192 F. 976 | U.S. Circuit Court for the District of Northern West Virginia | 1911
(after stating the facts as above).
But the question here is complicated by still another factor, that of the very limited powers of the “other” court, the county court, to grant plenary relief. The county courts of West Virginia were formerly courts of general jurisdiction, but, under the present Constitution (article 8, § 24
The probate administration, of wills by these county courts, as provided for by chapters 77, 85, 86, and 87, Code 1906, so far as here pertinent, may be condensed and stated to be as follows: The county court, or its clerk in vacation, takes proof of and admits the will to probate. If this is done by the clerk, he is required to report his action to the next term of the court for its confirmation. The executor, so soon as the will is admitted to probate, qualifies by taking the oath required and executing bond in such penalty as the court or the clerk acting may require, after which the court, or clerk acting, appoints not less than three nor more than five appraisers in each county wherein may be real estate, goods, or chattels of the deceased. These appraisers, after being sworn, are required to appraise at. its real and actual value all tangible personal property and all real estate which decedent’s personal representative is authorized by will to receive the rents from, or to lease or sell, which in their respective counties was owned by decedent at the time of his death. They are further required to list all intangible property, including moneys, credits, investments, annuities, insurance policies, shares of stock, judgments, notes, bonds, and evidences of debt. These appraisements must be returned to the clerk of the county court and by him recorded, and they are made prima facie evidence of the value of the estate, and that it came to the hands of the personal representative. The executor is then required to sell, at public auction, personal property sufficient to pay funeral expenses, charges of administration, debts, and legacies, “having regard to the privilege of specific legacies.” He is charged with the obligation, within four months after his appointment, of returning to the clerk, for recordation, an inventory of the estate. This inventory may be the appraisements if signed by him. Also, within four months after sales madfe of property, he is required to return report thereof. Failing to make such returns, he is subject to loss of commissions and to a fine, to be imposed, not by the county court, but by the circuit court of the county. Charged with the duty to administer the whole estate, he cannot, however, either sue for debts due to, or be sued for debts due from, his decedent, in the county court. This court has no jurisdiction in the premises. Resort must be had to the justices’, the intermediary, or circuit courts' for such purposes. If the personal estate is insufficient to pay debts, decedent’s real estate is chargeable therewith, but the county court has no jurisdiction to decree it for sale. For this purpose the executor or administrator has the right, within six months after his qualification, to institute his suit in equity in the state circuit court (or in the
Thus it will be seen that, while the probate jurisdiction in this state is vested in the county court, that court’s power is practically limited to ministerial and administrative functions, while the power to compel settlement, to punish for failure to do so, to sell and apply real assets, to compel distribution and to surcharge and falsify accounts,
Does the rule “that an enlargement of equitable rights resulting from a state statute may be enforced in a federal court of equity” (Street’s Fed. Eq. Prac. § 27, and cases cited) apply here?
But a - still further complication arises. All the estate of the testatrix involved here is that which may be derivable from the partnership composed of herself and her nephew, this executor. By law upon her death these partnership effects became vested in Geo. M. Stewart as surviving partner, and not as executor. If another had been appointed by the will and qualified as executor, the principles laid down in Byers v. McAuley could not apply because he could not, as such executor and officer of the probate court, have taken possession of these goods, and thereby secured to such probate court first and exclusive jurisdiction. His only power and duty in the premises would have been to collect from the surviving partner the value in money of his testatrix’s interest therein, and in this state, if suit were required for this purpose, he could not institute it in the county court, the court of probate, but would be required to sue in other courts having judicial powers, just as in cases now where he seeks to sue for and collect any other debt due the estate of his decedent. Does the fact that the surviving partner and the executor are one and the same person change the principle involved so far as the question of jurisdiction here is concerned? Counsel for this executor earnestly insist upon an affirmative answer to this question, and cite in support of this contention the case of Moore v. Fidelity Trust Company (C. C.) 134 Fed. 489, affirmed by the Circuit Court of Appeals for the Third Circuit in Moore v. Fidelity Trust Co., 138 Fed. 1, 70 C. C. A. 663, wherein it is held:
“Where the surviving partner of a firm was one of the executors of the estate of his deceased partner, the settlement of which was pending in the probate court of the state, which had full jurisdiction in equity to compel an accounting between the executors and by the surviving partner of his deceased partner’s interest in the firm, a bill by a distributee under the will to compel an accounting by such surviving partner and a payment of the amount found due to the executors for distribution was a suit looking to the mere administration of the estate, and was not therefore maintainable in the federal courts.”
This ruling deals with and is based upon Pennsylvania statutes and decisions. It expressly sets forth that the orphans’ court of that state was one having plenary equitable powers to settle the accounts of the executor as such and as surviving partner in these words:
*983 “By the law of Pennsylvania, its orphans’ courts are vested with exclusive jurisdiction of the estates of decedents. [138 Fed. 3, 70 C. C. A. 665.] * * * That court is a court of equity. It has jurisdiction of the assets belonging to the estate of Andrew M. Moore, and all parties in interest, including Sinnott, the surviving partner of the firm of Moore & Sinnott, are before it. The case is within its grasp, and its power is only limited by the necessities of the.case, and by its duty to administer equity in accordance with established rules. In such case it needs no other court to finish Its work. [138 Fed. 4, 70 C. C. A. 666.]”
Even under such conditions it is to be noted that Judge Acheson, senior member of the court, filed a strong dissenting opinion. 138 Fed. 1008, 70 C. C. A. 663. How can this case apply here, where' the probate court is not a court of equity; in fact, has no equitable powers whatever, and has no jurisdiction conferred upon it to settle partnership accounts? Illustrative of how statutory conditions govern such questions as these we may well cite Vincent v. Martin, 79 Ala. 540, where it is held:
“When the surviving partner becomes jointly with another person administrator of the estate of his deceased partner, he cannot make a settlement of the partnership accounts in the probate court in connection with the settlement of the administration; that court having no jurisdiction of partnership matters, nor of the settlement made by the administrator with himself in a dual capacity.”
And in this connection the opinion in Ball v. Tompkins (C. C.) 41 Fed. 486, based upon the law of Michigan, will be found interesting and instructive.
Careful consideration of all these questions has led me to these conclusions:
First. That in this state the county courts,' as courts of probate, have no equitable jurisdiction, and no power whatever to settle the accounts of a surviving partner. Such power being a well-recognized one in the practice of the English High Court of Chancery, with which the federal equity jurisdiction is commensurate, it is the duty of this court, as such court of equity, to settle such partnership accounts upon the prayer of these nonresident complainants.
Second. That, inasmuch as under the allegations of this bill charging substantially fraud, conversion, devastavit, and neglect to settle on the part of this executor, the state courts of equity, because of entire lack of power and equity jurisdiction in the county court as the court of probate, would entertain this bill for the purpose of compelling settlement and disbursement, this federal court of equity will do so also at least to the extent necessary to establish the amount, if there be any, due to these complainants as residuary legatees and to decree payment thereof
The plea to the jurisdiction will be overruled, and a reference to a master will be made to (a) settle the accounts of Stewart as surviving partner and ascertain the true amount due from him as such to the estate of Eliza Stewart, deceased; and (b) to ascertain the true amount due to complainants as residuary legatees from said George M. Stewart, as executor of said decedent, after being charged with the amount ascertained to be due from him as surviving partner.
Code 1906, p. lxxiv.