Before MAJOR, SCHNACKENBERG and HASTINGS, Circuit Judges.
Plaintiff, a citizen of the State of Ohio, brought this action against defendant, a citizen of the State of Illinois, for an accounting of rents collected by him and for judgment in such amount as might be found owing her. From a summary judgment in favor of plaintiff, in the amount of $22,492.41 and costs, rendered under circumstances subsequently related, defendant appeals.
Jacob Grosby (a brother of plaintiff) died March 30, 1955, leaving a will which was admitted to probate on May 17, 1955, by the Probate Court of Cook County, Illinois. Letters testamentary were issued thereon to defendant (a nephew of decedent and also of plaintiff) as executor. By terms of the will, decedent's property, including some forty parcels of real estate, was devised as follows: (1) to plaintiff, Goldie Lavine, 5%; (2) to Louis Grosby (a brother of decedent), 5%; (3) to the Jewish Federation of Chicago, 15%, and (4) to defendant, Philip A. Shapiro, 75%. Defendant later acquired the interest devised to the Jewish Federation and thus became the owner of a 90% undivided interest in the devised property. Defendant as conservator during the lifetime of decedent and subsequently as agent of the devisees collected rents from the devised property, for which he failed or refused to pay plaintiff her proportionate part. The facts thus related are admitted. Also, if plaintiff is entitled to recover, the amount of the judgment is not in dispute.
Decedent's will contained a provision as follows:
"In the event any beneficiary under this, my Last Will and Testament, shall directly or indirectly contest this will or dispute any clause or provision thereof, I direct that such beneficiary shall receive nothing hereunder and thereupon my estate shall be distributed in like manner as though such contesting beneficiary had predeceased me."
Two will contests were filed in the Circuit Court of Cook County, Illinois, the first September 12, 1955, and the second January 30, 1956. In the first action nine nieces and nephews of decedent were parties-plaintiffs, and in the second, the three children of plaintiff who had not joined in the first contest were parties-plaintiffs. All parties-plaintiffs in both suits were adults. Plaintiff was not a party to either action. Defendant in his answer to the complaint and since relies upon two defenses: the first is that plaintiff "conspired with, aided and abetted the plaintiffs in said suits in the filing and prosecution thereof to contest the will of Jacob Grosby, Deceased, and that she thereby directly or indirectly contested the will." As a result, so it is alleged, plaintiff forfeited any interest which she took under the terms of the will. The second defense is that at the time of the commencement of the instant action there was pending in the Superior Court of Cook County certain actions which involved the same parties and subject matter, and that the District Court should have declined jurisdiction or, in the alternative, stayed the proceedings until a final determination of the actions pending in the Superior Court.
Plaintiff in support of her motion for summary judgment attached numerous documents, including (1) summary of facts; (2) discovery deposition of Philip A. Shapiro (defendant); (3) excerpts of proceedings held before the Court on June 28, 1957, and (4) summaries of the following depositions, all taken in Cleveland, Ohio, at the instance of defendant, (a) Goldie Lavine (plaintiff), (b) LeRoy Lavine, (c) Morton Lavine, (d) Jane Schiffer ((b), (c) and (d) adult children of plaintiff), and (e) H. H. Felsman (attorney). Defendant also submitted an affidavit in support of his answer in opposition to the motion for summary judgment.
A narration of all that has occurred in this rather protracted proceeding would unduly prolong this opinion and serve no useful purpose. In view of the contention, however, that a material issue of fact existed which could not properly be disposed of on plaintiff's motion for summary judgment, some statement of facts is required. We have decided to utilize such statement as it appears in defendant's brief. We do this even though it may in some respects be more favorable to defendant than the record justifies. Some further identification of persons will make such statement more understandable. As already noted, plaintiff was a sister and Louis Grosby a brother of the decedent and each, under the will, took a 5% interest in the estate. Also as already noted, LeRoy Lavine, Morton Lavine and Jane Schiffer, parties-plaintiffs in the second will contest, were children of plaintiff and nephews and niece of the decedent. Nine other nephews and nieces of decedent were parties-plaintiffs in the first will contest. These parties were represented by Attorney Nathan S. Blumberg. Louis Grosby, a brother of the decedent, who took a 5% interest under the will, was represented by Attorney Sol A. Hoffman. H. H. Felsman, an attorney of Cleveland, Ohio, is a relative of plaintiff and her children. For years he had been plaintiff's legal advisor and was her attorney relative to at least some phases of the rights which accrued to her under decedent's will.
Defendant's statement of facts as contained in his brief, with our insertion of explanatory notes in parentheses, is as follows:
"In preparation of this case for trial defendant took the depositions of plaintiff and her three children, Morton Lavine, LeRoy Lavine and Jane Schiffer, her attorney and brother-in-law, H. H. Felsman, and of attorneys Nathan Blumberg and Sol Hoffman. Plaintiff, her children and her attorney denied that plaintiff had any part whatsoever in contesting Jacob Grosby's will. However, the following facts were elicited from the various deponents.
"Within a few weeks after Jacob Grosby's death, plaintiff asked H. H. Felsman to represent her in connection with the estate of Jacob Grosby.Mr. Felsman, a brother-in-law of plaintiff, had been plaintiff's personal attorney for several years and was affectionately known to her children as 'Uncle Bob.' Shortly thereafter, plaintiff, her children, Jane Schiffer, LeRoy Lavine and Morton Lavine, met with Mr. Felsman at plaintiff's home. Plaintiff admitted that Felsman acted as her attorney at that meeting. Mr. Felsman read the two wills of Jacob Grosby, a 1940 will and the 1954 will, which was finally admitted to probate.On hearing the provisions of the 1954 will, plaintiff and her three children 'were very indignant.' Plaintiff was 'very hurt.' She was 'aggravated, disgusted and heartsick.' She felt that Mr. Shapiro (defendant) had tricked Jacob Grosby into making the 1954 will.She said that the disposition was unfair, that:
"'Philip Shapiro must have connived, conspired to bring about the will and that was not her brother Jack's way of doing things, and that her brother Jack was a very Orthodox person in our religion and an Orthodox person does not make a will for fear of death and that Philip Shapiro and my Uncle Jack were not that close, that Philip Shapiro was always a parasite and leech.'
LeRoy Lavine, Morton Lavine and Jane Schiffer, at this same meeting and in plaintiff's presence, also condemned Philip Shapiro and indicated their belief ...