Osborne v. McDonald

• Citation: 159 F. 791
• Decision Date: 21 February 1908
• Docket Number: 1,307.
• Parties: OSBORNE et al. v. McDONALD et al.
• Court: U.S. District Court — Western District of Washington

159 F. 791

OSBORNE et al. v. McDONALD et al.

No. 1,307.

United States Circuit Court, W.D. Washington, Northern Division.

February 21, 1908

Jenner & Williams, for complainants.

Chas F. Munday and Scott Calhoun, for defendants.

HANFORD District Judge.

James Osborne died testate at Seattle, and his will was admitted to probate in the year 1881. This suit by alleged heirs attacking the will, was commenced in the year 1905. The value of the estate is large, the complainants are numerous, and their respective places of residence are in so many states that it was found necessary to dismiss some of them out of the case, for the reason that their presence as parties would defeat the jurisdiction of this court; the only ground for federal jurisdiction being diversity of citizenship of the parties. The will ignores all relatives and heirs, and devotes all the residue of the estate remaining after bequests to personal friends, not heirs, to the erection of an edifice for a public hall on property owned by the city of Seattle, to conform to plans to be approved by the trustees named in the will or their successors, and a committee representing the city government on which there should be an inscription, which presumably the vanity of the testator caused him to contemplate that it would perpetuate the memory of his name and virtues. In the consideration of the foregoing facts and dates, the mind is naturally and forcibly arrested by the query:-- why, if the complainants have a meritorious claim, did they slumber upon their rights for a period of nearly 24 years? Their bill of complaint anticipates and attempts to answer this query by averments to the effect that until recently the complainants did not know anything concerning the death of James Osborne, or his will or the existence of an estate, and most of them did not know that any such person as James Osborne ever existed. This is true, and for the purpose of this decision it will be assumed that the ignorance pleaded excuses the apparent laches, but it creates in the mind a natural involuntary prejudice because it is so improbable that all the members of a family so numerous, and connected by various ties, with so many people in so many places, should remain thus ignorant of the life and death of James Osborne, if, in fact, he was related to the family by inheritable blood. This improbability might be overcome if James Osborne had left any record of his life, or had been communicative with respect to his early life and surroundings, so that of those who knew him witnesses might be found able to prove from information furnished by him the important facts with respect to his parentage, but only two of those who knew him after he came to Seattle have testified and they are able to give only a few meager scraps of information to the effect that he came from Morrisania, N.Y.; that he had some half-brothers; that his mother died; that he went as a sailor to Havre, France; that he returned to Morrisania; that during the period of his absence his father had died; that he again went to sea on a voyage around Cape Horn to San Francisco, and after a time came to Port Gamble, and then to Seattle; and that he had no use for his relatives and they had no use for him. Another way of overcoming the improbabilities of the case would be by the production of correspondence or written communications between the testator and his relatives; but, if any letter was ever written by him to any person, relative, or friend, it has not been produced. In view of the circumstances and without proof of the character suggested, the uncertainty of any conclusion or inference which may be drawn from the testimony is so great that the due administration of justice requires the production of other convincing evidence of all the facts essential to establish the claims of the complainants that they are legal heirs of the testator. To avoid the necessity of a complete analysis of all the evidence, it will be assumed for the purpose of this decision that the following propositions set forth in the brief of the solicitors for the complainants are true:

'(1) That said James Osborne, deceased, was born in the county of Westchester, N.Y., about the year 1835.

'(2) That said James Osborne, deceased, lived at Morrisania, or the Bronx, Westchester county, N.Y., until he was about the age of 17 years, at which time he left his home and went to sea, along about the year 1852 or 1853, and this first voyage was foreign, to wit, to Havre, France.

'(3) That after an absence of about four years said James Osborne returned to Morrisania, his former home, and found that his father had died during his absence, and that, after remaining there a short time, he again left his said home and went to sea, and never returned to the state of New York after that time.

'(4) That the said James Osborne about the year 1860 left the state of California from the port of San Francisco, and went by water to Puget Sound, landing at Port Gamble about that year, and that he resided thereafter in the territory of Washington until the time of his death.

'(5) Subsequent to his last departure from Morrisania said James Osborne at no time communicated with his relatives in any manner, nor with any other person, so far as known, in the state of New York, with the exception of one letter written from California to William Cauldwell.

'(6) That said James Osborne left relatives in Westchester county, N.Y., upon his departure therefrom.

'(7) That said James Osborne left relatives, to wit, half-brothers and a half-sister in Westchester county, N.Y., at the time of his last departure therefrom.

'(8) That said James Osborne was the half-brother of Louis K. Osborne.

'(9) That said Louis K. Osborne was the father and grandfather of certain of the complainants as set forth in the amended bill of complaint, and that he was the brother of Caroline Doty, Horace Osborne, Solomon Enos Osborne, and Clarke Osborne, the mother and

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