Miami County Nat. Bank of Paola, Kan. v. Bancroft

• Decision Date: 17 July 1941
• Docket Number: No. 2255-2258,No. 2264.,2255-2258,2264.
• Citation: 121 F.2d 921
• Parties: MIAMI COUNTY NAT. BANK OF PAOLA, KAN., v. BANCROFT. STATE OF KANSAS ex rel. PARKER, Attorney General, v. SAME. MIAMI COUNTY NAT. BANK OF PAOLA, KAN., v. ROBERTS. STATE OF KANSAS ex rel. PARKER, Attorney General, v. SAME. STATE OF KANSAS ex rel. PARKER, Attorney General, v. BANCROFT.
• Court: U.S. Court of Appeals — Tenth Circuit

121 F.2d 921 (1941)

MIAMI COUNTY NAT. BANK OF PAOLA, KAN., v. BANCROFT.

STATE OF KANSAS ex rel. PARKER, Attorney General, v. SAME. MIAMI COUNTY NAT. BANK OF PAOLA, KAN., v. ROBERTS. STATE OF KANSAS ex rel. PARKER, Attorney General, v. SAME. STATE OF KANSAS ex rel. PARKER, Attorney General, v. BANCROFT.

Nos. 2255-2258, No. 2264.

Circuit Court of Appeals, Tenth Circuit.

July 17, 1941.

J. O. Rankin, of Paola, Kan., for appellant Miami County Nat. Bank of Paola, Kan.

L. Perry Bishop, of Paola, Kan., and Louis R. Gates, of Kansas City, Kan. (Jay S. Parker, Atty. Gen., of Kansas, on the brief), for appellants State of Kansas, Jay S. Parker, as Attorney General, Louis R. Gates, and L. Perry Bishop.

Benjamin E. Seibert, of Urbana, Ohio, and Clyde A. Raleigh, of Hutchinson, Kan. (Tincher, Raleigh & Cushenbery, of Hutchinson, Kan., on the brief), for appellees.

Before BRATTON and HUXMAN, Circuit Judges, and KENNAMER, District Judge.

HUXMAN, Circuit Judge.

Anna Laura Colwell Bancroft¹ and Roxie Belle Roberts² filed their separate petitions in the District Court of the United States for the District of Kansas against the Miami County National Bank of Paola, Kansas, a corporation,³ as Administrator of the estate of Henry C. Jones,⁴ deceased, seeking a judgment of the court determining that they were heirs of the deceased and entitled to share in the distribution of the property of his estate. While no order of consolidation was entered, the two cases were tried together.

Appeals were taken by the Administrator in No. 2255 and No. 2257 from the judgment of the court determining that Bancroft and Roberts were heirs and entitled to share in the distribution of the estate. Appeals were taken by the State of Kansas ex rel. Jay S. Parker, Attorney General, in No. 2256 and No. 2258 from an order of the District Court denying the Attorney General the right to intervene in No. 2255 and No. 2257. An appeal was taken by the State of Kansas ex rel. Jay S. Parker, Attorney General, in No. 2264, from the order of the trial court enjoining the administrator and the Attorney General from proceeding in the Probate Court of Miami County, Kansas, with an application to correct, by a nunc pro tunc order, an alleged omission from the records of the Probate Court in the Jones estate, which, it is asserted, has existed for more than three years. All of the appeals will be considered together in one opinion.

Appellants in No. 2255 and No. 2257 assert that the District Court was without jurisdiction of the subject matter of the actions because a federal court has no probate jurisdiction and that therefore its judgments are void. Henry C. Jones, a resident of Miami County, Kansas, died intestate on February 23, 1934. On March 7, 1934, the appellant The Miami County National Bank of Paola, Kansas, a corporation, was appointed administrator of his estate, and the estate has been in continuous probate since that time. The appointment of the administrator antedated the filing of the petitions in the District Court of the United States by either Bancroft or Roberts so that when they filed their actions in the federal court, probate court proceedings were then pending in the Probate Court of Miami County, Kansas.

Matters of purely probate character are not within the jurisdiction of the federal courts. Ellis et al. v. Davis, 109 U.S. 485, 3 S.Ct. 327, 27 L.Ed. 1006; Farrell v. O'Brien (O'Callaghan v. O'Brien), 199 U.S. 89, 25 S.Ct. 727, 50 L. Ed. 101; O'Connor et al. v. Slaker et al., 8 Cir., 22 F.2d 147. The question here, however, is not one of probate, but is to determine the ownership of property and the right to share in the distribution thereof. It has been held by an unbroken line of decisions that where diversity of citizenship and the requisite jurisdictional amount are present, federal courts have equity jurisdiction to determine whether litigants are heirs of a deceased and their share in his estate. In Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43, 30 S.Ct. 10, 12, 54 L.Ed. 80, the Supreme Court said: "This court has uniformly maintained the right of Federal courts of chancery to exercise original jurisdiction (the proper diversity of citizenship existing) in favor of creditors, legatees, and heirs, to establish their claims and have a proper execution of the trust as to them. In various forms these principles have been asserted in the following, among other, cases: Suydam v. Broadnax, 14 Pet. 67, 10 L.Ed. 357; Hyde et al. v. Stone, 20 How. 170, 175, 15 L.Ed. 874, 875; Green's Adm'r'x v. Creighton et al, 23 How. 90, 16 L.Ed. 419; Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Lawrence v. Nelson, 143 U.S. 215, 12 S.Ct. 440, 36 L.Ed. 130; Hayes v. Pratt, 147 U.S. 557, 570, 13 S.Ct. 503, 37 L.Ed. 279, 284; Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867; Ingersoll v. Coram, 211 U.S. 335, 29 S.Ct. 92, 53 L.Ed. 208."

The jurisdiction of federal courts in such matters is derived from the federal constitution and statutes and may not be restricted nor abridged by a state establishing probate courts and giving them exclusive jurisdiction over the settlement of estates of decedents. Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Waterman v. Canal-Louisiana Bank & Trust Co., supra. Here no attempt was made to interfere with the probate court in the administration of the estate. Bancroft and Roberts only sought to establish in the federal court their heirship and interest in the property of the decedent, and this they had a right to do.

In No. 2255, the additional point is raised that Bancroft was estopped from maintaining her action in the federal court because she had invoked the jurisdiction of the probate court. On October 1, 1937, prior to the time she began her action in the federal court, she filed an affidavit by her attorney in the probate court. The affidavit was filed to establish her claim as an heir of the deceased to a share in the estate. It is asserted that by this act she invoked the jurisdiction of the probate court and that the probate court could not thereafter be ousted of that jurisdiction by the subsequent action in the federal court. It is not a question of ousting the probate court of jurisdiction. The precise question is whether, having invoked the jurisdiction of the probate court, she could file an action in another court of competent jurisdiction, there seeking a determination of the same issue.

It has been generally held that where an action is in personam, the pendency of such an action in one court does not preclude the filing of the same action in another court of competent jurisdiction. Stanton et al. v. Embrey, Administrator, 93 U.S. 548, 554, 23 L.Ed. 983; Bryar v. Campbell, 177 U.S. 649, 20 S.Ct. 794, 44 L.Ed. 926; Hunt v. New York Cotton Exchange, 205 U.S. 322, 339, 27 S.Ct. 529, 51 L.Ed. 821; Kline v. Burke Const. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Equitable Life Assur. Soc. of United States v. Wert, 8 Cir., 102 F.2d 10; Byrd-Frost, Inc. v. Elder, 5 Cir., 93 F.2d 30, 115 A.L.R. 342.

The precise question seems to have been considered in Farmers' Bank v. Wright, C.C.Iowa, 158 F. 841. There a creditor filed a claim in a state court administering the estate of a decedent, and subsequent thereto filed an action in the federal court against the administrator on the same claim. It was held that the pendency of the claim in the state court administering the estate did not preclude the creditor from proceeding with an action in the federal court.

To establish their relationship to decedent, Bancroft and Roberts offered in evidence Exhibits 17 and 18. Objections to their receipt were overruled. Exceptions were taken to the ruling of the court and error is predicated on the admission of these two exhibits. Exhibit 17 was entitled "Genealogy of David Jones" and was compiled by Ellen M. Beals. Exhibit 18, compiled by Waldo Lincoln, was entitled "History of the Lincoln Family." These two exhibits tended to establish the family history, relationship and pedigrees through which Bancroft and Roberts sought to trace their relationship to decedent Jones.

Hearsay evidence in the form of family trees or pedigrees is admissible to establish family relationship, subject to certain limitations and restrictions. To be admissible, such a declaration must have been made by one who was a member of the family and is no longer alive. The relationship of the declarant to the family must be established by competent evidence independent of the declaration itself, American Jurisprudence, Vol. 20, p. 409, sec. 468. In each instance, the declarant of Exhibits 17 and 18 was dead. It is asserted by appellants that there is no evidence in the record outside of the instruments themselves tending to establish that Ellen M. Beals was a member of the family of Henry C. Jones, or that Waldo Lincoln was in any way related to Henry C. Jones. Appellee Bancroft testified that Ellen M. Beals was a member of the Jones family; that her knowledge as to the relationship of the family was derived not only from Exhibit 17 but also from what she heard in the family from members of the family, and from conversations with her mother. Daniel Waldo Lincoln testified that he was a son of Waldo Lincoln, who prepared the genealogy of the Lincoln family; that he had no personal knowledge of anything that went back of his birth, but that he knew from family conversations "almost all, if not all, of my own descent"; that he derived a great deal of his knowledge of the family from declarations of his father and from family history, repute and tradition.

Only slight proof of the relationship of the declarant to the family is required, since the relationship of the declarant with the family might be as difficult to prove as the fact in controversy. American Jurisprudence, Vol. 20, p. 409, sec. 468; Fulkerson v. Holmes, 117 U.S. 389, 397, 6 S.Ct. 780, 29 L.Ed. 915. The exhibits were properly received. In addition to...