Appeal from the District Court of United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before ALSCHULER and EVANS, Circuit Judges, and BARNES, District Judge.
The first question which presents itself is the one raised by the contention of the appellee Anna that the District Court lacked jurisdiction over an indispensable party, and therefore could not proceed to judgment as against her. She contends that Leland is an indispensable party.
Anna was a resident of Illinois, and was personally served with summons. Leland was a resident of Indiana, and substituted service was had upon him pursuant to section 57 of the Judicial Code (section 118, title 28, USCA).
The case at bar is a suit by one of the beneficiaries of the trust under the ninth clause of the will of Thomas to establish a trust and for an accounting against Anna, individually and as administratrix with the will annexed of the estate of Thomas, and as administratrix of the estate of Charles, and Leland. The claim of the plaintiff is that Charles, as the general agent of Thomas, during a period when Thomas was wholly incapable of transacting business, converted to his (Charles') own use certain property of Thomas, which property should and did pass under the ninth clause of the will of Thomas to Charles, as trustee for the benefit of the plaintiff and others; that Charles never accounted, and that Anna, as administratrix of Charles and as an heir at law of Charles, should account. The ninth clause of the will of Thomas, which created the trust in question, directed that the real property devised thereby should be sold and converted into cash. Accordingly, all of the property which should and did pass under the ninth clause of the will of Thomas is, as a result of the application of the doctrine of equitable conversion, to be considered as personalty. 2 Perry on Trusts (7th Ed.) § 448; Burbach v. Burbach, 217 Ill. 547, 75 N.E. 519; Seymour v. Freer, 8 Wall. 202, 214, 19 L. Ed. 306; Handley v. Palmer (C.C.) 91 F. 948.
Thomas died domiciled in Vermilion county, Ill. His will was probated there. Charles was domiciled there and died there, and his estate was probated there. The situs of moveables, for the purposes of succession, is the domicile of the decedent. Wharton, Conflict of Laws (3d Ed.) § 561; Eidman v. Martinez, 184 U.S. 578, 581, 22 S. Ct. 515, 46 L. Ed. 697. The situs of the property passing under the ninth clause of the will of Thomas is Vermilion county, Ill., in the Eastern District of Illinois. Therefore this suit was properly filed in the court below.
Furthermore, the general rule is that an executor or administrator cannot be called to account, so far as concerns assets received by him in the land of his appointment, except in the state in which he took out letters of administration. Wharton, Conflict of Laws (3d Ed.) § 616; Lawrence v. Nelson, 143 U.S. 215, 222, 12 S. Ct. 440, 36 L. Ed. 130; Burrowes v. Goodman (C.C.A.) 50 F.2d 92, 77 A.L.R. 249; Moore v. Mitchell, 281 U.S. 18, 24, 50 S. Ct. 175, 74 L. Ed. 673.
On the facts aforesaid, and pursuant to section 57 of the Judicial Code, Leland was properly brought into this proceeding by substituted service of process, and he will be bound by a decree herein to the extent permitted by said section 57.
Even if Leland be not bound to any extent by the decree herein, then, in a suit by Anna against Leland, the decree to be entered herein would not be res adjudicata as against Leland, but it does not follow from that that she could not have contribution. On the contrary, it should be assumed that the court, to whom a claim for contribution may be presented, will proceed justly and in accordance with law, and that she will be awarded such contribution as may be due to her.
The court's conclusion on this branch of the case is, first, that Leland was properly brought in by means of substituted service, and that any decree entered herein will be binding upon him to the extent provided by section 57 of the Judicial Code; and, second, that the motion of Anna to dismiss the suit was properly denied.
The two principal issues of fact in this case are, first, the question as to the existence or nonexistence of a confidential relationship between Charles and his father, Thomas, and, second, as to the mental capacity or incapacity of Thomas during the last ten years of his life.
It will be observed that the master and the District Court are in accord on the proposition that a confidential relation existed between Charles and Thomas at all times during the period when the transactions in question in this case were had. On the question of the mental capacity or incapacity of Thomas during this period, the master and the District Court are not fully in accord. The finding of the District Court on this issue of fact is presumptively correct, but it may be successfully assailed if the court went against the clear weight of the evidence. Uihlein v. Gen. Electric Co. (C.C.A.) 47 F.2d 997, 1002, and cases there cited. We have, accordingly, examined all of the evidence in the record bearing upon this question. As appears above, the master on this question gave conclusive effect to the judgment in the case of Thomas against one Baxter, in which Thomas sought to restrain the negotiation of a promissory note signed by Thomas on the ground that Thomas was incompetent to transact business. The bill of complaint in the Baxter Case was signed and sworn to by Charles and alleged the incompetency of Thomas. While we are not inclined to hold that the judgment in the Baxter Case was res adjudicata in this case against Charles and his privies on the question of the incapacity of Thomas, yet we are inclined to hold, and do hold, that the bill of complaint in that case, signed and sworn to as it was by Charles, constituted a formal admission against interest by him, and now by his privies, the appellees in this case, that Thomas was at that time incompetent to transact business.
After an examination of the entire record, we conclude that the clear weight of the evidence supports the conclusion of the master on this issue of fact, and that, accordingly, the finding of the District Court on ...