J.lI.ItbERAl:. .'REPOl\ItElR; vol. 41;
holders 'oi the f181'2:bonds were not parties ·to the "indenture of of the offerot1 exchange which was voluntarily given: to>tbem by that instrumentl they should ha.ve appliedi therefor within a reasonable time. iAn 'applicatiori not made until fourteen 'years after, comes 'too late. BiUdismissed. · '
BALL tl. TOMPKINS 1 ,!,
et aZ.
(Circuit Cowrt, W. D. MicMgan, '8. D. :February 11, 1890.
L CIRCUIT COURTS-JU1USDIOTI01{-"ADMI:NlSTtU.TION OF 'ESTATES. By virtue of their ohanoery jurisdiotion, the federal oirouit oourts have jurfsdiotwn over the administration of estates when the 'requisite oitizenship and other conexist. .This Nrilldiqtion ,does not extend to the appointm\lnt of administrators; confi.rmation or the probate of wills; nor will it be exercised when the state courtll,of coiicurrent jurisdiction have taken possession of the sub. ject-matter of the , , ' 2, will exclude'the of power by the federal cdurt, and vice m1tst be the posseBBion, of some thing, corporeal or incorporeal, whicl:l has been taken under the dominion of the court. A controversy or inquiry is not suoh tblllg, lind the pendeneyOfa suit or in one oourt, involving aquestioD,:oontroversy,or inquiry, is no bar to'the exerCIse of jurisdiotion in the same question, et,c., in the other. .Testato.r, a reSident. iD. :.M:,iohigan, devised cert.'ain real est.ate in. trust to hisexeoutors, one of wbom was ,nill widow, to colleot the ltents and profitlluntil January 1, 1890, and to pay therefroJ;Ii the taxes, insurancet repairs, and interest on incumbrances, and the remainder; !in 'equal shares, to nis Widow and children, annually , ,or oftener. 'fhey were ,1I!180directed to file annual 8OO0unts of receiptll and dis, bursements in the omceof tllejudg-e of probate of the county in which the property was lnl:.uated. At the expiration of· the trust period the realty was to go to the widlJw and ohildren in equa,1shares. His personalty and other realty were charged with the payment of his debts. The will was probated in the state court, and the executors qualified. By the law then in force, executors and administrators had no tight to the possession p,freal estate. BeZd, that the exeoutors. had possession of the trust property as trustees: and that the possession of the state probate court was not suoh 88 to exolude the feaeral oourt from assuming jurisdiction, upon a disagreement among the the management,ot the trust, and appointing a receiver. . UPOD the. expir$tioD o,f,\.he trust period, it .appearing that the tenants in common disagree, and that they oannot act harmonijJus!y in the .management of the property; the federal court wi'll permit a supplemental bill to be 1l.led, praying for parti. 'tioD, oraale if necessary, and' oontinue the receivership. RECEIVER.
,
S. SAM&-DISAGREEMENT AMONG EXEOUTORS-ApPOINTMENT OF RECEIVERS·
" ·SAME-ExPIRATION OJ'
Equity. Upon to discbarge receiver. T. J. O'Brien, for cOlllplainant. Joseph H.Tompkina1for J'; & M. M. Tompkius. SEVERENS, J. facts,JPaterial to the purposes of the present motion are substantiallJ as follows:. On the 4th day of February, 1876, Byron D. BaU,.()f Gta.nd'Rapids, died testate; ,He left a widow,MartlJll.'M.,-oneof thedMendants,-and four children,of wh9m the complainant isoba, and·threeof ,the defendants are others. The property left by him consisted principally of real estate known as the" Ball Block,"
BALl. fl. TOMPKINS.
487
in the city of Grand Rapidsl' The value of his, estate at the time of his d,ecease was about the sum of$35,000 over and above incumbrances. By his' will, he bequeathed his household furniture, and his books and pictures, to his wife, and then devised the Ball block to his executors, who are his widow and Harvey J. Hollister, who is also one of the defendants, in trust, to collect the rents and profits thereof until the 1st day of January, 1890, and therefrom to pay the taxes, insurance, repairs, and interest on incumbrances, and the remainder, in five equal shares, to his widow and four children, annually or oftener. He also directed them to file annual accounts of their receipts and payments in the office olthe judge of probate for Kent county, in which the city is situated; and he authorized them to mortgage the property, with the approval of the judge of probate'" for the purpose of raising money necessary to rebuild or repair, in case of destruction or great damage by fire or other cause, or to payoff incumbrances. And his will further provided that the trust aforesaid should 'terminate on January 1, 1890, and that thereupon the real estate aforesaid should go'to the widow and children,-one equal undivided fifth part to each. And the testator charged his personal property and his other real estate with the payment of his debts and the expenses of administrlition, and authorized his executors to sell such other real estate only if found necessary to pay such debts and expenses, after using the personal property, or for the protection and improvement of the BaH block. This will was duly admitted to probate in the Kent county probate court on the 6th day· of March, 1876, and letters testamentary were issued to the executors therein named. They assumed and have exercised the duties of the trost. The widow took charge of the children, and lived with them in rooms in the block; and for some years matte-rs went on, without serious disagreement between the executors; in accordance with some of the provisions of the will, though not with all. In 1883, Mrs. Ball married the defendant Joseph H. Tompkins, who had fora time previous to that been her legal adviser in matters pertaining to the estate; and he hall continued to act as such ever since, residing with her in the block. From a time shortly previous to this marriage to the present, the executors have disagreed. Litigation has been going on between them, of a recriminatory character, until, at the time of the commencement of this suit by the filing of the bill, the· defendant Hollister had practically either almost wholly withdrawn or been ousted from the management of the estate, and the defendants Tompkins were in control. It is not the purpose of the court now to express any opinion as to whether Mr. Hollister has been in fault or not, but it is :apparent from the record that he has maintairiedhis office as executor only by a struggle. On the 3d day of April, 1889, 'the complainant filed his bill in this court, charging gross and long-continued mismanagement of the estate in many particularsj :which are set out in the bill, and alsoeharging therein, in substance, that Mr. and Mrs. Tompkins, in violation of the trust contained in Mr. Ball's will, have absorbed and appropriated to their own use the income of the estate; that the ohildren were receiving nothing; that the inaurance was not kept
-488
JtEIlOR'l'J1:R, ,vol.
41.
that the· taxes for two years were in arrearsj . and that many unjust and groundless claims and accounts in favdrof Mrs. Tompkins had been presented to the probate court, and there allowed, which, with the increasingvolumeof incumbrances, resulting from non-payment of interest, threatened to swallow up the estate. The defendants denied the charges of mismanagement of the estate and of violation of the trust, and they also denied alL the bad faith charged in the bill, and alleged that they \Vere doing the··best they could for the estate, and for all concernedj and they a petition fora license to 8e11 the real estate,the Ball.block,-for the payment of debts and expenses, had, previous to the fiHngof: the bill, been presented; to the probate court, and had been allowed, was then pending on appeal in the circuit court of the state for the county of Kent. This court, without undertaking to pass upon all the charges made in the bill,but in view of the fact that it clea.rly appeared that the executors had been for a long time in disagreelpentj that the complainant had received for many years but a mere trifle from- the estate; that the estate itself, once valuable, was nOw so nearlyexhau8ted.thatit was a questi;ori whether, in its then management, it would do lnore than pay its liabilities; and, that the interest and taxes which were left unpaid must be' provided for, or the property sold pn mortgage or tqx-sale,-appointed iii receiver to take the rents and into court. The court, in appointing a receiver, profits, a doubt us to whether this receivership should last beyond the declared trust expiring on the 1st of January, 1890. The foregoing' statemeIlt, though not enumerating all, the details of fact alleged on either side,covers all.that are now neces$ary to be stated. The re<:eiverhas a.cted and collected aU the rents to January 1st, and ¥.motion is made to discharge· him. The gound of the motion is probate court is the proper-tribunal for the trial and determin3tion of such matters; that the time. hils now elapsed' during which the to act as trustees the rents and profits; that they nj)W have the right to possession t\sthe officers of the proLute court; and that the latter court has possessiQnofthe of the· controYersy by ajurisdiction already extended over it when the present suit ",as commenced. The complainant has submitted, and asked leave to a supplemental bill setting forth the original proceedings, the expiration of the trust to receive rents and profits as expressly created by the terms of the will, and the arrival of the date when the right of the lievisees to the possession accrued, and praying for further relief by par;' tition, among other things. There can be no doubt that the probate . courts of Michigan are clothed with authority, by the laws of the state, to hear and determine all questions arising in the ordinary course of administration and distribution of estates. It has obviously been the policy of the state to distribute the judicial power in such a way as to produce .But it is also clear that it was foreseen and expected that questions would arise which would .require the exercise of the jurisdie. tipn of a court having ampler powers for inquiry and redress than the pr:qp$tecol1rt is invested with. The state court ofchancery has concur·,
BALL tI. TOMPXms.
489
rent jurisdiction in respect to some of the matters with which the probate court is authorized to deal; and it stands in waiting to help out the weaker tribunal, by taking cognizance of cases and questions, when there is no adequate remedy in the probate court. It is not necessary to determine whether the present case is one in which the state court in chan.. eery would be authorized to entertain jurisdiction. The circuit courts of authority, invested of the United States were, from their original with all the then exercised powers of the court of chancery in England, so far 9.'3 they had application in our political system. Green's Adm'x v. Oreighton, 28 How. 90; Pennsylvania v. Bridge 00.,13 How. 518; U. S. v. HOOJland, 4 Wheat. 108; Fontain v. Ravenel, 17 How. 369; Payne v. Hoole, 7 WalL 425.. One branch of the English chancery jurisdiction was the administration of estates. The ecclesiastical courts· in that country had very li'tllitedpowers in such matters. The jealousy with which they had been regarded had kept them shorn of authority to do many things necessary to a complete administration, and the marshaling and distribution ofassets. Some points;Qf authority had been gain.ed, arid others, equally essential to any systematic jurisdictionihad not. Whatwete possegged .were crude and imperfect. The consequence was that -the court of'chllncery exercised its powers, and applied its· doctrines, in adminiStering estates. As soon as the representative of an estate was appointed,' he was regarded as charged with a trust. This brought him, under the familiar doctrine, within the control of that court.' The ecclesiastical Murts had no power to deal with trusts. Theexamination and settling of accounts was often necessary. This, again, the ecclesiastical courts could not do, but it was peculiarly a province of the court of chtl.ncery. The ecclesill.stical courts could not marshal and distribute . The court of chancery had ample power to do this'. That was the condition of things, and this the scope of the equity which are to be regarded when we contemplate the jurisdiction of the federal courts in equity conferred by the judiciary act. 1 Story, Eq. Jur. § 532 et 8eq. The power and authority over these subjects thus conferredremain to this time, unabridged by any legislation of CClngress, the same in every state of the Union. They cannot be divested dr impaired by state legislation. Hyde v. Stone, 20 How. 175; Bankv. JoUy's Ad'mr, 18 How. 503; Paynev. Hook, 7 Wall. 425; EUis v. Davis, 109U. S. 498,8 Sup. Ct. Rep. 327; Borer v. Chapman, 119 U. S. 587, 7 Sup. Ct. Rep. 342. The state may confer jurisdiction of such matters upon courts of its own ereation, as has been universally done, in all the states, by the establishment of some kind of probate court, by whatever name the called, and conferring upon them such authority. And same territory are courts of concurrent jurisdiction over these subjects. This jurisdiction, in the courts ()f the United States, does not, of course, extend to the appointment of administrators, or the confirmation of executors, nor the matters made necessary by the' state law for their in:vestitureof the trust, inclUding in such the probate of the will, if that ist'equired by the local law to give it validity. The ecclesiastical courts', and not the cburt of chancery, invested the administrator or executor
.wilfh,lfls,Il11th.,rity;, q}lfl,ljfiedpyt 1Pl8 tw"ijI, if: ,th,e' j
I ona;'and therefore lC01.lTts' iJill,equity a\1tPorized. to ,him ,ami by: law applicable ,tp,bisand itEl ,situation, as, control! of, the court. If the mqUilliie:citizenshipfl,nd this jurisdiotion of the cirnuit,qoul'ts,in equity invoJred.,' .last ci\ed, and 92 129 U. S. Ct. Rep.: 237 ,But, ;in the exercise well as of other>bntJ1chesof cannot in:vade, the possession taken by the state court havauthor,ity for the rule is here, 88' elaewhere, ,that. the QQqJ,'t. wl\i<;qbasfirRt 'pHhe tp disposeoOtby its oWJ;Io.adjudication., WilliaW8 :a9W,.107j ]lowe, 24 ·4:50; v. Ohapma.n, ,119 U. S. 600,
1\$
present inquiry: possession of; the :state or federal .exaI'pise.i>f.authprity over the sQbject or thing .by the othe.-?,! ,FroIll ,the autllO,riti,es.on this subject, (wbj,ch:in the cirouit hartnOnlOUS,) and reasons fOl(,the I iUI) .1;>e, thj\t plated as ,to. make it is that:wJllch: ,the court by its process, Or eqlljvalent ,mode,. either for, the direct purpose of tbftproceQd,ing.J>r fonomeother purpose to the main objeot, :drawn,inwits,4o!p-inion llpd ,cqstQ(Jy so\ne tbing.,Tbat thing may oorporel!.l ()rliincorpQ1:.. or a mere.rigbt.,' But a yerey ,aqgestion, AA· inqlliJ;y, is ,npt,"such .0. thing... Tl;lese be the cause, 'whiQh; ()ften proceeds, from tlle the judgJ;nent. witl),out the court's havitlg taken aQtual dominionof,anythhlg·. But there jurisdiction ovar 8llCh a m.n.tter." The.result D}tiy be judgment which .:will e,stablish ,aright, t,hei court has not hlJ.d.llny pq!l8ession..,The- pendel),cy oh oontroversyip., &:I!luit inll state;or cqurt is no bar to a .'Suit in the ,otber court invoJving tb,esnme .CQntroversy, (Sta7l,tonv; Embrey, Adm'r, 98,P. S. 548;)..and its own course,tQa judgment over its own has Ill,Ways been. fonnd adequate to prevent mischief .frolll. ferae iJ;Io, the jurisdictions. Butt,in proceeding on its eitherqourt finds pas actual objective tQ subjeot, it will let: the tl}ing that dominion is retained, and proceed, if there ,he enough Illl'terial besid,es to. S\lpport the of jurisdiction, and tPe pursujt rlacP fruit. ,If,pot,:it 'rhereare lI),,,ny .uthe: Qourt this8ubject. has. fUldthese ,prm,piples .Sqpleof ,t1'tem have been OtPers .· Qi#alotfi,(h...:U2 U.S. 294,,6 Sup. 135j Railrqaq.(]q.,v. Rep.,15/S. lUll, it() i
7
l:n1ngs
842.
:,
';",1,
"
.'
..
,What,is the
c
DAILL' f. TOMPKINS.' ': : :
491
Tried by this test,"is the p'l'obate'court in possession of the real estate io! question? Byron D.Ball died in 1876, and his will was probated in the same year, and letters testamentary issued. By the statutes of Michiganin force at that time,executorsal1d administrators had no right to the possession of the real estate. In 1881 the law was changed, and the exeoutor or administrator was allowed to take and retain possession of the realty until the debts were paid. But the rights of the parties claim, ing under the will were fixed when the will was probated, and among those rights was that of the cestuis que trustent, the widow and children, to the rents and profits of this property. These rents and profits were not assets, and did not belong to the executor as the administrative officer of the probate court. The statute of 1881 could not, and did not purport to, deprive persons of vested rights. Van Fleet v. Van Fleet, 49 Mich. 610,14 N. W. Rep. 566. The body of the real estate itself might still, as before, betaken to pay debts and expenses, if other assets failed, but not the rents and, profits, as such, alone. The direction in the will to file annual accounts of the rents and profits and disbursements in the office of the judge of probate did, not make them ordinary, undisposed-o{ assets. It is clear from th(! later provisions in the will that the testator himself intended and expected that his other property would be employed, in exoneration of this real estate, to the payment of his debts and administration expenses, and that it would be sufficient. ,At the common law, an executor has no control of the real estate, except what the will gives him. That instrument constituted the bounds of his authority in that regard. B1"'U,skv. Ware, 15 Pet. 93; Schouler, Ex'rs, §§ 212,213. By statute, his,testamentary powers and duties are restrained and modified only to the extent necessary to bring the estate under its liability to pay debts and expenses in the course of ordinary ad1l1inistration. As has been shown, the possession of this property was by the executors as trustees, arid the income therefrom l\ trust fund. In their capacity as statutory administ4lators, they had no power over it. Hill v. 13 How. Ex'rs, above-Cited sections, and section241. As a matter of fact, the probate court received and filed the accounts, including the rents, when they have been presented; and it, has acted upon them ,-whether properly or not, is not now a question. It was held in McClead v. DaviJJ, 83 Ind. 263, that the administrator was still liable to the heirs for the rents and profits of the real estate, notwithstanding that he had charged himself with them in his settlement. with the probate court, and they had been appropriated to thedecedent's debts;. and in Calltpa'u, v. (',ampau, 25 Mich. 127, it was held that, after theltlw of 1871 repealed the older law, giving the lldlmnistrntor the right to possession, the probate court had no jurisdiction at allover the question' of the administrator's or executor's right But the probate court has never undertaken to assume dominion .0,·e1' the real estate. It is perfectly clear that it had no jurisdiction to do so. lt could license its sale, if that should become necessary; and, if not, it equId release it from that liability which the law, and not any process of the court, put it under, and order its division among those entitled 1 o 0
499
Ul'OllTER,
vol. 41.
upon proper" proceedings. If the property shoUld be sold, under 8. Iicens6,and the sale confirmed, the executor's and the.devisees'titles would be defeated, but only from that time., The rents and profits, until then, belong to the devisees, as the beneficiaries of the trlist,-until January 1, 1890, in the present case,-and after that by their own title, as tenants in common. When, if ever, a license may be granted by the state court fora sale of this property, and whether a sale may take place under such license, are uncertain. Until such: sale does take place, the devisees are entitled to take any action in securing the rents and profits. and other rights in the property, which would be open to them if the property could oot be .sold under the license at all. McDaniels v. Walker, 44 Mich. 83, 6 N. W. Rep; 112;. Warren v. Tobey, 32 Mich. 45. And they may file their bill in equity for partitio:l, notwithstanding the estate remains unsettled. Campau v. Campau, 19 Mich. 116. On the otherhand f this court has no power, and it has no purpose, to interfere with the probate or any other state!cot!lrt in its proceedings. Undoubtedly. thQ: state court may license. the $a1e of this property, if it finds it expedient to dQ so, in the situation ofatfairs. If it does so, this court would,of,course, respect its action" ! .If, on the contrary, that court doeR not find [itself compelled to graJl,lt the license, this court may order a sale, and m!l.fshal and distribute the proceeds, or it may take such ae, tion as the. equities require,alld it finds expedient. A supplemental bill· hJits beeortendered for filing, praying for partitiOQ, or sale if that is necessary. "This s,eems to be a proper practice in such circumstances. Story, ,Eq.Pl.§§ 328,'336. I think leave should be given to file. it; and thereupon ,the question is whether this reoeiver;. ahip should be continued, now that these parties are entitled to possession as tenants in common, and;upon a bill for partition. The tenants in common disagree, and there is no prospect that they can act harmoniously in the management of the· property. It is likely to be a wrangle, if attempted. The defendants, Mrs. Tompkins and her husband, assert her right to be let into the receipt and, disposition of the rents as executrix, and, indeed, that is the avowed object of the present motion. That would exclude the complainant from his rights as effectually as he has hitherto...,.-if the allegations of his bill be true-been excluded from all enjoyment of the estate. In these circumstances, iUs the duty of the cpnrtto 'appoint a receiver. DU/fwan V o Campau, 15 Mich. 415; Pignolet v. Bushe, 28 How. Pro 9;Sandjord v. BaUard, 33 Besv. 401. Having already appointed a competent man for the purpose of collecting the rents, etc." to the beginning of 1890, his receivership may continue. An order, may be. entered granting leave to file the supplemental bill, opntinuing receivership, and authorizinR the receiver ,to collect the rents accruing sinoe December last,and denying the motion to disoharge. ,;-
UNl'.rBD STATES ,. DALLES MILITARY ROAD 00.
4:9.
UNITED STATES 'V. DALLES MILITARY ROAD {Circwtt Court, D. Oregon.
Co. et al.
February 20, 1890.)
LJ.lIlD
In 1867 there was granted the state of Oregon, by an act of oongress, certain publio lands to aid in the oonstruotion of a military wagon road. The grant was in the words, "there be and hereby is granted to the state of Oregon, "and it was provided that the lands granted should be disposed of by the legislature for the purposes of the grant. It was further provided that when the governor of the state should certify to the secretary of the interior that.10 oontinuous miles of the aided road are oompleted, a quantitr of the lands granted, not exoeeding 30 seotions, might be sold, and so on from tIme to time until the road should'be oompleted. The governor of Oregon having thereafter oertified: to thll COmpletion of said road, the commissioner of the general land offioe withdrew from sale the lands granted, in favor of the defendant oompany, to whioh the grant had been transferred by aot of the state legish:iture, and afterwards, in 1874, oongressby an aot provided" that in all cases wnen the roads in aid of the oonstruction of which said lands were granted, are shown by the oertificate of the governor f the lltate,of Oregon, a,s in, said acts provided, to have been oonlltructed and oompleted; patents for said lands shaH issue in due form to the state of Oregon as fast as the same shall, under said grants, 00 selected and certified, unless the 'state of Oregon shal1, by public acts, have transferred its interests in said landsto any corporation or corporations, ,\D which case patents shall issue from the general land-office to such corporation ,or corporations upon payment 01 the necessal'Y expenses thereof. " Held: (1) The act grant.Ing lands in aid of the Dalles military road passed a present title to the egon, to be defeated only by a brel\Ch of conditions subsequent. (2) The fact that the goveruor's oertificate was not made on completion of eaoh section of ten' miles of the road, makes no difference. ,It is suftloie1;lt if Il1adlil,at one time,covering the completion of the whole road., '(3) '1'he authority to determine whether the road was completed was vestedllolely in the governor of Oregon, whose deCision, In the absence of any suoh fraud as would vitiate it, is necessarily final and oonolusive. (4) The right to a patent once vested, is equivalent, as respects the goverDIl1ent dealing ,With the public lands, to a patent issued. (5) Purohasers of these lands from the state's grantee, were not required to go over the road and ascertain for themselves whether it had been completed in all partioulars in accordanoewith the reqUirements of the granting act,but were entitled tll relY upon tbe record, oonstituted by the said acts of congress and of the state, the withdrawal Of the lands, by the commissioner, and the governor's certifioate. (6) The provision of the act 01 congress authorizing the bringing of this suit by the United States,to procure a deoree of forfeiture of said lands, "saving and ttle rights of bl)najlde purohasers of either of said grants, or of any portion of Bald grants, for a valuabll;j consideration," recognizes the rights of innoc!3nt purchasers, if they had been otherwise doubtful. (7) Where 15 years have elapsea aft,er affirmative and eonfirmatory action by oongress in direoting the issue of patents to; lImds in all cases whe/."lil the certiJlclilotll of the governor had been made, and 20 years have elapsed after tht;l date of suoh certificates, ,and before the act authorizing the bringing 01 this'suit, it is not Within the established principles of equity 'urisprudenoeto allow. such suit to be maintained, and the cause of suit ought 'to be regarded as stale. (8) The goverIlment is nowestoppe4 by the action to time by cOI\lrresl' and its agents duly authorized, and the public record mlMfe of such acts, from alleging the non-fulfilment of the statutory oonditions of tbegrant. ' " (SyHabU8 by the Court.) ,, , 0,
GRANTS-MILITARY RoADS-CoMPLETION-BoNA FIDE PlJRCHASERS-EsTOPPEL.
This is a bill in equity, filedby the of the ,United States, in pursuance of the act of congress of March 2,188f.1, (26 St. 850,) to procure a decree of forfeiture of alUll.nds granted by the 'act of congress of February 25, 1867, to the state ofOregon, to aid inthecol'l'struction ora military wagon road from Dalles City, on the ,to Fort the Snake riyer, found hi 409, on thq,t the of the hndnot ·lIll P3te"ts is!lue,dj .by,the-, .Ullited the act, and all conveyances to purchasers under said