Appellants Brief Opposing Appellees Motion to Dismiss Appeal — Hanson v. Denckla

; .

“Pat te

a. : | _ iL ~ sO T RY,

a

whet}

s

IN THE .

Supreme Court of the | United States *

.Oc tober 7 19560

oy, oe x : S049

>

EL IZABETH DONNER HANSON, individually, as ecaibs

of the Will of Dora Browning Donner, Deceased, and as

* Guardian ad Litem*for JOSEPH DONNER WINSOR and

DONNER HANSON, and WILLIAM DONNER ROOSE..

VELT, Fadividually, " stppe Hants,

7;

«

KATHERINE N. R. DENCKLA, fndividually, and EL WYN

L. MIDDLETON, ‘as Guardian of the property of

“DOROTHY BROWNING. STEWART, Also Known as.

,DOROTHY B..STEWART and DOROTHY B. ROD-

: “GERS STEWART, an pant stsnans Person, Appeblees. .

“ APPELLANTS’: BRIEF OPPOSING APPELLEES’

-” MOTION TO DISMISS APPEAL.

ad tae me

a Wittram H. F6urrK,. -

ea : 229 Delaware Trust Blidge

| 4 Wilmington 1, Delaware, ;

-. | : Man ey P. CaEDWELL, ‘

Cappwen., Pacettr, Rosrnson & Foster,

ae 501 Harvey Buikling,

3 West Palm Beach, Florida,

“elitorneys for Elisa heth Donner Hinson,

Indig ndually, as Executrix of the Will of

Dora Browning Donner, Deceased, and

a: } as Guardian ad Litem for Joseph Don

Of Counsel:. pir ner Winsor and Donner Hanson, and

‘Epwarb Me arrny, . iW? Miaan Danner Rooseyett, AppeHants. .

| MeCartuy. | anr & Abas. : : \

423 Atlantic Bank Bldg., . a tees y

Jacksonville’ Florida?

Attotney for Elicabeth Donner Hanson

as Guardian. ad Tatem foi Joseph

‘Downer Himser and Donner Hanson?

‘Katurrine N. R. aici

IN -THE

Supreme Court of the United States.

OcroBER Term, 1956,

| No. 918. | |

¢ ; ne ee t & : 7 e

_ Exizasetn Donner Hanson, Individually, as Exécutrix of

the. will of Dora Browning Donner, Deceased, and as

Guardian ad: Litem for JgsepH Donner Winsor and

Donner Hanson, and Wan. Donner Roosev ELT, Indi- |

vidually, cn 7

A ppellants,

-

We

Mndividually, and Exnwyk 'N T,

Mipptkrox, as Guardian of* the property of Dorortity

Brownine Stewart, also knowy as Dogoriy B.Srewarr: -

and Dorkotuy .B. Ropcers STEWART, ar incompetent

person, | : .

Apellees.

ra

‘APPELLANTS’ BRIEF OPPOSING APFELLEES'

~ + MOTION TO DISMISS APPEAL.

W hie appellants believe that all of the- points at-

‘tempted ‘to be made in Appellees’ Motion te Dismiss are

fully and ‘adequately met ii Appellants’ Jurisdictional

Statement, - Appohiants believe that by. filing a reply they

may be helpful to the Court in corr etting . the. erroneous

statements contained in the motion.

Appellees ’ motion admits ‘and emphasizes the fact that

if they are ¢o pervail, it must be on the basis that “the

on Appellants inlias Vpposimng Appellees moron |

action filed by appellees in the trial court had as ite sole

purpose the determination of what property passed under

the will of Mrs. Donner * * *:?? In the short space of five

printed pages, they use the phrase ‘what passed under the

Will?’ (with slight var iation in some Gf the wording) a total

of eight times. They insist thi at. this theory of the case is

supported, or at least recognized, net only by the trial and.

appellate courts*f Florida, but also by the Supreme Court

of the State of Delaware. The reeord does not Support

therm, | i

©

(a) The.Florida trial court in its order of April 9,

7954 (T. 51) found that the suit was ‘pr imarily dimnoraed

with the validity and effect of certain powers of appoint-

ment rather than the. Vill’? and in its order of January 14,

(2955 (28a) it'made a direct ruling ‘‘that the power of ap-

pointment was festamentary in character and did not con-

stitute a valid inter E ‘vos trust appointment’?

.

(b) The Florida : giciass court had the temerity to

admit the validity of the trust, saying :.‘* We do not question. |

fhe validity of the beneficial life estate reserved by the’

settlor’’? (9a). It then held that this ve ilid trust was re-

published by Mrs. Donner ‘after shie-had moved her resi-

dence from Pennsylvania to Florida by the exercise of the

power of appointment dated. December 3, 4949, and con-

eluded that it ‘must consider. the valik lity of the trust and

the remainder interests-it sought to create * *°*? (10a).

Having thus assumed jurisdiction, if proceeded to declare

the trust invalid. Ste

Appellants submit that the weakness of the early state--

ment in the opinion of the Florida appellate court that.

‘Jurisdiction existed by virtue of the Will * * *” (Ta) } 1s

obyious in view of ‘its later findings on the question of the

ralidity of the frust. “But the undeniable answer to ap-

pellees’ position is that neeaction was needed.to determine

‘‘what passed under: the Will’, Everything passel tinder

its clear and unambiguous terms except property which had

© . iy

s

«

is © AEP peanuts Dries Uppestnyg sbppreurecsy worn o

been validly and legally disposed of in.Mrs. Donner’s life-

time. : | pce .

| (e) It is true that the Supreme Court of the State of

Delaware said: “’

“In Florida the issue was, what assets passed under____

t the Will of Mrs. Donner ? .The Fjorida ruling that the?

exercise of the power of appointment was testamentary

was an implicit ruling of the invalidity ef the 1935

agreement as an inter vivos trust, but it was only in-

cidental to the main issue raised in the Florida pro-. °

ceeding.’? (39a) -. “ : 3

a

~

, That Court went on tosay, however:—

‘‘This faet is sufficient answer to this assertion of the

defense of res adjudicata, but it would séem clear that.

it could not be availed of in any event because of the in-

herent lack of jurisdiction of, the Florida ‘courts over

some .of the parties to this eause and over the subject

matter of this suit.’”’ (40a). 3

We submit that the grounds for. appellees’ motion to

dismiss must fall onve its ‘‘keystone’’, namely, ‘‘what

passes under the Will’’ is removed. :

1. The Appeal Does Present Substanthil Federal Questions.

The Florida Courts, in their-efforts to grasp jurisdic-

tidn under the provisions of -Florida Statutes (1953) 48.01

and 48.02 whether by claiming power over absent indis-

pensable parties through constructive service or by treating

an unambiguous will or a foreign infer vivos trust as a res,

1. The error, referred to in appellees’ insidjous footnote ‘2 on page

5 of their motion is completely explained and negated-in the record.

The Trial Court summarily disposed ‘of appellees’ argument on this

point (la} and the Appellate Court ignored it.

= ne :

Pi

¢ Appcllants Brie} Opposing Appcuees seGlron

attempt to take appellants’ property ? without extending to

them the due process guaranteed to them by the Fourteenth

Amendment. Appe ‘lees have ‘continually throughont these

proceedings and in their present motion thre: itened to sur--

charge the exeGMrix, since she cannot recov er the .trust

assets In the face of t the judgment of the Delaware Courts.

The Iabert y. Warehouse and Smith decisions of this Court

Were not concerned, with the absetice of indispensablé par-

ties and are tay ee to: this proceeding. See Me-

Arthur v. Scott, (1885) 118 U.S, 340, 396. We submit that

the ‘Supreme eos of ate must have recognized that

in fhe absenee of W ilmington Trust Company and the non-

resident beneficiaries, its ruling would: be futile, and for .

that reason tt-necessarily had to reverse the trial judge on -

- the question of jurisdiction, in order to reach its end result.

2. The Federal. Questions ‘Were Timely and Properly

Raised and Expressly Passed Upon.

We again point out that the jurisdiction of the Florida

Courts was raised in’appellants’ fifst pleading and through-

ouf the proceeding. When ruling on their motion to dis-

miiss was deferred on April 9, 1954, they petitioned the

Supreme Court of Florida for certiorari, without success.

The Court’s jurisdiction was again questioned as a separate

defense in. their answer and in their motion to stay the

action during the pendency of the, Delaware proceeding.

When this motion was @ iied on August 25, 1954, they again

petitioned the Supreme Court for certiorari, again without

‘2. Appellees’ motion (p. 3) érronxously charges that, “Hanson

* * * is the sole appellant.” Wilham Donner Roosevelt is also an

appellant, and if either of hi s brothers died without issue, he might

share in property“tn this trust. Why else would appeilees jom him

as a defendant? eget |

3. Appellees charge Mrs- Hanson with using her children. to

_ further the Delaware proceedings. The children were represented by

Edwin D. Steel, Ir.. Esq... a member. of the firm of -Morris, Steel,

; Ie

‘Nichols & Arsht, of Wilmington, Delaware, who was appointed z

guardian ad litem by.the Delaware Chancellor (19a).

cee \

Appewsnees Tw, pposing Appewees MLOEUON 3

: ; + : . : *

success. The question was “argued before and deeidéd ,by

the Trial’ Court which held that it had no jurisdiction over

the Trustee, the trust res, or the non-resident beneficiaries

in its order of. Janwdary 44,1955. It was re-argued before

the Erial Court in an effort to convince That eourt that it °

__ could net render a final enforce able decree in the absence

of indispensable parties and the t#¥st res. It, and the fur: -

ther questions of the Constitutional right to full-faith and’

credit of the judgment of.the Delaware Courts, were argued

before the Supreme Court on Mareh 27, 1956, and ruled -

upon by. that court in its opinion of September 1, 1956. 7

Finally, the. Federal questions»r aased in this-appealrwere |

again. presented to the Supreme Court in Lucaooened peti-

at . £ pry “ = Lh | r fas s 1s

On 1O6T Tedeat ng. Ww nich Was denied OY order of that C OUTi

dated. November 28, 1956, which by its: terms recites that

the petition ‘thas been considered’’. - as

3. The Judgment ‘Appealed From Does Not, as Claimed by

Appellees, Rest on an Adequate Non-Federal- Basis.

_ Appellants. have bottomed this appeal on three in-

dividually adequate Federal questions. |

(a) Lack of due process under the Fourteenth ;

Amendment. | i is

(b) Failure of the Florida Courts to give full faith

and credit to the judgment of the Delaware Cour ts in

violation of Article. Fourth of he Coi istitution,

| (e)° Failure to apply the proper state-law in viola-

tion of the Fourteenth Amendment.

We submit that if this Court should consider ‘that

appellants could not independently raise the question of the

Florida court’s ‘jurisdiction - over, absent indispensable

parties, then this Court should grant. certiorari unde: the

provisions of 28 U.S. C., See. 2103.4

4., Appellants are advised that a. Petition for Certiorati. to. the

Delaware Supreme Court is about to be filed in this Court by the

Denckla-Stewart interests. ; oe

‘°

snes at ses homie Brief Speniens “Appelices’ Motron

WHEREFORE, appellants

‘tenpect fully move that appel-s

lees Motion to Dismiss be denied and appellants appeal be

‘granted. yoo

ce

Respectf ully subniitted,

Wuiuam H. Four K,

229 Delaware Trust Blix,

: + Wilmington 1, Delaware,

Maney P. 7, Reon sy

‘ CALDWELL, Pacettt, Rorinsox &

foster,

~ . ., 601 Haryey Building.

e

“West Palm Beach, F oti

Of Counsel:

Epwarp McCarruy,

McCarruy,, Lane & Abas,

Até

aN

torneys for Elizabeth Donner

Hanson, Individually, as Exce-

utrix of the Will ‘ef’ Dora

Browning Doniter, Deceased, —

and as Guardian ad Litem. for .

Joseph Donner Wiksor and

Donner Hanson, and William -

Donner. Roosevelt, Appellants.

423, Atlantic Bank Bldg.,

Jacksonville, Florida,’,

Attorney for Elizabeth Donner.

Hanson as Guardian , ad . oe

Litem’: for Joseph Downer

Winsor and Donner Hanson..

%

ae