Maury v. Jones

• Decision Date: 30 March 1928
• Docket Number: No. 5302.,5302.
• Citation: 25 F.2d 412
• Parties: MAURY et al. v. JONES.
• Court: U.S. Court of Appeals — Ninth Circuit

25 F.2d 412 (1928)

MAURY et al. v. JONES.

No. 5302.

Circuit Court of Appeals, Ninth Circuit.

March 30, 1928.

Maury, Brown & Maury and Lowndes Maury, all of Butte, Mont., for appellants.

Walter L. Pope, of Missoula, Mont., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

This suit was brought by appellee to quiet her title to certain mining claims in Montana, referred to as the "Combination Group." She alleged that she was the owner and entitled to possession, and that the defendants were not in possession but were asserting title. In their answer, the defendants challenged her claims, asserted ownership, but admitted they were not in possession, and affirmatively alleged that plaintiff was out of possession. Such an action, whether plaintiff is in or out of possession, is expressly authorized by section 9479 of the Revised Codes of Montana 1921, and the controversy is undoubtedly one of equitable cognizance in the federal courts. Holland v. Challen, 110 U. S. 15, 3 S. Ct. 495, 28 L. Ed. 52; Dick v. Foraker, 155 U. S. 404, 15 S. Ct. 124, 39 L. Ed. 201; Lawson v. U. S. Mining Co., 207 U. S. 1, 28 S. Ct. 15, 52 L. Ed. 65. As pointed out in this last case, Boston M. & M. Co. v. Montana O. P. Co., 188 U. S. 632, 23 S. Ct. 434, 47 L. Ed. 626, is not to the contrary.

Briefly stating the facts underlying the controversy, it appears that prior to January 31, 1918, the Combination Group was owned by the Combination Mining & Milling Company, a corporation, in which Charles D. McLure, father of the plaintiff, held 95 per cent. of the stock. In proceedings had to dissolve the corporation, the property was on that date sold at a receiver's sale to William R. McLure, one of the plaintiff's brothers. The receiver's deed was executed and delivered March 6, 1918. In payment of the purchase price the purchaser surrendered to the receiver the 95 per cent. of the outstanding stock, which his father had assigned to him, and paid in cash $11,500 to meet the demands of the minority stockholders. This cash was procured through a loan from one Murray, who took a note signed by William and his father, secured by a mortgage upon this and other property. The father died on May 20, 1918, leaving a will in which he nominated William and the plaintiff, then unmarried, as executor and executrix. Shortly thereafter the will was admitted to probate, and they qualified and entered upon the administration of the estate. On May 21, 1920, William conveyed the property in question to the plaintiff, in trust, however, for herself and six others; five of the beneficiaries being the children of Charles D. McLure, one the wife of his only other living child, and the other a daughter of a deceased child. Such is the origin and character of plaintiff's title.

Neither in the petition for the probate of the will nor in the inventory subsequently filed was the property in dispute treated as an asset of the estate; but, upon the contrary, against contentions made from time to time by divers persons, the plaintiff and her brother William, and apparently the beneficiaries named in the trust deed, maintained that when he died, their father had no legal interest therein, but that his transfer of the corporation stock to William and the purchase of the property by the latter in January, 1918, were intended to effect an advancement or gift by the father to William for the benefit of the members of his family.

Because of the reliance placed upon it by appellants as constituting an estoppel to deny that the property belonged to the estate at the time they bid upon it at a probate sale, one incident should have special mention. On May 11, 1921, there was filed in the probate proceedings a paper entitled, "Supplemental Inventory," describing and listing the claims in the Combination Group. It bears date January 31, 1921, and opens with the words, "We, Clara McLure Jones, executrix, and William R. McLure, executor, under the last will," etc., and at the end are two lines for signatures, followed by the words, "Executor" and "Executrix." Above the word "Executrix" is the plaintiff's name, but there is no other signature. After recitals of the history of the title to the property as above narrated and a reference to the identity of interest between the heirs and the beneficiaries named in the trust deed, it declares that the executor and executrix consent and agree that the said property shall be and become a part of the estate, subject to certain conditions which are not highly material.

Explaining the incident, plaintiff testified that prior to 1921 she had removed from Montana to Texas, and that, while she was in Montana in January, 1921, visiting at her mother's home, an attorney or agent for the largest creditor of the estate came to her, and, representing that her brother had been guilty of misapplication of funds amounting to robbery or embezzlement, insisted that he would be prosecuted both civilly and criminally if this property was not turned over to the estate. She testified in much detail, but the upshot of the negotiations was that, out of fear lest her brother be prosecuted she consented to surrender the property to the estate, provided William would join with her in executing the requisite papers. Accordingly, the document under consideration was drawn by an attorney, and after signing it, plaintiff left it with him for filing in case William executed it. She then returned to Texas. As appears, William declined to, and in fact never did, sign, and, before the instrument got into the files, both he and his sister, the plaintiff,...