Security Co. v. Pratt

Baldwin, J. This is an action by an administrator cum testamento annexo, for directions as to its duties, and the construction of the will. Such a proceeding falls within the ordinary jurisdiction of courts of equity respecting the administration of trusts, and the provisions of General Statutes, § 1124, as to allowances for expenses and counsel fees, are merely declaratory of the existing rules of chancery practice. 2 Perry on Trusts, § 928; 1 Redfield on Wills, Chap. IX., § 7; Crosby v. Mason, 32 Conn., 482. General Statutes § 559 provides that “ when a life estate in any personal estate shall be given by will to one and the remainder to another, and there shall be no trustee named for such estate during the continuance of the life estate therein, the Court of Probate having cognizance of such wil may order the executor to deliver said personal estate to the person having the life estate, upon his giving a probate bond, and it shall be his duty thereupon to safely and properly keep such estate to be delivered to the person entitled to receive it on the determination of the life estate therein, and in case such person shall fail to give bond as aforesaid, said court shall appoint a trustee for such estate during the continuance of said life estate, and the annual expense of such trust shall be chargeable upon the annual income of such estate.” The language of the will of Nancy W. Hall, in reference to the power of sale and appropriation conferred upon Mary Ann Pratt, is such as to justify the plaintiff, in view of the demand made upon it by Mrs. Pratt, in seeking the advice of a proper court, as to whether the estate in its hands — 176 — should be turned over to her, except upon her giving a probate bond for the security of those entitled in remainder. To such a suit the plaintiff was an indispensable party, with a substantial interest in the question to be decided; for should it surrender the estate to the life tenant, without a bond, and the law be so that a bond is necessary, it might be called upon, on the termination of the life estate, to make good any diminution of the property, occurring after it passed out of its hands. The representatives and heirs of Mrs. White were proper parties defendant, and Mrs. Pratt was an indispensable party defendant. Belfield v. Booth, 63 Conn., 299, 309. The plaintiff’s complaint presented not only this question as to a bond, but others, involving a determination of the respective rights and ownership of Mrs. Pratt and the representatives and heirs of Mrs. White, both in the real and personal estate of the intestate. As to these other questions, assuming that they could be properly raised in this proceeding, the substantial controversy was between the life tenant and those entitled in remainder. The laws of the United States provide that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, in which there shall be a controversy between citizens of different States ; that any such suit, if brought in any State court, may be removed into the Circuit Court for the district in which such State court is held, “ by the defendant or defendants therein, being non-residents of that State ” ; that when in any such suit there shall be a controversy which is wholly between citizens of different States, and can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into said Circuit Court; and that the party desiring to remove any suit thus made removable, may file a petition for its removal “ in such suit in such State court at the time, — 177 — or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff.” U. S. Stat. at Large, Vol. 25, Chap. 866, p. 487, §§ 1, 2, 3. The present suit was cognizable in the Superior Court by virtue of its general equitable jurisdiction. The plaintiff did not derive its title as administrator from that court, and (except so far as the amount in controversy might regulate jurisdiction) was no more accountable to it, than to any other court of equity. Parson v. Lyman, 32 Conn., 566, 574, 5 Blatchf., 170. Suits to determine the construction of a will are as fully within the jurisdiction of the Circuit Courts of the United States, as any other, where the plaintiff is a citizen of one State, and the defendants of another. Gaines v. Fuentes, 92 U. S., 10, 22. The fact that the estate of the testator is in settlement in a Court of Probate does not exclude the jurisdiction of a proper Circuit Court to determine controversies between the executor and nonresident parties, any more than it excludes the jurisdiction of the Superior Court. Hess v. Reynolds, 113 U. S., 73, 77. Where, however, the jurisdiction of the courts of the United States, as to such matters, depends upon diverse citizenship of parties, its exercise must be confined to the determination of their rights, and those alone. “The fact that other parties may be interested in the question involved is no reason for the Federal courts taking jurisdiction of the controversy between such parties.” Byers v. McAuley, 149 U. S., 608, 618. It follows that the original petition for removal was insufficient upon its face. The suit, it is true, was of a civil nature, in equity, involving over two thousand dollars, and one in which there was a controversy between citizens of different States. But to that controversy, in part at least, the plaintiff was not only an active party, but a party with substantial rights of its own to protect, and the plaintiff and one of the defendants were citizens of the same State. The petition alleged that the plaintiff had no interest in any of the questions involved in the controversy, but that allega — 178 — tion was without effect, unless supported by the language of the complaint, and that language plainly showed that this position was untenable. Wilson v. Oswego Township, 151 U. S., 56, 66. The petition was therefore properly denied, unless the situation of the parties was changed by the amendments, or amended petition, filed during the pendency of the cause. A defendant seeking to remove a cause from a State court to the Circuit Court of the United States, on the ground of diverse citizenship, must file his petition and bond at or before the time when he “ is required by the laws of the State, or the rule of the State court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff.” This means that they must be filed as soon as he is “ required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of the defenses should be tried and determined in the Circuit Court of the United States.” Martin v. Baltimore & Ohio Railroad, 151 U. S., 673, 687. Our General Rules of Practice provide (Rule XXL, § 2) that all pleas in abatement in the Superior Court must be filed on or before the opening of the court on the day following the return day of the writ,- and (Rule IV., § 1) that the defendant, if he does not plead in abatement, shall answer or demur within thirty days from the return day. It was therefore necessary, under the rules of the court, that the petition of the defendants for the removal of this cause should be filed on or before the opening of the court on November 8th, 1893 ; and it was filed on November 7th. On December 1st, 1893, an order was made by the court in the cause, extending the time for the petitioners to file their answer until December 31st, and it was subsequently further extended to January 17th, 1894. Amendments to the petition (or an amended petition) with a new bond, were filed on November 24th. There has been some diversity of opinion as to whether a special order of extension of time for answer can be deemed “ the rule of the State-court,” within the meaning of the — 179 — Act of Congress, but we think the better construction of the statute is that which makes it prescribe a general, invariable, and imperative standard of obligation, with respect to the date for filing a petition to remove a cause. The object of these provisions in the Act of 1887 was to restrict and narrow the privilege of removal. Tennessee v. Union and Planters' Bank, 152 U. S., 454, 462; Ruby Canyon Gold Mining Co. v. Hunter, 60 Fed. Rep., 305; Dougherty v. Western Union Telegraph Co., 61 id., 138. As, then, no new petition to remove the cause could have been filed after November 8th, was it competent, by amendment to vary or enlarge the grounds of removal which the petitioners originally set up ? In our opinion, it would be contrary to the policy of the Act to permit aiy substantial amendment of that character, after the time for filing an original petition had gone by. Brigham v. C. C. Thompson Lumber Co., 55 Fed. Rep., 881; Carson & Rand Lumber Co. v. Holtzclaw, 44 id., 785. It does not appear that the amendments now in question were ever allowed by the Superior Court, and if they set up any new ground of removal, such an allowance after November 8th would have been beyond its jurisdiction, and therefore inoperative. Church v. Syracuse Coal & Salt Co., 32 Conn., 372, 374. There are decisions of Circuit Courts in support of the view that petitions which show no case for a removal maybe amended or replaced by another, at any subsequent time, by leave of the State court, and that such action will relate back to the time when the original petition was filed. Freeman v. Butler, 39 Fed. Rep., 66. Such a doctrine seems to us to contravene the theory on which the fact of removal depends. In a case where a right of removal exists, the filing, in due season, of a proper petition and bond, when brought to the attention of the State court, ipso facto withdraws the suit from its jurisdiction; and if the petition is thereafter amendable at all, it is only in the' Circuit Court, and not there to the extent of introducing any new ground of removal. Carson v. Dunham, 121 U. S., 421, 427; Cameron v. Hodges, 127 U. S. 322, 326. If, on the other hand, in — 180 — such a case, the petition claims the right of removal on wrong grounds, while it can'be amended or replaced by another at any time within the period allowed for filing an original petition, yet should this not be done, to allow the State court afterwards, by permitting an amendment, to make the suit removable, by virtue of a legal fiction as to the relation of amendments to the date of the pleading amended, is to allow the authority of a State to supplant the authority of the United States in regulating the jurisdiction of the courts of the United States. For these reasons we deem it unnecessary to consider whether a removal could be claimed under the allegations as to a separable controversy, contained in the amended petition filed November 24th, or as to the plaintiffs suing for the benefit of Mrs. Pratt, and by collusion with her, as set up in the amendments filed January 16th, 1894. The suit not being removable on the original petition, the jurisdiction of the Superior Court was not affected by the act of the petitioners in filing copies of the record in the Circuit Court at the opening of its April term; and their motion for a stay of proceedings to await the action of that court was rightly denied. The will of Miss Hall gave the use of her residuary estate to Mrs. Pratt for her life, and empowei’ed her, should she deem it advisable “ for the interest and benefit of said life estate ” to sell anj^ part “ of said life estate real or personal,” and invest the avails in other property real or personal, “ to be held by her in trust for the use and purposes as aforesaid, or she may appropriate the avails of sale either of real or personal estate of which she has a life estate as hereinbefore given and mentioned to her own use and benefit as of her own property and estate.” Then follows a gift to Eliza T. White in fee simple, “subject to the life estate of my sister,” of the residuary estate of the testatrix “ except that hereinbefore bequeathed.” These provisions gave Mrs. Pratt a power of sale, to be exercised only if she should deem it advisable for the benefit of her life estate. The power thus given is to sell any — 181 — part of “ said life estate,” but as she would have, without any such provision, power to sell all or part of her life estate; as the avails of any sale, unless otherwise appropriated, are “ to be held by her in trust for the use and purposes as aforesaid,” which would seem to mean “for the interest and benefit of said life estate ”; and as she is given a right to appropriate the avails of a sale that may be made of any estate “ of which she has a life estate ”; the most natural construction of the language of the testatrix is that the power extends to a sale and conveyance of the absolute title to the property bargained for. Lewis v. Palmer, 46 Conn., 454, 460. If any part of the estate was or should become unproductive, it is evident that its sale and reinvestment in productive property might be of benefit to the life estate, by increasing her annual income. The alternative right conferred upon Mrs. Pratt respecting an appropriation of the avails of any sale to her own use, is conditioned upon her deeming it advisable to sell for the interest and benefit of her life estate. Whether, if shs should deem it advisable to sell for such a purpose, and should thereupon make a sale, and should then undertake to appropriate the avails to her own use, the clause under which such right of appropriation is claimed in her behalf, or the later provision in the will, giving the residuary estate of the testatrix to her niece, Mrs. White, in fee simple, subject to “ the life estate ” of Mrs. Pratt, should prevail, are questions in which the plaintiff has no present concern, and as to which we express no opinion. As things now stand, Mrs. Pratt is but a life tenant, whose unexecuted power of sale and appropriation does not clothe her with an equitable fee. Lewis v. Palmer, 46 Conn., 454; Glover v. Stillson, 56 id., 316; Peckham v. Lego, 57 id. 553. The Superior Court, therefore, was right in adjudging that she was not entitled to receive any of the personal estate in the hands of the plaintiff, except upon giving a probate bond as required by § 559 of the General Statutes; and it was also proper to tax a reasonable allowance for — 182 — expenses and-counsel fees against the estate. But in the residue of the judgment there was error. By General Statutes § 448, all probate bonds “ shall be conditioned for the faithful discharge, by the principal in the bond, of the duties of his trust according to law.” This provision leaves no room for variation in the language of the condition. It must be the same in every bond, and the character of our judicial system, under which courts of probate may often be held by a judge who has had no special training in law, makes it highly proper that this provision in favor of certainty, simplicity and uniformity, should be strictly complied with in all cases. It is doubtful whether the terms of the condition prescribed by the Superior Court are equivalent in effect to those prescribed by the statute ; and it is certain not only that they differ widely in form, but that they are imposed upon the parties by the Superior Court, when not exercising an appellate jurisdiction, although the law requires the bond to be given to the acceptance of the Court of Probate for the district of Chatham. The questions put by the plaintiff respecting the right of Mrs. Pratt as to a sale of any of the real or personal estate, and the appropriation of the proceeds, should also have been left unanswered. She had not requested the plaintiff to make any sale in her behalf, and whether, in case its administration of the estate were closed and a transfer made to her, she could sell, and, upon a sale, appropriate the proceeds to her own use, were matters as to which the plaintiff was not entitled to ask the instructions of the court. They concerned the parties beneficially interested in the estate, of whom part objected to their consideration; and whether there would ever be any occasion for a judicial determination of them, depended upon future contingencies, which might never occur. Crosby v. Mason, 32 Conn., 482, 484 ; Maltby's Appeal, 47 id., 349 ; Miles v. Strong, 60 id. 393. The judgment of the Superior Court is affirmed in so far as it adjudges and advises the plaintiff that the said Mary Ann Pratt is not entitled to receive from the plaintiff, and the plaintiff has no legal right to deliver to her the posses* — 183 — sion of any of the personal property, constituting the principal of said estate, except and until she shall give a bond to the acceptance of the Court of Probate for the District of Chatham in accordance with the provisions of § 559 of the General Statutes of Connecticut; and in so far as it adjudges that there shall be allowed to each of the parties to this suit, a reasonable sum for expenses and counsel fees to be taxed as a part of the costs in this cause, and to be paid out of said estate; and the residue of said judgment is reversed and set aside, and the cause remanded to the Superior Court for the taxation of costs pursuant to that part of its judgment which is affirmed. In this opinion the other judges concurred.