Stansbury v. Koss

• Citation: 10 F. Supp. 477
• Parties: STANSBURY v. KOSS et al.
• Decision Date: 28 December 1931
• Court: U.S. District Court — Southern District of New York

10 F. Supp. 477

STANSBURY v. KOSS et al.

District Court, S. D. New York.

December 24, 1931.

Supplemental Opinion December 28, 1931.

Arthur Garfield Hays, of New York City (Samuel Untermyer, Eugene Untermyer, and T. Raymond St. John, all of New York City, and Winfield P. Jones, of Atlanta, Ga., of counsel), for complainant.

George Flint Warren, Jr., of New York City (Emory R. Buckner, John M. Harlan, and Henry J. Friendly, all of New York City, of counsel), for defendants.

Barry, Wainwright, Thacher & Symmers, of New York City, for American Society for the Prevention of Cruelty to Animals, amicus curiæ.

MACK, Circuit Judge.

Plaintiff, a citizen of Mississippi, filed her bill on September 28, 1931, against Charles G. Koss, Isabel G. Koss, and George Stanley Shirk, individually and as executors named in the alleged last will and testament of Ella V. von E. Wendel, deceased, and as temporary administrators of her estate. She alleged that she was the next of kin of the decedent and that she had been fraudulently induced by defendants to execute an agreement not to contest the alleged will and, pursuant thereto, a formal waiver of citation and consent to probate. The prayer, in so far as it remains material in the light of plaintiff's subsequent limitation of the relief asked, is that the agreement and the consent and waiver be surrendered and canceled, and that defendants be enjoined from using them in connection with the probate of the will.

On the filing of the bill, an ex parte restraining order was granted; the motion for a temporary injunction was set for hearing three days later. By agreement, the matter was continued to a later date and was heard together with a motion filed by defendants on October 22, 1931, to dismiss the bill, or, in the alternative, to vacate the restraining order and to stay further proceedings pending final determination of the probate proceedings.

On September 25, 1931, three days prior to the date of the bill, defendants had filed a petition for probate in the Surrogate's Court of New York county, together with the agreement and the waiver and consent; on the same day, citation had issued to plaintiff and others returnable January 25, 1932. On September 28, 1931, plaintiff's attorney filed a notice in the probate proceedings asking service of a copy of the citation and all other notices and stating her intention to file a formal notice of appearance and to institute a proceeding for the cancellation of the agreement and waiver and consent. It does not affirmatively appear whether the notice was filed before or after this suit was begun on the same day; the statement of intention to institute just such a proceeding leads to the inference that the notice was first filed, but in his brief for plaintiff counsel states the contrary. It is unnecessary to detail the allegations of the bill or the affidavits of either party, in view of the conclusions of law that I have reached.

1. To establish that this court must refuse to assume jurisdiction herein defendants invoke the proposition that a federal court must dismiss a suit involving the same subject-matter as a suit in the nature of a suit in rem theretofore begun and pending in a state court. The principle relied upon is, however, not applicable in the present case. The instant suit involves only a single phase of the probate proceedings, a phase which, when isolated, reveals itself as a controversy traditionally resolved in a suit strictly in personam in equity. If it had been filed before the probate proceedings and while the document, executed pursuant to the agreement, embodying the appearance, waiver, and consent was still in the hands of defendants, it would have been an ordinary suit in personam to determine the validity of the agreement and to enjoin the defendants from using the consent document because of the alleged fraud. Such a suit would be in no sense a probate proceeding or a part thereof because the agreement affects the probate of a will, or in the nature of an action in rem because cancellation or surrender is sought of a specific res, the appearance, waiver, and consent to probate. Probate proceedings are in rem; moreover, in this country they are within the exclusive jurisdiction of the state courts. But it is well settled that actions or suits in personam, though affecting or establishing rights against the estate, such as the claims of creditors or beneficiaries, and thus incidental to the probate proceedings, in which the judgments or decrees may have to be filed in order to share in the estate, are within the jurisdiction of the federal courts, if there be the essential diversity of citizenship. See Riehle v. Margolies, 279 U. S. 218, 225, 226, 49 S. Ct. 310, 73 L. Ed. 669, and cases cited. Such a suit "`neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law.'" Kline v. Burke Construction Co. (1922) 260 U. S. 226, 232, 43 S. Ct. 79, 82, 67 L. Ed. 226, 24 A. L. R. 1077; Waterman v. Canal-Louisiana Bank Co. (1909) 215 U. S. 33, 46, 30 S. Ct. 10, 54 L. Ed. 80; Wells Fargo & Co. v. Taylor (1920) 254 U. S. 175, 41 S. Ct. 93, 65 L. Ed. 205; Grubb v. Public Utilities Commission (1930) 281 U. S. 470, 476, 50 S. Ct. 374, 74 L. Ed. 972; see Eddy v. Eddy, 168 F. 590, 598, 599 (C. C. A. 6, 1909).

2. But for recent legislation (Surrogate's Court Act N. Y. § 40, see In re Cook's Will, 244 N. Y. 63, 154 N. E. 823, 55 A. L. R. 806), the Surrogate's Court would be without jurisdiction either in the probate proceedings or otherwise to determine the issues involved in this case. A suit invoking the general equity jurisdiction of either a state or a federal court to cancel the agreement would have been necessary; such a suit could have been brought either before or after probate proceedings had been instituted.

That the Surrogate's Court has now acquired equity jurisdiction so as to enable it to determine the rights of the parties on the issues of this suit as effectively as could a state or federal court in equity does not in my judgment change the essential nature of the issues: a proceeding in the Surrogate's Court, whatever its form, to determine them, is not merged into the probate so as to become an integral part of it and thus to fall within the exclusive jurisdiction of the Surrogate. It remains in substance a separate and distinct suit in personam; as such, it falls within the jurisdiction of a court with general equity powers, whether federal or state, and as the filing of the document with the petition for probate would not have ousted the jurisdiction of a court of equity before the recent legislation, so, too, in my judgment, it does not now so operate. I hold, therefore, that the motion to dismiss the case for want of jurisdiction or of equity in a federal court must be denied.

3. This court then has jurisdiction to determine the rights of the parties and the validity of the documents. The important questions, however, are, How far can it go to make its findings effective? Can it enjoin defendants from using the waiver and consent document and thus from asserting in the Surrogate's Court that by virtue of the filing thereof with the petition plaintiff had appeared therein and had consented to the probate of the will?

If this controversy had arisen before equity jurisdiction was conferred on the Surrogate's Court, and if a suit like the instant suit had then been filed in the state Supreme Court, clearly that court could have stayed the probate proceedings until it should have determined the fraud issue, and if it found fraud, it could have permanently enjoined any use of the document. So, too, at the present time, the state...