Madge Pierce CONRAD and Union Bank and Trust Company, of Kokomo, Indiana, Executors of the Last Will and Testament of Rulo S. Conrad, deceased; Madge Pierce Conrad, an Individual; Union Bank and Trust Company, of Kokomo, Indiana, Trustee of the Trust Under Item Two of the Last Will and Testament of Rulo S. Conrad, deceased, Plaintiffs-Appellants, v. Arline GARTLEY, Laura S. Marlor, Defendants-Appellees, 238 F.2d 464

FINNEGAN, Circuit Judge. Reaching the key issues embedded in this appeal can be expedited by stripping back the facts established in the record and presenting a simplified version of them. Arline Gartley and Laura S. Marlor, defendants, are two cousins of Edna Charles Conrad, who, when alive, was Rulo S. Conrad’s first wife. Edna Charles Conrad possessed considerable separate property of her own and on her death Rulo S. Conrad received all of her residuary estate, by will.

Subsequently he remarried and Madge Pierce Conrad, his second wife, is one of the plaintiffs, on appeal, in her own right and as executor of her deceased husband’s will under which she received his residence, and after other bequests, the residue of his estate. Union Bank and Trust Company, the other plaintiff here, is the other executor and a trustee under one portion of that same will which was probated in the Howard Superior Court, Howard County, Indiana.

Gartley and Marlor invoked a new Indiana statutory provision, § 7-821, Burns’ 1953 Replacement, which follows, by filing on July 7, 1955, a “Verified Petition of Persons Claiming Interest in Possession of Coexecutors:” “When any person claims any interest in any property in the possession of the personal representative adverse to the estate he may file, prior to the expiration of six (6) months after * * * a petition with the court having jurisdiction of the estate setting out the facts concerning such interest and thereupon the court shall cause such notice to be given to such parties as it deems proper and the case shall be set for trial and tried as in ordinary civil actions, (Acts 1953, ch. 112, § 1421, p. 295.)” By their Howard County Court petition, Gartley and Marlor are asserting a claim, on property, through the first wife, Edna Charles Conrad.

They are contending, in substance, that the executors are virtually bare custodians simply holding the separate, though undescribed, property of Edna Charles Conrad which flowed from her hands to those of Rulo S. Conrad, while he lived, which now must be handed over to the two cousins. Their theory for this claim being that Rulo orally promised Edna to keep this property segregated from his own and upon his death he would execute a will leaving the remainder of Edna’s property to her two cousins.

Upon notice, ordered by the Howard County Court, of their pending petition, the executors appeared and filed a motion to dismiss, the Gartley-Marlor petition, predicated upon want of jurisdiction over the subject-matter. The cousins’ Howard County Court petition precipitated the executors’ action, filed below, to remove a cloud on their title to the real and personal property, of the decedent Rulo S. Conrad, located in the Southern District of Illinois.

Thus, Gartley and Marlor, plaintiffs in the Howard County Court, were shifted into the position of defendants in the United States District Court and on appeal here. Allowance, by the district court, of the cousins’ motion to dismiss the executors’ complaint for lack of jurisdiction over the subject-matter precipitated this appeal. However, the district judge reserved his ruling on the plaintiff-executors’ motion for partial

summary judgment as to property described as “Parcel B” and personal property. This ruling being “withheld pending possible appeal and final determination of the jurisdictional issue.” During oral arguments before our court, counsel for Gartley and Marlor conceded that the real estate described as “Parcel B” (in the executors’ complaint) and some tangible personal property located on it, did not come from or through Edna Charles Conrad. Indeed they filed no counter-affidavits or pleadings to the motion for partial

summary judgment on that parcel. By statutory enactment, Burns’ Ind. Stat.1953, Repl. § 7-102, Indiana has declared administration of decedent’s esates to be one entire in rem proceeding. Though these defendants, involved in the instant appeal, are non-residents of Indiana that alone is insufficient to supply the district court with jurisdiction under 28 U.S.C.A. § 1655. Proctor v. Sagmore Big Game Club, 128 F.Supp. 885, 889, D. C.D.Penn.1955. Even with jurisdiction, and that is the critical point here, a federal court could only dissipate the cloud cast over the property by the cousins’ Ploward Court petition.

We think the executors’ action to remove that cloud being in personam precludes operation of § 1655. Tyler v. Judges of the Court of Registration, 1900, 175 Mass. 71, 55 N.E. 812, 814, 51 L.R.A. 433. Interposition of their motion to dismiss, by Gartley and Marlor, neither enlarged nor conferred jurisdiction. Fed.R.Civil P. Rule 12, 28 U.S.C.A. Consistency with what we have said precludes our direction of entry of a partial

summary judgment on a remand, though in appropriate jurisdictional circumstances that disposition would have been inescapable. Judgment affirmed.