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March 25, 1981

Elizabeth Tyree SHUTACK, et al.
John Tyree SHUTACK, et al.

The opinion of the court was delivered by: GREEN


Pending before the Court is the motion of the Trustees, John A. Manfuso, Sr., Trustee, and National Savings and Trust Company, Successor Trustee (hereinafter "Trustees"), to transfer this matter to the Superior Court of the District of Columbia. With their motion, the Trustees have submitted a memorandum in support thereof, as well as a Report of Virginia L. Riley, the Guardian ad litem for the minors, the unknown and yet to be born next of kin, defendants herein. The Trustees have filed in Superior Court two separate actions which await the disposition of the instant motion. The first, John A. Manfuso, Sr., Trustee, et al. v. Elizabeth Rigby Tyree Shutack, Fiduciary No. 66-79, is a Complaint to Modify Trust Agreement and requests essentially an enlargement of the Trustees' power of investment. The second action, In the matter of Josiah S. Tyree Trust, Fiduciary No. 32-80, is a Petition to Modify Decree of Court Appointing Additional Trustee, requesting an equal division of commissions between the Trustees. *fn1"

 In the instant action, on March 16, 1936, Justice Jesse C. Adkins appointed John A. Manfuso as co-trustee, subject to all the obligations and duties imposed by the deed of trust on the original trustees. The Order further directed that the Trustees file their annual accounts with the Court, and that "jurisdiction of this cause is retained for all orders which may arise in connection with the proceeding." *fn2" Since the entry of the Order, the Trustees have filed their annual accountings, and related matters, with the United States District Court for the District of Columbia.

 The Trustees now seek transfer to the Superior Court of the District of Columbia of proceedings related to the Tyree Trust to conform to that Court's jurisdiction pursuant to D.C.Code § 11-921(a)(5). *fn3" The Guardian ad litem concurs that jurisdiction is properly vested in Superior Court. Additionally, the Guardian ad litem asserts that the petitions filed in Superior Court in Fiduciary Nos. 66-79 and 32-80 are "new matters" and thus, under the jurisdictional grant embodied in D.C.Code § 11-921(a)(6), *fn4" properly the subject of proceedings in that local Court. There is no opposition to the motion to transfer.

 When the Tyree Trust was created and when proceedings began in this action, the federal courts in the District of Columbia (both trial and appellate) were unique among the nation's Article III courts in that their jurisdiction extended beyond actions arising under the Constitution, laws, and treaties of the United States or cases instituted between citizens of different states. The United States District Court for the District of Columbia, serving the role of both a local and federal court, heard and decided the full range of local common law and equitable questions, in addition to its regular calendar of federal questions and diversity actions.

 To realign the District of Columbia courts, to establish a court system for purely local matters not unlike the courts of the fifty states, and to return the federal courts in this District to the status of federal courts across the nation, Congress on July 29, 1970, enacted the District of Columbia Court Reorganization Act of 1970, Pub.L.No.91-358, Title I, 84 Stat. 475 (hereinafter "the Court Reorganization Act" or "the Act"); the Act took effect on February 1, 1971. The Court Reorganization Act in a three stage process, emphasizing an attainment sculptured to reality over the course of years, vested jurisdiction over all local civil and criminal matters in the newly created Superior Court of the District of Columbia and the District of Columbia Court of Appeals. The District Court retained matters over which it had exclusive jurisdiction or where its jurisdiction was established pursuant to D.C.Code § 11-501, relating to civil actions or other matters begun in District Court prior to the expiration of the thirty-month period following the effective date of the Act, as there qualified.

 Holding aside momentarily the characterization of the Guardian ad litem that the two petitions are new matters, some elaboration of the Trustees' positions is in order. The Trustees' accounting duties are governed by D.C.Code § 11-921(a)(5)(A)(vii), which vests the Superior Court with jurisdiction over matters "involving the enforcement of the rendition of inventories and accounts by executors, administrators, collectors, guardians, and trustees required to account to the Court." (emphasis added)

 That the Trustees filed their annual accountings with the federal court following the passage of the Act does not alter the conclusion that the action should be transferred to the local Superior Court. The Guardian ad litem determined that the general practice of filing such accounts with this Court by a number of trustees is widespread but erroneous. See Report of Guardian Ad Litem at 3. There is, however, no "jurisdiction by estoppel" that would require the matter to remain before this Court because of the Trustees' prior filings. Rather, Congress in a clear expression of its intention directed that supervision of trustees' accountability be under the jurisdiction of the Superior Court. *fn6"

 Although Col. Theodore Cogswell, then Register of Wills, urged in 1936 that testamentary trustees should be required to file annual accounts in the probate court, 3 Journal D.C. Bar Ass'n. 5, 16-17, Victor S. Mersch, as Register of Wills in 1944, suggested that while historical practice produced regular accountings, dutifully audited, the District Court, sitting as probate court, was without authority to require annual submissions under its statute (then § 11-504) providing it power "to enforce the rendition of inventories and accounts by executors ... and trustees required to account to said court." Mersch, Probate Court Practice in the District of Columbia, 2nd ed., Vol. 1, § 121 n.99. It is therefore of interest to note that while the Guardian ad litem recommends (with the apparent concurrence of the Trustees) that the Trustees continue to file annual accountings in Superior Court, all are mindful that Superior Court Civil Rule 305(j) removes the requirement of annual accountings, save for good cause, for proceedings whose purpose is the appointment of a substituted or successor trustee.

 The report of the Guardian ad litem reflects the existence of several hundred cases remaining in the United States District Court because of

a widespread conviction on the part of the Bar and Bench that inclusion of the word "trustees" in subparagraph (vii) of Section 11-921(a)(5)(A) was in error and would be deleted by corrective legislation. Since no corrective legislation was enacted, there should be no obstacle to the acceptance of jurisdiction by the Superior Court in the instant litigation.

 Report of Guardian ad litem at 5. These cases, fiduciary concerns but not probate matters, requiring judicial supervision to insure protection of the assets, had commenced in the District Court under its general equity powers prior to August 1, 1973, seeking, inter alia and primarily, the appointment of successor or substituted trustees under testamentary or inter vivos trusts. Since the probate jurisdiction of the federal court had not included appointment or supervision of trustees, and the accounts of the trustees were not in the "probate division," some concluded that the 1970 Act's inclusion of "Trustees' accounts" in the transfer of "all probate matters" under § 11-921(a)(5)(A)(vii) was an aberration necessitating corrective legislation and stifling jurisdictional transfer. There has been no such amending legislation in the eleven years since the statute's enactment.

 Any hesitation as to the propriety of transferring this action is dispelled by the legislative history of the Court Reorganization Act. Matters such as those relating to the appointment, compensation, and duties of trustees are purely local matters, and Congress intended to "terminate the anomaly in the District of Federal trial and appellate judges being required to devote their time and energy to matters of a purely local nature." H.R.Rep.91-907, 91st Cong., 2d Sess. at 23. The Conference Committee that recommended passage of the Act to the House and Senate specifically included actions such as the instant one in the vesting of jurisdiction to Superior Court by declaring that "(p)ending probate and fiduciary cases (other than matters in actual trial) are transferred along with jurisdiction over subsequent cases." H.R.Rep.91-1303, 91st Cong., 2d Sess. at 220 (Conference Report), reprinted in 116 Cong.Rec. 24,455 (1970). *fn7" See ...

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