Colton v. Colton

[Syllabus from pages 300-301 intentionally omitted]

These are two bills in equity, one filed by Martha Colton and the other by Abigail R. Colton, each of whom is a citizen of the state of New York, against Ellen M. Colton, a citizen of California. Martha Colton alleges in her bill that she was a sister of David D. Colton, who died in San Francisco, Cal., on October 9, 1878, and that the defendant, Ellen M. Colton, is his widow; that on October 8, 1878, the said David D. Colton made and executed in due form his last will and testament, a copy, the case was tried to a jury, which found for S. and is set out as follows: 'I, David D. Colton, of San Francisco, make this my last will and testament. I declare that all of the estate of which I shall die possessed is community property, and was acquired since my marriage with my wife. I give and bequeath to my said wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seized or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best. I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may in her love for them choose to exercise. I hereby appoint my said wife to be the executrix of this my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix. I authorize and empower her to sell, dispose of, and convey any and all of the estate of which I shall die seized and possessed, without obtaining the order of the probate court, or of any court, and upon such terms and in such manner, with or without notice, as to her shall seem best. If my said wife shall desire the assistance of any one in the settlement of my estate, I hereby appoint my friend, S. M. Wilson, of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and authorize her to call in either or both of the said gentlemen to be her co-executors; and in case she shall so unite either or both of them with her, the same provisions are hereby made applicable to them as I have before made for her in reference to bonds, and duties and powers.' The bill further alleges that on or about October, 29, 1878, 'the defendant duly filed the said last will and testament of the said David D. Colton in the then probate court in and for the city and county of San Francisco, state of California, and thereafter such proceedings were duly had in said probate court that on or about the 11th day of November, A. D. 1878, an order of said probate court was duly made and entered appointing the defendant executrix of the said will and testament, and thereupon the defendant duly qualified as such executrix, and letters testamentary upon the said last will and testament were duly granted and issued to her, the said defendant, and the said defendant thereupon entered upon and thereafter continued to discharge the duties as such executrix until about the 18th day of December, A. D. 1879, when, by an order or decree of said probate court, then and there duly made and entered, the whole estate, real and personal, of the said David D. Colton then remaining was distributed to the said defendant, and she was discharged from any further duties as such executrix.' The bill then alleges that the estate of David D. Colton thus distributed to the defendant was of the value of about $1,000,000, and that the defendant, though often demanded, has failed, neglected, and refused to make to the plaintiff any gift or provision whatever from the estate of said David D. Colton.

The bill also contains the following allegations: 'Your oratrix further shows that she has no estate, property, or income; that for many years she has been and still is, dependent upon her mother, the said Abigail R. Colton, for her support and maintenance; that ever since your oratrix was a young child her said mother has been in feeble health, and has always required your oratrix's aid and services, and especially during the lengthened illness and last sickness of your oratrix's said father, and ever since the death of your oratrix's said father, as aforesaid, her said mother has been an invalid, and has endured much sickness and suffering, and has required much medical attendance, and the almost constant nursing and care of your oratrix. And your oratrix further shows that about December, 1869, your oratrix's said father, Isaac W. Dloton, then residing in the city of New York, at the request of your oratrix's brother, the said David D. Colton, then residing in San Francisco aforesaid, converted all of his property, consisting of what was then known as 'five-twenty bonds of the government of the United States,' as was well known to the said David D., in gold, amounting to the sum or fifteen thousand dollars, and loaned the same to the said David D., and thereupon your oratrix's father received therefor the promissory note of the said David D. Colton, dated at San Francisco aforesaid, on or about December 7, 1869, for the said sum of $15,000, payable in gold, with interest; that afterwards, on or about March 1, 1873, the said David D. Colton renewed his said note by giving his new note to his father, the said Isaac W. Colton, for the same amount, and payable in the same manner, and which said new note was owned and held by your oratrix's said father at the time of his death. And your oratrix further shows that her said father died intestate, and that after his death, and on or about March 1, A. D. 1877, the said David D. Colton, with the consent of your oratrix, took up said last-mentioned note by giving his new note therefor, payable to his and your oratrix's mother, the said Abigail R. Colton, for the said sum of fifteen thousand dollars, with interest, and thereby your oratrix surrendered and relinquished all her legal share and interest in the said note so held by her father at the time of his death, as aforesaid, as your oratrix's brother, the said David D. Colton, well knew.'

The prayer of the bill is that the 'defendant may be compelled to execute the terms and directions of the said last will and testament of the said David D. Colton, and to make your oratrix a suitable provision from the said estate of the said David D. Colton in such amount and in such manner as to your honors shall seem most meet and proper in the premises.' Abigail R. Colton, complainant in the other bill, is the mother of Martha Colton, and also of David D. Colton, the testator. Her bill is in substance the same as that of Martha Colton, and prays for similar relief, but contains the following: 'And your oratrix further shows that the said defendant has, although often demanded, utterly failed, neglected, and refused to make to or your oratrix any gift or provision whatever from the estate of your oratrix's son, the said David D. Colton, except as hereinafter mentioned, that is to say: On or about March 1, 1880, the defendant sent to your oratrix the sum of fifty dollars; and thereafter, at divers times, and at various intervals between the day last named and about the 1st day of January, 1881, the defendant sent to your oratrix about five other sums of fifty dollars each, amounting in the whole, as above given to your oratrix, to the sum of about three hundred dollars; and in or about the month of February, 1881, the defendant sent to your oratrix the further sum of six hundred dollars; and in or about November, 1882, she gave to your oratrix the further sum of six hundred dollars; the whole given as aforesaid, since the death of the said David D. Colton, amounting altogether to the sum of about fifteen hundred dollars only. Your oratrix further shows that she is now in the seventy-fifth year of her age, and that for many years prior to the death of her husband, the said Isaac W. Colton, she was in feeble health, and ever since that event she has been an invalid and endured much sickness and suffering, and has required much medical attendance, and the almost constant nursing and care of her said daughter, Martha Colton, who has always resided with her, until the present time. That your oratrix is not the owner of and has no interest in any real estate or chattels real, except a one-half lot in Greenwood cemetery, near the city of New York, where her said husband is buried, and that besides her wearing apparel your oratrix has no personal property whatever except the sum of $15,000, which she has had loaned out upon interest ever since on or about March 1, 1877, from which time the possession and loaning out of the said sum of $15,000 by your oratrix were well known to the said David D. Colton, down to and at the time of his making his last will and testament. And your oratrix further shows that her entire income ever since the death of her son, the said David D. Colton, has consisted solely of the interest moneys arising from the loan of the aforesaid fifteen thousand dollars, and the aforesaid several sums of money given by the defendant to your oratrix as aforesaid; and ever since in November, 1882, her income has consisted and does still consist solely of said interest moneys alone. And your oratrix further shows that, at the time of the death of the said David D. Colton, his sister, the said Martha Colton, was not and is not now the owner of any real estate or property, nor has she any income whatever, and your oratrix has, therefore, ever since the death of the said Martha's father, provided, and still provides, her, the said Martha, support and maintenance. That by reason of your oratrix's very limited income aforesaid, and notwithstanding great economy in her living and expenses, and the denying herself much that would conduce to her health and comfort, your oratrix is in very straitened circumstances.' To each of these bills the defendant demurred, and for causes of demurrer assigned the following: 'First, that the said complainant hath not by her said bill made such a case as entitles the said complainant to any relief in this court, avouching any of the matters therein complained of, in this, that no estate, trust, or interest exists in favor of said complainant, or arises in her favor out of the said last will and testament in her bill set forth, or any matter, legacy, or devise therein contained; second, that this court hath no jurisdiction of the matters and things set forth in said complainant's bill, nor hath it jurisdiction to consider the same or to grant the relief prayed for, or any relief whatever; third, that neither this court nor any other court whatever hath jurisdiction to hear and determine the matters and things set forth in complainant's said bill, or to grant the relief therein prayed, or any other relief whatever; fourth, that it appears on the face of said complainant's bill that if any cause of action whatever exists by reason of the matters and things in said bill set forth, that such cause of action is founded upon a stale equity and claim; fifth, that it appears on the face of complaint's said bill that the said cause of action therein set forth, if any such exists, accrued more than four years before the commencement of this action, and that the same is barred upon the principle which courts of equity follow in analogy to the statute of limitations at law; sixth, that it appears upon the face of said complainant's bill that the said pretended cause of action therein set forth accrued more than four years before the filing of her said bill; seventh, that it appears on the face of complainant's said bill that the matters and things therein sought to be inquired of and determined have long since been inquired into and determined against the said complainant by the probate court of the city and county of San Francisco, state of California.' The demurrer to each of the bills was sustained, and theyw ere severally dismissed. Colton v. Colton, 10 Sawy. 325, 336, 21 Fed. Rep. 594. From these decrees the present appeals are prosecuted.

Sherman Evarts and ''Wm. M. Evarts'', for appellants.

John A. Stanly and ''Geo. R. B. Hayes'', for appellees.

Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.