Mclnerney, et al. v. Heneghan, et al. CV-93-404-B 01/06/95

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Margaret P. Mclnerney, et al.

v. Civil No. 93-404-B

Jarlath M. Heneghan, Legatee and Executor of the Estate of Margaret T. Legeas, et al

O R D E R

Plaintiffs object to Magistrate Judge Barry's Report and

Recommendation finding diversity jurisdiction to adjudicate the

plaintiffs' claims against the estate of Margaret Legeas, but

denying jurisdiction as to claims against the legatees

individually. After reviewing the record de novo, I accept the

magistrate judge's recommendation with the following

modifications. Fed. R. Civ. P. 72(b).

DISCUSSION

The magistrate judge reviewed plaintiffs' pro se complaint

to determine whether this court has subject matter jurisdiction

over plaintiffs' claims.1 In their complaint, plaintiffs allege

1 The court has a duty to determine subject matter jurisdiction sua sponte. In re Recticel Foam Corp., 859 F.2d that they are entitled to the bulk of Margaret Legeas's estate as

the promised payment for their services to George and Margaret

Legeas. They base their claim on an oral agreement with the

Legeases which they allege is evidenced by a will made by

Margaret Legeas, dated September 1970. They acknowledge that

Margaret Legeas made a subseguent will and codicil that names

Jarlath Heneghan as the executor of the estate and excludes

plaintiffs from a legacy.2 For relief, plaintiffs ask that I

enforce their agreement with the Legeases, declare that the

property of the estate is held by the executor and the legatees

in trust for plaintiffs, and order distribution of the estate to

them. Plaintiffs are citizens of New Hampshire, and the legatees

and executor are alleged to be citizens of other states and

countries. The amount in controversy is alleged to be $500,000.

1000, 1002 (1st Cir. 1988).

2 Plaintiffs previously engaged in a protracted and acrimonious will contest with Heneghan. In that action, the jury found that the Mclnerneys fraudulently destroyed the original of the more recent will, dated in 1979 and offered by Heneghan. The jury returned a general verdict against the Mclnerneys that was affirmed on appeal. In re Estate of Legeas,

(1989), review denied, opinion withdrawn by court order, (1989 Cal. Lexis 3051, Cal. July 27, 1989). The court ordered admission of the 1979 will into probate.

.

2 I agree with the magistrate judge's determination that the

plaintiffs' complaint invokes diversity jurisdiction to decide

plaintiffs' claims against the estate of Margaret Legeas pursuant

to

(a)(1). As the magistrate judge noted,

however, an exception to diversity jurisdiction prevents federal

courts from exercising jurisdiction to probate a will or to

administer an estate. Markham v. Allen,

(1946); see also Bergeron v. Estate of Loeb,

, 795

n.3 (1st Cir. 1985), cert, denied,

(1986). The

prohibition against probate jurisdiction in federal court is a

judicially created exception to otherwise valid diversity

jurisdiction that has caused considerable confusion as to its

source, purpose, and extent. See Draaan v. Miller,

(7th Cir.) ("The probate exception is one of the most

mysterious and esoteric branches of the law of federal

jurisdiction."), cert, denied,

(1982).

When sitting in diversity, a federal court is not subject to

legislation pertaining to state probate courts and may exercise

the same jurisdiction as a state court of general jurisdiction.

Sutton v. English,

(1918); Waterman v.

Canal-Louisiana Bank & Trust Co.,

(1909); see

also Beren v. Ropfogel,

(10th Cir. 1994). In

3 general, a federal court has jurisdiction to adjudicate claims

against a decedent's estate "so long as the federal court does

not interfere with the probate proceedings or assume general

jurisdiction of the probate or control of the property in the

custody of the state court." Markham,

.

Declaration of a claimant's rights to an estate is not within the

probate exception to diversity jurisdiction. See, e.g., Michigan

Tech Fund v. Century National Bank,

(11th Cir.

1982). The probate exception may be limited further "if a state

authorizes interested parties to bring an inter partes action to

annul a will or to set aside its probate independent of the

probate proceedings and not incidental or ancillary thereto."

Moore v. Gravbeal,

, 709 (3d Cir. 1988) . Therefore,

a primary consideration is whether under state law, a court of

general jurisdiction in the state of the probate proceeding would

have authority to resolve the dispute, or whether the matter is

cognizable only in the probate court. Beren,

;

see also Giardina v. Fontana,

(2d Cir.

1984) .

Margaret Legeas' will, dated May 29, 1979, and codicil,

dated June 6, 1979, were proven and allowed by the Superior Court

of California, for the City and County of San Francisco, on July

4 25, 1990. Jarlath Heneghan was appointed executor of the estate.

Plaintiffs filed an amended creditor's claim dated April 22,

1993, also in the San Francisco Superior Court.3 Plaintiffs do

not allege that probate of the estate in the California court is

complete. Plaintiffs have not alleged that probate proceedings

affecting the Legeas estate were undertaken in any state other

than California. For purposes of this Order only and without

making any related factual findings, I will assume that Margaret

Legeas' will is in the process of probate administration in

California, and that no ancillary probate administration

proceedings have occurred or are pending in other states.

Because the administration of an estate generally is controlled

by the local law of the state of appointment, I will also assume

that California law governs the administration of Margaret

Legeas' estate. See Restatement (Second) of Conflict of Laws,

§ 316 (1971) .4

Under California law, the superior court, as a court of

general jurisdiction, has jurisdiction to resolve third party

3 I make no finding as to the timeliness or validity of plaintiffs' claim.

4 I make no determination, however, as to a choice-of-law guestion should it arise in the course of this case.

5 claims adverse to an estate. Estate of Mullins,

(Cal. C t . A p p . 1988); Estate of Baglione,

(1966) (broadening jurisdiction of superior court

sitting in probate to include some claims adverse to the estate) .

Plaintiffs' complaint may be construed to reguest a declaration

of their rights under their agreement with the Legeas.5

Moreover, an action to impose a constructive trust to protect a

claimant's right to compensation from the decedent does not

interfere with a probate proceeding. Mullins,

. Conseguently, plaintiffs' claims are outside the provisions

of the 1979 will and are adverse to the estate. Thus, I have

jurisdiction to both determine plaintiffs' claims against the

estate of Margaret Legeas and to impose a constructive trust on

the estate's assets.6

5 Pro se pleadings ordinarily are held to a less stringent standard although an attorney appearing pro se may not be afforded the same discretion. Rhode Island Hosp. Trust Nat'l. Bank v. Howard Communications Corp.,

, 828 n.8 (1st Cir. 1992). Without deciding Timothy Mclnerney's status for further pleadings, I find the complaint sufficient for jurisdictional determination.

6 I note that plaintiffs' reguested relief does not include a claim against the estate for the value of their services and that they argue in their objection to the Magistrate's Report and Recommendation that their claims are against Heneghan in his capacity as executor "only nominally." Following the less

6 As properly determined by the magistrate judge, this court

lacks jurisdiction to exert control over the administration of

the estate, the distribution of assets, or the estate property

while the California court continues its probate jurisdiction.

Giardina,

. During probate administration,

the California probate court has subject matter jurisdiction over

the property and assets of the probate estate. Estate of

Heggstad,

(Cal. C t . App. 1993).

Therefore, while I have jurisdiction to determine plaintiffs'

right to compensation from the estate and to impose a

constructive trust in their favor, I lack jurisdiction during the

pendency of the probate proceeding in California to control the

property of the estate or to order distribution of the assets.

Plaintiffs' claims for relief do not defeat subject matter

jurisdiction over their underlying claims, however. See

Giardina,

.

The magistrate judge found that plaintiffs failed to state

claims against the legatees, including Heneghan, individually and

dismissed the complaint as to them. A federal court may dismiss

stringent pleading reguirements imposed upon pro se litigants, I will assume that plaintiffs nevertheless intend to maintain suit against the estate.

7 an inadequate claim, sua sponte, but only after "notice of the

proposed action and affording [the plaintiffs] an opportunity to

address the issue." Literature, Inc. v. Quinn,

(1st Cir. 1973); see also Preterm, Inc. v. Dukakis,

(1st Cir. 1979); c f . Bristol Energy Corp. v. State of N.H.

Public Utilities Comm'n,

, 478 n.8 (1st Cir. 1994)

("an appellate court may dismiss a claim sua sponte on Rule

12(b)(6) grounds when, taking a plaintiff's factual allegations

as true, there is a dispositive issue of law."). California law

provides for personal liability of individual legatees only in

limited circumstances that are not alleged in plaintiffs'

complaint. See Clark v. Kerbv,

(Cal.

C t . App. 1992) ("distributees are personally liable for claims of

an omitted creditor where: (1) the creditor's identity was known

to or reasonably ascertainable by the personal representative

within four months of issuance of letters and the claim is not

merely conjectural; (2) the creditor did not receive notice of

administration, and neither the creditor nor his or her attorney

had actual knowledge of administration before the court made its

order of final distribution; and (3) the statute of limitations

governing the claim had not expired"). Therefore, plaintiffs, in

their present amended complaint, have failed to state a claim against the legatees individually, and those claims will be

dismissed unless additional facts may be alleged in an amended

complaint that would meet the legal standard in Clark v. Kerbv.

Plaintiffs are allowed 10 days from the date of this Order to

file a response.

CONCLUSION

After consideration of plaintiffs' objection (document no.

6) I approve the Report and Recommendation of the magistrate

judge (document no. 4) as modified: jurisdiction exists as to

plaintiffs' claim against the estate of Margaret Legeas,

represented by the executor, Jarlath Heneghan, although not to

impose all of the relief reguested, plaintiffs' claims against

the legatees individually will be dismissed unless plaintiffs

file an amended complaint that meets the appropriate legal

standard. Plaintiffs are allowed 10 days to respond to my

proposed action to dismiss their claims against the individual

legatees.

SO ORDERED.

Paul Barbadoro United States District Judge

January 6, 1995 cc: Margaret P. Mclnerney, pro se Timothy O'D Mclnerney, pro se

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