Latta v. Western Inv. Co., 11990.

• Decision Date: 25 February 1949
• Docket Number: No. 11990.,11990.
• Citation: 173 F.2d 99
• Parties: LATTA et al. v. WESTERN INV. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F.2d 99 (1949)

LATTA et al. v. WESTERN INV. CO. et al.

No. 11990.

United States Court of Appeals Ninth Circuit.

February 25, 1949.

COPYRIGHT MATERIAL OMITTED

Busick & Busick, of Sacramento, Cal., Charles H. Seccombe, of Oakland, Cal., and S. J. Bennett, of Durham, N. C., for appellants.

Royal E. Handlos, Edward D. Landels and Landels & Weigel, all of San Francisco, Cal., Driver, Driver & Driver and J. Francis O'Shea, all of Sacramento, Cal., T. L. Chamberlain, of Auburn, Cal., Devlin & Devlin & Diepenbrock, of Sacramento, Calif., and R. S. Myers and E. J. Foulds, both of San Francisco, Cal., for appellees.

Before DENMAN, Chief Judge, ORR, Circuit Judge, and HARRISON, District Judge.

HARRISON, District Judge.

This is an appeal from a judgment arising over the granting of a motion to dismiss a complaint for declaratory and other relief, wherein plaintiffs seek to declare void a decree of distribution in the Mark Hopkins Estate, granted in 1883, or in the alternative a declaration that the decree failed to distribute the entire estate.

The complaint and amendments thereto in substance allege that Mark Hopkins died on March 29, 1878, and at the time of his death was a resident of the City and County of San Francisco, State of California, and left estate therein. That at the time of his death his sole heirs were eight brothers and sisters, all of whom lived in the State of North Carolina, except one brother, Moses Hopkins, a resident of California; that on June 3, 1878, letters of administration were issued to Mary Frances Sherwood Hopkins, under the representations she was the surviving wife of Mark Hopkins, deceased, when as a matter of fact she was not his wife but his housekeeper. Later on Moses Hopkins, a brother of the decedent, was substituted as administrator and continued to act as such until a decree of final distribution was granted on or about November 1, 1883. In said decree the estate was ordered distributed to the alleged widow and the brother, Moses. Thereafter, certified copies of the decree of distribution were recorded in the various counties of the state where there was real property affected thereby. The fire of 1906 destroyed all the original records of the probate proceedings.

Plaintiffs further allege that during the administration of the estate, the administratrix and administrator concealed from the court properties worth many millions of dollars; that property has never been distributed but converted to the use of the administratrix and administrator; that Moses Hopkins failed to notify his brothers and sisters of the death of Mark Hopkins and when inquiry was made in the early eighteen eighties, they were advised that Mark Hopkins had left a widow and children; that the fraud perpetrated upon the plaintiffs' ancestors was not discovered until 1945.

The plaintiffs allege that they are descendants of the brothers and sisters of Mark Hopkins and bring this action in their own behalf, as well as in behalf of all other heirs similarly related, the names of whom are attached to the complaint as an exhibit, numbering about two hundred. Jurisdiction is based upon diversity of citizenship.

Plaintiffs also aver that in 1947, the Superior Court of the City and County of San Francisco denied an application for the appointment of an administrator de bonis non.

The prayer of the complaint in substance seeks a declaration that the decree of distribution is void, or in the alternative, the decree did not distribute the properties described in the complaint and that the same remain vested in the heirs of Mark Hopkins, deceased, subject to administration. Also that the court determine heirship and direct the Superior Court to appoint an administrator de bonis non.

The defendants in the action deraign title through deeds executed by Samuel F. Hopkins, Moses Hopkins and Mary Frances Sherwood Hopkins during the administration of said estate.

Plaintiffs contend that the appointments of the administratrix and administrator were void for failure to set forth the names of the heirs in the petition for letters of administration, and for failure to mail notice of hearing on said petitions.

It is further contended that the decree of distribution is void because Moses Hopkins in 1845, in North Carolina, was convicted of an infamous crime, thereby, under the California law rendered ineligible to act in the capacity of administrator.

Plaintiffs assert that the omnibus clause "not now known or discovered" in the decree of distribution did not distribute the assets of the estate not therein described, which assets were known to the administrator and which it is alleged he had concealed fraudulently.

Appellees moved for a dismissal of the complaint upon the ground that the causes of action are barred by the statute of limitations; and that the claims are stale and the plaintiffs and their ancestors are guilty of laches, together with other grounds unnecessary to set forth. The motion was supported by affidavits setting forth principally copies of court records of previous proceedings of the appellants and their ancestors concerning the estate of Mark Hopkins, deceased. The motion became what is known as a "speaking demurrer" and it is immaterial whether it is designated as a motion to dismiss or for summary judgment. Courts have recognized this expeditious method of disposing of litigation since the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A.¹

Appellants were granted time to file affidavits in opposition to motions to dismiss and thereupon filed the affidavit of Jones M. Griffin, a seventy-five year old nephew of Mark Hopkins. This affidavit is most revealing in that it negatives the allegation of discovery in the year 1945. It places the time at 1925. In the affidavit he states: "affiant and other heirs of Mark Hopkins in North Carolina first learned that Mark Hopkins died intestate and left no wife and children and left an estate". The affidavit then proceeds to relate the efforts to uncover the details of the alleged fraud set forth in the complaint. Appellants at no time place in issue the facts recited in the affidavit of Royal E. Handlos.

The record discloses no objection upon the part of the appellants to this procedure. On appeal, however, they assign it as an error and cite numerous authorities decided before the adoption of the Federal Rules of Civil Procedure. It is their contention that the procedure was unauthorized until the adoption of the new amendment to Rule 12. If the authorities heretofore cited are not sufficient to establish the appropriateness of the procedure followed in this case, the recent decision of the Supreme Court of the United States in Klapprott v. United States, 1949, 335 U.S. 601, 69 St.Ct. 384, 387, should suffice. In that case the court in discussing Rule 60(b), through Mr. Justice Black stated:

"* * * For these reasons the Government contends that amended Rule 60(b) should not be applied here. In some respects, the amended rule grants courts a broader power to set aside judgments than did the old rule. Petitioner should be afforded the benefit of the more liberal amended 60(b). For Rule 86(b) made amended 60(b) applicable to `further proceedings in actions then pending' unless it `would work injustice' so to apply the rule."

Such proceedings worked no injustice upon the appellants, rather it was in the furtherance of expeditious justice.

Among the records referred to in the Handlos affidavit are the records of this court in Freeman v. Hopkins et al., hereinafter referred to as the Freeman case, the decision of which is found in 9 Cir., 32 F. 2d 756, certiorari denied, 280 U.S. 575, 50 S.Ct. 30, 74 L.Ed. 626. Without affidavits we may take judicial notice of the records and files of this court.² These records reveal that Freeman for himself and about four hundred and fifty descendants of the alleged heirs of Mark Hopkins brought an action seeking to recover for said descendants, personal property of the value of several million dollars, which allegedly was concealed fraudulently by Moses Hopkins, the administrator, and was not distributed under the decree of distribution. It will be noted in the Freeman action no attempt was made to invalidate the decree of distribution. Its attempted recovery was limited to personal property only. The District Court dismissed said action because of laches and for want of equity. The Circuit Court affirmed said judgment.

We have concluded that the decree of distribution is valid and it distributes the entire estate. We are further of the opinion that the claims of the plaintiffs are stale and are barred by laches as well as the statute of limitations. In view of our conclusions it is unnecessary to discuss numerous other points raised by the parties.

The Decree of Distribution Is Valid

Appellants claim that the decree of distribution is void for the following reasons:

1. That the petition for letters of administration fraudulently failed to set forth the names of the heirs of Mark Hopkins, deceased.

2. That notice of hearing on said petition for letters of administration and of distribution were not mailed to all the heirs.

3. That Moses Hopkins in 1845 had been convicted of an infamous crime and was by reason thereof ineligible to qualify as administrator.

While the code then in effect required that the heirs be listed, it specifically provided however that a failure in this respect did not void the proceedings and numerous California cases so hold.³

Probate proceedings are proceedings in rem and jurisdiction is acquired by giving notice of hearings required by law. At the time of the probate proceedings involved herein, the only notice required was the posting of notice in three public places in the county wherein the proceedings were pending.⁴ This was constructive notice to the world and all interested parties were bound thereby.⁵ Thus the ancestors of appellants had constructive notice of...