Stead v. Curtis

• Decision Date: 02 October 1911
• Docket Number: 1,899.
• Citation: 191 F. 529
• Parties: STEAD et al. v. CURTIS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F. 529

STEAD et al. v. CURTIS et al.

No. 1,899.

United States Court of Appeals, Ninth Circuit.

October 2, 1911

On Rehearing, December 4, 1911.

The amended bill of complaint herein shows the following: Jacob Z. Davis died October 28, 1896, leaving neither wife nor lineal descendants, but there survived him Catherine D Stead, a niece, and Joseph P. Wilson and Jacob D. Wilson nephews, the children of a deceased sister, who were his only next of kin. Jacob D. Wilson died November 10, 1896, leaving surviving him Elizabeth V. Wilson, his widow, and four children, all above the age of 21 years, namely, Samuel S Wilson, Jacob D. Wilson, Annie C. Childs, and Elizabeth Bonifas. Elizabeth Bonifas died July 18, 1906, leaving surviving her John D. Bonifas, her husband, and one son Albert W. Bonifas. Joseph P. Wilson died since the institution of this suit, and Horace W. Philbrook is the administrator of his estate with will annexed. His heirs are Serena K. Wilson, his widow, Elizabeth A. Burgan, married to Franklin S. Burgan, Ellwood J. Wilson, Martha E. Dowell, married to George W. Dowell, and Joseph P. Wilson, Jr. It is alleged that Catherine D. Stead, Joseph P. Wilson and Jacob D. Wilson became, at the death of Davis, the owners each of an undivided one-third of all the property of which Davis died seised and possessed, and the heirs of such of said parties as are now deceased are entitled to the interest of their ancestors in such property. At the time of the death of Davis he was an equal partner with one Alexander Boyd, under the firm name of Boyd & Davis, and Boyd was the owner as tenant in common in equal shares of all the property of which Davis died seised and possessed, except his residence and household furniture. Jean McGregor Boyd was the reputed wife of Alexander Boyd, and they together on April 12, 1899, purchased with the money of the firm of Boyd & Davis a certain piece of real property, and on March 29, 1901, so purchased another piece, both of which are now held and possessed by Jean McGregor Boyd. The defendants Belle Curtis and Lizzie Muir, the latter of whom married Mugan, are sisters and of no blood relation to Davis, and Jean McGregor Boyd is their aunt, being a sister of their mother.

These facts appearing, it is thereupon further alleged: That about the 16th day of September, 1896, when Davis was contemplating a trip to Philadelphia, Pa., Belle Curtis and Lizzie Muir, and their husbands, and Jean McGregor Boyd, entered into a wicked conspiracy among themselves to seize upon and appropriate the property of Davis. That Belle Curtis and Lizzie Muir accompanied Davis East, and continued to travel with him until he died in the city of Philadelphia. That, in furtherance of said conspiracy, the said parties at some time between September 16 and November 16, 1896, secretly and fraudulently made and produced a certain writing in similitude of the handwriting of Davis, in language as follows: 'Oct. 1st, 1896. I, Jacob Z. Davis, will and bequeath everything I have in this world to my beloved nieces Lizzie Muir and Belle Curtis. Jacob Z. Davis. ' And pretended that the same was the holographic will of Jacob Z. Davis. That on said November 16, 1896, Belle Curtis and Lizzie Muir produced said pretended will in the superior court of the state of California in and for the city and county of San Francisco, and by petition filed in said court prayed that said paper be admitted to probate. That thereupon notice was issued by the clerk that Monday, November 30, 1896, had been appointed by the court as the time for proving the will and the issuance of letters testamentary to petitioners. That on November 30th the cause was transferred to J. V. Coffey, judge of department 9, for hearing and all further proceedings. That the proof of the publication of said notice was filed in court, but that it was not verified by the party making it. That Catherine D. Stead and Joseph P. Wilson by their attorneys appeared in court on November 30, 1896, and Elizabeth V. Wilson likewise appeared May 15, 1897, and filed their opposition to the probate of said instrument, alleging that it was a forgery, whereupon the petitioners replied, and the cause was tried before a jury. That on August 16, 1897, the jury returned a verdict finding that the instrument purporting to be the last will and testament of Jacob Z. Davis was entirely written and signed by his own hand, and was his genuine will. That on the day following said will was admitted to probate, and Lizzie Muir and Belle Curtis were appointed administratrices with will annexed. That from and after the 30th day of November, 1896, adjournments were taken from time to time by the court until July 22, 1897, but that no adjournment was taken to a day certain from that date, the court being adjourned and the cause continued until the . . . day of July, at . . . hour, the court convening again for the hearing of said cause on Monday, August 16, 1897. This as it appears from the record. But it is further alleged that said petition was heard in and by said court on divers days, but that no order or act of any kind was at any time given or made postponing the hearing to any day later than August 16th aforesaid, and that on that date the matter concerning said petition was adjourned without day and dropped absolutely; that the petitioners caused to be drawn on the jury four persons whose names were not regularly on the jury list, three of whom voted favoring the validity of the will, one, with two others of the panel voting against; that the said Belle Curtis, Lizzie Muir, and Jean McGregor Boyd, in pursuance of said conspiracy, caused perjured testimony to be introduced at said trial, and suppressed and caused to be suppressed certain other relevant and pertinent testimony to prove that said paper was not the genuine will of decedent; that Jean McGregor Boyd, through taking advantage of the mental weakness of Alexander Boyd, her husband, and by undue influence, caused the latter on April 27, 1898, to convey to her by a certain trust deed all his interest in the property of the firm of Boyd & Davis; that about the 1st day of May, 1898, the said Belle Curtis, Lizzie Muir, and Jean McGregor Boyd, in further pursuance of the conspiracy, caused three deeds to be carried by the hand of one of the attorneys appearing for contestants in the proceeding yo establish and probate the said pretended will of Davis, one to Catherine D. Stead, one to Joseph P. Wilson, and the other to Elizabeth V. Wilson, wife, and Samuel S. Wilson, Jacob D. Wilson, Jr., Annie C. Childs, and Elizabeth Bonifas, heirs of Jacob D. Wilson, deceased, for their execution, releasing to Belle Curtis and Lizzie Muir all and each of their right, title, and interest in and to the estate of Davis, deceased, and that said attorney caused them to execute each of said deeds, whereupon, on or about the 23d day of June, 1898, said deeds were delivered to the grantees, and by them recorded; that the consideration paid by Belle Curtis and Lizzie Muir for said conveyances was the sum of $100,000, of which one-half was paid to the attorneys of the grantors, and, after paying the expenses of litigation, the balance, consisting of $37,500, was paid to them, and that the $100,000 was a part of the estate of Jacob Z. Davis, deceased; that thereafter, by partial distributions made from time to time by order of the court, the property of the estate of Davis, deceased, was wholly distributed and divided between the said Belle Curtis and Lizzie Muir, the last order of the court having been made and entered on May 4, 1904; that neither at the time of executing the deeds aforesaid, nor at any time since until the 25th day of June, 1906, did the said grantors in said deeds have any knowledge, notice, or information touching the alleged conspiracy to defraud them of their property and estate; that the said Belle Curtis, Lizzie Muir, and Jean McGregor Boyd have made divers divisions and distributions among themselves of the estate of Boyd and Davis, and the said Belle Curtis and Lizzie Muir have, with the funds of the Davis estate, purchased other real property, the same being particularly described, and are now in possession thereof.

The defendants named other than those alleged to be concerned in the conspiracy and their husbands are alleged to either own parcels of the property previously belonging to the Davis estate, or certain interests therein by way of leases, or to have liens thereon, all with constructive notice of the alleged fraud of the supposed conspiracy.

The plaintiffs pray a cancellation of the two deeds, one executed by Catherine D. Stead to Belle Curtis and Lizzie Muir, and the other by Joseph P. Wilson to the same parties; also, that the probate of the pretended will of Jacob Z. Davis be set aside and annulled; that the said will be declared void; and that plaintiffs be declared the owners and entitled to the possession of an undivided two-thirds of the property of which Davis died seised and possessed and of such as was subsequently purchased with the moneys of his estate, and for further relief.

Demurrers were interposed to the bill, and, being sustained, the plaintiffs appeal.

Horace W. Philbrook, for appellants.

J. C. Campbell, W. H. Metson, John S. Partridge, F. A. Cutler, Mountford S. Wilson, Charles H. Lovell, Charles Page, and C. Irving Wright, for appellees.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

The foregoing synopsis of the bill of complaint contains in a brief way all that is deemed material to the cause of suit. Many things are pleaded that seem to us to be wholly immaterial and irrelevant, not to speak of much that is scandalous and impertinent. But, waiving...