Patterson v. Dickinson

• Decision Date: 05 February 1912
• Docket Number: 2,010.
• Citation: 193 F. 328
• Parties: PATTERSON et al. v. DICKINSON.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F. 328

PATTERSON et al. v. DICKINSON.

No. 2,010.

United States Court of Appeals, Ninth Circuit.

February 5, 1912

In the bill, and the amendments thereto, which were filed by the appellants in the court below, the following facts are stated: That Rachael E. Dickinson, the sister of the appellants, died on October 23, 1905, intestate, leaving surviving her the appellants and the appellee, Samuel S Dickinson, who was her husband, as her sole and only heirs at law, and that the husband inherited one-half of her estate and the appellants each one-tenth thereof; that at the time of her death Rachael Dickinson owned certain described tracts of land in Los Angeles county, state of California, and also certain moneys, credits, and personal property, of the value of approximately $20,000; that at the time of her decease she was a resident of Kansas City, in Jackson county, Mo.; that on or about November 18, 1905, the appellee filed in the probate court of that county and state a document purporting to be the last will and testament of said Rachael E Dickinson, deceased, and on November 22, 1905, said alleged will was admitted to probate in that court, and the appellee qualified as executor thereunder; that on December 12, 1905 the appellants commenced an action in the circuit court of Jackson county, Mo., to contest the probate of said alleged will; that on December 18, 1905, the appellee, being informed and well aware of the pendency of that action, and knowing that said instrument was not the will of the testatrix, filed a certified copy of said instrument, together with a petition for letters testamentary, in the probate department of the superior court of the state of California for Los Angeles county; that upon proceedings had thereon, and upon producing a duly authenticated copy of the probate of said instrument in Jackson county, Mo., the instrument was, on January 4 1906, admitted to probate in said superior court for Los Angeles county, Cal., and letters testamentary on that day were issued to the appellee. The bill alleges that the appellants were not informed of said proceedings in the state of California, and that the appellee concealed and withheld from them notice thereof, with the intent to defraud them; that the appellants did not learn that the property of the decedent was located in Los Angeles county, Cal., until January 6, 1906, several days after said will had been admitted to probate in that county; that, with the same fraudulent purpose to deprive the appellants of their share of the property of said decedent, the appellee withheld information from the superior court of the state of California for Los Angeles county that a contest of the probate of said will in the state of Missouri had been begun by the appellants, and did not inform that court that the will was invalid, and that the decedent had died intestate, although he well knew those facts; that on November 7, 1906, the appellee filed his final account, and petition for a decree of final distribution, in said proceedings in California, and on January 4, 1907, said superior court of that state made its order settling the final account and directing distribution; that by said order all the lands belonging to decedent in said state were awarded to the appellee in accordance with the terms of said pretended will, and also $20,729.92 cash, the same being all of the property of the decedent, except about $3,000, the amount of certain legacies; that on December 17, 1907, judgment was entered in the proceedings in the circuit court of Jackson county, Mo., adjudging that Rachael E. Dickinson had died intestate, and that the instrument which had been admitted to probate as her will was void and of no effect, having been expressly revoked by an instrument in writing signed by the decedent and properly witnessed; that the appellee fraudulently concealed from the appellants all notice of the probate proceedings in California, and that they had no actual notice or knowledge thereof, nor of the nature of the proposed decree settling the final account and distributing the estate, until after the same had been made, entered, and filed. The prayer was that the appellee be adjudged to be an involuntary trustee for the benefit of the appellants, and to be required to account for the rents and profits of the land received by him, and that he account for all sums of money received from the sales of land made by him and otherwise, and that the appellants be adjudged to be entitled to receive each one-tenth of all the property so received or administered by the appellee in the state of California.

To the bill a demurrer was filed for want of equity; it being specified in the demurrer that it did not appear from the bill that the appellants did not have actual or constructive notice of the order of the superior court of Los Angeles county admitting the will to probate within six months after the will was so admitted, or that they could not by the exercise of reasonable diligence have discovered or had knowledge or notice thereof, and that it did not appear from the bill that they did not have notice of the final distribution within six months after the date thereof, or that they could not by the exercise of reasonable diligence have discovered or had knowledge or notice thereof. The demurrer was sustained, and on the election of the appellants to amend no further a decree was entered dismissing the bill.

The statutes of California applicable to the probate of foreign wills are as follows:

Section 1322 of the Code of Civil Procedure provides: 'Wills Approved in Other States to be Recorded When and Where.-- All wills duly proved and allowed in any other of the United States or in any foreign country or state, may be allowed and recorded in the superior court of any county in which the testator shall have left any estate.'

Section 1323: 'Proceedings on the Production of a Foreign Will.-- When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed and the court or judge must appoint a time for the hearing; notice whereof must be given as hereinbefore provided for an original petition for the probate of a will.'

Section 1324: 'Hearing Proofs of Probate of Foreign Will.-- If, on the hearing it appears upon the face of the record that the will has been proved, allowed and admitted to probate in any other of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration issued thereon.'

Henry C. Schaertzer and Gray, Barker, Bowen, Allen, Van Dyke & Jutten, for appellants.

H. T. Morrow, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The bill in this case presents an anomalous state of facts. On October 23, 1905, a woman, a resident of Missouri, died leaving surviving her husband and certain brothers and sisters. On November 18, 1905, the husband presented for probate in the appropriate probate court of that state a document purporting to be the last will and testament of the decedent, by the terms of which nearly all the property was devised and bequeathed to him. Four days later that instrument was admitted to probate and the husband qualified as the executor thereof. On December 12, 1905, the decedent's brothers and sisters commenced an action to contest the probate, and on December 17, 1907, it was adjudged in that proceeding that the decedent had died intestate and that the instrument which had been admitted to probate as her will had been revoked. In the meantime the husband went to California, where certain of the property, real and personal, of the decedent was situated, and on December 18, 1905, six days after the commencement of the contest in the Missouri court, he presented to a probate court of California a certified copy of the instrument, and a certified copy of the probate proceedings in the Missouri court. Thereupon the will was admitted to probate in the ...