217 F. 139 | D. Maryland | 1914
This suit was instituted in the circuit court for Cecil county in this state. On petition of defendants it was removed to this court. The plaintiffs ask that it be remanded. No fed
What is the case made by the bill ? Almost a quarter of a century ago one George P. Whitaker, a wealthy resident of Cecil county, died leaving a will which was there admitted to probate. He left the bulk of his estate to be equally divided among his five children and their descendants per stirpes. At his death he owned all the stock of the George P. Whitaker Company, a Maryland corporation, and one-fifth of that of the Whitaker Iron Company, which had received its charter from West Virginia. Four of his children held among them the other four-fifths. He named three executors, one of whom shortly resigned. The other two continued the administration of the estate. One of them, Nelson E. Whitaker by name, was a son of the testator; the,other, the defendant Joseph Coudon. The former died some five years ago* leaving Coudon the sole surviving executor trustee. It so happened that the testator charged certain annuities for the support of his widow upon the estate. She is still living, and a complete division of the property has never been made.
The bill is very long, but the nature of the issues raised by it.can be briefly stated. It charges that the two executor trustees made up their minds to filch from the descendants of a deceased child of the testator a large part of the latter’s share of his estate. For that pur- ^ pose they brought about the sale by the George P. Whitaker Company ■’ to the Whitaker Iron Company of the very valuable property of the former for a small fraction of its real worth. Those whom they were seeking to defraud were beneficially entitled to one-fifth of the stock of the George P. Whitaker Company and to only one twenty-fifth of that of the Whitaker Iron Company. Those in whose interests the éxécütors trustees are alleged to have been acting were the substantial
As I understand Wrightsville Hardware Co. v. Hardware & Woodenware Mfg. Co. (C. C.) 180 Fed. 586, Judge Lacombe assumed that proposition to be unquestionable. It is true that the words “being nonresidents of that state” are found in the second sentence of section 28 of the Judicial Code, providing for removals on the ground of diversity of citizenship when no separable controversy is necessarily involved, and that the fourth sentence, authorizing removal on the ground of prejudice or local influence, limits the right to a defendant “being such citizen of another state,” and that no such restriction is expressed in the third sentence, which has relation to separable controversies.
District Judge Shiras in Stanbrough v. Cook, 38 Fed. 369, 3 L. R. A. 400, decided that where there is a separable controversy the right of removal may be exercised by a defendant who is a citizen of the state in whose courts the suit was brought, and Mr. Hughes, in the last edition of his excellent work on Federal Procedure, at page 337, says that in his judgment, when the controversy is a separable one, the defendant, whether resident or not, has the right to remove.
It is perfectly clear that a resident of a state in whose courts he is sued, if made a sole defendant, cannot remove. I cannot conceive that Congress could have intended to allow him to do so merely because it so happened that some one else, who could not remove or who did not want to, was made a codefendant with him.
At the argument of the motion to remand, the defendants sought to sustain their right to remove on another ground, which not only
The contention, in substance, is that the executor trustee is charging himself with fraud and asl-ring on that ground that conveyances-he has made to the Whitaker Iron Company be set aside. To state such a contention is to answer it. No'citation of authority is required-. More plausible theories have frequently been held unsound. East Tennessee R. R. v. Grayson, 119 U. S. 240, 7 S.up. Ct. 190, 30 L. Ed. 382; Railroad Co. v. Mills, 113 U. S. 249, 5 Sup. Ct. 456, 28 L. Ed. 949; MacGinniss v. Boston, etc., Mining Co., 119 Fed. 96, 55 C. C. A. 648.
As the case stands, it will not be worth while to inquire whether plaintiffs are right in asserting that, even if there were diverse citizenship,' the case would not be removable because it is in its nature ancillary or supplemental to a proceeding long pending in the state court and over which the latter had acquired exclusive jurisdiction.
The motion to remand must be granted, at the cost of those defendants who united in the petition to remove.