In re Estate of McClean, 26 F. 49

In re Estate of McClean

26 F. 49 | U.S. Circuit Court for the District of Western Pennsylvania | 1885

Aohesox, J.

Undoubtedly, in resolving the question of jurisdiction, regard must he had to the state of the record as it was when the petition for removal was filed. But, discarding the subsequent order of the state court, how stands the case in respect to the parties ? On the one side we find Mrs. Susanna MeClean, A. J. Pentecost, guardian of Harry MeClean, a minor, and William H. Parsons, guardian of Florence H. MeClean,’a minor, and on the other side Abdiel McClure. Now, according to the allegations of the petition for removal, all these parties are citizens of the state of Pennsylvania, except William H. Parsons, and his ward. Is there disclosed, then, in the suit “a controversy which is wholly between citizens of different states, and which can be fully determined as between them?” For the proper solution of the problem we must consider the subject-matter of the suit, and this we discover to be a testamentary trust; Mrs. MeClean and the two named minors being the beneficiaries, and Abdiel McClure the trustee. In the state court Mrs. MeClean and the guardians of the two minors joined in filing exceptions to the account of the trustee. The object of the proceeding is the enforcement of the testamentary trust,- — the preservation of the trust estate, and its due administration. Now, certainly, all the beneficiaries are directly interested in the relief sought, and the presence of all the named parties would seem to be necessary for full and complete redress. Winchester v. Loud, 108 U. S. 130; S. C. 2 Sup. Ct. Rep. 311. I am, then, of opinion that there is here no separable controversy, within the meaning of the removal act, between William H. Parsons, guardian of Florence II. MeClean, and the testamentary trustee.

Nor would the case be removable were the proposed amendment (averring that the minor, Harry MeClean, is a citizen of the state of New York) allowed; Cor not only would the citizenship of Mrs. Mc-*50Clean remain as an obstacle to a removal, but tbe question of jurisdiction is to be tested by the citizenship of Pentecost, the guardian, and not by that of his ward. Coal Co. v. Blatchford, 11 Wall. 172.

The suit must be remanded to the orphans’ court of Allegheny county, and it is so ordered.