33

the rights of the parties by its decree, may refuse to take jurisdiction of an accounting and leave that matter to be determined by the appropriate State tribunal.32 It may entertain a bill in equity against testamentary trustees for an accounting, after the administration of the personal estate by the executors has been terminated, although the State statute gives the probate court jurisdiction over the accounts of testamentary trustees; provided that the suit in the Federal court was begun prior to an application to the probate court for an account.3 Where the probate court has no jurisdiction to determine the validity of the assignment of a share of the estate, the Federal court has in a proper case jurisdiction to decide that question and establish the rights of an assignee by a decree which should be recognized and enforced by the court of probate.34 In such a suit, the Federal court may direct a final distribution and settlement of the trust.35 The Federal court may remove a testamentary trustee,36 The Federal court has jurisdiction of a suit by the beneficiary of a trust for an accounting by a trustee although during his minority which has terminated his guardian has brought a suit to remove the trust estate from the possession of the trustee into another jurisdiction the questions in which have become moot because of the termination of the trust upon the majority of the beneficiary.37

It has been held that the Federal court may fix the com pensation of the trustees; and that it is not bound by orders of the State probate court fixing such compensation, which were made after the bill in the Federal court was filed.38 It has been held that a Federal court may entertain a bill in equity; to decree that an administrator or other person who has obtained property through a decree of a State court of probate fraudulent

55 Fed. 803. Newberry v. Wilkinson, C. C. A., 199 Fed. 673. A Federal court may take jurisdiction of a suit by the foreign guardian of an incompetent to compel an accounting by a guardian residing within the district. Pulver v. Leonard, 176 Fed. 586.

32 Crocker v. Oakes, 117 Fed. 363. 33 Herron v. Comstock, C. C. A., 139 Fed. 370.

34 Gatzert v. Lucey, 218 Fed. 395. 35 Herron v. Comstock, C. C. A., 139 Fed. 370.

36 Davis Trs. Co. v. Smith, 226 Fed. 410.

37 Harrison v. Washington Loan & Tr. Co., Ct. App., D. C., 258 Fed. 273.

38 Herron v. Comstock, C. C. A., 139 Fed. 370; Brown v. Fletcher, C. C. A., 231 Fed. 91.

40

44

ly obtained holds the same as trustee for the parties truly interested.39 To surcharge, correct and set aside, a settlement of the accounts of administrators, which has been confirmed by a decree of the proper State court; to set aside a fraudulent transfer of property, made by an administratrix with the sanction of the State probate court; 41 to set aside a fraudulent sale of land, made by the decedent in his lifetime, although the State probate court has authority to grant a license, at least where the complainant does not seek to sell the same, and thus authorize the administrator to bring a suit for the same purpose, when no such license was granted previous to the filing of the bill; 2 to set aside. a release obtained by an administrator or guardian by fraud; 43 to set aside an election obtained from a widow through fraud; it has been suggested, to set aside a judgment of the State court of probate obtained by fraud; 45 at the suit of a creditor to enjoin an administrator from paying over the money, or distributing the property of the estate, to others joined with him as parties defendant, although the Federal court cannot ascertain the amount of unpaid claims nor whether the estate is in a condition for final distribution; 46 to enjoin an ancillary administrator from transmitting the assets to the court of original administration until a claim of a creditor has been determined; 47 after the determination by the State court is complete, to subject to the payment of a debt of the decedent, property in the hands. of a distributee; 48 a bill to enforce an attachment on the estate of the decedent, levied by the Federal court before his death, when the State statute authorizes attachments and executions to be levied upon equitable interests in real estate; 49 to sell land for the benefit of a creditor of the estate, when the administratrix

39 Diamond v. Connolly, C. C. A., 251 Fed. 234.

40 Bertha Zine & Mineral Co. v. Vaughn, 88 Fed. 566; Diamond v. Connolly, C. C. A., 251 Fed. 234. Contra, Northrup v. Browne, C. C. A., 204 Fed. 224.

41 Central Nat. Bank v. Fitzger ald, 94 Fed. 16.

42 Hale v. Tyler, 115 Fed. 833. 43 Pulver v. Leonard, 176 Fed. 586.

44 Eddy v. Eddy, C. C. A., 168 Fed. 590.

45 Sutton v. English, 246 U. S. 199, 207; Broderick's Will, 21 Wallace, 503, 519, 22 L. ed. 599, 605. But see Smith v. Jennings, C. C. A., 238 Fed. 48.

46 Davis v. Davis, 89 Fed. 532. 47 Ingersoll v. Coram, 132 Fed. 168, 172; aff'd 211 U. S. 335. 48 Hale v. Coffin, 114 Fed. 567. 49 Lant v. Manley, C. C. A., 75

53

51

refuses to institute a proceeding for that purpose in the proper State court under statutory authority, although the administration is still pending in the State court undetermined; 50 to compel specific performance, by the heirs and administrators, of a contract by the decedent in relation to property of the decedent, which is in the process of administration in the State court; to compel an executor to pay an assessment levied after the decedent's death upon national bank stock, which he holds; 52 to appoint a receiver of the decedent's assets within the district, where the executors disagree and can not act together; and when no temporary administrator has been appointed, pending a conflict in the court of probate concerning the right to administration.54 The occupation of land therein included by the widow after her quarantine has expired under a claim of title by devise does not take away such jurisdiction.55 At the suit of a minority stockholder, to enjoin one of two executors from voting upon a majority of the stock in the corporation pending litigation in the State court, which has enjoined the other executor from voting thereupon.56

The property of a debtor taken into the custody of a Federal Court by seizure under process issued under its judgment remains under its control to be applied in satisfaction thereof, notwithstanding the death or insolvency of the judgment debtor and the institution of proceedings in a State court to administer his estate, and irrespective of subsequent State legislation.57

Fed. 627. See Lant v. Kinne, C. C.
A., 75 Fed. 636.

50 Brun v. Mann, C. C. A., 12
L.R.A. (N.S.) 154, 151 Fed. 145.
51 Davis v. Davis, 89 Fed. 532.
52 In re Connaway, 178 U. S. 421,
44 L. ed. 1134; Wickham v. Hull,
60 Fed. 326; Brown v. Ellis, 86 Fed.
357.

53 Ball v. Topkins, 41 Fed. 486. See infra, $ 302.

54 Underground El. Rys. Co. of London v. Owsley, 169 Fed. 671; S. C., C. C. A., 176 Fed. 26.

55 Underground El. Rys. Co. of London v. Owsley, 169 Fed. 671; s. c., C. C. A., 176 Fed. 26.

56 Villamil v. Hirsch, 138 Fed. 690. As a condition of granting the injunction, the court enjoined the holding of a stockholders' meeting until the dispute between the executors had been decided by the State court. Villamil v. Hirsch, 143 Fed. 654.

57 Rio Grande R. Co. v. Gomila, 132 U. S. 478, 481, 33 L. ed. 400, 401; Leadville Coal Co. V. MeCreery, 141 U. S. 475, 35 L. ed. 824; Straine v. Bradford Sav. B. & T. Co., 88 Fed. 571; Johnston v. Johnston, 225 Fed. 413.

§ 55. Property in the custody of receivers. The appointment of a receiver by a court, or the filing therein, of a bill praying for the appointment of a receiver 2 or perhaps the presentment to the court, of a bill praying a receiver and the issue of a restraining order or other order thereupon,3 prevents the appointment of a receiver of the same property by a court of coördinate jurisdiction; except perhaps when the first suit is brought by creditors, secured or unsecured, or stockholders, and the second is instituted for the dissolution of the corporation, which is not prayed in the first suit.

In such a case, it has been held that the prior appointment of a receiver by the Federal court will not prevent the appointment of one for the same property by the State court, in an action to dissolve the corporation; but that such receiver should apply to the Federal court for the return of the property to him.4

Upon such an application the Federal Court cannot review the findings of the State Court which are based on evidence, but is

$55. 1 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660; Texas v. Palmer, C. C. A., 22 L.R.A. (N.S.) 316, 158 Fed. 705, aff'd Palmer v. Texas, 212 U. S. 118; Garner v. Southern Mut. Building & Loan Ass'n, C. C. A., 84 Fed. 3, 28 C. C. A. 381; Lancaster v. Asheville St. Ry. Co., 90 Fed. 129; Sullivan v. Algrem, C. C. A., 160 Fed. 366; Stirling v. Seattle, R. & S. Ry. Co., 198 Fed. 913; Re Lasserot C. C. A., 240 Fed. 325.

2 Farmers' Loan & Tr. Co. v. Lake Street El. R. Co., 177 U. S. 51, 44 L. ed. 667; Appleton Water Works Co. v. Central Trust Co., C. C. A., 93 Fed. 286; Holland Trust Co. v. International Bridge & Tramway Co., C. C. A., 85 Fed. 865. See Palestine Water & Power Co. v. Palestine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A. 203; affirming 41 S. W. 659. Contra, De La Vergne Refrigerating Mach. Co. v. Palmetto Brewing Co., 72 Fed. 579; where the Federal court appointed a receiver in a

foreclosure suit, after a rule to show cause in a State court why a receiver should not be appointed upon a stockholders' bill, and refused to deliver the property to the receiver subsequently appointed by the State court.

3 St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220; O'Neil v. Welch, C. C. A., 245 Fed. 261, reversing Welch v. Union Casualty Ins. Co., 238 Fed. 968.

4 State v. Port Royal & Augusta R. Co., 45 S. C. 470, 23 S. S. 363, 386; Louisville, New Albany & Chicago R. R. Co. v. Cauble, 46 Ind. 277, 280; People v. New York City Ry Co., 57 Misc. (N. Y.) 114; People v. Hasbrouck, 57 Misc. (N. Y.) 130; St. Louis Car Co. v. Stillwater R. Co., 53 Minn. 129. See City Water Co. v. Texas, 88 Tex. 600, 604; Alderson Receivers, $20. See Kansas City Pipe Line Co. v. Fidelity Title & Tr. Co., C. C. A., 217 Fed. 187.

5

limited to a consideration of the question of priority of jurisdiction. Such an application by temporary receivers appointed in a dissolution suit, was denied, without prejudice to its renewal in case their appointment should be made permanent.6

The fact that the first receivership was based upon the fraud of officers and directors and the second application upon the ground of insolvency, does not affect the rule. But it has been held that this doctrine does not apply when the actions are based upon different subject matters and different issues are therein raised, and the court in which suit first was brought has appointed no receiver before the second court has appointed a receiver who has taken possession. It has been said that the doctrine does not apply where the record shows that the first appointment was beyond the jurisdiction of the court, but that it does apply even if the first appointment was attained by fraud.

It has been held that a receiver appointed by a Federal court of equity will not be ordered to take possession of property, upon which a State court has levied an attachment,10 or other process,11 before his appointment was prayed. Where a State court had

attached a debt, before the court of another State had appointed the receiver of the creditor, the Federal court directed that judg ment be entered against the receiver in an action by him to collect the debt, unless he should consent to a stay of proceedings until the State court had acted upon the matter.12

5 McKinney v. Landon, C. C. A., 209 Fed. 300. See Pac. Const. Pipe Co. v. Conrad City Water Co., 237 Fed. 673.

6 Pennsylvania Steel Co. v. New York City Ry. Co. (Lacombe, J., S. D. N. Y.), N. Y. L. J., February 4, 1908. But see Robinson v. Mutual Reserve Life Ins. Co., 162 Fed. 794. 7 Stirling v. Seattle, R. & S. Ry. Co., 198 Fed. 913.

3 Empire Trust Co. v. Brooks, C. C. A., 232 Fed. 41.

9 Pac. Const. Pipe Co. v. Conrad City Water Co. 237 Fed. 673.

10 Southern B. & T. Co. v. Folsom, C. C. A., 75 Fed. 929; Hale v. Bugg, 82 Fed. 33; Dodds v. Palmer Moun

tain Tunnel Co., 188 Fed. 447. But see Kansas City Pipe Line Co. v. Fidelity Title & Tr. Co., C. C. A., 217 Fed. 187. But see Jackson v. Parkersburg & O. V. El. Ry. Co., 233 Fed. 784.

11 Lake Bisteneau Lumber Co. v. Mimms, 22 So. 730, 49 La. Ann. 1283; Knudsen v. First Trust & Savings Bank, C. C. A., 245 Fed.

81.

12 Avery v. Boston Safe Deposit & Trust Co., 72 Fed. 700. See Jackson v. Parkersburg & O. V. El Ry. Co., 233 Fed. 784; Pac. Const. Pipe Co. v. Conrad City Water Co., 237 Fed. 673.