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jurisdiction from exercising a like power. Farmers' Loan, etc., Co. v. Lake Street R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667. But we are of the opinion that the principle does not apply here. This is not a question of conflicting jurisdictions. The Circuit Court in appointing a receiver has not attempted to interfere with the exercise by the Surrogate's Court of its full power to grant ancillary letters testamentary. The receivership is rather 'in aid of, instead of in conflict with, the jurisdiction of that court. It is unnecessary, therefore, for us to determine whether, when this suit was commenced, the proceedings in the Surrogate's Court had gone so far as to amount to an assumption of exclusive jurisdiction over the estate.
Similarly the jurisdiction of the Circuit Court to appoint a receiver is not excluded by the fact that a receivership bill has been filed in an Illinois court of equity. That court had nothing to do with the assets of the estate in the state of New York.
The contention that the complainant has no standing to bring this suit because it is not a judgment creditor is in our opinion without foundation. We are by no means satisfied that a creditor of the estate of a deceased person is obliged to obtain a judgment before he can resort to equity for the protection of the assets of such estate. Moreover, the claim of the complainant has been duly allowed by the court of principal administration and this allowance practically amounts to a judgment. Furthermore, it does not appear that any one disputes the validity of the claim.
Lastly, the contention is not well founded that the suit cannot be maintained because the Illinois executor, Owsley, has been made a party. He does not raise the question. It does not affect the jurisdiction of the suit. It cannot be properly determined upon this appeal from the receivership orders.
We thus reach the conclusion that, as the bill prayed for the appointment of a receiver and for general relief, the Circuit Court had jurisdiction of the suit, although some of the prayers were for relief beyond its power to grant, and that it acted within its power in appointing a receiver.'
But it does not follow from the existence of the power that it was properly exercised in the present case. The appointment of a receiver is a drastic remedy. The facts presented should clearly show its necessity before such an appointment should be made. What are the merits here?
The slightest examination of the facts discloses a most extraordinary situation. For nearly four years this estate in New York, worth millions of dollars, has received no attention from its proper representatives. Taxes have been unpaid. The art collection has received only the attention which an adverse claimant chose to give it. Interest upon mortgages has been defaulted, and the equity in valuable real estate is being lost through foreclosure. The estate has been permitted to go adrift. Its very situation has been an invitation to persons to set up claims to it. Rightfully or wrongfully, this invitation has not been declined. The widow remaining the statutory period remained longer, and now claims practically everything.
The executor who accepted the trust and whose primary duty was
to secure and preserve the estate and pay its debts has done absolutely nothing in this jurisdiction. He even waited three years before seeking to establish the will here. That this may have been by the advice of counsel does not alter that fact. And when he finally attempted to perform his duty the widow promptly sued out an injunction in Chicago to restrain further proceedings. Thereupon the widow and the executor stipulated that nothing should be done with the New York proceedings until the decision in the Chicago suit. And so matters stand.
While this litigation between the widow and the executor goes on it would seem that the creditors were supposed to stand idly by and do nothing. As widow the defendant Mary Adelaide Yerkes prevents the probate of the will in this jurisdiction and the grant of ancillary administration. As adverse claimant she retains and uses the property here.
But the creditors are not remediless. A dead man's estate is primarily a fund with which to pay his debts. The complainant and other creditors of this state have the right in some way to look to these New York assets to pay their demands. They have the right to insist that these assets be protected and safeguarded. They have the right to protection by a court from the consequences of the failure of the proper representatives to act. If there ever was a case in which the facts called for the appointment of some proper custodian of the property of an estate, this is one.
Were it not for one consideration, it would necessarily follow that the proper custodian of the estate should be the receiver appointed by the Circuit Court. This consideration is the New York statute providing for the appointment of a temporary administrator. While, as we have seen, the power to appoint a receiver of the estate of a'deceased person undoubtedly exists in the Circuit Court, it is nevertheless an extraordinary power and one seldom exercised by courts of equity at the present time. Its purpose is to protect property when there is no one in a position to look out for it. Its object is to supplement the powers of, but not to supplant, the statutory tribunals for administering estates. It should in our opinion only be exercised when the state statutes fail to provide for the appointment of a temporary custodian of an estate in case of delay in appointing a permanent representative. Every consideration render's it desirable that the probate court, which alone can appoint the latter should appoint the former. So far as possible probate proceedings--principal and auxiliaryshould be under the control of one court.
Now, section 2670 of the New York Code of Civil Procedure provides that: "On the application of a creditor or a person interested in the estate, the Surrogate may in his discretion, issue to one or more persons, competent and qualified to serve as executors, letters of temporary administration, in either of the following cases: “(1) When, for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will."
The powers of a temporary administrator are set forth in section 2672. Section 2675 prescribes his rights and duties with respect to
real estate. In our opinion the appointment of a temporary administrator under this statute would adequately protect the interests of the complainant and other creditors.
It is urged, however, by the complainant that it is not the practice of the Surrogate's Court in New York county to entertain an application by a creditor for a temporary administration of the estate of a nonresident when an application for ancillary letters is pending. It is said that the "letters testamentary” the delay in granting which justifies the appointment of a temporary administrator refer to the letters granted upon an original—and not an ancillary-probate of a will.
On the other hand, it is said that while it is true that a distinction is made in the decisions between the phrases "administration in chief" and "temporary administration,” yet the former phrase applies as well to the grant of ancillary letters upon the estate of a nonresident as to the grant of original letters upon the estate of a resident--that the proper distinction is between permanent administration, whether original or ancillary, and temporary administration. And it is urged that the statute would largely fail in its purpose if it provided no protection in a case where a nonresident decedent left the great bulk of his property in New York.
It is not within our province now to construe or interpret this state statute. Upon its face it would seem to apply in a case like the present. Whether it does or does not apply must be determined by the state courts. And we are unwilling that the present receivership should stand other than as a mere provisional receivership unless and until application for a temporary administrator shall have been made under such state statute and such application shall have been denied. To that extent at least the receivership should be continued. Otherwise the estate would be permitted to again go adrift pending the application to the Surrogate's Court. And if the Surrogate's Court declines to act the receivership orders should then stand as fully affirmed.
But finally it is urged against any receivership that Mrs. Yerkes is in possession of the property under a "claim of right." This factif it be one-instead of constituting an objection to the appointment of a receiver, is a cogent reason why one should be appointed. Lord Eldon well said that a receiver should be appointed to prevent the property of the estate falling into the hands of persons without right to it. This may or may not have already happened in this case. A receiver should be appointed to see whether it has happened. If it be ascertained that the widow is actually in possession under a claim of right, the court will consider such fact in determining what, if any, steps should be taken to secure possession of the property. But every colorable claim is not a claim of right, and it is not clear from anything in this record just what the right of this claimant is founded upon. It should be investigated in order to determine the proper action to take. A receivership does not change title. It does not necessarily change possession. Indeed, it does not follow that, if a receiver should obtain the physical custody of the property in dispute, the claimant's ultimate right of possession would be atfected. But we do not desire to pursue the inquiry further. It is sufficient now to say that the existence of Mrs. Yerkes' claim to most of the property is no objection to the ap
pointment of a receiver. The proper orders to be made should a receiver be appointed must be the subject of future consideration. Moreover, it must be observed that Mrs. Yerkes does not claim all New York assets. We do not understand that she asserts any claim to the real estate which is being foreclosed, and it is difficult to perceive any basis for the claim to personal property acquired subsequently to her last alleged bill of sale. The existence of these items of property alone would justify the appointment of a receiver,
The following conclusions are, therefore, reached: (1) The orders appealed from should be affirmed and the receiver. ship therein provided for continued for such time as in the judgment of the Circuit Court shall be reasonably necessary to enable the complainant to apply to the Surrogate's Court for the appointment of a temporaTy administrator under the statute referred to and to obtain the action of said court thereon. The application should be filed not later than the first Monday of October, 1909, and should be pressed to a conclusion as expeditiously as possible.
(2) Unless at the expiration of such time it is shown to the Circuit Court that said application has been in good faith prosecuted and has resulted in a decision of the Surrogate's Court declining to appoint a temporary administrator, the receivership should be terminated and the bill of complaint dismissed; but, if such action by the Surrogate's Court is shown, the receivership should be continued until the grant of ancillary administration when the receiver should turn over the property to the representative of the estate.
(3) The question should be reserved as to how far the Circuit Court could go in protecting and securing the rights of the complainant should the receivership be continued and ancillary proceedings in New York be permanently stayed by the Illinois court. Especially should the question be reserved whether, in this contingency, the right of creditors created by the New York statutes to look to the real estate in case of deficiency in the personalty could be enforced through the federal courts.
The orders of the Circuit Court appealed from are affirmed without costs under the conditions stated in this opinion.
COXE, Circuit Judge (dissenting). I am unable to concur in the opinion of the majority of the court. The following propositions must, I think, be regarded as estabFirst
. The probate court of Illinois has already taken jurisdiction, appointed an executor and allowed the claim of the complainant.
Second. In January of the present year the executor filed a petition for ancillary letters in the Surrogate's Court of New York, which is still pending undecided.
Third. Less than three months after this application to the Surrogate's Court the present action was commenced, April 8, 1909.
Fourth. Proceedings are now pending, therefore, in the state courts of Illinois and New York in which every possible question presented by the present bill can be determined. That these courts have jurisdiction and should ultimately decide this controversy, no one disputes.
Fifth. By express provision of law the Surrogates' Courts of New York may, on the application of a creditor, issue letters of temporary administration when, for any cause, delay occurs in granting letters testamentary. This court is unanimous in thinking that "the appointment of a temporary administrator under this statute would adequately protect the interest of the complainant and other creditors.”
No application for such protection has been made.
Sixth. The Circuit Courts of the United States have no jurisdiction in purely probate proceedings.
Seventh. No decree of distribution can be granted by the Circuit Court; and if no answer be filed and a decree be taken by default it must be to the effect that the receiver continue to hold the property indefinitely until another court, having jurisdiction of the entire controversy, sees fit to administer it. Such a degree is an anomaly. A court which cannot dispose of property should not be permitted to receive it.
Eighth. It is our duty to assume that the state courts will do their duty, at least until something appears to justify a contrary conclusion. The appointment of this receiver within three months after the petition was filed in the Surrogate's Court and without any application for temporary administration, proceeds upon the theory that the Surrogate's Court will not do its duty :—to my mind a wholly unwarranted assumption.
If I am correct in the foregoing propositions, it follows that in sustaining the action of the Circuit Court in taking jurisdiction and granting a drastic remedy in, to say the least, an exceeding doubtful case, we are setting a dangerous precedent. We have repeatedly held that a preliminary injunction should never issue in such a case and yet we sanction, in limine, the taking of property from the custody of tribunals having full jurisdiction and entirely competent to administer it and thus add to the complications of a sufficiently tangled situation. The question of jurisdiction must be determined as of the time the bill was filed—April 8, 1909. If at that time the court had no jurisdiction the order appointing the receiver should be vacated. jurisdiction is to be predicated of the failure of the state courts to act, it seems to me manifest that it does not attach until they have been asked to act and have declined to do so. In other words, a premature action cannot be maintained upon the theory that some event may occur in the future which will give it vitality. The opinion of the court directs that a speedy application be made by the complainant to the Surrogate's Court asking for the appointment of a temporary administrator and provides that unless it be shown that, within the time limited, the application has been made and denied, "the receivershi should be terminated and the bill dismissed."
I cannot resist the conclusion that this refusal of the state courts to act, concededly necessary to sustain and continue the action, was a condition precedent to the filing of the bill and should have been alleged therein.
If the state courts had declined to administer the estate prior to the filing of the bill, there still would be a grave question as to the juris