Bishop v. York

118 F. 352, 1902 U.S. App. LEXIS 5199

• Court: U.S. Circuit Court for the District of Middle Pennsylvania
• Decided: October 15, 1902
• Status: Published

Opinion

ARCHBALD, District Judge.

This suit is considerably out of the ordinary course, and the right of the plaintiffs to maintain it should clearly appear on the face of the bill before it is allowed to go on. This right depends in the first instance on the title or quasi title which they are able to show to the bonds in controversy, with regard to which it is averred that the plaintiffs are heirs-at-law of Elizabeth P. Patterson, deceased, from whom the defendant obtained the bonds as a gift a few days prior to her death, and that, as a compromise to a suit which they had instituted in the courts of Ohio to contest Mrs. Patterson’s will, it was agreed that the will should be confirmed, the executors to turn over to them one-half of the estate in kind or otherwise. This is a very meager statement on which to rest the right to sue, and it does not in some respects correspond with the facts as disclosed by the oral argument. The plaintiffs, as I understand it, are the step-children of Mrs. Patterson, being the children of her late husband, Nicholas Patterson, by his first wife. If this be so, they are not the heirs-at-law of their step-mother, but are simply entitled, under the laws of Ohio, in case of her intestacy, to such property as came to her from her husband, their father. As heirs-at-law of Mrs. Patterson, such as they aver themselves to be, it is possible they would have a standing to contest for the bonds in suit in behalf of the estate, the executors declining to act. But as heirs of their father they would have no such standing, unless the bonds were a part of the property which came to Mrs. Patterson from her husband, or were representative of it, with regard to which we have no showing. Moreover, whether they claim in one capacity or the other, it is important to know the terms of the compromise agreement by which the contest over Mrs. Patterson’s will was settled. It was in writing, and, while its legal effect may be correctly pleaded in the bill, I am not content to pass the matter over by any such brief reference to it as is there found. If the plaintiffs’ title is dependent upon it, it is a question whether they have a standing to sue for any special part of the estate, and are not compelled to look to the executors themselves, if it has not been fulfilled, and of this we can only judge by having so much of it quoted as will disclose its real scope. Considering the bill defective in these particulars, the plaintiffs must cure it by amendment, or the suit be dismissed.

The demurrer is sustained, with leave to plaintiffs to amend within twenty (20) days; the preliminary injunction heretofore granted to remain until further ordered.