Lavagnino v. Prall

• Decision Date: 05 June 1922
• Docket Number: 3706.
• Parties: LAVAGNINO v. PRALL et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

281 F. 581

LAVAGNINO v. PRALL et al.

No. 3706.

United States Court of Appeals, District of Columbia.

June 5, 1922

Submitted March 9, 1922.

Appeal from the Supreme Court of the District of Columbia.

Emma P Knorr, of Washington, D.C., for appellant.

Charles V. Imlay and George W. Offutt, Jr., both of Washington, D.C for appellees.

VAN ORSDEL, Associate Justice.

Appellant by leave of court, filed a bill of review in the Supreme Court of the District, to review and set aside certain decrees made in equity cause No. 24579.

The bill in that case was filed by Elizabeth C. Prall, March 31 1904, against Jennie M. Prall, Annie M. Prall, Emma C. Knorr, Augustus Ernest Knorr, Gladys Ernestine Knorr, William E. Prall, Sr., Julia L. Prall, and Adolph A. Hoehling, Jr., to procure partition by sale of certain real estate situated in this city. It was averred in the bill, among other things, that William E. Prall, Sr., on May 17, 1872, conveyed the premises in question to his children, Jennie M., Annie M., Emma C., and William E. Prall, Jr., 'for and during their natural life as tenants in common, with remainders to the children of said parties of the second part, their heirs and assigns, as tenants in common in fee simple.'

As a basis for her action, Elizabeth C. Prall averred, among other things, that she was married to William E. Prall, Jr., and that the only child born to them was William E. Prall, 3d, who was born the 8th day of December, 1889; that he died on or about the 27th day of February, 1903, leaving as his only heir at law his father, William E. Prall, Jr.; that William E. Prall, Jr., a resident of the city, county, and state of New York, died on the 28th day of March, 1903, leaving a last will and testament by which he bequeathed all his property, real and personal, to his wife, the complainant, Elizabeth C. Prall.

Petitioner in the present action, then an infant, was served with process, and Annie M. Prall was appointed her guardian ad litem, and as such answered the bill. A number of orders were made in that proceeding, which need not be considered, since no sale or partition of the property was made.

On June 13, 1911, the complainant, Elizabeth C. Prall, filed an amended bill, in which she prayed that a decree entered under the original bill on January 9, 1906, 'be set aside, and a new substitute and proper judicial partition decree by sale be passed, declaring and fixing the rights, titles, and interests, present and future, of your petitioner and the defendants herein, according to the provisions by the fixed terms of the aforesaid deed herein. ' A decree was entered in that case from which an appeal was taken to this court (Prall v. Prall, 39 App.D.C. 100), wherein the decree of the court below, fixing the interest of the complainant under the deed, was modified and affirmed.

In conformity with the mandate of this court, a decree was entered in the court below directing a sale of the property. No sale was made, and on November 25, 1919, Gladys E. Lavagnino, formerly Gladys E. Knorr, filed a petition 'to establish interest and vacate order of sale. ' She averred, among other things, that neither she nor her guardian ad litem was served with process or notice under the amended bill of 1911, nor with notice of any of the various proceedings had thereunder. She accordingly prayed that all proceedings heretofore had be vacated and for nothing held, and for general relief.

The court entered a decree affirming the earlier decrees and orders depending thereon, except as to the sale of the property, and dismissing the petition, from which decree an appeal was taken to this court. 50 App.D.C. 252. The only question here presented was the failure of service upon the infant defendant when the amended bill of 1911 was filed. On this point, since no decree made during her infancy had been enforced or remained subject to enforcement, the decree of the court below was affirmed. The mandate was sent down April 18, 1921, and the present bill of review was filed May 10th following.

Petitioner in the present action alleges that the decrees in equity cause No. 24579 were based upon the assumption that Elizabeth C. Prall was entitled to one-fourth of the remainder of said real estate, the same having been devised to her by her husband, William E. Prall. Jr., who claimed to have inherited it from his son. In that action a certified transcript of the probate proceedings in New York was introduced, but there was no record of any citation having been issued citing the infant Gladys E. Knorr to appear, or the appointment of a guardian ad litem to represent her. In the present action, however, we are not concerned with the probate proceedings in New York, since all the court considered was the validity of the execution of the will. However important the regularity of the probate proceedings may become in the future destiny of this case, we need not stop to consider.

The petitioner in the bill of review alleges that there has not been a judicial finding that Elizabeth C. Prall is the widow of William E. Prall, Jr., except upon her bare allegation in the original proceeding to the effect that she took her right under the will of William E. Prall, Jr., as devisee. Petitioner then avers that diligent search of all the records in New York, and the records of the minister alleged to have performed the marriage ceremony, failed to disclose that any marriage ceremony between Elizabeth C. Prall and William E. Prall, Jr., was ever performed, and that Elizabeth C. Prall is without right to share as a remainderman in said estate, and that this petitioner is the only heir to the full remainder of said estate.

She further avers that during most of the proceedings had under equity cause No. 24579, until the filing of her petition in November, 1919, she was an infant 'and for some time out of the District of Columbia' during said...