Owsley v. Yerkes

• Decision Date: 10 April 1911
• Docket Number: 227.
• Citation: 187 F. 560
• Parties: OWSLEY et al. v. YERKES et al.
• Court: U.S. Court of Appeals — Second Circuit

187 F. 560

OWSLEY et al. v. YERKES et al.

No. 227.

United States Court of Appeals, Second Circuit.

April 10, 1911

Wetmore & Jenner (W. O. Underwood and Laurence E. Sexton, of counsel), for appellant Owsley.

Charles O. Brewster, for appellant Yerkes.

James Russell Soley (Carroll G. Walter, of counsel), for appellees.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

Charles T. Yerkes, a resident of Chicago, died December 29, 1905 leaving a last will, against which his widow claimed. There followed a series of acrimonious contests between her, the executor, and the heirs, which finally resulted in the execution of an agreement dated November 11, 1909, between the executor of the first part, the heirs of the second part the widow of the third part and George W. Young, described as the banker, of the fourth part; he having an irrevocable power of attorney to represent the widow in the affairs of the estate and an interest in her share. The preamble recited: 'Whereas, the executor and heirs claim thatthe said Charles T. Yerkes died seised and possessed of certain real estate in the state of New York and certain personal property contained in the buildings situated thereon, which claims are disputed by the widow, who on her part claims to own the same; and

'Whereas, other controversies have arisen, and are likely to arise, between the widow and the said executor and heirs, and all the parties hereto believe that it is for the best interests of all parties interested in said estate of Charles T. Yerkes that the said claims and controversies be compounded and settled, and for the purpose of avoiding all further controversies between the parties hereto, and of securing a more speedy and advantageous settlement of said estate.'

The parties then went on to agree that the widow should admit the title of the decedent to the realty and personalty in New York City, and should receive the present value of her dower in the realty and one-third of the net proceeds of sale of the personalty; also that she should be entitled to one-third of the personal estate, after paying the debts, less whatever she should have received from the sale of personalty in New York City and after payment of legacies to the additional sum of $400,000. The other material articles are:

'Seventh.-- The parties hereto severally agree to take all proceedings and to do all acts and execute all papers necessary or convenient for the purpose of carrying out the terms and intent of this agreement, and that they will not appeal from the order confirming this agreement referred to in paragraph first hereof.'

'Ninth.-- The widow shall not directly or indirectly institute or prosecute any further litigation against the executor or the estate, except that it is understood and agreed that this agreement shall not in any way limit or affect the right of the widow to institute or prosecute any action or proceeding necessary or proper to enforce this agreement, or a decree confirming the same or the terms thereof, or for the purpose of securing any rights of hers hereunder; nor shall this agreement in any way limit or affect the right of the widow to assert any rights or claims which she may have waived in or pursuant to this agreement, in case of a failure to obtain the order as provided in paragraph first hereof; and she is not otherwise, directly or indirectly, to interfere with the due and prompt settlement of the estate, or to take or prosecute any appeals from any orders duly entered by the probate or Surrogate's Court having jurisdiction of the subject-matter. The purpose of this agreement is to avoid all further litigation between the various parties in interest, except as herein provided, and to effect a settlement of disputes and to insure the co-operation with the executor of all parties in interest in securing the best results in the settlement of the estate.'

This agreement was consented to by the creditors and duly confirmed by the probate court of Cook county, Ill., and the widow withdrew all pending proceedings and objections against the executor, and received the value of her dower, $163,362.89, and one-third of the net proceeds of the sale of the personalty, $623,587.39. Whether the estate will be able to pay the debts and legacies depends upon the administration of the remaining assets, which consist principally of securities having no market value.

In December, 1910, Louis S. Owsley, as executor of the will and as ancillary executor of the estate in the state of New York and the heirs, as complainants, filed the bill in this case against the widow and Young, as defendants, alleging: That the estate owned over $4,000,000 of bonds and other underlying securities of the Chicago Traction Company, that it claimed that the Chicago Railways Company was liable to pay the bonds, and that almost all of them were held by creditors of the estate as collateral security. That after the execution of the agreement of November 11, 1909, the executor applied to the probate court of Cook county, Ill., for leave to deposit the bonds under a certain reorganization agreement, which application the widow opposed, and no order has been made by the court. That subsequently the executor filed another petition in the same court, asking leave to compromise the claim of the estate against the Chicago Railways Company by exchanging the consolidated bonds for securities of the Railways Company, and also for leave to pay an assessment of the...