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ROUSSEAU v. UNITED STATES TRUST CO.

November 4, 1976

Mary Bullard ROUSSEAU et al., Plaintiffs,
v.
UNITED STATES TRUST COMPANY OF NEW YORK, Defendant


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant for a wide variety of relief:

 
(1) to dismiss the complaint "or a portion thereof" for lack of jurisdiction over the subject matter (Fed.R.Civ.P. 12(b)(1))
 
(a) because Cornell University is an indispensable party plaintiff and if joined as a party there will be no complete diversity of citizenship; and
 
(b) because plaintiff Mary F. Rousseau is a citizen of New York and there is no complete diversity of citizenship;
 
(2) to dismiss the complaint or parts of it for lack of jurisdiction over the subject matter (Fed.R.Civ.P. 12(b)(1)) because the claims relate to estate administration which is outside the jurisdiction of federal courts;
 
(3) to stay counts I and III pending the outcome of a proceeding in a Connecticut probate court;
 
(4) to dismiss the complaint for failure to join indispensable parties (Fed.R.Civ.P. 19);
 
(5) to dismiss the complaint for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6)); and
 
(6) to postpone discovery.

 At the oral argument, the motion as respects postponement of discovery was withdrawn.

 1.

 H. H. Rousseau was a citizen and a resident of Connecticut. He died on February 22, 1972, leaving a will (which had been executed in New York).

 H. H. Rousseau had two brothers. John died in August 1971 and William died in May 1972.

 The will of H. H. Rousseau was admitted to probate on April 4, 1972, by the Probate Court for Fairfield County, Connecticut. The will named as Executors of and Trustees under the will Mary Bullard Rousseau (wife of H. H.), John (his brother), and defendant Trust Company. Since John had died before H.H., the Connecticut Probate Court approved as co-executors Mary Bullard Rousseau and defendant Trust Company.

 On April 12, 1976, the defendant Trust Company filed with the Connecticut Probate Court an account covering the administration of the estate through April 22, 1975. Mary B. Rousseau was asked to join in filing the account but declined to do so.

 It appears that dates for a hearing on the account as filed in the Connecticut Probate Court have been set and adjourned, the hearing being now set for November 4.

 2.

 H. H. Rousseau had four daughters: Alexandra R. Stark, Wendy R. Powell, Mary R. Roessler, and Helene B. Rousseau. The three first named daughters are now married; the last named is unmarried.

 Under date of April 29, 1965, H. H. Rousseau established four separate trusts, one for each of his daughters. He executed in New York four trust instruments with defendant Trust Company as Trustee and transferred to the Trustee property to be held in trust.

 3.

 Under the will of H. H. Rousseau, seven testamentary trusts were to be established: a trust for his wife (Mary Bullard Rousseau), a trust for each of the four daughters (Alexandra, Wendy, Mary ("Polly"), and Helene ("Lanie")), a trust for brother John, and a trust for brother William. It will appear uncertain whether the trusts for the wife and four daughters have ever commenced their existence and even more uncertain whether the trusts for the two brothers could have, or did, come into existence.

 4.

 This action was commenced on April 12, 1976.

 Plaintiffs are the widow, the four daughters, and nine nephews and nieces of H. H. Rousseau (these being the remaindermen of the trusts for the two brothers).

 There are three separate claims, but all three claims are based on the same alleged conduct of the defendant Trust Company. This was the retention as assets of the estate and of the trusts of common stock of Coleco Industries, Clorox, and Evans Products. This is charged as having been improper, imprudent, negligent and a breach of fiduciary obligations.

 The claim in the first count is by all plaintiffs as legatees, trust beneficiaries, or remaindermen under the will of H. H. Rousseau.

 The claim in the second count is by the four daughters as beneficiaries of the April 29, 1965 inter vivos trusts.

 The claim in the third count is by the nine nephews and nieces as remaindermen of the two testamentary trusts for brother John and brother William in the will. There is a claim that defendant improperly delayed distribution to the children of brother William and has never made any distribution to the children of brother John.

 Jurisdiction is asserted to exist by reason of diversity of citizenship. 28 U.S.C. § 1332

 It should be noted that a judgment for money damages to each plaintiff is asked. Trial by jury is demanded.

 5.

 Movant contends that Cornell University is an indispensable party plaintiff.

 The interest of Cornell is remote in the extreme. In respect of the testamentary trusts, at the end of the trust term the trustee is directed to pay over the principal to the then living beneficiaries or if none be then living to those persons who would then take if the testator had died intestate and if there be no persons of this description, then to Cornell. A similar provision is in the inter vivos trusts.

 Movant would have Cornell an indispensable party because joining Cornell would destroy diversity as a basis of jurisdiction.

 Fed.R.Civ.P. 19 was amended in 1966 to its present form. A chief change was to leave it to the Court's discretion whether "in equity and good conscience" the action should proceed with its parties or should be dismissed for want of a party.

 Considering the remoteness of Cornell's interest and the presence of all the real parties in interest, along with the other factors specified in Fed.R.Civ.P. 19(b), the conclusion is compelled that Cornell should not be regarded as "indispensable".

 There is a good opinion in this area by Judge Doyle, now a Circuit Judge, then a District Judge. Rippey v. Denver United States Nat. Bank, 260 F. Supp. 704, 707-712 (D.Col.1966)

 This part of the motion is denied.

 6.

 Movant contends that plaintiff Mary R. (Polly) Roessler was a citizen of New York when the action was commenced and thus that there is no diversity.

 It is conceded by movant that all plaintiffs except Polly are citizens of states other than New York. The sole question is: was Polly domiciled in New York on April 12, 1976? Evidence was taken at a hearing on September 24, 1976.

 Polly was born in Danbury, Connecticut on February 3, 1947. She grew up in family homes in Redding and Fairfield, Connecticut. As already seen, her father and mother were domiciled in Connecticut where her mother and grandmother continue to be domiciled. She has been a member of an Episcopal church in Connecticut since she was fifteen and has never been a member of a church elsewhere. She has a driver's license for automobiles issued by Connecticut; she has never had such a license from any other state.

 Two homes in Fairfield, Connecticut have figured in Polly's life to date. One is the home of her father and mother at 1009 Redding Road; this home is now owned by her mother. The other home is at 449 Mill Plain Road and is owned by her grandmother, the mother of her mother.

 Polly appears to have gone to school in Massachusetts, ...


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