229 F2d 859 McCan v. First National Bank of Portland

229 F.2d 859

Mildred E. McCAN, Appellant,


The FIRST NATIONAL BANK OF PORTLAND, a national banking association, Appellee.

No. 14654.

United States Court of Appeals Ninth Circuit.

February 3, 1956.

George W. Friede, Francis E. Harrington, Portland, Or., for appellant.

Pendergrass, Spackman & Bullivant, R. R. Bullivant, V. V. Pendergrass, Jack L. Hoffman, Portland, Or., for appellee.

Before POPE and LEMMON, Circuit Judges, and MATHES, District Judge.


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Appellant, the widow and beneficiary under the will of C. P. McCan, deceased, sued appellee bank, as executor of the will, for damages claimed to have been sustained as a proximate result of negligent administration of the decedent's estate. Federal jurisdiction was invoked upon the ground of diversity of citizenship.


The question whether the executor violated any legal duty to appellant is a matter which, under Oregon law, is committed to the special jurisdiction of the Probate Court of Oregon. See: National Surety Corp. v. McArthur, 1944, 174 Or. 376, 149 P.2d 328; Cass v. Harder, 1936, 153 Or. 637, 58 P.2d 618. Indeed the record discloses that the question has been pending before the Probate Court upon objections filed by appellant to the executor's final account.


Without reaching the merits, Circuit Judge Fee, sitting in the United States District Court for the District of Oregon, concluded in a scholarly opinion that Federal jurisdiction of the subject matter was lacking, and dismissed the action upon that ground. See McCan v. The First National Bank of Portland, D.C.D.Or.1954, 139 F.Supp. 224.


For reasons there stated the judgment dismissing the action for want of jurisdiction over the subject matter is affirmed.