Lee v. Minor

Ninth Circuit

Lee v. Minor

263 F. 507, 1920 U.S. App. LEXIS 2041

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 24, 1920

DocketNo. 3307

StatusPublished

Cited by2 cases

This text of 263 F. 507 (Lee v. Minor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lee v. Minor, 263 F. 507, 1920 U.S. App. LEXIS 2041 (9th Cir. 1920).

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Opinions

HUNT, Circuit Judge.

[1] In the motion for rehearing appellant specially invites attention to the second amended complaint in the record, and to the allegations therein that the defendant and the other trustees knew or should have known that plaintiff and other beneficiaries had no notice or knowledge of the hearing on the petition for distribution, or of the matters contained in such petition, or that by said petition and hearing defendant and the other trustees were attempting to deprive plaintiff of her property, and that “in violation of their said trust and their duties thereunder” defendants did “by their importunities and representations willfully induce” the state court to make the “pretended” decree, made ex parte, without plaintiff being present or being a party to the proceedings, all of which was well known to defendant. There is also a further averment that defendant failed to perform his duty by failing to notify plaintiff of her rights as a beneficiary.

We have again considered these averments and a majority of the court believes the facts pleaded sufficient to constitute a cause of action, and that we should recede from the conclusion announced in the original opinion that the federal court was without jurisdiction. This view is reached after re-examining the decisions of the Supreme Court of California, where it is held that an action will lie on the [508]*508equity side of the court for relief against a judgment wrongfully made-by reason of mistake or.extrinsic fraud. In McGavin v. San Francisco P. O. A. Soc., 34 Cal. App. 168, 167 Pac. 182, the earlier cases are-reviewed, and it is held that extrinsic fraud or mistake may consist, among other things, of keeping the unsuccessful party away from court by a false promise of a compromise or purposely keeping him in ignorance of -the suit. Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317; Benning v. Superior Court, 34 Cal. App. 296, 167 Pac. 291; Campbell v. Campbell, 152 Cal. 208, 92 Pac. 184; Title Insurance & Trust Co. v. Cal. D. Co., 171 Cal. 173, 152 Pac. 542; People v. Norris, 144 Cal. 422, 77 Pac. 998.

[2] We are in accord, however, in the view that the contention of appellant that the decree of distribution made by the superior court of the state is void as to her, because she had no notice of the hearing-of the petition, cannot avail appellant; for considering that appellant was a resident of North Dakota, and assuming that the notice given was not reasonable or sufficient, we are of the opinion that the complaint of appellant fails to show that she had any rights under the will.

Construction of the contingencies of the will is not specially difficult. If at the time of distribution Daisy Belle was a widow or single, then the trust would terminate and she was to take in fee. The testatrix had in mind either the death of C. H. Nicewonger, in which event Daisy would become a widow, or that she might be divorced, in which-event she would become a single woman. On the other hand, it Daisy should not have been divorced when distribution was decreed, and if she had died during coverture and left no issue, then the trust would have terminated, and distribution would have been had to collateral heirs, of whom appellant was one. Daisy, - however, was divorced and was living as a single person when final distribution was had. The fact that after distribution she married again, and while in coverture died without issue, is immaterial, and became a circumstance not provided for by the will. Section 1345, Civ. Code Cal.; In re Rogers, 94 Cal. 526, 29 Pac. 962; section 871, Civ. Code Cal. Under -the situation which existed at the time of distribution, the state court could not have refused to proceed on the ground that Daisy might marry again and thereafter die during marriage.

We therefore believe the District Court was right in its construction of the will, and in ordering the suit dismissed.

Rehearing denied.

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HUNT, Circuit Judge.

[1] In the motion for rehearing appellant specially invites attention to the second amended complaint in the record, and to the allegations therein that the defendant and the other trustees knew or should have known that plaintiff and other beneficiaries had no notice or knowledge of the hearing on the petition for distribution, or of the matters contained in such petition, or that by said petition and hearing defendant and the other trustees were attempting to deprive plaintiff of her property, and that “in violation of their said trust and their duties thereunder” defendants did “by their importunities and representations willfully induce” the state court to make the “pretended” decree, made ex parte, without plaintiff being present or being a party to the proceedings, all of which was well known to defendant. There is also a further averment that defendant failed to perform his duty by failing to notify plaintiff of her rights as a beneficiary.

We have again considered these averments and a majority of the court believes the facts pleaded sufficient to constitute a cause of action, and that we should recede from the conclusion announced in the original opinion that the federal court was without jurisdiction. This view is reached after re-examining the decisions of the Supreme Court of California, where it is held that an action will lie on the [508]*508equity side of the court for relief against a judgment wrongfully made-by reason of mistake or.extrinsic fraud. In McGavin v. San Francisco P. O. A. Soc., 34 Cal. App. 168, 167 Pac. 182, the earlier cases are-reviewed, and it is held that extrinsic fraud or mistake may consist, among other things, of keeping the unsuccessful party away from court by a false promise of a compromise or purposely keeping him in ignorance of -the suit. Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317; Benning v. Superior Court, 34 Cal. App. 296, 167 Pac. 291; Campbell v. Campbell, 152 Cal. 208, 92 Pac. 184; Title Insurance & Trust Co. v. Cal. D. Co., 171 Cal. 173, 152 Pac. 542; People v. Norris, 144 Cal. 422, 77 Pac. 998.

[2] We are in accord, however, in the view that the contention of appellant that the decree of distribution made by the superior court of the state is void as to her, because she had no notice of the hearing-of the petition, cannot avail appellant; for considering that appellant was a resident of North Dakota, and assuming that the notice given was not reasonable or sufficient, we are of the opinion that the complaint of appellant fails to show that she had any rights under the will.

Construction of the contingencies of the will is not specially difficult. If at the time of distribution Daisy Belle was a widow or single, then the trust would terminate and she was to take in fee. The testatrix had in mind either the death of C. H. Nicewonger, in which event Daisy would become a widow, or that she might be divorced, in which-event she would become a single woman. On the other hand, it Daisy should not have been divorced when distribution was decreed, and if she had died during coverture and left no issue, then the trust would have terminated, and distribution would have been had to collateral heirs, of whom appellant was one. Daisy, - however, was divorced and was living as a single person when final distribution was had. The fact that after distribution she married again, and while in coverture died without issue, is immaterial, and became a circumstance not provided for by the will. Section 1345, Civ. Code Cal.; In re Rogers, 94 Cal. 526, 29 Pac. 962; section 871, Civ. Code Cal. Under -the situation which existed at the time of distribution, the state court could not have refused to proceed on the ground that Daisy might marry again and thereafter die during marriage.

We therefore believe the District Court was right in its construction of the will, and in ordering the suit dismissed.

Rehearing denied.

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