In Re Dolcater

This is a suit in equity brought by Frank C. Dolcater, suing as guardian and next friend of minor beneficiaries under the will of Albert B. Shultz, deceased, and for the benefit of said decedents estate. It seeks to recover from two of the three executors of the estate, from their attorney and from a special guardian appointed by the Surrogates Court on the executors final accounting, all or part of the fees they have respectively received from the estate. The amended bill charges the Trust Company, the attorney and the special guardian with fraud in procuring allowance by the Surrogates Court of the fees in question. Jurisdiction of the district court rests upon diverse citizenship, the complainant being a resident of Florida and the defendants being residents of New York. The third executor, Mrs. Dolcater, was not named as a defendant. Had she been made a defendant jurisdiction would have been defeated, as her citizenship is the same as that of the complainant, her husband. To the amended bill, the defendants filed answers and Mrs. Dolcater moved for leave to intervene in her capacity as executrix as a party complainant. The order appealed from permitted her to intervene on condition that within ten days after service of a copy of the order she intervene not only as executrix but also individually "and that such intervention be as a party defendant in the cause, in which event this cause shall be dismissed for lack of jurisdiction; otherwise the said application for interventio is denied."