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BACHE HALSEY STUART SHIELDS INC. v. GARMAISE

July 31, 1981

BACHE HALSEY STUART SHIELDS INCORPORATED, Plaintiff,
v.
Gisela GARMAISE, Arthur Garmaise, Tamar Garmaise, Rachel Gewurz, a/k/a Regina Gewurz, Samuel Gewurz, Werner Gewurz, Fernande Izraeli, Peter Ritter, Louis Drazin, Amnon Rafael, Michale Caspi, G.I.T. International Trust, Shardana Establishment, Golden Life Establishment, Wasco Foundation, Sidney Mauriber and the National Bank of Liechtenstein, Defendants



The opinion of the court was delivered by: WEINFELD

This is an action for interpleader that arises out of a bitter family feud over the assets of the estate of the patriarch of the family, Judah Leib Gewurz. Bache Halsey Stuart Shields Incorporated ("Bache") holds certain assets in New York in various accounts in the name of different juridical entities established by the decedent, some of the defendants herein. Bache, pursuant to 28 U.S.C. §§ 1335, 1655 and 2361, seeks to be discharged from any liability by reason of refusal to follow conflicting instructions by one or more of the parties to this litigation as to the disposition of those assets, and to be relieved of providing management services with respect to the assets upon their deposit into the registry of the Court, pending judicial resolution of the dispute over the control of those assets. The defendants Gisela Garmaise, a daughter of the deceased, her husband Arthur, and their daughter Tamar (the "Garmaise defendants") support Bache's motion. Those on the other side of the family squabble, the defendants Rachel Gewurz, wife of the deceased, Samuel and Werner Gewurz and Fernande Izraeli, children of the deceased (the "Gewurz defendants"), as well as the juridical entities, the defendants G.I.T. International Trust ("GIT"), Shardana Establishment, Golden Life Establishment, and Wasco Foundation, and also Peter Ritter, a director of GIT, oppose Bache's effort to interplead and move to dismiss the complaint for lack of both subject matter and personal jurisdiction. Before proceeding to the merits of the motions, which present in large measure the same issues, it will be helpful to set forth the factual setting.

The dispute originated following the death in February 1978 of Judah Leib Gewurz ("Judah"), a Canadian citizen then domiciled in Israel. In 1975 he executed a will in Canada while domiciled there; in January 1978, he executed another document in Israel purporting to make testamentary disposition of certain assets. In between, he and his wife Rachel established GIT as an independent juridical entity under the laws of the principality of Liechtenstein. GIT then opened an account at Bache in New York City.

 The 1975 and 1978 documents have been the subject of probate proceedings in Canada and Israel, respectively. Under the 1978 instrument, Judah transferred certain assets of GIT to various trust accounts and individuals, defendants herein. While the parties have not clearly articulated their respective positions as to the 1978 instrument, there is a sharp dispute as to whether in fact it is a will and, if so, whether Judah had the power to effect a testamentary transfer of the assets.

 In March 1979 Tamar Garmaise, the granddaughter, filed suit in the Surrogate's Court of New York County for letters of temporary administration with respect of Judah's estate. In effect, she claimed she was, under the 1978 document, a distributee of assets held by Bache in accounts in the name of GIT and the other juridical entities. That court appointed the defendant Mauriber temporary administrator of the assets in the Bache accounts upon allegations that the Gewurz defendants were withdrawing assets from those accounts.

 In December 1980 the Surrogate's Court revoked the letters of temporary administration and dismissed the petition, finding that, though GIT was an independent juridical entity under the law of Liechtenstein, "(a) vigorously contested issue exists as to the power of decedent to make any disposition of the assets of G.I.T. .... This issue is one to be resolved by a court in decedent's domicile which has jurisdiction of decedent's estate and jurisdiction to determine the validity and construction of his 1978 "will.' " *fn1" The court also ordered payment of the $ 18,197 fee of the administrator, defendant Mauriber, out of the assets held by Bache. The Surrogate's order dismissing Tamar's petition was appealed to the Appellate Division, First Department, but this appeal has not been perfected.

 The scene of activity then shifted to Liechtenstein. Gisela Garmaise, the daughter of Judah and mother of Tamar, commenced an action there in December 1980 for an accounting of the assets of GIT, which was soon followed by a second action resulting in the appointment of the National Bank of Liechtenstein, a defendant herein, to the supervisory board of GIT. Finally, Rachel Gewurz, the widow, also commenced litigation in Liechtenstein in an effort to secure a judicial determination of various claimants' rights to the GIT assets.

 In brief, the underlying dispute is between the Gewurz defendants, "on the one side, and the three Garmaise defendants, on the other, over the assets of G.I.T. That dispute derives from the estate of J. L. Gewurz ... and its resolution will turn on the answer to the questions of who has the right to control the assets of G.I.T. and whether those assets were testamentary." *fn2"

 Against the background of these conflicting claims we consider Bache's position. Although Bache's records indicated that the Garmaise defendants were not empowered to act for the various juridical entities, Bache during 1980 received various communications from Gisela Garmaise and her husband, Arthur, asserting rights to the assets in the accounts and warning Bache not to proceed with distribution to any others under penalty of liability to the Garmaise defendants. Then, after the Surrogate had dismissed Tamar's petition and after Gisela, her mother, had succeeded in obtaining the appointment of the National Bank of Liechtenstein as a supervisor of GIT, Bache was deluged with conflicting directions with regard to the assets in the accounts.

 Thus, on January 19, 1981, Bache received a telex message from the National Bank of Liechtenstein informing it that it had the sole right of signature over the GIT assets held by Bache. The same day, Bache received written instructions from Rachel Gewurz to transfer various securities and sums of money out of her own account to other accounts. Two days later, on January 21, 1981, Bache received instructions from the National Bank of Liechtenstein to transfer assets in the accounts of GIT to its account at the Chase Manhattan Bank. On January 23, 1981, Bache received another telex from the National Bank of Liechtenstein instructing it to disregard the previous telex, to retain the assets pending the outcome of the Liechtenstein litigation, and to follow only instructions given jointly by Rachel Gewurz, Peter Ritter, and it. Ritter sent a telex the same day confirming these instructions.

 Faced with the two originally conflicting instructions from the National Bank of Liechtenstein and Rachel Gewurz, and also considering the contrary assertions of the Garmaise defendants, Bache understandably commenced this interpleader action on January 26, 1981. This is a classic case for interpleader from the point of view of Bache, a disinterested stakeholder caught in the crossfire of a bitter family feud. It is confronted with a series of Hobson's choices which may subject it to substantial claims upon complying with any of the various demands of the claimants.

 Although the National Bank of Liechtenstein reversed its earlier position by requesting that the assets remain at Bache, the Gewurz defendants on this motion ask this Court to order transfer of the assets to Liechtenstein, where the assets would be under the control of the courts there. Given previous changes of position by the National Bank of Liechtenstein and the Gewurz defendants, Bache is uncertain as to a reasonably prudent course of action. The Garmaise defendants have consistently threatened legal action against Bache if Bache transfers the assets contrary to their instructions. Although they are not signatories to the accounts, Bache is not required to evaluate the merits of their conflicting claims at its peril; rather, it need only have a good-faith concern of expensive litigation and multiple liability if it responds to the instructions of certain claimants and not others. *fn3" That its concern is real and not fancied can hardly be disputed. This is precisely the kind of case for which the equitable remedy of interpleader is designed.

 The Gewurz defendants, however, oppose the relief sought by Bache and move to dismiss the action on the grounds that the Court lacks both subject-matter and personal jurisdiction. The former contention is readily disposed of. With respect to subject-matter jurisdiction, this action is in the nature of statutory interpleader brought pursuant to 28 U.S.C. § 1335. Thus, there is subject-matter jurisdiction if the value of the property at issue is at least $ 500, there are two or more adverse claimants of diverse citizenship with respect to each other, and plaintiff either deposits in the registry of the Court the assets in question or has posted a satisfactory bond approved by the Court in lieu thereof. As to the diversity requirement, jurisdiction is satisfied if the diversity is "minimal"; that is, all claimants need not be of diverse citizenship with respect to each other as long as any two are. *fn4"

 There is no question that more than $ 500 is at stake in this case, nor is there an issue that Bache is prepared to deposit the stake in the registry of the Court, although there is a question as to the form that such a deposit should take, as will be discussed later. Thus, the only issue is whether there is the requisite minimal diversity.

 All the claimants in this case, save defendant Mauriber, the temporary administrator appointed by the Surrogate's Court, are citizens of foreign countries. For diversity to exist, then, Mauriber, who is a citizen of New York, must be a truly adverse claimant. The Gewurz defendants contend that he is not an adverse claimant because all other claimants recognize his entitlement to the $ 18,197 ordered paid to him by the Surrogate. However, there is a genuine dispute as to the source of that fee: the Garmaise defendants' position is that they have consented to payment of the fee out of the assets at Bache only if it is determined that those assets are part of the estate. That question, of course, underlies the pending dispute. The fact is that Mauriber has not been paid and has a legitimate claim which is the subject of dispute as to the source of payment. *fn5" ...


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