under which he held the stock certificate in question. However, at the time of instituting the action and at the time of the motion which resulted in the interlocutory order and decree for interpleader, Investors Stock Fund, Inc., represented to the Court that it was without interest in the disposition of the stock certificate or shares of stock represented thereby, and while the present Judge is not the Judge who made the interlocutory order and decree, it seems clear from the record that the finding in the interlocutory order and decree that this was a proper action in interpleader and the injunction against defendants instituting any action against Investors for the transfer or redemption of the stock certificate were made upon the basis of the disinterest of Investors. The decision on the conflicting claims of the plaintiff and defendant in interpleader depends in part upon the validity or invalidity of the declaration of trust, and after having in effect represented to the Court their complete neutrality on that question, Investors Stock Fund, Inc., should not now be permitted to reenter the case to support the validity of the declaration of trust.

Therefore, It Is Ordered and this does order that the motion of Investors Stock Fund, Inc., for leave to file a brief amicus curiae be and the same hereby is denied.

As to the motion of plaintiff to vacate the interlocutory decree and order and to dismiss the action, that motion, too, will be denied. Neither under the interpleader statute, 28 U.S.C. § 1335, nor under the interpleader rule, Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C., is the complete disinterest of plaintiff necessary. In Bierman v. Marcus, 3 Cir., 246 F.2d 200, 202, the Court pointed this out as follows:

"Thus, jurisdiction in interpleader is not dependent upon the merits of the claims of the parties interpleaded, and a plaintiff can maintain the action even though he believes that one of the claims is valid and the other, or others, without merit (citing cases)."

Thus, even if the interest of Investors Stock Fund, Inc., disclosed by its petition to file a brief amicus curiae had appeared at the time of filing the complaint, it would still have been entitled to maintain this action under the statute and the rule as a bill in the nature of a bill in interpleader.

Plaintiff points out that certain provisions of the interlocutory order and decree are appropriate only in an action of strict interpleader (wherein the complete disinterest of plaintiff is necessary) and are inappropriate in an action in the nature of a bill of interpleader. However, the record indicates that the provisions of the interlocutory order and decree were agreed to by all the parties concerned, including the plaintiff, and no objection was made to any of its provisions. Without expressing any opinion on the question, it may be that upon a proper showing by any of the parties the Court would have the power to modify the interlocutory order and decree in any respect necessary to make it conform to one in an action in the nature of a bill in interpleader, but the provisions of that order and decree, which were agreed upon by all the parties, cannot now be used to defeat the right of plaintiff to maintain the action.

Therefore, It Is Ordered and this does order that the motion of plaintiff, Loretto Lohman Roberts, to vacate the interlocutory order and decree and to dismiss the action be and the same hereby is denied.

As pointed out, both Loretto Roberts, the plaintiff, and Franklin Roberts, the defendant, have moved for summary judgment. The undisputed facts appear to be as follows:

In November, 1945, George W. Roberts made application for the purchase of shares of the capital stock of Investors Stock Fund, Inc., in the amount of $5,000. At the same time he executed an instrument entitled "Declaration of Trust-Revocable", directing Investors to issue the capital stock applied for in the name of George W. Roberts as trustee for Franklin H. Roberts, the defendant. The sum of $5,000 was paid to the company and the company issued its certificate of capital stock No. 1738 for 375.094 shares to George W. Roberts as trustee for Franklin H. Roberts, in accordance with the application for the purchase of shares and the declaration of trust theretofore executed by George W. Roberts. Copy of the application and Declaration of Trust-Revocable are appended to this opinion.

On November 9, 1954, the said George W. Roberts died, leaving a last will and testament dated April 2, 1953; said last will and testament was admitted to probate in the District Court of the Twelfth Judicial District of the State of Montana, in and for the County of Blaine, on December 4, 1954, and Oswald M. Johnson and Loretto Lohman Roberts, the surviving widow and the plaintiff in this case, were appointed executor and executrix, respectively, of said last will and testament. The inventory and appraisement was filed in the George W. Roberts' estate on March 9, 1955, and listed, among other assets, "375.094 shares of Investors Stock Fund, Inc., evidenced by certificate No. 1738, dated November 13, 1945, issued to George W. Roberts as trustee for Franklin H. Roberts @ 21.260".

Thereafter on May 27, 1955, Loretto Lohman Roberts filed her renunciation of her deceased husband's will and elected to take her dower in any real property owned by him at the time of his death, and her legal share in the personal estate of her husband. On December 19, 1955, the District Court of the Twelfth Judicial District of the State of Montana, in and for the County of Blaine, sitting in probate, entered its order to the effect that Loretto Lohman Roberts was the sole heir of the deceased George W. Roberts and was entitled to the entire estate. That order of the probate court was appealed to the Supreme Court of the State of Montana by Franklin H. Roberts, the present defendant, and Helen Roberts Truax, brother and sister respectively of the said George W. Roberts, who had been devised the sum of $20,000 each under the terms of said will, and is pending there.

Thereafter, on May 4, 1956, a decree of partial distribution was entered in the estate of George W. Roberts, deceased, which decree purported to distribute to Loretto Lohman Roberts, as the widow and sole heir of the decedent, among other property, the 375.094 shares of Investors Stock Fund, Inc., evidenced by certificate No. 1738 above referred to. No appeal was taken from said decree of distribution by said Franklin H. Roberts, ...

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5 cases
  • Roberts v. Roberts
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 8, 1961
    ...the answers to requests for admissions and the stipulations set forth in a pretrial order. The trial court filed its order and opinion (179 F.Supp. 185) directing that the motion for summary judgment of Loretto Lohman Roberts be denied and sustaining the motion for summary judgment on behal......
  • Kovalyshyn's Estate, Matter of
    • United States
    • New Jersey County Court. New Jersey County Court — Probate Division
    • June 26, 1975
    ...5 Ill.2d 417, 123 N.E.2d 600 (Sup.Ct.1955); Ridge v. Bright, 244 N.C. 345, 93 S.E.2d 607 (Sup.Ct.1956); Investors Stock Fund, Inc. v. Roberts, 179 F.Supp. 185 (D.C.Mont.1959), aff'd Sub. nom. Roberts v. Roberts, 286 F.2d 647 (9 Cir.1961). See also, United B. & L. Ass'n v. Garrett, 64 F.Supp......
  • Fessler Estate
    • United States
    • Commonwealth Court of Pennsylvania
    • October 10, 1961
    ...... deceased, accumulated 653.326 shares of Investors. Mutual, Inc., which shares, by an instrument ... or otherwise deal in or with the stock.". . . The. trustee, therefore, has ... Stock Fund, Inc. v. Roberts, 179 F.Supp. 185, a Montana. ......
  • Westerfeld v. Huckaby, 15704
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 17, 1970
    ...relied upon by the court in the Land case. Appellants' attack on the validity of the trust cannot be sustained. Investors Stock Fund, Inc. v. Roberts, D.C., 179 F.Supp. 185, aff'd Roberts v. Roberts, 286 F.2d 847 (9th Cir. 1961); Anno.: Trust--Nontestamentary Instrument, 32 A.L.R.2d The tru......
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