Jackson v. United States National Bank, Portland, Ore.

• Decision Date: 01 July 1957
• Docket Number: Civ. No. 8752.
• Citation: 153 F. Supp. 104
• Parties: Peter Crockett JACKSON, a minor by John E. Walker, his Guardian ad litem, Plaintiff, v. The UNITED STATES NATIONAL BANK, PORTLAND, OREGON, a national banking association, David Lloyd Davies, The United States National Bank, Portland, Oregon, a national banking association, and David Lloyd Davies, as Executors under the purported will and testament of Maria C. Jackson, deceased, The United States National Bank, Portland, Oregon, a national banking association, and David Lloyd Davies and William W. Knight, as purported Trustees appointed by said purported last will and testament, Defendants.
• Court: U.S. District Court — District of Oregon

153 F. Supp. 104

Peter Crockett JACKSON, a minor by John E. Walker, his Guardian ad litem, Plaintiff, v. The UNITED STATES NATIONAL BANK, PORTLAND, OREGON, a national banking association, David Lloyd Davies, The United States National Bank, Portland, Oregon, a national banking association, and David Lloyd Davies, as Executors under the purported will and testament of Maria C. Jackson, deceased, The United States National Bank, Portland, Oregon, a national banking association, and David Lloyd Davies and William W. Knight, as purported Trustees appointed by said purported last will and testament, Defendants.

Civ. No. 8752.

United States District Court D. Oregon.

July 1, 1957.

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Livingston & Borregard, Lawrence Livingston, Ricardo J. Hecht, San Francisco, Cal., Jack, Goodwin & Santos, Glenn R. Jack, Oregon City, Or., for plaintiff.

Maguire, Shields, Morrison & Bailey, Roy F. Shields, Randall B. Kester, Portland, Or., for defendants.

MATHES^*, District Judge.

This cause is now before the court upon defendants' motion to dismiss "on the ground that the court lacks jurisdiction over the subject matter because the action is essentially a proceeding to contest a will and therefore one within the exclusive jurisdiction of the state probate courts."

Original federal jurisdiction has been invoked solely upon the ground of claimed diversity of citizenship between the parties and the requisite amount in controversy. 28 U.S.C. § 1332(a).

The jurisdictional facts, as alleged in the amended complaint and admitted by the pending motion, are briefly these: The testatrix, Maria C. Jackson, a citizen and resident of Oregon, died on February 3, 1956, leaving a will and certain codicils. On February 7, 1956, upon the ex parte petition of defendant executors, the will was admitted to probate, in "common form", by the appropriate State Court, the Probate Department of the Circuit Court of Multnomah County, Oregon, and letters testamentary were issued to defendant executors.

Following this ex parte admission to probate, plaintiff, a citizen of California and the minor great-grandson of the testatrix, brought this action by his guardian ad litem against the executors and the testamentary trustees under the will, all citizens of Oregon.

Concededly, then, complete diversity of citizenship exists between plaintiff and all defendants Fed.R.Civ.P. 17(c), 28 U.S.C.; 28 U.S.C. § 1348, and the requisite amount is in controversy. 28 U.S.C. § 1332(a).

The Constitution provides of course that federal "judicial Power shall extend to * * * Controversies * * * between Citizens of different States." U.S.Const. art. III, § 2, cl. 1.

However, Article III, § 2 "simply gives to the * * * courts the capacity to take jurisdiction * * * it requires an act of Congress to confer it." Kline v. Burke Construction Co., 1922, 260 U.S. 226, 234, 43 S.Ct. 79, 83, 67 L.Ed. 226; Lockerty v. Phillips, 1943, 319 U.S. 182, 187, 63 S.Ct. 1019, 87 L.Ed. 1399.

The Congress has conferred upon the district courts "original jurisdiction of all civil actions" in which diversity of citizenship and the requisite amount in controversy are present. 28 U.S.C. § 1332.

Use of the term "civil actions" in the 1948 revision of Title 28 of the United States Code did not enlarge the jurisdiction of the district courts beyond that of the time-honored phrase "suits of a civil nature at common law or in equity" employed in the Judiciary Act of September 24, 1789. 1 Stat. 78; Rosen v. Alleghany Corp., D.C.S.D.N.Y. 1955, 133 F.Supp. 858, 865; Reviser's Note to 28 U.S.C. § 1332.

In the case at bar plaintiff seeks an adjudication as to the validity, construction and alleged subsequent revocation of parts of a will, and as to heirship. The issues so tendered are "Controversies" (Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617; Fidelity Nat. Bank & Trust Co. of Kansas City v. Swope, 1927, 274 U.S. 123, 47 S.Ct. 511, 71 L.Ed. 959; Tutun v. United States, 1926, 270 U.S. 568, 577, 46 S.Ct. 425, 70 L.Ed. 738), clearly within the constitutional dimensions of "judicial Power" (cf. Fontain v. Ravenel, 1854, 17 How. 369, 391-392, 58 U.S. 369, 391-392, 15 L.Ed. 80).

However, these "Controversies" do not necessarily fall within the scope of a "civil action" 28 U.S.C. § 1332 "at common law or in equity" 1 Stat. 78 (1789), over which the Congress has conferred jurisdiction upon this court.

In order to determine whether this diversity case can be counted among "all civil actions" within the meaning of 28 U.S.C. § 1332, it is necessary to consider the nature of the relief sought.

In the complaint as amended plaintiff asserts at least four separate claims or causes of action, but these are not stated separately. Fed.R.Civ.P. 10(b). First plaintiff seeks an adjudication that certain provisions of the Jackson will and codicils, which establish a testamentary trust, are invalid, because not the will of the testatrix, having been obtained by claimed acts of fraud and undue influence.

Second, plaintiff seeks a judgment declaring that, even if the trust provisions are the will of the testatrix, the testamentary trust is nonetheless invalid, because (a) the purpose of the trust is so indefinite and uncertain, and the powers of the trustees so broad and indefinite, that the trust cannot be enforced by a court of equity; and (b) the trust is perpetual in duration without being primarily charitable in character, and so is a perpetuity in violation of Oregon law.

Third, plaintiff seeks a judgment declaring that certain provisions of the will were amended or revoked by an alleged later, missing will or codicil; and fourth, a decree that as to all property not found by the court to have been disposed of by will, the testatrix died intestate, leaving plaintiff as her sole heir and next of kin.

Unquestionably, then, all the relief sought in the case at bar is equitable in nature, and necessarily invokes the federal equity jurisdiction. So it is well to recall at the outset that "the general powers of Federal courts when sitting as courts of equity * * * can be exerted only in cases otherwise within the jurisdiction of those courts as defined by Congress". Briggs v. United Shoe Mach. Co., 1915, 239 U.S. 48, 50, 36 S.Ct. 6, 7, 60 L.Ed. 138.

Since complete diversity of citizenship and the requisite amount in controversy are here present this case is clearly one "otherwise within the jurisdiction of this court * * * as defined by Congress." Ibid.

In Twist v. Prairie Oil Co., 1927, 274 U.S. 684, 47 S.Ct. 755, 71 L.Ed. 1297, Mr. Justice Brandeis declared for the Court that "the trial court * * * may, of its own motion, take the objection that the case is not within the equity jurisdiction. * * * But that objection * * * does not go to the power of the court as a federal court." 274 U.S. at page 691, 47 S.Ct. at page 757.

Therefore, the jurisdictional questions raised by the pending motion to dismiss are to be resolved by inquiring into "the general powers of Federal courts when sitting as courts of equity." Briggs v. United Shoe Mach. Co., supra, 239 U.S. at page 50, 36 S.Ct. at page 7. Specifically, the problem is to determine whether this court in the exercise of its equity jurisdiction has "the power, that is, the jurisdiction" (Fauntleroy v. Lum, 1908, 210 U.S. 230, 235, 28 S.Ct. 641, 642, 52 L.Ed. 1039) to grant the relief prayed.

The equity jurisdiction of the federal district courts, and of their predecessor circuit courts, as it has existed since conferred by enactment of § 11 of the Judiciary Act of 1789 (1 Stat. 78), has never been held to exceed in scope that which the High Court of Chancery in England possessed in 1789. Atlas Life Ins. Co. v. W. I. Southern, Inc., 1939, 306 U.S. 563, 568, 59 S.Ct. 657, 83 L.Ed. 987; Mississippi Mills v. Cohn, 1893, 150 U.S. 202, 205, 14 S.Ct. 75, 37 L.Ed. 1052; Payne v. Hook, 1868, 7 Wall. 425, 430, 74 U.S. 425, 430, 19 L.Ed. 260; State of Pennsylvania v. Wheeling & Belmont Bridge Co., 1855, 18 How. 460, 462, 59 U.S. 460, 462, 15 L.Ed. 497.

As the Court explained in Atlas Life Ins. Co. v. W. I. Southern, Inc., supra: "The `jurisdiction' thus conferred on the federal courts to entertain suits in equity is an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries." 306 U.S. at page 568, 59 S.Ct. at page 659.

In 1789, after a will of personal property had been admitted to probate, an action to set aside the will, or parts thereof, upon the grounds of fraud or undue influence upon the testator, or the existence of a later will, was not within the jurisdiction of England's High Court of Chancery, but was within the exclusive jurisdiction of the English ecclesiastical courts. Barnesly v. Powel, 1 Ves.Sen. 284, 27 Eng.Rep. 1034 (Ch. 1749); Bennet v. Vade, 2 Atk. 324, 26 Eng.Rep. 597 (Ch.1742); Kerrich v. Bransby, 7 Brown's P.C. 437, 3 Eng. Rep. 284 (H.C.1727); 1 Ballow, A Treatise of Equity 12 (1793); 2 id. 325, 379-80 (1794); 1 Holdsworth, a History of English Law 625-30 (7th ed. 1956); 5 id. 320 (2d ed. 1945); see, e. g.: Helyar v. Helyar, 1 Lee 472, 161 Eng.Rep. 174 (Prer.1754); Lamkin v. Babb, 1 Lee 1, 161 Eng.Rep. 1 (Prer.1752).

In those eighteenth century days, moreover, wills of real property were not even admitted to probate; and an action to set aside a will of real property, like an action to set aside a deed, was tried at law. Webb v. Claverden, 2 Atk. 424, 26 Eng.Rep. 656 (Ch.1742); Kerrich v. Bransby, supra, 7 Brown's P.C. 437, 3 Eng.Rep. 284; Mariott v. Mariott, 1 Strange 666, 93 Eng.Rep. 770 (Ch. 1726); 1 Ballow, op. cit. supra, at 12.

Thus it was that, in 1789, the jurisdiction of the English High Court of Chancery did not embrace suits to set aside wills of either...