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THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

TRIAL DIVISION-STATE OF PONAPE

In the Matter of ) the Estate of )

) JANE NAHNSEN, )

) Deceased. )

)

-------------------)

CIVIL ACTION NO. 8-81

DENIAL OF MOTION TO DISHISSj AUTHORIZATION TO SEEK RULING FROM PONAPE DISTRICT COURT

The motion to dismiss filed by respondent Lena Rudolph

questions whether this court may exercise jurisdiction, on

grounds of diversity of citizenship, over probate proceedings

where interests in land are involved.

We conclude that the ~ourt does have jurisdiction.

Nevertheless, we suggest that state courts, rather than

national courts, should normally resolve probate and inheritance

issues. This is especially true where, as here, interests

in land are at issue.

Unfortunately, the State of Ponape has not yet established

its state court system. These local issues therefore cannot

be transferred to the state courts. For now J the Ponape,;.,

district court bears the closest resemblance to the state

court system contemplated by tile Constitution of the Federated

States of Micronesia and the Ponape State Charter. It seems

appropriate to provide the Ponape district court an opportunity

to render an opinion on the local issues.

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Therefore, this court is abstaining from proceeding

further with this litigation until the parties have an

opportunity to. ask the Ponape district court to render an

opinion on the issues designated here.

Factual Background

This is already the third forum for this litigation.

Plaintiff Akira Suzuki filed a petition·for probate of two

wills, each dated November 9, 1978, with the Ponape district

court on January 29, 19811. On March 10, 1981 Marilyn T.

Milne, administratrix of the estate of James Milne, deceased,

filed an answer denying all allegations in the petition.

Ms. Milne's answer was signed by her attorney, Charles K.

Novo-Gradac, and was accompanied by a letter from Mr. Novo

Gradac explaining that Ms. Milne is' ··the oldest child of

James Milne, an heir to the decedent, Jane Nahnsen.

On February 9, 1981'~ Lena Rudolph and Ermick Rudolph

filed an answer to the petition. Their answer contained a

recitation that Alex Milne, representative of James Milne,

deceased, also claimed an interest in the estate. Alex

Milne's name was added to the answer with the recitation

that Toshiuki Rudolph was signing the petition on his behalf.

The case was transferred, pursuant to petitioner's motion,

to the Trust Territory High Court on March 10, 1981. No

action took place there other than the authorization of

discovery at the request of the petitioner.

lThis case was Civil Action No 8-81 in the district court. Upon transfer to the High Court it was renumbered as 12-18. We retain the original number, 8-81, in the hope that this will mdnimize confusion.

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Trust Territory High Court Justice Namoru Nakamura on

June 25, 1981 ordered transfer to this court. Justice

Nakamura presumably believed this court has diversity of

citizenship jurisdiction because the estate of James Milne,

deceased, is based in the Marshall Islands, and Marilyn

Milne and Alex Milne are from the Marshall Islands. The

other parties are apparently all residents and citizens of

Ponape.

Respondent Lena Rudolph has now filed a motion to

dismiss. Her motion contains the following declarations:

The firm of Charles K. Novo-Gradac ... was engaged by the estate of James Milne only to determine what interest, if any, James Milne might have in the estate of Jane Nahnsen. Charles K. Novo-Gradac has clarified to Lena Rudolph that the interest of James Milne which Novo-Gradac J.egally represents has been withdrawn and Novo-Gradac is no longer connected with this action.

A few days later Mr. Novo-Gradac submitted a letter,

received by the court on October 29, 1981, saying,

There will be no appearance by this firm on behalf of Marilyn Milne and the Estate of James Milne at the October 28, 1981 pre-trial this October 28, 1981. We will have no objection to a motion to dismiss said parties from the action ....

Upon receipt of Lena Rudolph's motion, this court

requested the parties to file memoranda addressing the

question of jurisdiction. Petitioner Suzuki has filed a

memorandum suggesting that, even if diversity of citizenship

does exist among the parties, the issues involved here are

essentially local issues and the court should not take

jurisdiction over them. No other party has filed a memo

randum on the issue.

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Diversity of Citizenship

The record in this case indicates that there still is

diversity of citizenship among the parties. As already

stated, Marilyn Milne filed an answer to the petition in

February, 1981 on behalf of the estate of James Milne:

deceased, and opposed every statement in Akira Suzuki's

petition. In addition, on February 9, Alex Milne's name was

attached to the petition filed by the Rudolphs.

The documents filed in January and February, 1981,

when this case was still with the Ponape district court,

have not been altered, revoked or withdrawn by subsequent

actions. Despite several tantalizing hints and intimations

to the contrary. the case file still today shows Marilyn

Milne, administratrix, and the estate of James Milne, deceased,

stoutly contesting every allegation in Akira Suzuki's petition.

Lena Rudolph's recitation in her .. motion that "the interest

of James Milne which Novo-Gradac legally represents has

been withdrawn" was not a sworn statement and is not.supported

by affidavit. In any event, a court ~ould only in the most

extraordinary circumstances accept the unsupported rep

resentations of one party to litigation that another party

has no further interest in the case.

The disinclination to accept a party's representation

concerning the lack of interest of another is especially

strong when the other is actively represented by counsel. 2

2My reluctance here is compounded by the fact that earlier statements made by Toshiuki Rudolph, appearing with Lena Rudolph at a pre-trial hearing on September 20, indicated that Mr. Novo-Gradac had represented them but had "withdrawn". Those c9mments generated a good deal of confusion. They proved Lnaccurafe.

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Here, Mr. Novo-Gradac wrote a letter just a few days after

the Rudolph motion was filed. He did not confirm Hrs.

Rudolph's statement that the interests of the Hilne estate

had been withdrawn, nor did he indicate that his clients

intend to withdraw, or renounce their intere.st in the Nahnsen

estate. He did say' that his clients would have "no objection"

to a motion to dismiss them from the action, but no such

motion has been filed. Lena Rudolph's motion seeks to

dismiss the entire action, not just some of the parties. I

conclude that Marilyn Milne and the Milne Estate remain

parties to this litigation. Alex Milne also has not renounced

his interest "in the estate and therefore apparently is still

a party in this case.

Thus, although the actual present intent of the various

parties is le·ss than clear, -there is no basis in the record

for concluding that the non-Ponapean and the non-FSM parties

have no further interest in the litigation or in the Nahnsen

estate.

This court's jurisdiction is prescribed by Section 6 of

the Judiciary Article of the Constitution of the Federated

States of Micronesia. The court is specifically given

jurisdiction over disputes between citizens of a state and

foreign citizens. FSM Const. Art. XI, Sect. 6(b). This

jurisdiction is based upon the citizenship of the parties,

not the subject matter of their disupte. The dispute here

is between a citizen of Ponape, Akira Suzuki, and citizens

of the Marshall Islands.

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The constitution places jurisdiction over this dispute

in this court, despite the fact that the issues involve

matters within state or local, rather than national, legis

lative powers. A primary purpose of diversity jurisdiction

is to minimize any belief of the parties that a more local

tribunal might favor local parties in disputes with "outsiders".

This purpose is at least as likely to be well served where

the issues before the court involve matters Tllithin state or

local, rather than national, powers.

Under constitutional language somewhat similar to ours

concerning diversity jurisdiction,3 United States courts

have developed two doctrines whereby federal courts might

deny jurisdiction in a case such as this. First, United States

Federal courts typically have not accepted jurisdiction over

probate matters. Markham v. Allen, 326 u.s. 490, 494, 66

S.Ct. 296, 298 90 L.Ed. 256 (1946); Sutton v. English, 246

u.s. 199, 205, 38 S.Ct. 254, 256, 62 L.Ed. 664 (1918).

Annotations, 12 ALR Fed. 292 (1972) and 158 A.L.R. 9 (1945).

3The Constitution of the Federated States of Micronesia, Article XI, Section 6(b), says: "The national courts ... have concurrent original jurisdiction ... in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen or subject."

The United States Constitution, Article III, Section 2 says "The judicial Power shall extend to all Cases, in Law and Equity; ... to Controversies between two or more States;-between a State and Citizens of another State;--between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State or the Citizens thereof, and foreign States, Citizens or Subjects."

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(1972). This is based on the constitutional limitation of

the judicial power of United States federal courts to "all

cases in law and equity." (Emphasis added). u.s. Const.

Art. III, Sect. 2. The limitation was confirmed by the

United States Congress in the Judiciary Act of 1789, the

original statute defining diversity jurisdiction in the

United States federal courts. That, statute granted diversity

jurisdiction over "suits of a civil nature in law or in

equity," This grant of jurisdictional authority was found

to grant equity jurisdiction identical with the power of the

English Chancery Court in 1789. Wright, Law of Federal Courts,

Sect. 25 (3rd. Ed. 1976). See also Starr v. RUpp; 421 F. 2d

999, 1004, 12 A.L.R. Fed. 279, 206-87 (6th Cir. 1970).

Probate matters are statu~pry and involve proceedings in rem

(that is, jurisdiction is based on court control of specific

property). They therefore fall outside of traditional

common law jurisdiction, and the general equity jurisdiction

exercised by the English courts of Chancery in 1789. Probate

matters at that time were typically handled by ecclesiastical

courts. 1 MOORE'S FEDERAL PRACTICE Para .. 6[2.-2] at 213-14

(2d edt 1981).

Those early decisions in the Unitc~d States and the

precedents they have fathered for the current United States

law arose from unique historical factors not relevant to the

Federated States of Micronesia today. The drafters of the

United States Constitution were think~ng of the legal system

then current in England,

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During the two hundred years since adoption of the

United States Constitution the vast majority of the subtle

and complex distinctions between law and equity jurisdiction

which seemed so important to the lawyers and judges of that

time have been minimized or erased. In any event, Micronesians

have never had separate courts of law and courts of equity.

There are no ecclesiatical courts within the Federated

States of Micronesia nor have probate matters been assigned

to specialized courts here. For the past 35 years, the same

courts, the Trust Territory High Court and District Courts,

have exercised general jurisdiction without regard to whether

the issues involved are legal, equitable or probate. . .

Moreover, the constitutiqnal grant to this court of all

"judicial power of the national -government" is not limited

in the language establishing diversity jurisdiction. FSM

Const. Art. XI, Sects. land 6(b). See also Section 2 of

the Judiciary Act of 1979, Public Law No. 1-31. There is no

limitation in this authority similar to the United States

Constitution limitation of diversity jurisdiction to cases

"in law and equity." The historical context and the language

of this constitution therefore indicate that the framers

were not intending to limit the diversity jurisdiction of

this court to coincide with the equity jurisdiction of the

English Chancery Court in 1789. This court is empowered to

exercise authority in probate matters where, as here, there

is an independent basis for jur~sdiction.


A second theory under which United States federal

courts might be precluded from exercising jurisdiction in

this case is the "complete diversity" rule. United States

federal courts have declined to exercise jurisdiction,

despite the fact that two or more adverse parties are not

co-citizens, where at least one party on each side of a

dispute is from the same state. Strawbridge v. Curtiss, 3

Cranch 267, 2 L.Ed. 435 (1806).

Interestingly enough, this United States federal court

limitation of jurisdiction is also traceable to the Judiciary

Act of 1789. The United States Constitution itself does not

require "complete diversity" among the parties in order to

trigger United States federal court diversity of citizenship

jurisdiction. State Farm Fire & Casualty v. Tashire,

386 U.S. 523, 531, 87 S.ft. 1199, 1203-04, 18 L.Ed. 2d

270(1967); Owen Equipment & Erection Co. v. Kroger 437 U.S.

365, 373 n. 13, 98 S.Ct. 2396, 2402 n.13, 54 L.Ed. 2d. 749

(1978).

The draftsmen of the Federated States of Micronesia

Constitution employed diversity jurisdiction language

similar to that in the United States Constitution, almost 10

years after the United States Supreme Court had ruled that

the United States Constitution's language did not require

complete diversity among the parties as a prerequisite for

diversity jurisdiction. Supra, page 6, n.3. There is no

reason to believe that the Federated States of Micronesia

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Constitution was intended to establish a requirement of

complete diversity4.

In addition, there is no statutory limitation in the

Federated States of Micronesia similar to the limitations

found to exist in the United States Judiciary Act of 1789.

The Federated States of Micronesia Judiciary Act of 1979

plainly contemplates that this court will exercise all of

the jurisdiction available'to it under the Constitution. See

Sect. 2. Accordingly, we find that this court has jurisdiction

over these proceedings under Article XI, Section 6(b) of the

Constitution of the Federated States of Micronesia.

Abstention to Permit Local Decision

Despite findings that this court has, and is required

to exercise, jurisdiction over this litigation, I find

myself somewhat troubled by the point raised by pet.i,tioner

Suzuki in his memorandum,,-

4The complete diversity rule has been roundly criticized by commentators, and even by the courts, in the United States. See State Farm Fire & Casualty Co. v. Tashire, supra, n.7.

One objection has been that the rule introduces unnecessary technicality into the law, encouraging lawyers and litigants to engage in artificial maneuvers aimed at gaining, or thwarting, federal jurisdiction. This, it is contended, unjustifiably increases the cost, time and complexit~7 of lawsuits.

Others insist that the complete diversity requirement often violates a primary purpose of United States diversity jurisdiction, to protect out of state litigants from biased state courts, for an out-of-state party may have a much different interest in a particular issue or even the entire litigation, than does his co-party whose presence in the lawsuit bars diversity jurisdiction.

Reputedly, even Chief JustIce Marshall frequently expressed regret about his decision in Strawbridge and said that if given another opportunity. he would have decided the issue differently. Wright, Law of Federal Courts, supra Section 24.

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It is tr~e that the framers of the Constitution strove

to demarcate between national powers, principally those set

out in Article IX of the Constitution, and state and local

powers. It is also plain that the issues in this litigation

fall within the areas subject to state powers.

Article IX, Sects. 2 and 3 of the Constitution, delegates

various specific powers to Congress. There is no delegation

to the national government of power to establish laws concerning

probate of wills, or inheritance.

A power "not expressly delegated to the national govern

ment or prohibited to the states is a state power". FSlwl

Canst. Art. VIII, Sect. 2. This is so unless the subject is

"of such an indisputably national character as to be beyond

the power of a state to contr0l." FSU Canst. Art. VIII,

Sect. 1.

Nothing about the power to regulate probate of wills or

inheritance of property suggests that these are "beyond the

power of the state to control." To tIle contrary, state

officials generally should have greater knowledge of use,

local custom and expectations concerning land and personal

property. They should be better equipped than the national

government to control and regulate these matters. The

framers of the constitution specifically considered this

issue and felt that powers of the sort under consideration

here should be state powers.

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Committee Proposal No. 21 of the Micronesian Consti

tutional Convention's Committee on Governmental Functions

eventually led to adoption of Article VIII of the Constitution.

The committee report plainly confirms that regulation of

inheritance and land were to be state powers.

The bulk of the power and legislative authority of government resides in the states. Most of these powers are reserved exclusively to the states, but some may be exercised concurrently by the national government. The powers which your Committee contemplates will be reserved to the states include ... [lland law. . . [and]. . . [i] nheri tance law ....

II J of Micro. Con. Con. 814; SCREP No. 33 (Oct. 10, 1975).

The conclusion that the powers to regulate probate,

inheritance and land matters are powers of states, rather

than the national government, of course does not suggest

that this court is without j.urisdiction to preside over

proceedings involving the exercise of those powers. The

constitution emphasized "powers" in delegating authority to

the legislative and executive branches. FSM Const. Art. IX,

Sect. 2 and Art. X, Sect. 2. The allocation of judicial

authority is made on the basis of jurisdiction, generally

without regard to whether state, or national, "powers" will

be at issue.

It is common for state courts to consider questions

involving national constitutions, and national laws and

treaties, although the laws or treaties under consideration

could come into effect only through the exercise of national

powers granted to the Congress or the national executive

branch. Conversely, federal courts commonly ex~rcise jurisdiction

over disputes where state or local issues are involved.

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To a considerable extent the courts of our dual system, federal and state, are working partners. Because of the diversity grant, the federal courts exercise jurisdiction over cases involving nonfederal matters, and this jurisdiction is quite substantial. On the other hand, the state courts exercise jurisdiction over a great many federal matters, for unless the federal courts are given exclusive jurisdiction, expressly or by implication, over a particular matter, the state courts can exercise jurisdiction and must normally enforce federal rights, in a nondiscriminatory manner, when their courts are competent to do so, as they usually are.

1 MOORE'S FEDERAL PRACTICE Para. 0.60[11, at 603 (Qd ed. 1981)

(speaking of United States courts).

Thus, our finding that the issues between these

parties concern matters within the legislative powers of

states to regulate does not indicate that this court is

without jurisdiction to decide the issues.

The fact that these are state issues does however

suggest that we should be sensitive to the interests of

the state in these matters.

We must face squarely here the truth that if this

court were to relinquish jurisdiction in this case, the

ironic result would be that the decisionmakers would be

less, not more, local. We have recognized that the

constitutional convention journal and the constitution

reflect a desire that state and local authorities play

a decisive role on issues concerning land, inheritance,

and other state or local matters. In that context our

relinquishment of jurisdiction would yield a perverse

result. The constitution anticipates that eventually,

where national courts do not have jurisdiction over

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particular legal proceedings, those cases will be decided

by state courts. Since the state of Ponape has not yet

established its court system however, there are not yet

state courts here. Consequently, this case would fall

into a constitutional vacuum. Until the new state

courts contemplated by the constitution are established,

the Trust Territory High Court and Trust Territory

District Court continue to preside over cases within the

Federated States of l1icronesia which do not fall within

the jurisdiction of this court.

Under the governing legislation for the High Court

system, the Trust Territory District Court in Ponape has

no jurisdiction over land matters. 5 T.T.C. Sect. 101.

Therefore, this litigation would .. revert to the Trust

Territory High Court, whose justices are appointed by

the Secretary of the Interior of the United States

without approval or power of advice and consent of any

officer or legislative body within the Federated States

of Micronesia, or any of its states. Thus, if we were

to relinquish our jurisdiction in deference to the

desire of the framers of the constitution that local

officials should retain control over local matters, our

action would instead assure that the least local tribunal

still existing within the Trust Territory of the Pacific

Islands would be the decision~4ker in this dispute.

Plainly, this would not fulfill the in~ent.ion of the

framers of the constitution.

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The constitution contemplates that decisions affecting

the people of the Federated States of Micronesia will be

decided by courts appointed by the constitutional govern

ments of the Federated States of Micronesia. This in turn

requires an expansive reading of our jurisdictional mandate

while we await establishment of functioning state courts.

The dual purpose of the framers of the constitution, to

make this court available to litigants where ther~ is

diversity of citizenship among the parties and also to

provide appropriate decisionmaking control for the states on

issues involving inheritance, probate, and interests in

land, may be best served here by giving the parties an

opportunity to present these questions to the Ponape district

court. The judges of th~~ court have not been appointed by

constitutional authority within the Federated States of

Micronesia, but they are citizens of the Federated States of

Micronesia and lifelong residents of Ponape. If the district

court agrees to decide the issues of uniquely local import

and certify its decisions to this court for further consideration

and implementation, this will assure that local decisionmakers

do playa major part in decisions of a local nature, while

this court fulfills its constitutional obligation to make

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the final decision. S

I. The following questions, involving inheritance,

probate, and interest and usage of land, are the issues

which the parties may tender to the Ponape district court:

A. Were the wills of Jane Nahnsen, dated November 9,

1978, executed in accordance with requirements of the law

of Ponape. Are these wills, or is one of them, (and if one,

which one?), valid and enforceable under the law of the

State of Ponape?

B. If neither of the wills mentioned above is valid- to

control the distribution of all of the property of the

estate of Jane Nahnsen, is some other will previously or

subsequently executed by-her an enforceable will sufficient

under Ponape state law to determine distribution of her

estate?

C. If there is no valid will:

1. Who are the heirs of the estate of Jane

Nahnsen, deceased? and

SIt does not appear that the decisions sought here would violate the jurisdictional limitations of the Ponape district court. Although the district court opinion would pertain to an interest in land, this court retains jurisdiction of the "adjudication of title to land or any interest therein ... " (Emphasis added) 5 T.T.C. Sect. 101. For the same reason, the jurisdictional amount limits would not be violated. FinallYJ this is an actual case or controversy so any general prohibitions against rendering "premature ll or "academic" opinions would be inapplicable. Nonetheless, the question of the power of the Ponape district court to decide the issues tendered here is a decision for that court to make. If the district court declines to accept these issues, the entire litigation will revert to this court.

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2. What are the rights of the heirs of the

estate of Jane Nahnsen?

II. To accomplish this procedurally, we take the

following steps.

A. This court retains jurisdiction of the case but

will abstain from tc.king any action for forty-five days,

so that any party may. petition the Ponape district court

to seek rulings on the issues identified in this opinion.

B. If after the expiration of forty-five (45) days

no party has filed such a petition with the Ponape

district court, or if at any time the Ponape district

court declines to rule on these issues, this court shall

immediately reinstitute active proceedings in tllis

litigation.

C. If the Ponape_district court agrees to rule on

those issues but has not"done so before expiration of

the forty-five (45) day period, this court will continue

its abstention from further action in this case, so that

the Ponape district court may have ample time to render

its decision.

The next hearing before this court in this lawsuit

will be at 9 A.M. t on TuesdaYt April 20, 1982.

So ordered this 2nd day of March, 1982 .

. ..", .

c~&~e4 Supreme Court of the rederated States of Micronesia Trial Division

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