United States v. Swanson, Civ. No. 70-47.

• Decision Date: 12 December 1947
• Docket Number: Civ. No. 70-47.
• Parties: UNITED STATES v. SWANSON et al.
• Court: U.S. District Court — District of Nebraska

75 F. Supp. 118

UNITED STATES v. SWANSON et al.

Civ. No. 70-47.

District Court, D. Nebraska, Omaha Division.

December 12, 1947.

Joseph T. Votava, U. S. Atty., of Omaha, Neb., for plaintiff.

John C. Mullen, of Omaha, Neb., for Western Surety Co.

H. H. Halderson, of Newman Grove, Neb., for Clarence Swanson.

DONOHOE, District Judge.

Now on this 23d day of December, 1947, this cause came on for judgment, the case having been heretofore submitted upon the pleadings, a stipulation of facts, and documentary evidence made a part of the record upon the court's own motion. Briefs having been submitted by counsel and considered by the court, and the court having filed a memorandum opinion, including findings of fact and conclusions of law, the court now finds that there is due and owing to the United States of America, on the cause of action involved herein, the sum of $1,125.72, and that said moneys are due and owing from the estate of John Edvick Swanson, deceased, and from Clarence Swanson, as administrator of said estate.

It Is Therefore Ordered, Adjudged and Decreed, by the court, that the United States of America have and recover judgment against Clarence Swanson, administrator of the estate of John Edvick Swanson, deceased, in the sum of $1,125.72, together with interest at the rate of 5½% per annum from this date until paid, and costs of this action, which Clarence Swanson, as administrator, is obligated to pay to the United States of America in satisfaction of this judgment under penalty of a personal judgment against him and his surety.

It Is Further Ordered, Adjudged and Decreed, by the court, that unless said judgment is paid by the said administrator within 30 days from the entry hereof, that then and in that event the plaintiff have, and there is hereby awarded the plaintiff, a judgment against Clarence Swanson, individually, and against the Western Surety Company, a corporation, surety for Clarence Swanson, administrator, in the sum of $1,125.72, together with interest at the rate of 5½% per annum from date hereof, and the costs of this action. In the latter contingency, the plaintiff is granted a writ of execution against Clarence Swanson, and if such writ of execution is returned unsatisfied then, and in that event only, writ of execution shall issue against the surety.

Memorandum.

The United States of America has brought this action against Clarence Swanson, individually and as administrator of the estate of John Edvick Swanson, deceased, and Western Surety Company, a corporation, (the surety on the bond of Clarence Swanson as administrator) on a claim for money loaned by the Government, through the Secretary of Agriculture and the Governor of the Farm Credit Administration, to John Edvick Swanson during his lifetime, and evidenced by certain notes executed by him. The complaint prays for judgment against the defendants and each of them for the amount of the indebtedness with interest to date of payment and costs; for an injunction against the defendant Swanson prohibiting him from distributing any funds still in his hands before payment of the indebtedness; and that if the estate has been fully probated and funds thereof, which should be applicable to payment of the loans, have been distributed and disbursed by the administrator that the Government also have a judgment individually against the defendant Swanson and against his surety in the full amount of the Government's claim, with interest and costs.

The case has been submitted for decision upon the complaint and answer and a stipulation of facts.

From the admissions and agreements made in the pleadings and stipulation, the court makes the following special

Findings of Fact.

1. During the lifetime of John Edvick Swanson, the Government loaned to him, through the Secretary of Agriculture, the principal sum of $225, evidenced by his note dated April 2, 1932. No part of this loan has been paid except the sum of $46.19 paid on May 31, 1934, and the sum of $2.87 paid on September 3, 1935. The remainder of this note with interest at the rate of 5½% per annum accounting from November 30, 1932, is still due and owing. The Government also made to John Edvick Swanson during his lifetime the following further loans to wit: September 28, 1934, $100; October 28, 1934, $100; October 31, 1934, $70; December 20, 1934, $70; January 23, 1935, $70; February 28, 1935, $77; April 4, 1935, $89; and May 10, 1935, $25; all of which loans are evidenced by notes of John Edvick Swanson dated August 25, 1934, September 25, 1934, October 27, 1934, December 13, 1934, January 16, 1935, February 21, 1935, March 30, 1935 and May 4, 1935. No part of the aforesaid loans has been paid except that on July 2, 1945, the sum of $200 was paid on this indebtedness. The remainder of these loans, together with interest at the rate of 5½% per annum, accounting from the date of each loan advance until paid, is still due and owing.

2. John Edvick Swanson, a resident of Boone County, Nebraska, died on September 6, 1945. Proceedings for the administration of his estate are now pending before the County Court of Boone County, Nebraska, and the defendant Clarence Swanson is the qualified and acting administrator. The defendant Western Surety Company is surety on the bond of the defendant Swanson, as administrator.

3. Upon the qualification of Clarence Swanson as administrator, an order was entered by the County Court of Boone County, Nebraska, fixing the 13th day of April, 1946, as the last day for the filing of claims against the decedent's estate. A Notice to Creditors was duly published. On April 15, 1946, an order barring the filing of further claims against the estate was entered.

4. The Government did not file a claim against the decedent's estate on or before April 13, 1946, or before entry of the order barring the filing of further claims. Nor has the Government made application to the County Court of Boone County for leave to file a claim after claim day, namely April 13, 1946, or produced any showing or evidence of such application. However, on or about May 27, 1947, the Government, through the United States Attorney, forwarded to the County Judge of Boone County a letter enclosing a document designated "Notice of Indebtedness and Demand for Payment", describing the decedent's indebtedness to the Government and requesting that the Notice and Demand be filed in connection with the decedent's estate. This letter and enclosure were duly received by the County Judge. On the same day, the Government, through the United States Attorney, forwarded similar letters and enclosures to the defendant Swanson and his attorney. These letters were also duly received.

5. On June 6, 1947, the defendant Swanson filed in the administration proceeding his Final Report as Administrator and his Petition for Settlement of Final Account. The Final Report and Petition made no reference to the claim of the Government. A Notice of Hearing on the Final Report and Petition was duly published.

6. On June 28, 1947, the County Court of Boone County, ignoring the Government's claim, entered an Order Approving the Administrator's Final Report and finding that the decedent left no surviving widow, and that his heirs at law were certain sons and daughters and one granddaughter. All of the minor heirs are over the age of 14 years. The County Court found further in this Order that the decedent was not the owner of any real estate at the time of his death, and that there remained in the administrator's hands for distribution the sum of $1,570.35, and no other personal property. This sum is still in the hands of the defendant Swanson for distribution.

7. The Government, for a period exceeding 10 years during the decedent's lifetime, made no attempt to collect payment of the indebtedness now involved.

8. The Government admits that the defendant Swanson individually did not obtain any loan from the Government and is not indebted to it except as he may be obligated as being the same person as the administrator, or as he might become obligated if the administrator distributes the estate to him and he becomes a transferee of a part of the estate.

Opinion.

This is an ordinary and relatively simple action by the Government to establish, and recover on, a claim against a decedent's estate for money loaned to the decedent during the latter's lifetime. Jurisdiction is expressly granted by the provisions of Section 41(1) of Title 28 of the United States Code Annotated conferring upon district courts original jurisdiction "Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue * * *." It is immaterial that the amount in controversy is less than $3,000, the action being one brought by the United States. United States v. Sayward, 160 U.S. 493, 16 S.Ct. 371, 40 L.Ed. 508; 1 Cyc. of Fed. Proc., 2d Ed., Sec. 137 at pp. 333 and 334.

In his answer the defendant Swanson challenges this court's jurisdiction on the ground that the County Court of Boone County has exclusive jurisdiction over all matters involved. It is alleged that the County Court acquired jurisdiction over the decedent's estate prior to the commencement of the instant action, and that the County Court has sole and exclusive jurisdiction to control the fund now in the hands of the defendant Swanson as administrator, such fund being in custodia legis, and to order distribution thereof to the decedent's heirs at law.

The contentions founded upon these allegations are not meritorious in the light of the object and purpose of the Government's action.

Matters of a purely probate character are not within the jurisdiction of federal courts. Farrell v. O'Brien, 199 U.S. 89, 110, 25 S.Ct. 727, 50 L.Ed. 101; Sutton v. English, 246 U.S. 199, 205, 38 S.Ct. 254, 62 L.Ed. 664; O'Connor v. Slaker, 8 Cir., 22 F.2d 147; In re McDonald's Estate, D.C.Minn., 42 F.2d 266. However, the...