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HOLM v. SHILENSKY

June 12, 1967

Eleanor HOLM, Plaintiff,
v.
Morris SHILENSKY, Arthur Cantor, and Charles Wohlstetter, as Executors of the Estate of Billy Rose, Deceased, Defendants


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant executors of the late Billy Rose for judgment on the pleadings dismissing the six causes of action pleaded in the amended complaint (Fed.R.Civ.P. 12(c)) or in the alternative for summary judgment in their favor (Fed.R.Civ.P. 56).

 The plaintiff (Eleanor) was at one time the wife of Billy.

 The complaint asserts that there is diversity of citizenship. It is averred that Eleanor "resides" in Florida. This, of course, is no proper averment of citizenship. Eleanor may reside in Florida and be a citizen of some other State, as is undoubtedly the case of many Florida residents. The executors are said to have been appointed by the Surrogate's Court of the County of New York. This also is no proper averment of citizenship. It is the citizenship of the executor which is controlling, and not the State of his appointment. For purposes of this motion, however, it is assumed that Eleanor is a citizen of Florida, that defendants are all citizens of New York, and that there is jurisdiction under 28 U.S.C. § 1332.

 The amended complaint (not required to be verified and not in fact verified) contains six separately stated claims. Trial by jury is demanded.

 The first claim avers that Eleanor and Billy were married, that they made a "separation agreement" dated December 28, 1953, that Billy induced Eleanor to enter into the separation agreement by false representations that he would "give to her" under the agreement two certain paintings by Renoir, that Billy falsely represented that he owned the two paintings and that they were "genuine Renoir" and were worth about one million dollars, that Billy knew that the two paintings were not in fact by Ren oir, that Eleanor was induced to enter into the separation agreement by the false representations, that she accepted the two paintings as "partial consideration" for entering into the agreement "with the intent and purpose" that the two paintings would be in lieu of her right of election (Decedent Estate Law, McKinney's Consol.Laws, c. 13, § 18), that Eleanor also relied on the false representations and believing that she had received two paintings by Renoir worth one million dollars which "she could use in her later years for her living expenses" she secured a divorce from Billy, that she gave up her right of election in reliance on the false representations, and that she has thereby been damaged to the extent of $15,000,000. The theory of this first claim appears to be that if by fraud she had not been induced to give up her right of election and to obtain a divorce, she would now have such right of election and her share of Billy's estate would be worth fifteen million dollars; she claims that this is the amount of her damage from the fraud.

 The second claim is based upon the same false representations but avers that Eleanor accepted the two paintings in place of other property jointly owned by her with Billy, that the two paintings are worth about $10,000, and that she has been damaged in the sum of $990,000 (difference between the represented value of $1,000,000 and the actual value of $10,000).

 The third claim is based upon the same false representations but avers that Eleanor by the agreement accepted $200,000 as a marital property settlement and that she has been damaged in the sum of $990,000.

 The fourth claim is based upon the same false representations but avers that Eleanor was induced thereby to enter into the separation agreement and that she has been damaged in the sum of $990,000.

 The fifth claim is based upon the same false representations but avers that Billy knew they were false or made them with "careless and reckless disregard" and without any reasonable grounds to believe that they were true. The same $990,000 damage figure is claimed.

 The sixth claim is not based on false representations but avers that Eleanor and Billy made a "mutual mistake" as to the genuineness of the two supposed Renoir paintings, that she executed the separation agreement and secured a divorce from Billy in reliance on the mutual mistake, that her position has been altered and she has suffered "irreparable damage", and that she has been damaged in the sum of $990,000.

 The answer pleads seven complete affirmative defenses (Fed.R.Civ.P. 8(c)) to each of the six claims. The affirmative defenses are as follows:

 
First: failure to state a claim upon which relief can be granted;
 
Second: a six year statute of limitations;
 
Third: the provision in the December 28, 1953 agreement that the two paintings "shall be retained" by Eleanor, she having been theretofore in possession of them;
 
Fourth: the provision in the December 28, 1953 agreement expressly disclaiming any representations to induce its execution;
 
Fifth: the provision in the December 28, 1953 agreement by which Eleanor released all claims against Billy or his estate;
 
Sixth: the New York judgment of separation; and
 
Seventh: the Nevada decree of divorce.

 The facts which appear without any dispute are as follows:

 Billy and Eleanor were married on November 14, 1939. Shortly thereafter - in 1939 or 1940 - they began living in a town house at 33 Beekman Place, title to which was apparently in Billy.

 In the bedroom of Eleanor when they first lived in the house was a picture by Toulouse-Lautrec hanging over the fireplace. Eleanor did not like it; therefore, a large oil painting of a nude woman was substituted in its place. This was in 1940 and from the same period a small oil painting of a lady's head was on the bureau in Eleanor's bedroom. The large nude and the small head each had the name "Renoir" on the painting or on the frame. They had been bought by Billy, but whether before or after the marriage does not appear. The large nude and the small head remained always (except during summer ...


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