259 F. 338 | D. Or. | 1919
On January 8, 1916, Thomas Johnson, a resident of and domiciled at St. Louis, Mo., died, possessed of property therein, and of 100 shares of the capital stock of the Thomas Kay Woolen Mill Company, an Oregon corporation, doing business at Salem in this state, at which place its stockbooks are kept, transfers made, and dividends paid. Johnson left a will executed on the 2d day of June, 1911, by which he bequeathed 40 shares of stock in the Woolen Mill Company to his sister, Eliza Dakin, of the state of Vermont, and 25 and 15 shares to his sisters-in-law, Mrs. Farrar and Mrs. Fiarstner, respectively, both residents of Oregon, but making no disposition of the remainder of his property. Squire Farrar, a resident of Oregon, was named in the will as executor. At the time of his death Johnson was under guardianship of Bernard C. Loeblin as an insane or incompetent person, pursuant to an order of the probate court of St. Louis, made on September 17, 1911. Loeblin inventoried the stock in the Woolen Mill Company as the property of his ward and received the dividends thereon from that time up to Johnson’s death.
On January 10, 1916, two days after Johnson’s death, the probate court of St. Louis granted letters of administration of his estate to Chilton Atkinson on petition of Johnson’s daughter, Mrs. Fortado, in which petition she alleged that the deceased died intestate; but the court made no findings or decree to that effect. The statement was
On April 12, 1916, Johnson’s will was admitted to probate in the county court of Marion county, and re-probated by that court on July 18,1916, in common form, and Squire Farrar appointed executor thereof. Farrar duly qualified as executor and administrator upon the estate of Johnson in Oregon, consisting of the stock in the Woolen Mill Company, and on January 23, 1917, made distribution of 80 shares of such stock to the legatees named in the will, and filed his final account, which was duly approved, and the distribution ratified and confirmed by the court on February 21, 1917. Mrs. Fortado and Atkinson had notice of the proceedings in the Oregon court as' early as March 10, 1917. The Mill Company was notified of the admission of the will to probate, the settlement of the estate, the distribution of the stock, and the approval of the final account of the executor, but because of the claim of Mrs. Fortado and Atkinson, declined to transfer the stock on its books to the legatees named in the will.
On March 2, 1917, the legatees commenced a suit in the circuit court of Marion county against the Mill Company, Mrs. Fortado, and Atkinson to determine title to. the stock, and for a decree excluding Mrs. Fortado and Atkinson from any claim thereto, and to compel the Mill Company to cancel the outstanding certificates and issue to the plaintiffs new ones in lieu thereof. The Mill Company was personally served with process, and Fortado and Atkinson by publication, and by depositing a copy of the complaint and summons in the post office, on June 16, 1917, directed to them at their usual place of address. On July 26, 1917, Mrs. Fortado and Atkinson appeared in the suit and filed a petition for removal thereof to this court, but on October 15th it was remanded to the state court. On November 21, 1917, the defendants Fortado and Atkinson appeared specially in the state coürt and moved to quash the service upon them, and at the same time requested the court for a continuance of three days in which to answer in case the motion was overruled. The motion to quash was overruled and the continuance granted as requested. No further appearance was made by Fortado or Atkinson, and on November 30, 1917, their default was entered and a decree passed by the court confirming the title of plaintiffs, excluding all claims and rights of Fortado and Atkinson, and ordering and directing the Mill Company to issue the stock to the plaintiffs.
After the commencement of this suit, and on July 11, 1917, Loeblin, the former guardian of Johnson, made and filed a report of his doings as such guardian up to the death of his ward, showing that he had in his hands property belonging to his ward, consisting of 100 shares of stock in the Woolen Mill Company, of the value of $10,000, and $157.-26 in cash. The account was approved and order was entered by the
On April 12, 1918, Loeblin reported to the court that on November 28, 1917, he had sold 80 shares of such stock, as directed in the order, for $3,090.40, sufficient to pay the claims, costs of sale, and attorney fees, which sale was on the same date approved and confirmed by the court. Neither the report of the sale nor the order of confirmation discloses the name of the purchaser, and it was not until June, 1918, when a demand was made upon the Mill Company, that his name was disclosed. The Mill Company, however, declined to issue the stock to the alleged purchaser, Sprague, because of the claim of the legatees under the will, and he thereupon commenced an action against it'for conversion, whereupon it filed a bill in this court against the legatees and Sprague, the alleged purchaser at the guardian sale, averring that it neither has nor claims any interest in the property, is wholly indifferent between the parties, and is ready and willing to issue the stock and pay the accrued dividends to the parties legally entitled thereto, but that it cannot determine that question for itself without great hazard, and praying for a decree determining to whom it shall issue the stock and pay such dividends. Service was made upon the respective parties, and answers filed by all of them; Sprague claiming title under the guardian sale made in Missouri, and the legatees under the probate proceedings in Oregon and the decree in the subsequent suit brought by them to quiet title.
Several interesting questions are presented by the record and have been argued'by counsel. Only one of these need be considered, and that is the effect of the order and decree of the probate court of Marion county, Or., admitting the will of Johnson to probate and making the distribution thereunder, for, if such court had jurisdiction, its orders and decrees are a conclusive jurisdiction and determination of the title to the stock in controversy. It is admitted on behalf of defendant Sprague that “under the prevailing decisions, the situs of the stock is held to be in Oregon” and that the courts of such state have “jurisdiction to administer upon the estate of a nonresident for the purpose of protecting creditors resident of Oregon”; but his position, as I understand it, is that since Johnson at the time of his death was domiciled in Missouri, and died out of this state, his will must first be proved and admitted to probate in that state, and any administration in Oregon must necessarily be ancillary thereto, for the sole purpose of conserving the estate therein and protecting creditors, with no authority to the Oregon court to pass upon the validity of the will, determine the beneficiaries thereunder, or make distribution of 'the es
' done without the will having first been admitted to probate in the state of the testator’s domicile.
Washingon has a statute similar to that of Oregon, and in Clayson v. Clayson, 26 Wash. 253, 66 Pac. 410, and Rader v. Stubblefield, 43 Wash. 334, 86 Pac. 560, 10 Ann. Cas. 20, the Supreme Court of that state in well-considered opinions ruled that the will of a nonresident dying out of the state leaving personal property therein could be proven and admitted to probate, and the personal estate within the jurisdiction distributed, without the will having first been proved in the state of the domicile of the testator, and this seems to be the holding generally. 18 Cyc. 1224; 40 Cyc. 1247; In re Clark’s Estate, 148 Cal. 108, 82 Pac. 760, 1 L. R. A. (N. S.) 996, 113 Am. St. Rep. 197; Walton v. Hall’s Estate, 66 Vt. 461, 29 Atl. 803.
