Jaffee v. Jacobson

• Decision Date: 01 January 1891
• Citation: 48 F. 21
• Parties: JAFFEE et al. v. JACOBSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

48 F. 21

JAFFEE et al. v. JACOBSON et al.

United States Court of Appeals, Eighth Circuit.

October Term, 1891

R. S Morrison and Geo. H. Kohn, for appellants.

E. T Wells, H. M. Furman, and Thomas Macon, for appellees.

STATEMENT BY THAYER, J.

In this case the circuit court for the district of Colorado sustained a general demurrer both to an original and amended bill of complaint, and subsequently dismissed the cause, complainants having declined to plead further. The substantial averments of the bill may be stated as follows: Eugene P. Jacobson, the husband of Annie W. Jacobson, the appellee, in August, 1878 was a lawyer of large means residing at Denver, Colo. Though married for many years, he was at the time childless. The complainants, Regina and Helena Jaffee, were his nieces being children of a deceased sister. They were then quite young, and resided at Posen, in the Kingdom of Prussia, under the care, as it seems of a guardian by the name of Samuel Bernstein, their mother having died but a short time previously. The bill then proceeds to aver as follows:

'That, soon after the death of their mother, their uncle Eugene P. Jacobson expressed a strong desire to adopt these complainants as his own children, he being childless and without expectation of ever having any children of his own blood; and to that end the said Eugene P. Jacobson personally solicited their guardian, Samuel Bernstein, and father, while in Europe in 1879, to procure these complainants for him, and immediately thereafter, for said purpose, did enter into correspondence with said Samuel Bernstein, the uncle of complainants, and their guardian under the will of complainants' mother, which said correspondence covered a period from the month of September, 1879, to late in the month of March, 1881; that in said correspondence said Jacobson represented to said Bernstein, complainants' guardian, that he, the said Jacobson, was very desirous of adopting these complainants as his own children, because he and his wife the defendant Annie, were childless, and because of the love he bore to the deceased mother, his sister, and constantly urged said Bernstein to obtain the consent of complainants' father to surrender complainants to him, so that he the said Jacobson, might have the control and dominion of complainants as though he were their father, and provide for and take care of them as his own children; that in the last letter written by the said Jacobson to the said Bernstein, which was on the 24th day of February, A.D. 1881, said Jacobson requested said Bernstein, if he procured the consent of the father of these complainants as aforesaid, to take said children from the care and control of their said father, and place the complainant Helena, who was then an infant only three years old, with her grandmother, the mother of said Eugene P. Jacobson, and leave said complainant with her said grandmother until the death of her the said complainant Helena's grandmother, or until he, the said Jacobson, otherwise directed; and to take the complainant Regina from the custody and control of her father, if he so consented, and prepare her for the voyage to America which he, the said Jacobson, was then arranging, or about to arrange, for having the said complainant Regina come to Denver as soon as possible after her father had so consented as aforesaid.'

It is then stated, in substance, that in the year 1879, at the time of Col. Jacobson's visit to the old country, litigation had arisen between the complainants and their father, relative to the division of the mother's estate, of which the children claimed a portion equal in value to $4,000, and that the father was not willing to relinquish his parental control over the complainants, or consent to their coming to America, until such litigation was settled to the father's satisfaction. It is next averred:

'That in about the month of February, 1881, said Jacobson, in order to procure the consent of the father of complainants in the matters and things aforesaid, directed and requested the said guardian, Bernstein, to settle and compromise the suit between the father and these complainants, by waiving and surrendering all rights with these complainants had had or might have in their deceased's mother's estate, or which they had or might have against their said father, to him, the father, at the same time he, the said Jacobson promising and agreeing that if, by settling the said litigation in the manner aforesaid, said Bernstein shall obtain the consent of complainants' father to give complainants into the charge and care of him, the said Jacobson, he would, upon his death, leave to these complainants his entire estate, except that portion thereof, to-wit, the undivided one-half interest, which under the laws of the state of Colorado at that time was and ever since hitherto had been the widow's absolute interest in the estate of her deceased husband;

* * * that their said guardian faithfully performed and carried out said directions and instructions in the premises given by the said Eugene P. Jacobson, and did settle the litigation hereinbefore referred to between complainants and their father, dismissing said suit and surrendering to complainants' father all claims which these complainants had or might have against him, and all interest which they had or might have in their mother's estate, and did obtain in consideration thereof the...