Dante v. Hutchins

265 F. 988, 49 App. D.C. 348, 1920 U.S. App. LEXIS 1489

• Court: District Court, District of Columbia
• Decided: May 3, 1920
• Docket: No. 3325
• Status: Published

Opinion

VAN ORSDER, Associate Justice.

Appellant, plaintiff below, as collector of the estate of Stilson Hutchins, deceased, filed a bill in equity in the Supreme Court, of the District of Columbia to obtain from defendant, Rose Keeling Hutchins, widow of Stilson Hutchins, specific delivery of certain paintings and pictures, alleged to be rare works of art and of great value. -

It is averred that the pictures, listed and described in the bill, are located in the former residence of Stilson Hutchins, which defendant has since his death continued to occupy; that the custody and possession of the art collection by defendant has been solely as the agent of her husband, and permitted by plaintiff for safe-keeping, with the understanding that the status quo would be preserved; that plaintiff was put upon notice that at the proper time defendant “would make claim to said art collection by offering proof of a gift,” unconfirmed by any writing; that in pursuance of this claim defendant made written claim in the probate proceedings to the art collection as her individual property, claiming to have been the owner thereof since long prior to the death of her husband, stating that she “would not hesitate to make sale and disposition of any part, or all, of said art collection,” without reference to plaintiff; that defendant has the house containing the collection sealed up and protected by a burglar alarm system; and that plaintiff demanded delivery to him of the property in question, which was refused.

Plaintiff prays for discovery of the grounds of defendant’s alleged ownership, and for an injunction or the appointment of a receiver pendente lite to safeguard the property, and that defendant be declared to hold the property in trust for plaintiff, that delivery of the property be decreed to plaintiff, that defendant be required to pay rental for the use and enjoyment of the property, and for general relief.

Defendant moved to dismiss the bill upon the ground of an adequate and complete remedy at law. Prom a , decree sustaining the motion and dismissing the bill, this appeal was prosecuted.

[1] The case turns upon a question of jurisdiction. It is insisted that equity will decree delivery of rare works of art, and therefore it was error to dismiss the bill. Unquestionably equity will decree in specie works of art, curiosities, antiquities, heirlooms, etc., which are incapable of duplication, or things for which the owner has a personal attachment. But the party thus invoking equitable relief must be able to show that his loss could not be adequately compensated in damages. The pictures and paintings are merely property alleged to belong to the estate and appraised and listed as such. The bill does not even disclose what, if any, disposition of the art'collection was made or attempted to-be made in the will of Stilson Hutchins. Por aught that the record discloses, possession may be desired for the purpose of sale.

[2] Nor is it important that plaintiff in an action in replevin would be required to give a bond. This could be accomplished through a bonding company at the expense of the estate; and for any personal liability assumed by the collector in instituting replevin proceedings by direction of the court he would be reimbursed from the assets of the estate.

[3] It is contended by plaintiff that equitable relief should be afforded because under the averments of the bill defendant is a trustee de son tort. But plaintiff avers in'the bill that defendant claims the art collection as “her individual property.” A question of title, therefore, existed at the time plaintiff was appointed collector. Not only is defendant’s claim of title alleged, but plaintiff prays discovery to require a disclosure of the facts upon which defendant’s alleged title exists. Plaintiff’s averments are inconsistént with his claim that defendant is a trustee de son tort.

[4] But it is urged that equity has jurisdiction in this case to obtain discovery. This contention is without merit, since the bill avers that defendant claims title to the art collection by gift from her husband. Her position is made clear by the averments of the bill. Discovery cannot be employed merely for the purpose of ascertaining the strength or weakness of the adversary’s title.

“A bill of discovery cannot be used merely for tbe purpose of enabling tbe plaintiff in sucb a bill to pry into tbe case of bis adversary to leam its strength or weakness. A discovery sought upon suspicion, surmise, or vague guesses is called a ‘fishing bill,’ and will be dismissed. Story, Eq. PI. §§ 320 to 325. Such a bill must seek only evidence which is material to the support of the complainant’s own case, and prying into the nature of his adversary’s case will not be tolerated. The principle is slated by a great authority upon equity thus: ‘Nor has a party a right to any discovery except of fact and deeds and writings necessary to his own title under which he claims; for he Is not at liberty to pry into the title of the adverse party.’ Story, Eq. Juris. § 1490; Kettlewell v. Barstow, 7 Ch. App. Cas., 686, 694.” Carpenter v. Winn, 221 U. S. 533, 540, 31 Sup. Ct. 683, 685 (55 L. Ed. 842.)

[5] Nor is there merit in plaintiff’s remaining contention that a writ of replevin could not be executed in this case. The bill contains no averment of a threat or declaration that the officer would be prevented from executing the writ. The mere fact that the house in which the art collection is kept was closed and equipped with a burglar alarm system will not warrant the conclusion that a duly authorized officer of the law would be obstructed in executing a writ of replevin.

The decree is affirmed, with costs.

Affirmed.