232 F. 921 | S.D. Ga. | 1916
Is there also jurisdiction in equity? The undisputed facts will answer. James M. Smith, on the 11th day of December, 1915, was visited by sudden death. Unmarried, a man of mysterious origin, abnormal methods of life, of strong and dominating mind, he had accumulated a fortune which many termed millionaire might well covet. As a peddler among a people in their utmost penury, he had
With such unresisting, such frantic labor, in recurring harvests for all the years of his manhood life, his broad .acres were white with the snowy luxuriance of cotton, or golden with corn anti grain. Shrewd, economical, from the teachings of thrifty trade in the days of poverty, he wéll knew the value’ of every penny, and his amassment of wealth was sure, steady, and swift. While no adequate estimate had yet been possible, that his accumulations may be counted by millions may not be doubted. But the inevitable hour came. The strong man fell, and on that day the shades of night had scarcely fallen when his millions were in the hands of four men, two his salaried servants, one a neighbor without right, and yet another the judge of the only state court of general jurisdiction with power to resist the wrong and to protect those entitled to inheritance from loss and injury. These men are termed temporary administrators. They are Mitchell, the dead man’s bookkeeper, Arnold, his neighbor, Holder, his manager, and Meadow, judge of the superior court.
To the dead man not one of them was even remotely related. While there were that day in the house of the dead, and about his corpse, those who it is now contended were of his inheritable blood, they were kept in utter ignorance of the scheme to seize administration. The four sped away after dark, found the ordinary, and obtained the appointment. The pretense for this precipitate action was the fear on the part of those acting that an illegitimate mulatto on the plantation (who claimed to be the son of James M. Smith), who at the time was under the influence of drink, would bring about a revolt or insurrection. To those who know the intrepid character of the white men of that section, this statement will not be impressive. Certainly it does not appreciably affect the mind of the court.
“No person shall be appointed administrator who is neither of kin to the intestate, nor a creditor, nor otherwise interested in the grant of administration, except in the cases before provided.”
*928 “If It could be made to appear that the judgment of the court of ordinary appointing the. * * * administrators was the result of a fraud perpetrated upon that court by a false representation, * * * it may be that the defendants would have a remedy by a direct proceeding in equity to set aside this judgment on the ground of fraud.”
The court concludes that, if the letters of administration were the result of a fraud perpetrated on the court by false representation that the necessary jurisdictional facts did exist, a court of equity would have power to set aside the judgment on the ground of fraud in its procurement. That the ordinary knew the falsity but aggravates the wrong. Then collusion would.be added to fraud.
“If any person, without authority of law, wrongfully intermeddles with * * * the personalty of a deceased individual whose estate has no legal representative, he shall be held and decreed an executor in his own wrong, and as such shall be liable * * * for double the value of the property, so possessed or converted by him.”
From the- order of the ordinary, void for fraud as to the jurisdictional averment, fraud which plaintiffs and interveners had no chance to meet, void because the ordinary exceeded his power (and the rule of eligibility extends to the appointment of administrators of “any sort”), void for reasons of public policy, because an appointee was a judge from whom relief might have been sought (2 Shouler on Executors and Administrators [5th Ed.] par. 1114), the plaintiffs and interveners are nevertheless denied all right of appeal. This order of appointment, then, unless the relief here sought is granted, has placed the vast power and influence of the decedent’s millions, of his lands, of his counsel, his employes and agents in the hands of men who, so far from being disinterested as the statute requires, are the avowed and immovable partisans of one class of claimants.
In their sworn answer they declare that the incontestable evidence shows the title in this class. It is composed of the descendants of Zadoc Smith. But this avowal in their answer, and this unequivocal declaration in favor of Zadoc Smith’s descendants, is not all, nor indeed the most potent and dangerous partisanship, their conduct has disclosed. Money, much money, was essential to support the claim of those whose cause these illegally appointed administrators had espoused. Flow was this to be obtained? A committee of ways and means, composed of the self-appointed administrators and certain potential counsel, was convened. One of the administrators is a Mr. Arnold. He is a - rich man, but does not esteem the possibility of dying rich as in even a slight degree a reproach upon his name and
The relating testimony of Mr. Erwin is as follows:
“Q. Now, Mr. Erwin, tell us what, if anything, you have done as temporary administrator to finance these people who claim this estate by reason of being descendants of Zadoc Smith? A. Well, I have indorsed note for Zadoc Smith for $350. I have indorsed note for Mr. Green and Henry Smith for $600. Q. Each? A. No, sir; $600 together. 1 secured loan for them, for the Mississippi heirs. Now, I don’t remember how much I got for each one. Q. Yon say you secured, that you made yourself personally liable? A. No, sir; they put up their interest in the estate as security. I negotiated the loan for them. Q. What form is that security in? A. It is a first lien on their interest, as I understand it. I never saw the papers. Q. Who holds them? A. The Commercial Bank holds some, and the Georgia National Bank. Q, For how much? A. I cannot say. Q. In your opinion? A. They aggregate in the neighborhood of $3,000 or $4,000. Q. That goes to the Mississippi heirs, Mississippi claimants? Any other than the Phoeby Smith descendants? I take it for granted that, when you speak of the Mississippi claimants, you mean those descended from, Robert Smith. Now, then, are any others included in that arrangement, except those descended from Robert Smith? A. Yes; Zed Smith. I do not know who he is descended from. I do not know what the name of his father was; but Zed Smith, and Henry, and I believe John L. over there. * * * I have never seen that paper, drawn by attorneys of bank and turned over to officer of hank. I understand that it is a first lien on their interest in the estate. Q. And you secured that? A. Yes, sir. Q. Are you indorser on that in any way? A. No, sir; not on that. * * * I am vice president of the Commercial Bank. Q. Now, then, is there any other arrangement for paying or advancing money to any of these claimants? A. No, sir; not that 1 know of. Q. What hope or prospect have you to be reimbursed in the instances in which you became personally liable, in the event these persons for whom you indorsed do not recover this estate? A. In some instancies I will got my money; in others, I will not. Q. You and they, in common, look forward to the recovery of this estate as the means of paying you, and reimbursing you? A. Yes, sir. Q. These obligations made to the bank, in which they have given a first lien on their interest in the estate, in the event they fail to recover their interest there, what is the prospect of the hank’s collecting on that? A. Where secured by first lien only, I think it would be very slim. Q. So that the security of the bank there, of which you are vice president, is also largely dependent on their success in this litigation? A. Yes, sir. Q. Now, something lias been said, Mr. Erwin, about advancing money to pay traveling and time, per diem, 'to various people who have attended as witnesses at Augusta and here. Tell us, please, just what that arrangement is? A. That is a note signed by the attorneys and administrators and heirs of Zadoc Smith’s descendants for $2,000, made to the Georgia National Bank, out of which wo pay their expenses and per diem. Q. (by the Court). You disburse the fund? A. Yes; I disbursed the fund myself. Q. You disburse the fund for the conduct of their litigation? A. That part of the $2,000 that has been expended. Q. (by Mr. Howard). Will*930 you say just who are the parties to that note or obligation? A. N. D. Arnold— Q. N. D. Arnold is now temporary administrator? A. Yes, sir. Q. Is he one of the persons selected by the same claimants for permanent administrator? A. Yes, sir. Q. You are also selected for permanent administrator by them? A. Yes, sir. Q. Who else is selected for permanent administrator? A. L. K. Smith. Q. And this note for $2,000, for that purpose, that is in the national bank? A. The Georgia National'Bank. Q. (by the Court). I would like to ask if the fund raised in the manner which you stated, where that fund is? A. It is in the Georgia National Bank, that portion that has not been expended. Q. All funds which have been raised for the purposes of the litigation, in the way you have mentioned, were deposited with the Georgia National Bank? A. Yes, sir. Q. Subject to whose check? A. Subject to my check, as agent. Q. As agent for the Zadoc Smith heirs? A. As agent for that fund, as I understood it. Q. Well, in whose interest are you agent? A: That is in the interest of the heirs. Q. The fund itself has no concern— A. That is in the interest of the heirs, the Zadoc Smith heirs.”
Not without significance are the large credits the persons assuming to be administrators now accorded the descendants of Zadoc Smith. Some lived in a remote section of an adjoining county ; some in distant states. If.these newly discovered, these voluntary, philanthropists had ever loaned them, or either of them, a penny in all the past, the evidence does not disclose it.
Other facts of grave import came 1o the knowledge of otner claimants. Hopeless in that famous Northern circuit, whose renown has been made enduring by Toombs, the Stephenses, Hill, Rewis, Reese, Billups, Reed, Thomas, Andrews, and many another on the bead roll of Georgia’s illustrious sons, they had to look elsewhere for initial justice — indeed, for the primal right to cross the threshold of a court of competent power.
Section 3999, Code of 1895 (Park’s Code, § 4596): “Equity will not interfere with the regular administration of estates, except upon application of the representative, either, first, for construction and direction; second, for marshalling the assets; or upon application of any person interested in the estate, where there is danger of loss or other injury to his interests.”
To this remedy, these interveners here, who claim to be the heirs of William and Rucinda Smith, and through their inheritable blood entitled to the estate of their alleged brother, James M. Smith, now resorted. The record bristles with facts tending to show danger of loss and injury to those entitled.
The ordinary, judge of a court of record, is not content with exemplifications therefrom, but is also a deponent for the defense. It was then, perhaps, not wholly without justification, when the counsel for the receivers, a member of the bar of such distinction that he had been United States attorney for half of the state of Georgia, remarked to one of the servants of the administrators that the law made for all should control, this man replied: “That don’t go in this county, when Marse Hamp says ‘No.’ ” As the soldiers of Lee termed their hero chieftain “Marse Robert,” so some of their sons and grandsons, it seems, there addressed the virile and versatile leading counsel for the defendants as “Marse Hamp.”
But the men who had resolved to control the estate of the dead millionaire were now not without apprehension. The resolute character of 'the judge who had enjoined them was well known. He indeed at once instituted proceedings to punish the contemptuous treatment of his decree. It was seen that something must be done. In a neighboring city, but in another judicial circuit, lived Judge Charles H. Brand. He w.as awakened at 2 o’clock in the morning by counsel for the illegal administrators. They now prayed for an injunction to forbid their own clients from turning over the assets to the receivers of Judge Fite. The injunction was granted. It is not surprising that during the hearing before this court the counsel for the administrators should disclaim any defense or benefit flowing from the injunctive order of Judge Brand. It is, however, before the court, and we cannot shut out the light it affords on the daring purpose of those who sought it to hold in this astonishing way the vast possessions of the decedent, to win the hundreds of thousands involved in commissions, fees, and the like^ with the probable effect of making a just and righteous inquiry, m the local courts, as to who are the lawful inheritors, utterly impossible to the plaintiffs, who are citizens of other states.
Great reliance was placed by counsel for the respondents on the? line of authorities, beginning with the case of Broderick’s Will, 21 Wall. 503, 22 L. Ed. 599, to the effect that a judgment probating a will could not be assailed for fraud. But even in that case it was held that, while equity would not disturb the operation of á will, it would give relief to parties injured, against those who are in possession of tlie decedent’s estate or its proceeds mala fide, or without consideration.
The learned counsel for the administrators can perceive no distinction between a proceeding in equity against the probate of a will and one to restrain the action of administrators who secured their appointment by fraud and to the injury of the heirs at law. They contend that the administration of assets and the probate of wills stand upon precisely the same footing. The state of Georgia, however, has in a statutory way pointed out the distinction. Section 4621 of the Code of 1911 declared:
“In all cases of fraud (except * * * in the execution of a will) equity has concurrent jurisdiction with the courts of law.”
The same Code section (4596), as we have seen, bestows upon equity the jurisdiction “to interfere with the regular administration of estates
In the meantime die estate should be preserved. For the reason, then, that the appointment of the temporary administrators on the 11th of December, 1915, was procured by fraud, and that the ordinary, because of the prohibition of the statute, had no power to appoint) them, it is for the purposes of this case held that they are not temporary administrators, or officers of the court, and that their possession of the estate of the late James M. Smith is not the possession of the state court, or its officers, but is the possession of executors de son tort. The appointment of the additional administrators, made on December 14th, is less culpable; but the record does not disclose their right to administration. They were added at the request of the first appointed, ■who are not administrators at all. One was not a creditor, but a, debtor. Other reasons for the equitable relief sought are scarcely less cogent. In its present condition, the estate is seriously endangered. It is largely in cash, or its equivalent, and it has not the pro
It is further ordered that the cause proceed as is usual in equity.