Monks v. Hurley, 223.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation45 F. Supp. 724
Docket NumberNo. 223.,223.
PartiesMONKS v. HURLEY et al.
Decision Date04 June 1942

Herbert S. Avery and Walter E. Doherty, Jr. (of Avery, Dooley, Post & Carroll), all of Boston, Mass., for plaintiff.

Mayo A. Shattuck and Stuart Macmillan (of Haussermann, Davison & Shattuck), all of Boston, Mass., for defendants.

Murray F. Hall and Goodwin, Proctor & Hoar, all of Boston, Mass., for defendant D. J. Hurley.

SWEENEY, District Judge.

The matter before the court is a motion of the defendant trustees to dismiss and for judgment, which will be treated as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. For the purpose of this motion the liability of the defendant administrator need not be considered for reasons which will subsequently appear.

This is an action against the administrator of the estate of Allan Bradford Monks, deceased, and the trustees under the will of John P. Monks to recover on certain obligations allegedly owed the plaintiff.

The complaint states that Allan Bradford Monks, hereinafter referred to as Monks, was a grandson of John P. Monks, and that by the terms of a trust established under the will of the latter, in 1911 he received a vested interest in the trust fund. It alleges that in 1928, while living in California, Monks, in consideration of certain sums of money advanced to him by the plaintiff, hereinafter referred to as Giraudo, executed and delivered to Giraudo a series of promissory notes having an aggregate face value of $30,000; that, as security for the payment of these notes, Monks assigned to Giraudo an undivided one-tenth interest in the estate of his grandfather. The assignment was made by means of an instrument described as a chattel mortgage, which has been recorded in Massachusetts. It further alleges that, subsequent to the execution of these notes and chattel mortgage, Monks and Giraudo were married, and that thereafter Monks gave Giraudo an irrevocable power of attorney to enable her to collect the assigned interest.

Besides the notes, chattel mortgage, and the power of attorney, the complaint sets up two other instruments on which the liability of the defendant trustees is allegedly founded. One is a notice and order to the trustees dated August 15, 1928, allegedly sent by Monks, informing them of the notes given to Giraudo, and ordering them to pay her all sums due him from his grandfather's estate. The other instrument declared upon is an alleged acceptance of this order purportedly signed by defendant Barker on behalf of himself and his co-trustees, dated August 28, 1928. Copies of all the above mentioned instruments, excepting the notes, are appended to the complaint. There is also an allegation that further written notice of Giraudo's claim was given the defendant trustees on December 30, 1930.

The relief sought by the plaintiff, so far as it pertains to the defendant trustees, is that they be enjoined from paying over income or principal, which has accrued on behalf of Monks or his estate, to anyone other than the plaintiff; that they be ordered to pay such funds as are due Monks or his estate to the plaintiff; that the amount of income due Monks between certain specified dates be determined; that the trustees be ordered to recognize the various instruments declared upon; that they be adjudged indebted to the plaintiff, and that execution issue against them for such sums as are due, and for such further relief as the court deems just and equitable.

The defendant trustees contend that the action against them should be dismissed because the issue with regard to their liability to the plaintiff has been adjudicated in an action in the Superior Court of Suffolk County, Commonwealth of Massachusetts. Further, they assert that all the instruments set up in this action were obtained by fraud and undue influence, and were so determined by the Superior Court of San Diego County, California, in an action against this same plaintiff. A copy of the findings and final decree in the Massachusetts Superior Court action is attached to the trustees' motion for summary judgment, and certified copies of the California Court proceedings have been submitted to the court.

Because the question of the admissibility of the California judgment as evidence in this action is at once apparent, that point will be considered first. That action was brought by a special administrator of the estate of Monks, appointed in California, against Giraudo, the present plaintiff, seeking a declaratory judgment with regard to the validity of a large number of instruments in Giraudo's possession, which the special administrator feared might be asserted as a claim against Monks' estate. Among the instruments put in issue in the California proceedings were the identical notes, the so-called chattel mortgage, and the power of attorney on which her claims here are founded. The California court found that all of these instruments were obtained by the fraud and undue influence of Giraudo, and they were declared null and void. Further, Giraudo was ordered by the court to deliver them up to the Clerk of the Court for physical cancellation. The judgment and decree of the Superior Court was appealed, and was affirmed by the California District Court of Appeal, Fourth Appellate District. In re Monks' Estate, 48 Cal.App.2d 603, 120 P.2d 167.

Since the California action was between a special administrator appointed in that state and the plaintiff in this action, it clearly is not res judicata on the question of fraud here, for none of the defendants in this action are privy to the special administrator appointed in the State of California. Restatement of Conflict of Laws § 511(1); Frost v. Thompson, 219 Mass. 360, 367, 106 N.E. 1009; Low v. Bartlett, 8 Allen, Mass., 259. Under the present state of the law of evidence, not only would the California judgment fail to constitute an estoppel to Giraudo's action here with regard to the instruments involved in that suit, but it would also be inadmissible in evidence as bearing on this question of fraud. 5 Wigmore on Evidence, Third Ed., § 1671a. However, that judgment would be admissible as evidence of its own existence and to determine its legal effect on any party to it. Compare: Hannaford v. Charles River Trust Co., 241 Mass. 196, 134 N.E. 795; Fowler v. Savage, 3 Conn. 90, 100, 101. Thus, for the purpose of this motion, the California judgment will be considered only to the extent that it affects Giraudo's standing in this court in view of the fact that the California court has ordered her to surrender these instruments to the Clerk for cancellation.

The suit in the Superior Court of Suffolk County, Massachusetts, was brought by Giraudo against the trustee defendants to this action, as trustees under the will of John P. Monks, and, also, individually against the defendant Archibald G. Monks. The trustee defendants in their motion for judgment state that any and all alleged claims which Giraudo has...

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8 cases
  • Coca-Cola Co. v. Dixi-Cola Laboratories, 5431.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 3, 1946
    ...Grauman v. City Company of New York, D.C.S.D.N.Y., 31 F.Supp. 172; Fitzpatrick v. Sun Life Assur. Co., D.C., 1 F.R.D. 713; Monks v. Hurley, D.C.D.Mass., 45 F.Supp. 724; Restatement of the Law of Torts, § 745, Comments (e) and (f). Cf. Aladdin Mfg. Co. v. Mantle Lamp Co. of America, 7 Cir., ......
  • Middelkamp v. Hanewich, 3-474A54
    • United States
    • Court of Appeals of Indiana
    • July 20, 1977
    ...admissions, and depositions, as listed in the Rule. See Yong Hong Keung v. Dulles (D.Mass.1954), 127 F.Supp. 252; Monks v. Hurley (D.Mass.1942), 45 F.Supp. 724. The court may also consider evidence that would be admissible in a trial of the cause, such as duly authenticated official E. Desi......
  • Munoz v. International Alliance of Theatrical Stage Emp. and Moving Picture Machine Operators of U.S. and Canada, 75-2538
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 17, 1977
    ...Baxter Labs, Inc., 400 F.Supp. 527, 530 (E.D.Okla.1975); Warner v. Replinger, 397 F.Supp. 350, 359, n. 7 (D.R.I. 1975); Monks v. Hurley, 45 F.Supp. 724, 727 (D.Mass.1942); JNO. T. McCoy, Inc. v. Schuster, 44 F.Supp. 499 Once the defendants-movants had presented these matters, the initial bu......
  • Fowler v. Southern Bell Telephone & Telegraph Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 19, 1965
    ...which is objectionable under Rule 56(e), the affidavit may be considered by the court in ruling on the motion. See Monks v. Hurley, D.C.D.Mass., 45 F.Supp. 724 (1942); 6 Moore, Federal Practice § 56.22, at 2335 (2d ed. The majority says that the defense of sovereign privilege "should not be......
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