United States v. Jenkins, Civ. No. 901.

• Decision Date: 25 June 1957
• Docket Number: Civ. No. 901.
• Parties: UNITED STATES of America, Plaintiff, v. Wilson Heyward JENKINS as Executor of the Estate of Mary M. Jenkins, Defendant.
• Court: U.S. District Court — Southern District of Georgia

153 F. Supp. 636

UNITED STATES of America, Plaintiff, v. Wilson Heyward JENKINS as Executor of the Estate of Mary M. Jenkins, Defendant.

Civ. No. 901.

United States District Court S. D. Georgia, Savannah Division.

June 25, 1957.

William C. Calhoun, U. S. Atty., Augusta, Ga., and Joseph B. Bergen, Asst. U. S. Atty., Savannah, Ga., for plaintiff.

John J. Bouhan, and Samuel A. Cann (of Bouhan, Lawrence, Williams & Levy), Savannah, Ga., for defendant.

SCARLETT, District Judge.

The plaintiff in the above-captioned case filed a suit in Equity in this court alleging that the instant defendant as an executor of an estate refuses to assent to certain legacies to himself in his individual capacity as sole heir of the estate in question for the purpose of defeating the rights of the plaintiff as creditor of the legatee and devisee of the decedent's estate.

The plaintiff prays that the defendant as executor of the estate of the decedent be required to assent to and make titles in and to himself, individually, as sole heir and beneficiary of the decedent's estate to so much real property belonging to the said estate that would satisfy plaintiff's judgment against him individually which was rendered in this court in Civil Action No. 822 and reported in D.C., 141 F.Supp. 499; and affirmed by a Per Curiam opinion in 5 Cir., 238 F.2d 83, or in the alternative the defendant be required to assent to a legacy in the form of bank deposits and income received by the estate so that garnishment judgment can be obtained against the defendant as executor of the said estate to satisfy the plaintiff's judgment against him individually.

An order to show cause why the plaintiff should not be entitled to relief as sought in this action was issued against the defendant. Subsequently, the defendant filed a motion to dismiss the plaintiff's suit in Equity alleging that the plaintiff's petition set forth no cause of action; that the plaintiff has a remedy at law in the State Court of Ordinary; and, that the plaintiff has not exhausted its remedies in law or equity in the State courts. The defendant also filed an answer to the instant suit which in essence denied liability to the plaintiff; denied that all debts against the estate have been paid; denied that he has authority to execute an executor's deed since the will in question has not been probated in solemn form; sets out certain assets and liabilities of the estate; contends that the Government still has a right to question the amount of the estate taxes and income taxes due by the decedent and legatee jointly; and, restates the grounds for his motion to dismiss.

On February 13, 1957, a hearing was held at Savannah, Georgia, and argument was heard by both parties after which briefs to support the opposite positions were requested and received by the Court. The defendant filed with his brief as an exhibit an assent to devise real estate sufficient to satisfy a levy and sale under the judgment sought to be collected by the Government. The defendant in this indenture set out that the estate had been probated in solemn form and that there is no further necessity for administration of the estate in question. The defendant amended his brief by letter to advise that the Supreme Court of the United States by another Per Curiam decision granted the Government's motion to dismiss the defendant's appeal to that Court on March 11, 1957, Case No. 697, October Term 1956. 352 U.S. 1029, 77 S.Ct. 595, 1 L.Ed.2d 598.

The plaintiff in its brief insists upon a judgment placing title to the heretofore mentioned bank account and income in the sole heir to the estate and judgment debtor of the plaintiff and declares that it does not wish to proceed against the legatee's property since the legatee through his attorney avowed at the hearing of this cause that he would file an affidavit of illegality for the expressed purpose of placing the proceedings back into prolonged litigation should the Government levy on this property.

The defendant admitted at the hearing that as of February 8, 1957, he possessed $5,693.84 on deposit at the Atlantic Savings and Trust Company, Savannah, Georgia, and that he received a semiannual income of $5,000 for the sale of certain property belonging to the decedent in Liberty County, Georgia, to the Browning Lumber Company of Riceboro, Georgia, and would continue to receive this income until the purchase price of said property in the amount of $105,000 has been paid.

Findings of Fact and Conclusions of Law.

This Court is of the considered opinion that the defendant's motion to dismiss should be denied in that the plaintiff is entitled to judgment as prayed.

Jurisdiction for this Court to entertain the Government's suit in Equity may be found in Camp v. Field, C.C., 189 F. 285, which held:

"Suit instituted * * * to compel an executor to assent to a legacy * * * is a suit in equity, independent of and distinct from the administration of testator's estate by the ordinary's court, and may be removed to the federal court on the ground of diversity of citizenship."

To support the Government's right to require assent see Wills and Administration of Estates in Georgia by Redfearn, page 252:

"* * * the executor cannot withhold his assent for the purpose of defeating the rights of creditors of legatees, nor can he capriciously give his assent for the purpose of defeating the rights of creditors of the testator's estate. Equity will protect the rights of all parties."

Also see Code, § 113-802 and subsequent case annotations.

Concerning the defendant's denial that the debt against the legatee was due at the time of his answer this Court judicially knows that judgment in the amount in question was rendered by this Court and affirmed in the Fifth Circuit Court of Appeals and that the decision was then appealed to the Supreme Court of the United States; however, this suit which was filed for the purpose of collecting this judgment was heard prior to the Supreme Court's decision in view of the fact that the record shows that the defendant failed to comply with Rule 18 of the United States Supreme Court Revised Rules, 28 U.S.C.A. which require that an appellant tender a supersedeas bond for the satisfaction of the judgment in full if the stay of the enforcement of the judgment appealed from is to act as a supersedeas. See Stafford v. Union Bank, Tex.1854, 17 How. 275, 15 L.Ed. 101:

"When an appeal is allowed, security must be taken in the amount of the judgment or the decree will not be superseded, and the judge must issue process on application of plaintiff."

The record also shows that the appellant failed to give bond on his appeal to the Court of Appeals as required by Rule 62 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and thus subjectted himself to enforcement action by the plaintiff here. See Barron and Holtzoff, Federal Practice and Procedure, Volume 3, page 297, which states as follows:

"If the bond required by Rule 62 (d) has not been given, the pendency of an appeal does not prevent proceedings in other courts to enforce the judgment." (Citation.)

The Fifth Circuit Court of Appeals acting on the plaintiff's motion for mandate on the ground that bond had not been given, advised through its Clerk on January 26, 1957, that an oral opinion was rendered to the effect that since there was no supersedeas filed below the pendency of an appeal did not prevent plaintiff from proceeding on the judgment and the withholding of the mandate will not prevent it from...