Pickens v. Merriam

• Decision Date: 21 May 1917
• Docket Number: 2783.
• Citation: 242 F. 363
• Parties: PICKENS et al. v. MERRIAM et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

242 F. 363

PICKENS et al. v. MERRIAM et al. ^[1]

No. 2783.

United States Court of Appeals, Ninth Circuit.

May 21, 1917

R. W Kemp and Davis, Kemp & Post, all of Los Angeles, Cal., and D R. Hite, of Topeka, Kan., for appellants.

Wm. J Hunsaker, E. W. Britt, Leroy M. Edwards, and Joseph L Lewinsohn, all of Los Angeles, Cal., and J. H. Merriam, of Pasadena, Cal., for appellees.

Suit for an accounting on the part of the defendants for certain property belonging to the estates of Ferdinand Fensky and Jeanette Fensky, deceased, alleged to have been acquired by the defendants through various fraudulent acts perpetrated by them and by Jeanette Fensky and to be wrongfully withheld from the complainants, who claim to be the lawful heirs of Ferdinand and Jeanette Fensky, and for the cancellation of certain deeds. The complaint alleges, in part, as follows:

That the complainants are sisters of Ferdinand Fensky, who died intestate in Los Angeles county, Cal., on August 7, 1903, leaving property in California and Kansas, consisting of real and personal property; the latter being in the form of notes and contracts for the sale of real property located in Topeka, Kan., and cash amounting to $10,000, aggregating $100,000 in value. That in October, 1903, Jeanette Fensky was appointed by the superior court of Los Angeles county, Cal., administratrix of the estate of Ferdinand Fensky, and that one M. T. Campbell, agent and representative of Jeanette Fensky in Topeka, Kan., was appointed administrator of the estate by the probate court of Shawnee county, Kan., a few days thereafter. That after the appointment of Jeanette Fensky as administratrix she came into possession of real property, cash, notes, and other evidences of indebtedness due the deceased; that she caused the California real estate to be falsely and fraudulently appraised and inventoried at a total sum of about $6,000; and that, instead of returning a true inventory of the personal property, she inventoried but one promissory note for the sum of $400, and purposely failed to list and inventory the cash and evidences of indebtedness to the deceased from the purchasers of his real property in Kansas. That she sent all of the promissory notes and other evidences of indebtedness to her agent and representative, M. T. campbell, and entered into a fraudulent and collusive agreement with him to obtain releases from the complainants of their interest in the estate. That Campbell filed his inventory showing personal property amounting to $20,927.64, consisting of $4,297.14 cash and a part of the promissory notes, but omitted the notes of W. C. Stein and Simms and the indebtedness owing from purchasers of the Kansas real estate.

That the Kansas law provides that the real property of an intestate husband dying without children descends directly to his widow, which was well known to Jeanette Fensky and Campbell, who, knowing that the contracts of sale of the real estate had not been recorded, and that complainants had no knowledge that it had been sold, concealed the fact that the real estate had been sold, and, by listing the same as real property, falsely represented to complainants that the real estate so sold belonged to the widow under the law of Kansas. That prior to his death Ferdinand Fensky and Jeanette Fensky had drawn up and signed deeds of conveyance to the several purchasers of the Kansas real property, but did not deliver the same. That all of said undelivered deeds came into the hands of Jeanette Fensky upon the death of her husband. That, well knowing that the execution by her or by Campbell, as administrator, of deeds to these purchasers, would reveal the fact that the real estate had been sold, and that the purchase money constituted personal property of the estate, Jeanette Fensky and Campbell began negotiations with the purchasers, as a result of which the purchasers accepted the undelivered deeds, notwithstanding the death of Ferdinand Fensky, and executed mortgages to Jeanette Fensky for the amount of the unpaid purchase money due under the contracts of sale, which mortgages were omitted from the inventories of Jeanette Fensky and Campbell and have never been accounted for by them, and the same are unadministered assets of the estate of Ferdinand Fensky, in which these complainants have an interest as his heirs at law.

That, shortly after the appointment of Campbell as administrator, he represented to complainants that it would take a long time to close the estate, that many of the promissory notes were of little or doubtful value, that the costs of administration would amount to a considerable sum, that, even if he should be able to collect the notes, the shares of the estate to which each of the complainants ultimately might be entitled would not exceed $1,000 in value, that the real estate in Topeka, Kan., all went to the widow, and that the property left by the intestate was community property, and offered to buy their claims against the estate for $1,000 each, which offer was accepted by the complainants, and thereupon the complainant Louisa Pickens, on or about July 29, 1904, executed and delivered to the said Campbell for the said Jeanette Fensky (a release and quitclaim of) all of the right, title, and interest of the said Louisa Pickens in and to the property and estate of her said deceased brother, and on or about August 3, 1904, the complainant Johanna Schutt executed and delivered to the said Campbell for the said Jeanette Fensky a similar release and quitclaim of all of the right, title, and interest of the complainant Johanna Schutt in and to the property, assets, and estate of her said deceased brother. That all of the foregoing representations made by Campbell were false, fraudulent, and misleading, and known to be such by Campbell and by Jeanette Fensky, and that complainant's shares would have amounted to more than $8,000. That the $1,000 paid to each of the complainants by Campbell was paid from funds in his hands collected from the assets of the estate, and was only a part of the money then due to complainants from the estate, and Jeanette Fensky parted with nothing of value for the releases and quitclaims, which are without consideration, fraudulent, and void.

That Campbell remitted to Jeanette Fensky about $35,000 in cash and secured notes, being proceeds of the assets of the estate which came into his hands. That on or about March 30, 1905, Jeanette Fensky filed a pretended final account, in which she represented that she had secured the interest of all the brothers and sisters and other heirs at law of her deceased husband, and that she was the only one entitled to said estate; and, there being no opposition to the account, the same was received and approved by the superior court, and an order entered discharging her as administratrix and closing the estate. That thereafter, upon the faith of the deeds of release and quitclaim from the complainants, Jeanette Fensky secured purchasers for some of the property in California, and with the proceeds of the sale of this property, together with the money and mortgages received from Campbell, purchased real estate in Los Angeles county, Cal. That Jeanette Fensky died on July 8, 1908. That before her death she had executed, without consideration, deeds to the property so acquired. 'That all of said deeds so made out by the said Jeanette Fensky were not delivered to the respective grantees named therein until after the death of the said Jeanette Fensky,' and that, therefore, title did not pass to the grantees but was in Jeanette Fensky at the time of her death.

That J. H. Merriam, who had been appointed administrator of the estate of Jeanette Fensky by the superior court of Los Angeles county, Cal., upon the petition of the defendants Eugene Wellke, Amanda Katzung, and Alma J. Schmidt, filed a pretended inventory of the estate showing the total assets as consisting of $2,324.38 in cash, a claim against the defendant Amanda Katzung, and a note of the defendant Don Ferguson for $1,050. That thereafter Merriam filed a final account, representing that the estate had been wholly administered and distributed, and that the sole heirs at law were the defendants Eugene Wellke, Amanda Katzung, and Alma J. Schmidt. That Merriam knew that Jeanette Fensky at the time of her death owned the real estate mentioned; that the same was distributable among the heirs at law of Ferdinand Fensky and defendants had no interest therein. That Merriam, well knowing all the facts, wholly omitted the real property from his inventory and accounts, and distributed a portion of the estate to the defendants Wellke, Katzung, and Schmidt.

On information and belief, it is alleged that Merriam, while pretending to act as administrator of the estate of Jeanette Fensky, was employed by and acted as attorney and agent for the defendants Wellke, Katzung, Loveland, Farnsworth, and Schmidt, with full knowledge of the rights of the complainants, and with the purpose and design of preventing them from securing their just share of the estate of their deceased brother, and has failed, refused, and neglected to further administer the estate, and pretends to deny the rights of the complainants in respect thereof. It is further alleged that all of the estate of Ferdinand Fensky was his separate property, and as such, upon the death of his widow, the estate and its avails descended ratably to the surviving brothers and sisters of Ferdinand Fensky, and not to the sisters and brother of Jeanette Fensky, and that whatever right, title, or interest the defendants have in any of the property of Jeanette Fensky is subject to the claims of complainants as heirs at law of Ferdinand Fensky and of Jeanette Fensky; that complainants did not have any notice,...