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IN RE KOSCH

November 29, 1937

Application of KOSCH, LEWIS & REUBEN; Application of ROBBINS, FOWLER, WELLS & WALSER; In re McKEVETT'S ESTATE


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

These matters are of identical nature and scope and will be treated together; they are before the court in the form of a motion to enjoin certain proceedings now pending in the Surrogate's Court of the County of Suffolk, initiated by the above-named respective firms of attorneys under section 231-a of the Surrogate's Court Act of the State of New York, to determine the amounts of their fees.

The motion was argued on November 17, 1937, upon which day the papers on removal had not been filed in this court; for the purposes of the orders to show cause constituting the bases of the applications for injunction, a copy of the Surrogate's Court record was ordered to be filed in this court, authenticated by one of the attorneys making the motion, and that has been consulted as though it were the original record on removal.

 The injunction is sought upon the theory that a hearing which had been set for November 23rd in the said Surrogate's Court should not be permitted to proceed because of the removal of the proceedings to this court.

 The opposition to the motion is in effect an application to remand and has been so considered.

 The proceedings originated in similar petitions filed in the state court by the respective attorneys in which their retention as attorneys for Charles Arthur McKevett is set forth.

 As to the first-named firm it is therein shown that they were retained by him to procure the issuance to him of letters of administration upon the estate of his deceased father, Bert McKevett, who died on April 22, 1937, in Florida, although apparently a resident of Suffolk County, in the State of New York. Those attorneys, with their client's approval, in turn engaged the second-named firm in connection with the said application on or about May 12, 1937, to act as counsel with respect of all matters likely to arise in the said administration, including that of the decedent's domicile.

 The employment thus established continued until about September 18, 1937, as of which date the said Charles Arthur McKevett dismissed the first-named firm as the result of having compromised and settled certain potential assaults upon his status as administrator, based upon the assertion that the decedent was survived by a widow who had contracted a common law marriage with the decedent.

 The importance of that anticipated controversy lay in its capacity to eventuate in a determination that the widow was legally entitled to a distributive share in the estate and to letters of administration. On September 29, 1937, letters of co-administration were issued to her by the said Surrogate's Court upon an application of the said Charles Arthur McKevett, reciting that she was the widow of the decedent; apparently she has qualified as such co-administratrix.

 The two administrators are now represented by the lawyers who originally appeared only for the widow.

 During the interval embraced between the issuance of the first and last letters above referred to, the principal activities of the several petitioners, as such attorneys, had to do with questions involving the actual legal status of the alleged widow, the exact relationship borne to the decedent by the administrator first appointed, and his legal capacity to serve as administrator by reason of certain incidents connected with his earlier years.

 These petitions resulted in the issuance of citations out of the said Surrogate's Court, addressed to the said administrator and the co-administratrix, directing them to show cause why the fees and disbursements of the said petitioners should not be fixed and determined and the lien be adjudicated by the said court, pursuant to the prayers of the said petitioners. It seems that the estate involved is of substantial proportions.

 The removal is predicated upon the theory that there is a separable controversy as to which jurisdiction pertains to this court, involving so much of the relief sought by the petitioners as has to do with the liability of the said Charles Arthur McKevett, in his personal capacity, to pay for the professional services so said to have been rendered, because he is a resident of the State of Connecticut.

 This court is required to decide whether there is such a separable controversy revealed in the pleadings constituting ...


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