Barker v. Eastman , 76 N.H. 277 ( 1912 )

The first proceeding is a bill in equity brought by Charles B. Barker, a beneficiaries under the trust created by article 8 of the will of Hiram Barker, against Eastman, the trustee, and all the other beneficiaries thereunder, and filed in the superior court March 21, 1911. The second proceeding is a bill in equity brought by the trustee against all the beneficiaries and filed in the superior court April 1, 1911. After service had been had upon all the defendants in both proceedings, the defendants Hiram H., Ella M., Will T., and Eda F. Barker appeared specially therein, stating that they reserved all their rights to object to the jurisdiction of the court as to all matters contained in a certain bill in equity brought by them and filed in the circuit court of the United States for the district of New Hampshire on March 6, 1911. May 2, 1911, Charles B. Barker filed a motion in the superior court asking that the special appearances be stricken off, that the parties so appearing be required to appear generally, and that a hearing be had upon the questions raised by the bills. A hearing was had upon the motion, and the defendants in question were ordered to appear generally and answer on or before May 25, 1911. In compliance with this order, they appeared generally in both proceedings and filed an answer to the bill brought by the trustee; but to the bill of Charles B. Barker they filed a motion to dismiss the proceeding as to them, stating that a prior action was pending in the circuit court of the United States for the district of New Hampshire, in which they were plaintiffs and Eastman, trustee, was defendant, involving the same. matter so far as they were concerned, and that the United States court had prior and exclusive jurisdiction of the matters as to them. In this proceeding they also filed what they were pleased to term a demurrer, but which in fact and in law was nothing more than a motion to dismiss, based upon the pendency of the suit in the United States court. The motion to dismiss was denied. Answers were filed by the trustee and Clara Barker Berry to the bill of Charles B. Barker, and also by Charles B. Barker and Clara Barker Berry, as well as by the other defendants, to the bill of the trustee. The proceedings were then consolidated, a hearing of all the parties was had, the facts set out in the reserved case were found, and the jurisdictional question and all other questions of law were transferred to this court. No exception was taken to the denial of the motion to dismiss; but as it seems to have been agreed that the jurisdictional question should be considered with the other questions raised, we proceed to consider it.

It has been held in the circuit court of the United States for this circuit, that the state court, although exercising concurrent jurisdiction with the federal court in this district, is not a domestic but a foreign court, and that a plea in abatement setting forth the pendency of a prior suit in the state court between the same parties, involving the same subject-matter, and asking for the same relief, will not abate the suit in the federal court. Hughes v. Elsher, 5, Fed. Rep. 263; Latham v. Chafee, 7 Fed. Rep. 520; Lynch v. Insurance Co., 17 Fed. Rep. 627, 628; Coe v. Aiken, 50 Fed. Rep. 640. Such seems to be the holding of the federal courts in most of the: circuits (Marshall v. Otto, 59 Fed. Rep. 249; Shaw v. Lyman, 79 Fed. Rep. 2; Bunker Hill etc. Co. v. Company, 109 Fed. Rep. 504, 508), although in some a different rule prevails. Radford v. Folsom, 14 Fed. Rep. 97, 99-102. See Wilson v. Milliken, 103 Ky. 165, — 42 L.R.A. 449, note.

In this state, in the case of Smith v. Insurance Co., 22 N.H. 21, 25, it was said that the state court and the circuit court for this district were domestic courts, and that the pendency of a prior action for the same cause and between the same parties in one of the courts would be sufficient, if well pleaded, to abate the subsequent suit, if the court in which the prior action was pending had jurisdiction of the cause. But what is there said was not essential to a disposition of the case, as the question upon which it was finally disposed of was that the plea was defective, in that it did not sufficiently disclose that the court in which the prior action was pending had jurisdiction. So here, it is not essential to a disposition of these cases that the question should be decided; for if we assume that the state court and the circuit court for this district are domestic courts, the defendants' motion cannot be sustained as a valid plea in abatement. According to the ancient rule, a plea of a prior action pending, to be a good plea in abatement, had not only to set out the identity of the cause of action and of the parties, but the record of the prior action had to be enrolled. This is now the rule in this state. Ladd v. Stratton,59 N.H. 200; Smith v. Insurance Co., supra. A plea in abatement is a dilatory plea, and because of this the strict requirements of this ancient rule have not been relaxed. As late as 1878, this court in discussing the subject said: "Dilatory pleas not being favored, the highest degree of accuracy is required of the defendant who relies upon such a defence instead of the merits of his case. We do not feel called upon to disturb the ancient practice in this respect, in favor of this class of pleas, although the practice may have become obsolete in other pleadings." Messer v. Smythe, 58 N.H. 312, 313.

But if we further assume that the record of the prior action was properly enrolled, the motion to dismiss cannot be sustained as a plea in abatement. This ancient doctrine is founded upon the supposition that the second suit is oppressive and vexatious; but "upon a plea of a former action pending, vexatiousness is a conclusion of law drawn from the fact of two suits brought by one person against another, for one cause, and pending at one time, and is not a matter of fact depending upon the question whether the first action was defective, . . . or whether, upon some . . . special ground, it is equitable that the second should be commenced while the first is pending." Gamsby v. Ray, 52 N.H. 513, 516. This being the case, it is apparent that the motion and the record of the federal suit do not disclose the fact of two suits brought by one person against another, for one cause, and pending at one time, from which vexatiousness as a conclusion of law can be drawn. Charles B. Barker did not bring the proceeding in the federal court and has not been made a party to it in any way. Eastman the trustee, did not bring the federal proceeding; and while he has been made a party defendant therein, vexatiousness as a conclusion of law cannot be drawn from this circumstance. "The authorities all seem to require that not only must the cause of action be the same, but the plaintiffs also must be the same." Bennet v. Chase, 21 N.H. 570, 584. And it would seem that this must be so, vexatiousness being a conclusion of law and not of fact.

It was further suggested by counsel at the argument that the motion to dismiss might be regarded as a request to stay these proceedings until the main questions raised in the federal bill were determined in the circuit court, and that the state court, in the exercise of its discretion and as a matter of comity, might grant the request. If this is the question sought to be raised by the defendants' motion, the answer is that it presents no question of law; and the motion having been denied in the superior court, the question of discretion has been determined against them. Driscoll v. Railway, 71 N.H. 619. Moreover, we think the question of discretion was rightly decided. In the federal bill, the plaintiffs, among other things, pray for an accounting by the trustee, and that their shares in the trust estate and the security they shall be required to give to insure the payment of the life annuities provide for in the will shall be determined. They also assert the claim in that bill that Hiram H. Barker, as father of the three deceased grandchildren of the testator, should receive upon distribution of the trust estate what would have been their shares had they lived, or one half of the estate, and that the other half should be divided equally among the three surviving grandchildren, of whom Charles B. Barker is one. It is apparent that Charles B. Barker is a necessary party to a final determination of all these questions; that upon the question of accounting by the trustee, his position is necessarily adverse to that of the trustee (2 Per. Tr., 6th ed., s. 882); that upon the question of security, its character and amount, his position is adverse to that of the life annuitants to whom he and the other remaindermen must give security for the payment of the annuities before distribution can be had; and that upon the question of his share in the remainder — whether he shall receive one sixth as Hiram contends, or one third as he contends — his position is adverse to that of Hiram.

The subject-matter of the federal bill does not present a separable controversy in which those who have been made parties to it are alone interested. A decision of the questions raised in that proceeding would not be binding upon Charles B. Barker, but would be open to further litigation in the proceeding brought by him and in which all parties in interest have been joined. In this situation, it was therefore at least doubtful whether the federal court would undertake to pass upon the questions raised in the federal bill without Charles B. Barker having been made a party defendant; and if he were made a party defendant, it is practically certain that the federal court would decline to pass upon them, as the diversity of citizenship upon which its jurisdiction is based would be wanting. For these reasons and others that might be mentioned, the superior court, having all the parties before it in a proceeding in which all these questions could be determined and in which full and adequate relief could be had, was clearly warranted in denying the defendants' motion and in proceeding to hear and determine the questions presented by the bills.

The main question in the case is whether the time has arrived for terminating the trust and distributing the estate among the remaindermen. It is conceded in the various pleadings of the parties that the grandchildren are of good habits and business capacity, that they are ready to furnish the security required by the will as a condition precedent to distribution, and that Eda F. Barker, the youngest living grandchild, is now twenty-one years of age. Counsel for Charles B. Barker contend that under the will, as construed in Edgerly v. Barker, 66 N.H. 434, the time for vesting and distributing the estate among the remaindermen arrived when Eda became twenty-one years old. Counsel for Clara Barker Berry apparently concede that the title to the estate vested in the remaindermen when Eda became twenty-one, but contend that the time for distribution has not arrived, as by the terms the will distribution is not to take place until the youngest grandchild reaches forty; that while it was decided in Edgerly v. Barker that the time for vesting should be cut down from forty to twenty-one years, to comply with the implied intention of the testator to reject what was against law and let the rest stand, it was not decided that the time fixed for distribution should also be cut down; that it was not necessary to so hold, as it was the time fixed for vesting and not for distribution that infringed upon the rule against perpetuities. It is therefore necessary for us to ascertain what was considered and decided in Edgerly v. Barker, and to determine to what extent these contentions are sound. After a careful study of that case, the following propositions seemed to be deducible from the decision:

(1) That the testator intended the estate devised to trustees should vest in and be distributed among the grandchildren when the trust terminated, and that it should not vest in them so that they could sell and dispose of their interests before the time of distribution arrived (pp. 447, 448); that "during the intended continuance of the trust . . . the remainder should vest in no one but the trustees" (pp. 464, 465).

(2) That for the purpose of fixing the time of vesting and distribution, the testator used the word "children," in article 8, subdivision 5, of the will, in its limited sense, as meaning the sons and daughters of C. and H.; but for the purpose of fixing the persons who were to make up the class to whom distribution was to be made, he used the word and intended it should include the issue of those children who might die after the will was made (pp. 450, 451).

(3) That it was unnecessary to determine who, during the lives of C. and H., would be the youngest of the children; that it would be assumed, without considering the question, that during their lives the remainder would not vest in their issue (p. 451).

(4) That the general devise to trustees vested the legal title in them and was a good devise for the valid uses (including the interests absolute and conditional of C. and H.) for which the trustees were directed to hold the property during the lives of C. and H.; that during their lives, the trust, for these valid uses, would not infringe any rule of law (p. 464).

(5) That if the time appointed in the will for the remainder to pass from the trustees to the grandchildren were a mere nullity, the consequence would be that the remainder would pass at the termination of the life interests of C. and H., whose lives were intended to be the only lives in being that should be taken into consideration in determining the period during which vesting and distribution were to be postponed (p. 465).

(6) That beyond the time of the termination of the life interests of C. and H., the validity of the trust depended upon the question whether on this point the will is a mere nullity, or whether the testator's intent that the remainder shall pass at a period more distant than the law allows is carried into effect as nearly as it can be — that is, at the most remote legal time (p. 465).

(7) That the testator's primary intent was that his grandchildren should have the bulk of his estate, and that his children should not; that the time when they should have it was secondary; that inability to carry into effect the secondary or subordinate intention would not be allowed to defeat the primary or general intention; and that applying the doctrine of cy pres in pursuance of his implied intent to throw out what is against law and let the. rest stand, the last nineteen of the forty years in the devise to the grandchildren are too remote, while in the rest of the time and the rest of the will there is no illegality (p. 473).

(8) That by the testator's general approximating purpose, which is a part of the will, the testator's intention that the grandchildren shall not have the remainder till the youngest arrives at the age of forty is modified by his intent that they shall have it, and that the will shall take effect as far as possible. The forty years are reduced to twenty-one (p. 475).

From the foregoing summary of the opinion, it appears that the court did not undertake to decide whether the testator had provided in his will for a vesting and distribution of the remainder among the grandchildren upon the happening of a contingency that should take place during the lives of C. and H., for it is there assumed, without passing upon the question, that no such intent was expressed in the will. This course was pursued so that the court might consider the bald question, whether the provision for postponing the vesting and distribution of the remainder, after the expiration of the lives of C. and H., to such a time as the youngest grandchild reached forty, was predicated upon a contingency so remote that it could not be sustained. It was upon this proposition that the court, applying the testator's general approximate purpose, held that the forty years should be reduced to twenty-one. The question therefore remains whether the will discloses an intention on the part of the testator that the remainder should vest and be distributed among the grandchildren, during the lives of C. and H., when the youngest reaches forty.

In subdivision 5 of article 8 of the will, the testator, among other things, provides: "When the youngest of said children [of C. and H.] shall arrive at the age of forty years, then all my estate shall be theirs to have and to hold the same to them and their heirs, those of them of good and regular habits and of capacity to do business and manage property, to take care of and manage as trustees the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity; but before said property shall vest in and be theirs, proper, suitable, and sufficient bonds or other security must be given by them for the payment of said sum or sums [the life annuities previously provided for] to my said daughter, if living, so long as she shall live, to my said son's widow, if she shall then be living, so long as she lives and remains his widow, and also for the good and sufficient support of my said son so long as he shall live."

It seems reasonably certain from the general language of the will, and especially from the provisions quoted calling for security to insure the payment of the annuities to C. and H. as a condition precedent to the vesting and distribution of the remainder during their lives, that the testator contemplated that the remainder should vest and be distributed among the grandchildren during the lives of C. and H., if during that period the youngest grandchild of those then in being reached the age of forty; and that unless this contingency happened during their lives, the remainder should not vest and be distributed until after C. and H. were dead and the youngest grandchild reached forty, cut down, according to Edgerly v. Barker, to twenty-one. This conclusion is not rendered less certain when the provisions of the will are considered with reference to the situation confronting the testator at the time he made his will and the codicils. The codicils antedate his death but a short time. Hiram was then about thirty-five years old and had five children. Clara was about forty-seven and was unmarried. Before any of the children, whether then living or subsequently born, could reach the age of forty, Hiram, if living, would be from sixty-two to seventy-five or more years old, and Clara would be from seventy-four to eighty-seven or more. It is reasonably probable that under these circumstances the testator concluded that if Clara and Hiram lived to such an advanced age as that the youngest grandchild then in being was forty years old, the class made up as of that time would include all whom he desired to make the objects of his bounty. It follows, therefore, that as the youngest living grandchild has not reached forty, the time for vesting and distributing the remainder during the lives of C. and H. has not arrived.

Under these circumstances it is conceded by the parties that Eda, having attained the age of twenty-one years, is entitled to be paid the sum of $3,000 called for by subdivision 5, article 8, of the will, and the trustee is advised to pay her that sum. It is unnecessary to answer or decide the other questions presented by the case, as a decision of them would be material only in case the time of distribution had arrived.

Case discharged.

All concurred.