Richardson v. Green

• Decision Date: 19 April 1894
• Docket Number: 119.
• Citation: 61 F. 423
• Parties: RICHARDSON et al. v. GREEN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F. 423

RICHARDSON et al. v. GREEN et al.

No. 119.

United States Court of Appeals, Ninth Circuit.

April 19, 1894

C. A Dolph and R. Williams, for appellants.

L. L McArthur and E. W. Bingham, for appellees.

Before McKENNA, Circuit Judge, and KNOWLES, District Judge.

KNOWLES District Judge.

This was an action brought to cancel a certain deed purported to have been made by Philinda Terwilliger to her daughter, Julia Terwilliger, and also a certain will devising to said daughter certain real estate. Said instruments, among other charges concerning the same, are alleged to be forged, and for this reason their cancellation is sought. The bill of complaint is as follows:

'To the Honorable, the Judges of the Circuit Court of the United States for the District of Oregon: Clarinda Green Anna B. Green, Philinda Green, Mary F. Green, and Mary O. Green, a minor eleven years old, by her next friend, Mary F. Green, her mother, all residents of Nordhoff, Ventura county, state of California, and all citizens of said state of California, bring this, their bill, against James Terwilliger, Julia Terwilliger Richardson, and T. M. Richardson, her husband, who are all residents of Multnomah county, state of Oregon, and citizens of said state of Oregon. And thereupon your orators complain and say that the defendant James Terwilliger, and his wife, Philinda Terwilliger, became the owners by settlement, etc., of a donation land claim under the act of congress approved September 27, 1850, commonly called the 'Donation Law,' and the acts amendatory thereof; said claim being notification No. 640, certificate No. 1,078, and situate and described as follows: 'Claim 39, notification 640, certificate 1,078, situate in section 9, 10, 15, and 16, in township 1 south, range 1 east, Willamette meridian, containing 630 and 34-100 acres, in Multnomah county, state of Oregon. That the east half of said claim was duly designated by the surveyor general to be held by said wife, Philinda Terwilliger, in her own right. That said Philinda Terwilliger, while still seised as aforesaid of a large portion of said claim, to wit, about 150 acres of the east half of said claim, of the value, at this time, of not less than $25,000, died intestate on or about October * * *, 1873. That said Philinda Terwilliger had living at the time of her death two children, namely, William O. Green, by her first husband, John H. Green, and the defendant Julia, now intermarried with defendant T. M. Richardson; and that they, said William O. Green and said Julia, were the sole heirs of the said Philinda Terwilliger, and succeeded by inheritance to all the real property of the said Philinda Terwilliger, subject to the estate by the curtesy therein of her said husband, the defendant James Terwilliger. That said James Terwilliger, ever since the death of his said wife, Philinda Terwilliger, has been, and still is, in the lawful possession of all said property as tenant by the curtesy. That your orator Mary F. Green was the wife of said William O. Green, and that said William O. Green died intestate on or about May 21, 1878, without ever having sold or disposed of his interest, or any portion therein, in the estate of his mother, said Philinda Terwilliger. That said William O. Green had by his said wife the following named children, who survived him, and were his sole heirs, to wit: Fannie E. Green, and the complainants Clarinda Green, Anna B. Green, Philinda Green, and Mary O. Green. That said Fannie E. Green, when eleven years old, died, on or about April 11, 1883, without her interest in said estate having been disposed of, leaving her said mother, Mary F. Green, and her said four sisters, her sole heirs. That your orator Mary F. Green is entitled to the undivided 1-50th part, and your other orators are each entitled to the undivided 6-50th parts, and the defendant Julia Richardson is entitled to the undivided 25-50th parts of all the real property which the said Philinda Terwilliger owned at the time of her death, subject to the estate of the said James Terwilliger therein as tenant by the curtesy. That for several years prior to and up to the time of the death of the said Philinda Terwilliger she resided on said claim with the defendants James Terwilliger, and their said daughter, Julia. That soon after the death of said Philinda Terwilliger, said daughter Julia and said T. M. Richardson were intermarried, and that they and the other defendant, James Terwilliger, have ever since resided together. That the defendants have informed your orator that said Philinda Terwilliger had willed all of said real property to her said daughter Julia, to the entire exclusion of your orators, and that the defendants had the will in their possession; and at other times defendants have stated that said Philinda Terwilliger had deeded said real property to said Julia, and that said James Terwilliger had the deed. Your orators are informed and believe and allege that the defendants have such a pretended deed in their possession or under their control, but your orators allege and charge that any will and any deed which the defendants have, or either of them has, or under which defendants claim, or either of them claims, which purports to divest your orators of any rights or interest which they have as aforesaid in the estate of said Philinda Terwilliger as heirs at law is a false, forged, and fraudulent instrument. Your orators allege that no will of said Philinda Terwilliger has ever been filed for probate, nor has any deed from her to any of the defendants ever been filed for record, nor has said pretended deed or will ever been exhibited to your orators; wherefore your orators are unable to give a more particular description of said alleged writing, or of its contents. Your orators allege and charge that the said several claims, representations, and pretensions of the defendants are wholly false, and are made by them for the purpose and with the intent of injuring your orators, and defrauding them of their said estate, and that the defendants purposely withhold said alleged will from probate, or said alleged deed from record, and from the inspection of your orators, in order that the evidence of the validity of said deed or will may be lost or obscured by lapse of time, and in order that the witnesses, or pretended witnesses, to said will or deed may die before the existence of such instrument becomes known, and in order that your orators may be disabled from contesting its invalidity with as much ability and force as they might have done if the same had been produced and proven or recorded at the proper time. Your orators allege that said James Terwilliger, since the death of his wife, Philinda Terwilliger, has sold considerable portions of said east half of said claim, and conveyed by deeds purporting to convey title to the same in fee simple. And that your orators believe, and therefore allege, that if he is not restrained by this honorable court, he will likewise sell and convey other portions thereof, and thereby throw a further cloud upon the title of your orators. In consideration whereof, and forasmuch as your orators are remediless in the premises by any action at law,' etc.

Then follows the prayer to the bill, and also some seven interrogatories propounded to defendants as to their knowledge of said deed or will or both, and as to where the same are, and as to whether they claim to own an interest in said land, etc. To this bill defendants filed a demurrer, on the grounds: First, that the matter specified therein is within the jurisdiction of courts of probate, and is not within the jurisdiction of the circuit court; and, further, because there is not in the bill such a statement of such a case as entitled plaintiffs to any discovery from defendants, or to any relief against them, or either of them. This demurrer was overruled by Judge Deady. Subsequently defendants filed their plea in bar to said bill, setting forth the execution of the will by Philinda Terwilliger, and the probate of the same by the county court of Multnomah county, state of Oregon, on the 27th day of March, 1889. This was overruled. Defendants then filed their answer to the bill, denying the allegations of the same as to the forgery of the will and deed, and alleged that both were duly executed, and then alleged that the will was probated as set forth in the plea. Upon the bill, answer, and replication, the cause went to trial, and upon the facts the court found that both deed and will were forgeries. It will be seen that the parties have changed somewhat since the commencement of the cause, Julia Richardson having died in the mean time, and two of the plaintiffs having married.

The first question for consideration: Did the circuit court have jurisdiction of this cause, or was it within the exclusive jurisdiction of the county court of Multnomah county, Or where Philinda Terwilliger died? The constitution of the state of Oregon provides that 'the county court shall have the jurisdiction pertaining to probate courts,' etc. Const. art. 7, Sec. 12. The laws of Oregon provide: 'The county court has the exclusive jurisdiction in the first instance pertaining to a court of probate, that is, (1) to take proof of will. ' There is no definition which describes generally the jurisdiction pertaining to probate courts. They are courts created, as a rule, by statute, and their jurisdiction defined by statute. In each state where such courts exist their powers are defined by its laws. Often powers are given to them which are different from those which pertain to such courts in any other state. There is no common-law definition which applies to such courts. In considering the constitution of Oregon, then, we must have recourse to ...