Shafer v. Children's Hospital Soc. of Los Angeles, Cal.

• Decision Date: 26 February 1959
• Docket Number: No. 14478.,14478.
• Citation: 105 US App. DC 123,265 F.2d 107
• Parties: Verna Z. SHAFER, Appellant, v. CHILDREN'S HOSPITAL SOCIETY OF LOS ANGELES, CALIFORNIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 123, 265 F.2d 107 (1959)

Verna Z. SHAFER, Appellant, v. CHILDREN'S HOSPITAL SOCIETY OF LOS ANGELES, CALIFORNIA, et al., Appellees.

No. 14478.

United States Court of Appeals District of Columbia Circuit.

Argued November 18, 1958.

Decided February 26, 1959.

Mr. Richard V. Waldron, Washington, D. C., for appellant.

Mr. Harry E. Taylor, Washington, D. C., also entered an appearance for appellant.

Mr. Robert L. Wright, Washington, D. C., for appellees.

Before WILBUR K. MILLER, BAZELON and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

This case was instituted by the filing of a petition by the sister of decedent, in material part alleging that one Clarence Edward Tunnell was a citizen of the United States, a resident of the District of Columbia, and died on October 29, 1957, in the District of Columbia; that decedent left a writing dated June 20, 1953, which is on file in the Office of the Register of Wills of the District of Columbia; that the writing is not a valid will, not having been witnessed as required by law; and that there was no other will of decedent. The petition further alleges that the decedent was unmarried and that his only heir at law and next of kin is the petitioning sister, appellant herein.

It is further alleged that decedent left no real estate in the District of Columbia but left certain unimproved real estate in San Diego, California, assessed at $1,240; that he left personal property in the District of Columbia of the value of some $25,000, consisting of shares of stock, cash and bank and building association accounts, and deposits of about $2,200 in building association accounts in California. The petition further alleges that the stocks, cash and bank and building association records were in the safe deposit box¹ of the decedent at the Union Trust Company of Washington, D. C., except that certain miscellaneous items had been taken over by the Metropolitan Police Department on the death of decedent; and that there was some tangible personal property of no value stored in Los Angeles, California. The petition prayed that the writing dated April 20, 1953, be denied probate and record, and that letters of administration be granted to the sister's attorney.

By amendment to the petition, it was set forth that the decedent moved to the District of Columbia in 1933, since which time he continuously lived here and, from 1939, continuously maintained a residence at 1424 Massachusetts Avenue, N. W., in the District of Columbia, until the date of his death; and that decedent was a disabled veteran of World War I and had not been employed for a number of years prior to his death.

The paper, which was in the handwriting of testator, was unwitnessed. It contained, among others, the statement: "My legal residence is Los Angeles, California, it has been since 1916 and I enlisted there in the United States Army in 1917." It left his estate to parties other than the sister of decedent. All parties beneficiary were served with substituted process; two of the three appeared in the administration cause, filed answer, and alleged that decedent was, at the time of his death and at the time of the execution of the writing, legally domiciled in California, that the writing was valid under the laws of that state, and that it would be presented for probate at Los Angeles.

The petition and the answer came on for hearing before the court but, apparently, without the taking of any testimony on the subject of domicile. The court entered the order appealed from, which reads as follows:

"This cause having come on to be heard upon the petition of Verna Z. Shafer for an order denying probate to a document on file in the Office of the Register of Wills for the District of Columbia, designated by the above named decedent as his Last Will and Testament, the Court having heard the argument of counsel, and it appearing that no petition for the probate of said document has yet been filed in this Court, and that a petition for probate of the said document has been filed on behalf of one of the beneficiaries named therein in the Superior Court of the State of California in and for the County of Los Angeles.

"It Is Hereby Ordered, Adjudged and Decreed That:

"The foregoing petition of Verna Z. Shafer is denied without prejudice to refiling such a petition when and if the aforesaid California Court declines to assume jurisdiction of the aforesaid petition for probate."

Appellant filed a motion for rehearing, asking that the court frame an issue on the question of domicile, to be tried by a jury in the District Court. This motion for rehearing was overruled and this appeal followed.

Our dissenting brother is of the view that the appeal is premature, although appellees make no such claim. The file of the Office of the Register of Wills, of which we take judicial notice, shows the following minute entries on the face of the file jacket:

"Feb. 10, 1958 — Petition for letters of administration and amended petition argued and denied, with leave to reinstate if and when the California court denies jurisdiction. Judge Letts"

The order on this was filed fourteen days later, February 24, 1958.²

"Mar. 17, 1958 — Motion for rehearing and to have issue of domicile tried by jury; denied, Letts, J."

Although it is apparent from the minute entry that the judge announced his decision on the motion for rehearing on March 17, 1958, it was not until April 16, 1958, that the order thereon was entered. In the meantime and on April 15, 1958, the notice of appeal was filed.

We do not know whether appellant treated the motion for rehearing as denied on March 17, 1958, the date of the minute entry, or whether the formal order of denial was handed to the judge on April 15 and not entered until the 16th. But in any event it is clear that, since the motion for rehearing tolled the time for appealing the order of February 24, 1958, the present appeal from that order may be said to be within time. Fed.R.Civ.P. 73(a), 28 U.S.C.A.

Nor do we think that the appeal should be dismissed on the ground that it offends Rule 54(b). The petition did not make two claims. It had only one purpose; namely, the securing of administration. Section 20-201, D.C. Code (1951), provides that on the death of any person leaving real or personal estate in the District, letters of administration on his estate may be granted, on the application of any person interested, on proof satisfactory to the probate court that the decedent died intestate. Accordingly, the petition properly asked for letters of administration and necessarily claimed that decedent died intestate, as he obviously did under the laws of the District of Columbia, the will being unwitnessed. That claim was just as necessary as was the claim that the decedent left personal or real estate in the District of Columbia.

It cannot be said that the order in this case was not a final order. It referred to the "petition" of appellant, and it was the "petition" which it dismissed. It left only a right to again petition if, and only if, and when the California court did not assume jurisdiction.

On the merits we think the court should have framed an issue on the question of domicile and should have set the case for hearing before a jury. Accordingly, the order of the District Court must be reversed and the cause remanded for that purpose.

It is clear that the District Court had jurisdiction to order the framing of this issue. Appellees here urged, and the District Court held, that "no petition for the probate of said document has yet been filed in this Court." However, the question of the probate of the document was before the court, although only incidental to the plea for administration. Naturally no purpose would be served by filing such a petition for probate because the document could not be admitted to probate here, it not having been executed in accordance with the law in force in the District of Columbia. It seems to us that the prayer for rejection is all that is required, and appellant had asked, in accordance with the practice prevailing in the Probate Court, that administration be granted and the writing be denied probate.

The issue of domicile was thus raised in the answer of the appellees. The original petition, as do most petitions for probate or administration filed with the Register of Wills, simply alleged residence. The answer set up the claim that the domicile of the decedent was actually in California. This raised an issue which should have been tried before a jury. Domicile is a preliminary issue, even if there are other issues later to be tried. This issue being once determined, the court here would then be in position, if domicile be determined to be the District of Columbia, to grant administration or, if domicile be determined to be the State of California, to send the will to that state.

The fact is that the purported will has never left the District of Columbia, despite which the court in California acted. It further appears that the proceeding in the California court was instituted after appellant had commenced her action here for the denial of the writing and for letters of administration. The petition for letters of administration was filed here on November 29, 1957, and the records of the Register of Wills here indicate that it was not until January 27, 1958, that counsel for appellees obtained from that office a certified copy of the writing.³

The case of Overby v. Gordon, 177 U. S. 214, 20 S.Ct. 603, 44 L.Ed. 741, is closely akin to the instant case. There the proceedings originated in the Supreme Court of the District of Columbia, 13 App.D.C. 392 (now the United States District Court for the District of Columbia) on a petition filed January 23, 1896, to obtain probate, as the last will and testament of Hugh A. Haralson, of a paper purported to have been executed by him and for a grant of letters of administration, c. t. a. It was claimed that Haralson had...