28 F. Cas. 949 | U.S. Circuit Court for the District of Nevada | 1879
This is a suit on the equity side of this court, in which the complainants, heirs of one Jacob L. Tan Bok-kelen, seek to compel the defendants to account for certain mining stock alleged to have been fraudulently disposed of by them. Both defendants are sued in their personal capacity, but the bill charges the fraudulent acts to have been done while the defendant Daniel Cook was administrator of the estate of said Jacob L. Van Bokkelen, the defendant Derby acting in concert and collusion with him.
The defendants demur to the bill on several grounds, which will be briefly considered.
1. Jurisdiction of the subject-matter of the suit is denied to this court. It is alleged in the bill that the defendant Cook was administrator of the estate of said Jacob L. Van Bokkelen; that, as such, he filed his final-account in the district court of Storey county^ Nevada, a court having probate powers; that his account was settled and he finally discharged before this suit was begun.
. The question thus raised is, whether this-court has jurisdiction to call an administrator to account who has, in the course of his-trust, defrauded the estate, notwithstanding-the probate court which appointed him may-have passed a decree finally settling his accounts and discharging him. That the court has this jurisdiction we think can be satisfactorily shown. Tne frauds charged in this-bill are not shown to have been investigated or passed upon by the probate court, but to have been concealed from that court; and. it would indeed be against conscience, and a subversion of justice, if an administrator, while confessing a fraudulent management of the assets of the estate under his care, could successfully plead in bar of a suit like this,, by the defrauded heirs, the final settlement of his account by the probate court.
If we allow to that settlement the same conclusiveness ordinary judgments have, yet it would, as between the administrator and the heirs, be voidable like.other judgments-for fraud. This is no direct proceeding to-vacate the decree of final settlement, but a suit brought for the purpose of charging the-defendants personally for a fraudulent appropriation to their own use of a portion of the estate of the deceased, Van Bokkelen.
We have been referred to many cases sustaining. but none denying, to a court of equity jurisdiction of such a case.
If an executqr be called to account for misconduct, he cannot improve his situation by a fraudulent settlement with the probate-court, showing a full administration of the-estate, when in reality a large portion of it,, not received by the distributees, remained in-his hands. Speed’s Ex’rs v. Nelson’s Ex’rs, 8 B. Mon. 499. So one distributee may exhibit a bill in the circuit court to obtain her-share of an estate, charging the administrator with gross misconduct, with making false-settlements with the probate court, with-, keeping back a true inventory of the property in his hands, and with using the money of the estate for his private gain, such bill having for its object relief against these fraudulent proceedings, and the -compelling a true-aceount of administration. Payne v. Hook, 7 Wall. [74 U. S.] 425.
It appeared from the bill in that case that the administrator had not yet made his final settlement, and that the administration was-still in progress, but the court held tliat the bill stated a ease for equitable relief, “according to the received principles of equity,” and that the complainant was not bound to-resort to the probate court to correct the errors and frauds in the accounts of the administrator.
The present bill charges the defendant,. Cook, with making a fraudulent inventory,.
2.It is claimed that, because the corporation was a California corporation, the stock had its actual situs in that state, was never assets in the hands of the administrator in Nevada, and that he could not, therefore, have committed any devastavit or fraud upon it.
The shares of mining stock being personal property, they are regarded in law as having no situs, or a movable one which is always the domicile of the owner. The deceased, Jacob L. Van Bokkelen, being domiciled, at the time of his death, in Nevada, the title of his administrator to all his personal property is perfect, whether found in California or elsewhere; and, while the administrator could not have sued in California and recovered possession of this property without there talcing out auxiliary letters of administration, if it came into his possession by a voluntary delivery, it came lawfully, aud he may be required to account for it as assets in this jurisdiction. Wilkins v. Ellett, 9 Wall. [76 U. S.] 740. In accordance with this view it is held to be the duty of an administrator to place on his inventory all the property of his intestate, and he should include goods situated in another state. Estate of Butler, 38 N. Y. 389.
The title of the administrator to the whole, wherever situated, is good, and although his letters do not confer upon him any authority to sue in another jurisdiction, if he make an assignment his assignee may sue there without taking out letters. Harper v. Butler, 2 Pet. [27 U. S.] 239. The foundation of the rule that an administrator cannot sue in a foreign jurisdiction is a regard for the creditors and distributees residing there. The disability is confined to the person, and does not extend to the subject-matter. Peterson v. Bank, 32 N. Y. 46. In this case it does not appear that there are any creditors or distributees in California, from whence the assets in question come, and there appears to be no shadow of ground upon which the- administrator Cook can stand to deny his liability to account here for the property received by him in California.
3. The bill shows an assignment by two of the heirs to one of the complainants, but does not show the citizenship of the assignors, and the objection is made that the bill must show that the citizenship of the assignors was such as would have given the court jurisdiction, had they sued. Section 029 of the Revised Statutes is cited in support of this objection. Since the adoption of that section, however, the act of March 3, 1875 (18 Stat. 470), has been passed, which materially changes the former law in respect to the matters upon which this objection is based.
Section one of that' act contains the following clause: “Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless the suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant and bills of exchange.” By the former law, section 629, all choses in action, whether founded on contract or tort, except foreign bills of exchange, were embraced. Now, as the extract just given shows, an assignee can prosecute an action founded on a tort without regard to the citizenship of the assignor. This suit is not founded on contract, and consequently the jurisdiction depends upon the citizenship of the party on the record, whether he be as-signee or original owner of the claim on which suit is founded.
4. It appears, from the face of the bill, that a portion of the stock which is alleged to have been the property of Jacob L. Van Bok-kelen, and to have been fraudulently assessed and sold, stood on the books of the company in the names of \V. H. Watson, A. J. Grant and Sol. Simpson, and that the defendant Cook well knew that this stock was the property of said J. L. Van Bokkelen. The defendants claim that this shows that Watson, Grant and Simpson are necessary parties to this suit, because the legal title to the stock was in them, and a conversion of that very stock is alleged. It is not seen how this shows these persons to be necessary parties. No transfer of the stock is sought, nor can any interest they may have in it be affected by the decree in this suit. The contest in respect to the right to the stock is between the complainants and the defendants, Cook and Derby. According to the face of the bill, Watson, Grant and < Simpson have no real interest to be affected by the decree. No decree is asked and none can be made against either of them. Their presence, then, is wholly unnecessary.
The bill was filed February 4, 1879. It is not necessary to state in a bill the facts which take the case out of the statute. Mandeville v. Wilson, 5 Cranch [9 U. S.] 15. Independent of the statute of Nevada, the cause of action in this suit on the general principles of equity jurisprudence, did not “accrue” until the discovery of the fraud. Bailey v. Clover, 21 Wall. [88 U. S.] 342. It can not, therefore, be said that the bill shows on its face that the suit is barred, whether we apply the three or the two years’ limitation.
6. The only remaining question relates to the joinder of Mary E. Yon Kleuze, and the failure to join Minnie Van Bokkeien as a party. The allegation of the bill as to the citizenship of Mary E. Von Kleuze, is* that she is a citizen of the United States, at present residing in the kingdom of Bavaria. Minnie Van Bokkeien- is an heir, and entitled to share in the distribution of the estate. The bill should have mentioned the state in which Mary Von Kleuze last resided. Her citizenship of that state continues, notwithstanding her present residence in Bavaria. But if we assume that she is a citizen of the same state as that of some of the defendants, which is the most favorable position for the defendants, the objection to her joinder then involves a decision upon the constitutionality and proper construction of that portion of the act of congress of March 3,1875, which confers original jurisdiction upon the circuit courts of all suits “in which there shall be a controversy between citizens of different states.”
Upon a suggestion of the presiding justice, that a ease involving the precise question is now before the supreme court of the United States, set down for argument at the ensuing October term, this point was not discussed apon the argument before us. The question being a jurisdictional one, can be raised at any time hereafter, should the supreme court decide against the jurisdiction. We therefore overrule the demurrer on this point, without expressing any opinion upon it at this time. In regard to the non-joinder of Minnie Van Bokkeien, there -is this to be said. She appears from the bill to be an heir and dis-tributee. She is therefore a proper party, but upon the authority of Payne v. Hook, 7 Wall [74 U. S.] 425, she is not an indispensable party. If, as- was said in that case, the court is able to proceed to a decree, and do justice to the parties before it without injury to absent persons, it will do so. The real object of the present suit is the collection of assets of the estate of the deceased Van Bok-keien, alleged to have been wrongfully appropriated by the defendants to their use. The suit can proceed for this purpose, without any injury to the rights of absent heirs. If assets are recovered, all entitled to share in them may be allowed to come in for that purpose, or their- rights can be fully protected by the decree.^ This disposes of all the objections.
The demurrer is overruled, with costs, and the defendants are required to answer the bill on or before the next rule day.