MacGowan v. Barber, 225.

• Decision Date: 14 April 1942
• Docket Number: No. 225.,225.
• Citation: 127 F.2d 458
• Parties: MacGOWAN v. BARBER et al.
• Court: U.S. Court of Appeals — Second Circuit

127 F.2d 458 (1942)

MacGOWAN v. BARBER et al.

No. 225.

Circuit Court of Appeals, Second Circuit.

April 14, 1942.

Fenton, Wing & Morse, of Rutland, Vt., Collins M. Graves, of Bennington, Vt., and Jack Lewis Kraus, II, of New York City (Collins M. Graves, of Bennington, Vt., Jack Lewis Kraus, II, of New York City, John D. Carbine, of Rutland, Vt., and Harry B. Kurzrok and Arthur A. Lunin, both of New York City, of counsel), for plaintiff-appellee.

Lawrence & O'Brien, of Rutland, Vt., for defendants Norton Barber and Frank C. Hagyard, executors of the will of John W. Taylor; Bennington College; Warren City Hospital, City of Warren, Ohio; Young Women's Christian Association; William Earl Clark and Laura Tyler Goodrich, Norton Barber, pro se.

Edward H. Holden, of Bennington, Vt., for Vincent Ravi-Booth.

Leonard W. Morrison, of Bennington, Vt., for Town of Bennington.

Clark, Carr & Ellis, of New York City, and Waldo C. Holden, of Bennington, Vt. (George Adams Ellis and Paul A. Crouch, both of New York City, of counsel), for appellant First Congregational Church of Old Bennington.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The plaintiff, the adopted daughter of John Warren Taylor, late of Bennington, Vermont, having been disinherited by his last will and testament and having unsuccessfully contested the probate of that instrument by which both real estate and personal property in Vermont and elsewhere were left to named beneficiaries, brought her bill in equity in the District Court for the District of Vermont against the executors and beneficiaries under the will to secure the benefit of a contract she alleged the testator had made with her when she was a child of eleven to leave her all his property at his death. She is a resident of New York and the defendants are all residents of other states. The defendants, Barber and Hagyard are the executors and Bennington College, Town of Bennington, First Congregational Church of Old Bennington, City of Warren, Ohio, Warren City Hospital; Young Women's Christian Association of Warren, William Earl Clark and Laura Tyler Goodrich are legatees or devisees or both who have appealed from a decree for the plaintiff.

Federal jurisdiction was put in the original bill both upon diversity and upon § 57 of the Judicial Code, 28 U.S.C.A. § 118. The prayer for relief included the impressing of a trust for the sole benefit of the plaintiff upon all the property of which Mr. Taylor died seized and possessed; the removal of the cloud upon the title thereto created by his will as allowed; and the transfer to the plaintiff of all of such property not required for the payment of debts and the expenses of administration.

Personal service within the District of Vermont was made upon all of the defendants except those about to be named. It was made in Ohio pursuant to an order of court upon defendants, City of Warren; Warren City Hospital; Young Women's Christian Association of Warren, Ohio; in California upon defendant Laura Tyler Goodrich; in Massachusetts upon defendant Frank C. Hagyard; and in Vermont upon his statutory agent; and in the District of Columbia upon defendant William Earl Clark. Defendants Brainard and Buell were not served at all and have not appeared. All the defendants who were served outside Vermont appeared specially and moved to quash the subpoena. This motion was denied and then the defendants without prejudice to their exceptions moved for a bill of particulars. This was in part granted and the order was complied with. Meanwhile defendants Barber and Bennington College moved to dismiss the bill on grounds not now material and after that motion had been denied and the defendants had answered, the plaintiff secured leave to, and did, amend her bill to confine it to the "real and personal property located and situated within the District of Vermont" of which Mr. Taylor died seized and possessed.

It is recognized by the appellants that if originally the suit was properly brought in rem under the provisions of § 57 of the Judicial Code, 28 U.S.C.A. § 118, service outside the district was valid. Nor do they deny that after the amendment limited the complaint to property within the district it was so brought. Nevertheless it is urged that service after the amendment was necessary upon those served outside the District since the service of the original bill upon them was invalid when made because the suit then was in personam in so far as property outside the district was concerned. General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U.S. 261, 280, 281, 43 S.Ct. 106, 67 L. Ed. 244; Wilhelm v. Consol. Oil Corp., 10 Cir., 84 F.2d 739, 747. And they point out that the property actually outside the district cannot be treated as constructively within it because the decedent's will was probated there. Chase v. Wetzlar, 225 U. S. 79, 32 S.Ct. 659, 56 L.Ed. 990. From this it is argued that since the service outside the district was invalid when made it remained invalid after the amendment to the bill. The amendment, however, introduced no new cause of action but was merely to restrict the bill to but part of what had previously been its intended scope so as to bring it clearly within § 57 of the Judicial Code. Such a pleading related back to the commencement of the action even before Rule 15 Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, became effective. Underwood Contracting Corporation v. Davies, 5 Cir., 287 F. 776; Interstate Refineries, Inc., v. Barry, 8 Cir., 7 F.2d 548; Chesapeake & Ohio Ry. Co. v. Coffey, 4 Cir., 37 F.2d 320. That made the service good under § 57 as it would have been had the bill originally been drawn and served in its amended form. See, Porter v. Cooke, 5 Cir., 63 F. 2d 637.

The plaintiff alleged that she was born on May 3, 1897; that her parents had lived in Toledo, Ohio until they died, her mother shortly after the plaintiff's birth and her father on June 20, 1906; that John Warren Taylor who was living in Cleveland, Ohio, was duly appointed her guardian on July 2, 1906, and that upon his application to the Probate Court for the County of Cuyahoga, in the State of Ohio, proceedings were had in accordance with the laws of Ohio which resulted in his adoption of the plaintiff on November 30, 1908, as his legal child and heir and that this adoption continued to be in full force and effect at the death of Mr. Taylor on February 20, 1934.

She also alleged in the following language the making of the contract she was seeking to enforce. "And the plaintiff avers that prior to said adoption proceedings hereinbefore described the said John Warren Taylor entered into a certain contract with the plaintiff whereby and under the terms thereof the said John Warren Taylor faithfully promised and agreed with the said plaintiff that if the said plaintiff would permit said adoption, and would thereafter be known and called by the name of Mary Boone Taylor, and become the lawful child by adoption of the said John Warren Taylor, who was then her guardian duly appointed as aforesaid, and executor and trustee under the will of her said father, George B. Boone, and who was then unmarried and without issue of his own, that he, the said John Warren Taylor would make and execute a valid and effective last will and testament whereby and wherein he would leave at his death to the said plaintiff all of the property real, personal and mixed, wheresoever located or situated, which he should own, and of which he should then be possessed at the time of his decease. In consideration whereof and in compliance thereto the said plaintiff did then and there become adopted according to the provisions of the law of Ohio, and did then and there assume and take the name of Mary Boone Taylor, and did thereafter and until the times hereinafter set forth live with and as a member of the family of the said John Warren Taylor as his lawful daughter, and in all things conducted herself in every way and manner as a faithful, loyal child of the said John Warren Taylor, and not otherwise." And, after alleging her ratification of the contract after she became of age and the breach of it by Mr. Taylor by disinheriting her completely, the plaintiff prayed for the relief already mentioned.

The trial judge filed what is called a "Decision of the Facts" on November 17, 1938. No promise to make a will as alleged was proved or found but there were findings in accord with the allegations as to the guardianship and to the effect that Mr. Taylor had adopted the plaintiff after she had consented to the adoption upon his promise to her "that if she would consent he would adopt her and make her his heir." No decree was entered however and the matter seems to have been held in abeyance until the trial judge, who had meanwhile retired, filed what is called a "Decision of More Facts and Opinion" on August 30, 1941. The additional findings were not supported by any additional evidence. They show that the judge was then satisfied beyond a reasonable doubt that Mr. Taylor had agreed that if the plaintiff would let him "adopt her she should inherit his property" and that she "performed her part of the contract, but in his wrath he breached his part by disinheriting her by his last will and testament."

The judge held that the adoption proceedings were part performance of the contract sufficient to satisfy "the Ohio statute of frauds" and that as "the damages for the breach of this contract cannot well or accurately be determined, this gives her the plaintiff the right to specific performance and consequently the right and title to all his property, whatever is left after paying for his funeral, for the services and expenses of his executors and his debts, as shall be decided by the Probate Court." The final decree from which this appeal was taken so provided as to "all Taylor's property located in this District, including all his choses in action, and...