Rhino v. Emery
| Decision Date | 11 December 1895 |
| Docket Number | 345. |
| Citation | 72 F. 382 |
| Parties | RHINO v. EMERY et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David Stewart Hounshell, for appellant.
Herbert Jenney, for appellees.
Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.
This is an appeal from a decree dismissing an amended bill on demurrer. 65 F. 826. The bill in general charges the defendants, or some of them, with having obtained title to and possession of the proceeds of a large amount of real property belonging to one James Berry, 2d, by fraud; avers that James Berry, 2d, died May 13, 1891; that the complainant is entitled to a moiety of his estate; and that he is therefore entitled to hold the defendants as trustees for his share of the property described in the bill.
The first ground upon which the action of the court is sought to be upheld is one not taken by the court below. It is that the complainant does not show by the averments of his bill that he is the heir and next of kin of James Berry, 2d, according to the laws of Ohio. The property in controversy was real estate belonging to and descended from James Berry, Jr., the father of James Berry, 2d. James Berry, Jr.'s, father was James Berry. His mother was named Rolston. The bill avers that the blood both of James Berry and of the Rolstons is extinct, and that complainant is a first cousin of James Berry, 2d, being the nephew of his mother, Eliza Berry, and is his next of kin. Section 4158, Rev. St. Ohio (the statute of descents) provides that, when there are none of certain relations living, the estate shall pass to the next of kin to the intestate of the blood of the ancestors from whom the estate came, or their legal representatives. Section 4160 provides that, when there is no person to inherit under this clause the estate shall pass to the husband or wife relict of the interstate as heir; and, if there is no such relict, then it shall pass to and vest in the next of kin of the interstate though not of the blood of the ancestor from whom the estate came. Now, it is said that the complainant, claiming under this latter section, must show that there is no one of the blood of the ancestor from whom the real estate came who can inherit. He has done so by the averments of his bill, for, after averring that the ancestor from whom the property descended was a son of Berry and a Rolston, he avers that the blood of the Berrys and Rolstons, the ancestors of James Berry, 2d, on his paternal line, became extinct. This certainly excludes the possibility of any next of kin to James Berry, 2d, of the blood of James Berry, Jr., and makes section 4160 applicable.
The defendants in the bill against whom relief is asked are William G. Roberts, Sarah A. Weller, Thomas J. Emery, and John J. Emery, and Me. E. Sperry. M. E. Sperry is alleged to be a coheir with the complainant, and is made party defendant that his interest may be preserved to him. The bill alleges that James Berry, Jr., died possessed of three valuable pieces of real estate; that he devised this estate to his wife, Eliza A. Berry, for life, with remainder to his two children, James Berry, 2d, and Kate E. Berry, providing that in case of the death of either of the children before the death of his wife, the entire remainder should pass to the surviving child; that all the debts of the testator were paid shortly after his death; that Kate Berry married, and died without issue; that James Berry, 2d, was from his early infancy and during the whole period of his life a person of unsound mind and of weak understanding, and wholly incapable at any period of his life of transacting any business by reason of his mental incapacity and imbecility; that upon the death of his sister, in 1882, the defendant William G. Roberts and the mother of James Berry, 2d, Eliza A. Berry, conspired together for the fraudulent purpose of securing the title to the real estate devised to James Berry, 2d, by the will of his father, James Berry, Jr., so that they might appropriate the property to themselves; that at that time Eliza A. Berry was more than 70 years of age, and that her son, James Berry, 2d, was verging to the age of 40 years; that William G. Roberts, the defendant, was the legal advisor of Eliza A. Berry, and had great influence over her, and that, through his inducement, they together, on the 21st of August, 1882, fraudulently procured a deed from said James Berry, 2d, an imbecile person and of unsound mind, by which he conveyed all his real estate to the said Eliza A. Berry, for the 'grossly inadequate consideration of $3,000, no portion of which said sum was ever paid to said James Berry, 2d, or to any other person for his use'; that the real estate so conveyed was soon thereafter sold for more than eight times the amount of the said $3,000; that in 1885 the said Roberts and Eliza A. Berry procured an order from the probate court of Hamilton county, Ohio, appointing Roberts statutory guardian of James Berry, 2d; that, in furtherance of their fraudulent scheme, Eliza A. Berry, as executrix of the estate of her husband, more than 22 years after his death, under the fraudulent pretense of paying the debts of the testator, instituted suit in the probate court of Hamilton county, Ohio, against herself and against her son, James Berry, 2d, and Roberts, as guardian of said son, for the purpose of selling said real estate, and that on April 18, 1885, she obtained a judgment for the sale of said lands, long after her power to sell had become inoperative, and soon thereafter obtained an order confirming the sale, and ordering deeds conveying to the purchasers of the said lands so sold under the irregular and void proceedings in said suit; that Roberts acted as one of the attorneys of record in said suit for Eliza A. Berry, and conducted the same as the leading counsel for her; that the portion in said suit for the sale of said real estate recited a debt which was a mere pretended and fictitious one, and had no foundation in fact; that the sale resulted in bringing to Eliza A. Berry some $12,000, $8,000 of which was held until her death; that on August 23, 1886, Eliza A. Berry made her will, which was drafted by Roberts; that on the 9th of September, 1886, she died, and in the will appointed Roberts trustee under the will for her son, gave him complete power of controlling her estate by sale and reinvestment,...
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... ... remedy in a court of equity." ( Connolly v. Probate ... Court, 25 Idaho 35, 136 P. 205; Rhino v. Emery, ... 72 F. 382, 18 C. C. A. 600; Johnson v. Waters, 111 ... U.S. 640, 4 S.Ct. 619, 28 L.Ed. 547; Griffith v ... Godey, 113 U.S. 89, ... ...
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... ... restoration of lands or proceeds fraudulently acquired by ... such proceedings is clear. Rhino v. Emery, 72 F ... 382, 18 C. C. A. 600; Johnson v. Waters, 111 U.S ... 640, 4 S.Ct. 619, 28 L.Ed. 547; Arrowsmith v ... Gleason, 129 U.S ... ...
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...a party of the benefits of a decree obtained in a state court through fraud. One of the cases relied upon by the plaintiff is Rhino v. Emery (C. C. A.) 72 F. 382, opinion by Judge Taft (later Chief Justice). This language appears in the opinion, 72 F. 382, at page 386: "More than this, the ......
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...the Bigford will had been procured by fraud, plaintiff was not permitted to impeach it on that ground. Plaintiff cites the case of Rhino v. Emery, 72 F. 382, which validity of certain probate proceedings not involving a will was attacked for fraud, and it was held a federal court of equity ......