author: COLEMAN, Circuit Judge.

text:
    In the Matter of Christopher John McLOUGHLIN, Bankrupt. Marion B. STOKES, Trustee, Appellant-Cross Appellee, v. TRUST COMPANY OF GEORGIA, Appellee-Cross Appellant.
    No. 74-1428.
    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.

      J. Timothy White, Atlanta, Ga., for appellant-cross appellee.
    Cary S. Tye, Thomas S. Carlock, Atlanta, Ga., for McLoughlin.
    Henry J. Miller, Orinda D. Evans, Timothy S. Perry, Atlanta, Ga., for ap-pellee-cross appellant.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge.

The facts of this case are simple and undisputed. In 1960, Christopher John McLoughlin, father of the bankrupt, executed his last will and testament, in which he provided that a eértain trust be established for his widow and children upon his death. By the terms of this trust, McLoughlin’s wife was to have an interest for the remainder of her life or until she remarried, whichever first occurred. Upon her death or remarriage, the trustee (Trust Company of Georgia) was to divide the property remaining in trust and administer it in the following manner:

Item V
(d) On the death or remarriage of my said wife, said Trustee shall divide the property then remaining in its hands into as many equal shares as I have children then living and deceased children with lineal descendants then living.
(e) Said Trustee shall distribute one of said shares per stirpes among the lineal descendants then living of each deceased child of mine.
(f) Said Trustee shall hold one of said shares in trust for each then living child of mine and shall pay the net income therefrom to such child.
(g) Said Trustee shall be authorized to encroach upon the corpus of the share of such child in such amounts as it may deem necessary in its judgment to provide for the proper support and education of such child.
(h) After the death or remarriage of my said wife, if and when each child is twenty-one (21) years of age the Trustee shall turn over to such child one-third of the share of such child then held by the Trustee; if and when such child is twenty-five (25) years of age the Trustee shall turn over to such child one-half of the property then remaining in its hands; and if and when such child is thirty-five (35) years of age the Trustee shall turn over to such child all of the share of such child then remaining in its hands.
(i) Should any child die after the division of said property into shares but before such child has received all of his or her share, then the share of such child remaining in the hands of the Trustee shall be distributed ..per stirpes, among the lineal descendants then living of such child, if any, and if none shall be added equally to the shares of my other children or their lineal descendants and be held and distributed in all respects as if it had originally been a part of such other share.
(j) If at any time before the final distribution of this trust all of the beneficiaries herein named or described should die and there should be no such beneficiary to take the property or the income therefrom, then the property remaining in the hands of the Trustee shall be distributed among the persons who would have been entitled thereto under the laws of descent and distribution of the State of Georgia if I had died intestate at that time.

In 1962, McLoughlin and his wife perished in a common disaster. They were survived by two sons, Christopher John McLoughlin, Jr., bankrupt herein, and Norman McLoughlin. As provided in (h) of the trust instrument, Trust Company of Georgia made designated payments of corpus to Christopher J. McLoughlin, Jr. upon his attaining the ages of 21 and 25 respectively. In addition, Christopher J. McLoughlin, Jr. has received payments of net income from his share of the trust, as provided in (f). There is no evidence as to whether Christopher has received any discretionary payments of corpus as provided by (g) of the trust instrument.

In November, 1972, when Christopher was approximately 30 years old, he filed a voluntary petition in bankruptcy. Soon thereafter the trustee in bankruptcy made an application to sell Christopher’s remaining interest in the trust created by his father’s will. Objections were filed by the bankrupt, the Trust Company of Georgia and other parties not participating in this appeal. The principal question presented to the referee in bankruptcy was whether the trustee in bankruptcy acquired an interest in the remaining corpus of the trust recognizable under § 70a(5) of the Bankruptcy Act. 11 U.S.C.A. § 110a(5) (1970).

The referee resolved this issue in favor of the trustee. He ordered that the bankrupt’s interest in the trust be sold, and he directed that the bankrupt be denied any further payments of corpus or income from the trust. On petition for review, the United States District Court affirmed the referee’s order to sell the ■ bankrupt’s interest in the corpus of the trust as well as the order preventing the bankrupt from receiving further income. However, the District Court reversed the referee’s order denying the bankrupt any future discretionary payments under (g) of the trust. The court reasoned that the bankrupt’s rights in these payments were nontransferable and therefore outside the control of the trustee under § 70a(5) of the Bankruptcy Act.

The trustee in bankruptcy appeals the District Court’s adverse ruling on the question of the discretionary payments clause-, and the Trust Company of Georgia cross appeals the District Court’s ruling that the trustee in bankruptcy is entitled to sell the bankrupt’s interest in the corpus of the trust under § 70a(5) of the Bankruptcy Act.

We consider first the issue raised by the Trust Company of Georgia on its cross appeal. The Trust Company contends that the trustee in bankruptcy has no rights in the bankrupt’s interest in the trust corpus under § 70a(5) of the Bankruptcy Act. Section 70a(5) provides that the trustee in bankruptcy shall be vested with title to all of the bankrupt’s property which at the date of filing the petition in bankruptcy is transferable by him or subject to levy or judicial process by his creditors. The key issue here, then, is whether the interest received by the bankrupt under his father’s will was an interest which he could have transferred prior to or at the time the petition in bankruptcy was filed.

The Bankruptcy Act does not specifically catalogue those interests in property which fall within the ambit of § 70a(5) of the Act; instead reference must be made to state law to determine what interests are transferable or otherwise subject to the operation of § 70a(5). It is undisputed that the interest received by the bankrupt through his father’s will was a remainder. However, the classification of this remainder interest is vigorously contested by the parties, and apparently the resolution of that dispute will control much of the outcome in this case. By Georgia law a vested remainder is transferable by the party in whom it is vested, while a contingent remainder is non-transferable. The Bankruptcy Judge and the District Court Judge found the interest in this case to be vested. The Trust Company of Georgia argues that it is contingent.

The Trust Company contends that the interest in trust corpus which the bankrupt received through his father’s will is one contingent as to the person. It points out that the identity of the beneficiaries is not ascertainable until the death or remarriage of the life tenant, and that therefore whatever interests those beneficiaries receive are contingent. On this point we agree. However, the Trust Company argues further that not only are the interests of the remaindermen contingent until the death of life tenant, but they remain contingent until each separate remainderman attains the ages of 21, 25, and 35 respectively, and is thereby entitled to a distribution of corpus. According to the Trust Company, even though the identity of the remaindermen can be established upon the death or remarriage of the life tenant, there remains a contingency as to an event which must happen if there is to be a distribution of corpus: to be entitled to payments of corpus, each remainderman must survive until the respective ages of 21, 25, and 35.

The Trust Company asserts that clauses (d), (f), and (g) of the trust instrument have no bearing upon the vesting of the remaindermen’s interest in the corpus. Instead these clauses serve merely to instruct the trustee in his administration of the trust by telling him how to divide the corpus for purposes of determining income payments and the extent of encroachment rights for each beneficiary. The Trust Company states that the dispositive provisions of the trust are found in clauses (h), (i), and (j). In these provisions the testator created a scheme of alternative contingent remainders, whereby each child of the testator surviving the life tenant would receive a share of corpus upon reaching the ages of 21, 25 and 35 respectively with alternate provisions for distribution should any child fail to survive. To support its construction of the will, the Trust Company relies upon the rule of construction that “if futurity is annexed to the substance of the gift, the vesting is suspended; but if it appears to relate to an intent merely to delay vesting in possession or enjoyment of the grant, the grant vests instanter”, Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1929). Applying this rule to the instrument before us, the Trust Company argues that it was the clear intention of the testator that three separate gifts of corpus be made to each child: one at age 21, one at age 25, and one at age 35. As tangible support for its argument against vesting until the prescribed ages are reached, our attention is directed to the phrase “if and when” in clause (h), which it is claimed establishes a condition precedent to each separate distribution of corpus. The Trust Company asserts that only “if and when” each survivor of the life tenant reaches the ages of 21, 25 and 35 respectively will he acquire any interest whatsoever in the trust corpus. On this point, we must disagree. Though the argument is technically appealing, it overlooks the substantive intent of the testator, which is the point of critical significance.

As stated previously, we agree with the analysis that the will in this case created contingent remainders in the children of the testator who survived the life tenant. We reach this conclusion on the ground that until the life tenant died, or remarried, the survivors of such life tenant would be unascertained persons. However, once this contingency occurred, the remainders vested in the surviving children of the testator, subject to divestment should these children fail to attain the ages prescribed for distribution of corpus. The interests of these surviving children did not remain contingent until each of them attained the age of 35.

In construing an instrument, the primary objective is to determine the intent of the maker and render the construction which reflects that intent. Although the law favors vested interests,, and a construction in favor of a vested interest will be given in cases of doubt, - the basic task before any court is to determine whether or not the testator intended a particular interest to be vested or contingent. In making such a determination we must examine the instrument in its entirety to ascertain whether the testator intended to make a gift presently with payment postponed until a future time, or whether he intended to suspend the gift altogether until such future time.

A factor militating strongly in favor of finding that a gift is made presently with payment postponed is a provision that the recipient receive some present enjoyment in the property, even though a formal delivery will not be made until a later date. The most notable example of the operation of this rule is found in Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1921). There the settlor established a trust in favor of one J. C. Porter for life, providing that upon his death the trustee was to pay the net income to J. C. Porter, Jr. for his education and support until he attained the age of 21, at which time the trustee was to convey the corpus to J. C. Porter, Jr. J. C. Porter, Jr. died before reaching the age of 21 and his heirs brought suit to compel delivery of the corpus into his estate. The Georgia Supreme Court held that J. C. Porter, Jr. received a vested remainder in this case with payment postponed until he was 21 years of age. In reaching this conclusion, the Court was strongly swayed by the fact that Porter was to receive intermediate income payments prior to his twenty-first birthday, even though he was not to receive full payment of the corpus until age 21:

Where real estate is granted to a person when or as soon as he shall attain a given age . . and there are no other words indicative of an intent to confer a vested interest, and nothing in the form of a limitation itself to indicate an intent merely to delay the vesting in possession or enjoyment, and no disposition of the intermediate income, the interest of the grantee will be contingent until he attains the age specified, or the event described has happened. But where income by the way of maintenance, education, and support, or otherwise, is given to the grantee in the meantime, the grant, notwithstanding the gift appears to be postponed, vests immediately upon the execution and delivery of the instrument creating it. 168 Ga. 790, 149 S.E. at 222.

The Gillespie case is closely analogous to the one presently before us, for in the trust created by the bankrupt’s father, clause (f) makes specific provision that the children surviving the life tenant receive net income from their allotted shares of corpus. Moreover, the Mc-Loughlin trust makes the additional provision that each child surviving the life tenant is entitled to receive discretionary support payments from his allotted share of corpus.

Relying on Gillespie v. Ellis, we find the existence of these provisions highly persuasive that the testator intended that those children surviving the life tenant receive a vested interest in their allotted shares of corpus, even though full payment of corpus was not due until they attained the ages of 21, 25 and 35. Despite the provision postponing distributions of corpus, it cannot be denied that the children of the testator received present rights of enjoyment in the property before the time established for distribution. The existence of these present rights, coupled with the statutory provision favoring the vesting of estates, leads us to the conclusion that the interest of the bankrupt vested on the death of his mother, the life tenant. Though this vested interest is subject to divestment should the bankrupt not attain the age of 35, it is nevertheless transferable and therefore subject to the power of the trustee in bankruptcy under § 70a(5) of the Bankruptcy Act.

The issue raised on the main appeal is whether under § 70a(5) of the Bankruptcy Act the trustee in bankruptcy is entitled to the discretionary support payments intended for the bankrupt in clause (g) of the trust instrument. The Bankruptcy Judge, without discussion, enjoined the bankrupt from further receipt of these payments. On petition for review, the District Court reversed and held these payments outside the reach of the trustee under § 70a(5) of the Bankruptcy Act. As to this, we affirm.

Item V(g) of the testator’s will establishes what is known as a support trust in favor of the testator’s children surviving the life tenant. A support trust is one where the trustee is directed to pay to the beneficiary only so much income or principal, or both, as is necessary for the beneficiary’s support and education. Under such a trust the payments are by nature intended for a particular person to serve a particular purpose. For this reason a beneficiary’s right to such support payments has historically been held to be non-transferable and not subject to the claims of creditors. To allow the interest to be transferred or subject to the claims of creditors would defeat the underlying purpose and intention of the settlor.

In line with the general trend of authority, the courts of Georgia, in the few cases on the issue, have recognized support trusts and their characteristic of being exempt from the claims of creditors. The last statement by the Supreme Court of Georgia on this point was in 1888 in the case Barnett v. Montgomery & Co., 79 Ga. 726, 4 S.E. 874 (1888). In that case the testator placed certain real property in trust for his widow, providing that she be allowed as much income or use from the property as would be necessary for her “ease and comfort”. Subsequent to the establishment of this trust, the widow became obligated on a note. The payee on the note attempted to levy on the widow’s support trust to satisfy his debt. The Georgia Supreme Court ruled that the support trust was not subject to the claims of the widow’s creditors. The Court emphasized that to hold the trust subject to levy would defeat the purposes of the trust and the intention of the testator.

The holding in Barnett v. Montgomery is in harmony with the general rule we have previously discussed. Relying on this case, plus the overwhelming weight of authority from other states, we hold that the rights which the bankrupt received in the support trust are not subject to the control of the trustee in bankruptcy under § 70a(5) of the Bankruptcy Act.

To the contrary, the trustee in bankruptcy argues that he is entitled to the discretionary payments because he “succeeds” to whatever interest the bankrupt has in these payments. However, this is not entirely accurate. Under § 70a(5) of the Bankruptcy Act, the trustee in bankruptcy succeeds to only those interests which the bankrupt, at the time of filing the petition, could have transferred, or which might have been the subject of levy or judicial process. Since we have determined that under Georgia law a beneficiary’s interest in a support trust is neither transferable nor subject to levy or judicial process, the trustee is without power to “succeed” to this particular interest. Therefore, we cannot agree with the argument of the bankruptcy trustee.

In summary, we affirm the District Court in all respects. We hold that the bankrupt’s interest in the trust corpus is subject to the control of the trustee in bankruptcy under § 70a(5) of the Bankruptcy Act, but that the interest of the bankrupt in discretionary support payments is not subject to the control of the bankruptcy trustee.

This means that the trustee will be allowed to sell the bankrupt’s rights to receive distribution of corpus at age 35. However, whoever purchases these rights will take them subject to the testamentary trustee’s power to make discretionary encroachments for the bankrupt’s education and support. In addition, the purchaser of the bankrupt’s interest in corpus will be entitled to distribution of corpus only in the event that the bankrupt attains the age of 35. Should the bankrupt not survive until age 35, his interest, or that of the purchaser of his interest, will be divested and disposed of according to clauses (i) or (j), whichever is applicable. With respect to the bankrupt’s interest in income under clause (f), the trustee has control over this interest under § 70a(5) of the Bankruptcy Act, and will be entitled to collect all income or sell the interest as he sees fit.

Affirmed.

      . In re Christopher John McLoughlin, Jr., Bankruptcy No. 75880 (N.D.Ga., filed July 17, 1973).

      . In re Christopher John McLoughlin, Jr., Bankruptcy No. 75880 (N.D.Ga., filed December 5, 1973).

      . Section 70a(5) of the Bankruptcy Act, 11 U.S.C.A. § 110a(5) (1970):
      The trustee of the estate of a bankrupt shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded or sequestered.

      . Thornton v. Scarborough, 5 Cir., 1965, 348 F.2d 17, 20.

      . Remainder interests are defined by §§ 85-701 and 85-703 of Georgia Annotated Code (1970 rev.):
      § 85-701 — An estate in remainder is one limited to be enjoyed after another estate is determined, or at a time specified in the future.
      § 85-703 — Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen.
      In this case the interest of the bankrupt was limited to take effect upon the termination of the life estate in his mother. This is ascertainable from clauses (d)-(h) of Item V in his father’s will.

      . See Foskey v. Lawton, 210 Ga. 193, 78 S.E.2d 505 (1953); J. C. & W. C. Holman Mule Co. v. Bullard, 175 Ga. 900, 166 S.E. 825 (1932); Torbit v. Jones, 145 Ga. 610, 89 S.E. 696 (1916); Oliver v. Irvin, 105 Ga.App. 844, 125 S.E.2d 695 (1962).

      . In actuality the Georgia cases are by no means absolutely clear on the point of whether a contingent remainder is transferable. Some cases indicate that such remainders are transferable, e. g. Erskine v. Klein, 218 Ga. 112, 126 S.E.2d 755 (1962), while others state that contingent remainders are non-transferable. Dismukes v. Bagley, 165 Ga. 665, 141 S.E. 902 (1928); Watson v. Adams, 103 Ga. 733, 30 S.E. 577 (1898). There is agreement on one point: the transfer of a contingent remainder may be made effective through the principle of estoppel. Phelps v. Palmer, 192 Ga. 421, 15 S.E.2d 503 (1941); Isler v. Griffin, 134 Ga. 192, 67 S.E. 854 (1910).
      Yet, despite the wavering line of precedent in Georgia, this Court has previously construed the case of Dismukes v. Bagley, 165 Ga. 665, 141 S.E. 902 (1928) as holding that a contingent remainder in Georgia is not subject to the power of a trustee in bankruptcy under § 70a(5) of the Bankruptcy Act. Thornton v. Scarborough, 5 Cir., 1965, 348 F.2d 17. Therefore, we need not attempt a further analysis of the Georgia cases touching on this point.

      . A bequest of a remainder to a person whose identity is unknown until the termination of the life estate clearly creates a contingent remainder in that person. This proposition is borne out by both the cases and the statute defining contingent remainders. Dismukes v. Bagley, 165 Ga. 665, 141 S.E. 902 (1928), Ga.Code Ann. § 85-703 (1970).

      . For each separate gift the trust company would have us interpret the will as establishing the following scheme of alternative contingent remainders:
      Age 21 gift, age 25 gift, and age 35 gift: C/R in surviving child-clause (h)
      or
      C/R in clause (i) beneficiaries
      or
      C/R in clause (j) beneficiaries.
      We find this approach highly contrived and anomalous to the scheme of gifts established in clauses (d)-(g) of the instrument. It is difficult to conceive why the testator would direct that the corpus be divided into shares for the children surviving the life tenant, granting such children a vested interest in income and discretionary payments [clauses (d), (f), and (g)], but making such children’s interest in principal contingent [clause (h)]. Instead, we feel that the logic of clauses (d)(g) is best carried to conclusion by viewing clause (h), not as one determinative of the vesting of the corpus, but as one merely setting the time for its distribution or enjoyment. By our interpretation each child who survived the life tenant obtained a vested remainder [clauses (d), (f) and (g)j, subject to divestment by alternative executory devises [clauses (i) and (j)].

      . See footnote 8 supra.

      . Ga.Code Ann. § 113-806 (1959 rev.); Boston v. Boston, 231 Ga. 801, 204 S.E.2d 102 (1974); Sheats v. Johnson, 229 Ga. 150, 189 S.E.2d 856 (1972).

      . Ga.Code Ann. § 85-708 (1970 rev.); Bus-bee v. Haley, 220 Ga. 874, 142 S.E.2d 786 (1965); Miller v. Brown, 215 Ga. 148, 109 S.E.2d 741 (1959).

      . A gift which is made presently with payment postponed creates a vested interest, but a gift which is suspended altogether until a future time creates a contingent interest.
      The Georgia Supreme Court has discussed this matter in several cases. E. g., Refinance Corp. of Georgia v. Wilson, 183 Ga. 336, 188 S.E. 707 (1936); Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1929). In Refinance Corp. v. Wilson, the Court made these statements with respect to distinguishing vested and contingent remainders:
      A leading distinction is that, if futurity is annexed to the substance of the gift, the vesting is suspended; but, if it appears to relate to the time of payment only, the legacy vests instanter. 188 S.E. at 710, citing, 1 Jarman on Wills, 760; Allen v. Whitaker, 34 Ga. 6; Cogburn v. Ogleby, 18 Ga. 56, 58.
      When a future time for the payment of a legacy is defined by the will, the legacy will be vested or contingent, according as, upon construing the will, it appears whether the testator meant to annex the time to the payment of the legacy or the gift of it. 188 S.E. at 710, citing, 2 Williams on Executors, 1051; Bowman v. Long, 23 Ga. 242, 246.

      . Refinance Corp. of eorgia v. Wilson, 183 Ga. 336, 188 S.E. 707, 710 (1936); Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1929); Bowman v. Long, 23 Ga. 242, 246.

      . In reaching our decision today, we rely heavily upon statements in Gillespie v. Ellis, 168 Ga. 790, 149 S.E. 221 (1929) and Refinance Corp. v. Wilson, 183 Ga. 336, 188 S.E. 707 (1936), that any form of present enjoyment in an estate will indicate that the estate vests presently, even though full payment may be postponed until a future time. To give complete discussion of these cases we note that in Refinance Corp. v. Wilson the Court held the interest to be contingent, although the remainderman received some limited present enjoyment.
      In that case the testator directed that his wife and son, Richard, hold his property in trust, paying rents and profits to all of the children of the testator. Then provision was made that when the testator’s youngest child reached majority and all debts were paid, the real property was to be divided and a particular tract was to be given to Richard. Prior to this time, Richard became indebted, and the question arose as to whether his interest in the tract allotted to him was vested and subject to levy, or contingent and thereby free from levy..
      The Court found the interest to be contingent. Although it recognized Gillespie v. Ellis, supra, it distinguished that case. The Court noted that in the instant case Richard was to receive a portion of income from the entire estate, and only upon the youngest child’s attaining majority was he to receive a specific interest in the tract allotted to him by the testator. The Court held that the provision that the property not be divided and distributed until the youngest child reached majority was a clear case of a condition precedent. Until this event occurred, Richard’s interest in the tract would be contingent.
      We follow the Georgia Supreme Court in its view that Refinance Corp. v. Wilson is clearly distinguishable from Gillespie v. Ellis, and we feel that it is distinguishable from the case now before us. In the instant case, the testator directed that upon his wife’s death, the corpus be divided into as many shares as he had then living children [clause (d)], and that each surviving child receive net income and discretionary payments from his share [clauses (f) and (g)]. These facts distinguish our case from Refinance Corp. v. Wilson, for in our case a division is made prior to the time of making income payments and income for each beneficiary is limited to that produced by his share of corpus, while in Refinance Corp. v. Wilson, the division took place subsequent to the payment of income and all children shared in the income from the entire corpus. In Refinance Corp. v. Wilson, the testator made it clear that no child was to receive an interest in a separate share of property until distribution of property after the youngest child reached majority. In our case each child who survived the life tenant gained an immediate interest in a particular share, because division was made immediately upon the death or remarriage of the life tenant.

      . Ga.Code Ann. § 87-708 (1970 rev.).

      . As a final remark, we note that the rule of Purefoy v. Rogers, 2 Wm. Saunders 380, 85 Eng.Rep. 1181 (1670), does not apply to this case. This rule provides that “where a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only, and not otherwise”. Of critical significance is the fact that the rule of Purefoy v. Rogers is a rule of law and not a rule of construction, and therefore it takes precedence over the intent of the testator. White v. Summers, 2 Ch. 256 (1908). Apparently the courts of Georgia recognize this rule. See Glore v. Scroggins, 124 Ga. 922, 53 S.E. 690 (1906). On this basis the rule could have had a significant influence on the instant case. However, it has become established doctrine that the rule does not apply to equitable interests, and since the beneficiary’s interest in the trust in this case are equitable, we need not concern ourselves with the rule. C. Moy-nihan, Introduction to the Law of Real Property, 202-204 (1962).

      . II A. Scott, Law of Trusts § 154 (3d ed. 1967); Restatement (Second) of Trusts § 154 (1959).

      . Id. Section 154 of the Second Restatement provides:
      Except as provided in §§ 156 and 157, if by the terms of a trust it is provided that the trustee shall pay or apply only so much of the income or principal or either as is necessary for the education or support of the beneficiary, the beneficiary cannot transfer his interest and his creditors cannot reach it. Restatement (Second) of Trusts § 154 (1959).
      Sections 156 and 157, which are exceptions to the general rule, are inapposite in this case. Section 156 deals with the situation where the settlor is a beneficiary of the trust. Section 157 describes those persons whose claims are valid against a support trust. These parties and their claims which are valid are as follows: (a) the wife and child of the beneficiary for support or the wife’s claim for alimony; (b) the claims of those who furnish the beneficiary with necessary supplies; (c) the claims of those who render services to the beneficiary or furnish materials which preserve or benefit the beneficiary’s interest; (d) claims by the United States or a state against the beneficiary. The claims set out in Section 157 are exceptional; they are not the sort of general claims which seem to be the subject of § 70a(5) of the Bankruptcy Act.
      In Comment (b) to Section 154 of the Second Restatement, the authors point out that the rule that support payments are nontransferable does not stem from a specific restraint on alienation but from the nature of the trust itself.
      In a trust for support it is the nature of the beneficiary’s interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary’s interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trustee to pay anything to him, because the beneficiary could not compel payment or compel application in any way except for the restricted purpose set out in the terms of the trust. Restatement (Second) of Trusts § 154, Comment b (1959).

        Accord, II A. Scott, Law of Trusts § 154 (3d Ed. 1967).

      . Barnett v. Montgomery & Co., 79 Ga. 726, 4 S.E. 874 (1888); c. f. Reece & McCrary, 51 Ga.App. 746, 181 S.E. 697 (1935).

      . The effect of our decision on this point will be to allow the bankrupt to receive discretionary support payments from the trustee until he attains age 35, or until his death, if it comes prior to age 35. Upon his reaching 35 years of age, the discretionary support payments will cease and the remaining corpus will be distributed to the bankrupt or the purchaser of his interest.

      . This is a restatement of the order of the District Court. The disposition of the bankrupt’s interest in income was settled in the court below and was not an issue on appeal.


source: Caselaw Access Project

author: ROSENN, Circuit Judge.

license: Public Domain

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Terrance BROWN, Appellant.
    No. 74-1794.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 3, 1974.
    Decided Jan. 2, 1975.

      George M. Alexis, Federal Public Defender, St. Thomas, V. I., for appellant.
    Julio A. Brady, U. S. Atty., R. Eric Moore, Asst. U. S. Atty., Charlotte Ama-lie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The single issue in this appeal is whether the voir dire examination of prospective jurors in a criminal trial without the presence of the defendant and over the objection of his counsel violated the defendant’s constitutional and statutory rights.

Appellant, Terrance Brown, was arrested on charges of robbery, in violation of 14 V.I.C. § 1861 (1964), and assault in the third degree, in violation of 14 V.I.C. § 297(2) (Supp.1973). After his arraignment, at which he appeared with counsel and pleaded not guilty to both charges, Brown was released on $2,500 personal bond, one of the conditions of his release being his voluntary appearance for trial. On April 23, 1974, Brown was served with a subpoena ordering him to appear in court on April 30, 1974, at 9:00 A.M., at which time his trial was to commence.

Despite the subpoena, Brown did not appear at the appointed time. His counsel was present, however, and submitted a series of voir dire questions to the court, all but one of which were accepted. After this submission, counsel objected to the selection of the jury in the defendant’s absence on the basis “that the jury might make some inferences prejudicial to” his client. The trial judge was concerned about the absence of defendant, but did not wish to delay the jury selection process because there was present a large array of jurors which he did not want to detain all day. To eliminate any possible prejudice, the judge admonished the prospective jurors, both before and after the voir dire questioning, that no inferences could be drawn from defendant Brown’s absence. Prior to the attorneys’ exercise of their peremptory challenges, the court recessed until Brown could be located.

Brown appeared in the afternoon of that day, offering no explanation for his absence that morning. He made no objection to the veniremen remaining after the voir dire examination. Peremptory challenges by the attorneys were thereupon exercised in his presence. Throughout the remainder of the proceedings, Brown was present and in a position to assist his counsel in his defense. Brown was convicted on both the robbery and the assault charges, and was sentenced to three and five years of incarceration respectively, the sentences to run consecutively. This appeal followed. We affirm.

Relying on Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), and Rule 43 of the Federal Rules of Criminal Procedure, Brown contends that he “is entitled to be present on at least every occasion when the jury is present.” Were the doctrine of Lewis, a capital case, wholly intact today, Brown’s position would be well taken since Lewis does hold that all stages of a felony trial, including the impaneling of the jury, must proceed in the presence of the defendant, and that neither he nor his counsel may waive the right to be personally present. However, in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), a noncapital case, the Supreme Court applied a gloss to the Lewis rule and held that one who is accused of a felony and who is not in custody may waive his right to be present at his trial by his voluntary absence. The waiver principle enunciated in Diaz is codified by Rule 43 which provides in relevant part:

The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.

In Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), the defendant, after being present at the morning session, absented himself from the remainder of the trial. The trial court refused to declare a mistrial but cautioned the jury that no inference of guilt could be drawn from petitioner’s absence. After noting that the defendant’s absence was voluntary, the Court observed:

Petitioner had no right to interrupt the trial by his voluntary absence . . The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence. Consistent with Rule 43 and Diaz, we conclude that it was.

Id. at 20, 94 S.Ct. at 196.

In the instant case, Brown attempts to avoid the teachings of Diaz and Taylor by noting that both involved situations where the defendants absented themselves after appearing at the commencement of the trial. While the language of Rule 43 does give some support to this distinction, the language appears to be merely a paraphrase of the Court’s holding in Diaz, and under the circumstances of that ease, we do not attach any special significance to it. On the contrary, we do not perceive any talismanic properties which differentiate the commencement of a trial from later stages. It would be anomalous to hold that a defendant cannot waive his right to be present during the period of often routine voir dire questioning but can waive that right during the time when witnesses against him are presenting crucial evidence.

The commencement of a trial in the absence of a defendant might have special significance under Rule 43 if the defendant did not know when the trial was to begin. Under such circumstances, a defendant’s absence obviously could not be said to be a waiver of his right to be present. This, however, is not the situation here. Brown was released on bail, one of the conditions of his release being that he appear at the start of his trial. See Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Moreover, he was served with a subpoena notifying him of • the date and precise time his trial was to commence. When Brown finally appeared at his convenience in the afternoon, he offered no explanation for his absence in the morning. We hold that Brown’s willful absence from the voir dire examination under such circumstances was knowing and voluntary, and that this voluntary absence was a waiver of both his constitutional and statutory right to be present at the commencement of his trial.

We find support for our position in United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom., Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972), which held in a closely analogous situation that

a defendant may waive his right to insist that his trial begin only in his presence. When a defendant has pleaded to the charges against him and knows that the trial of the charges is to begin on a day certain, the trial may start in his absence if he deliberately absents himself without some sound reason for remaining away. Under the circumstances of this case, Santoro’s failure to attend court on August 16, when he knew that a jury would be selected and evidence presented, was a knowing and voluntary waiver of his right to be present at trial.

Id. at 1208.

A contrary rule, as suggested by the defendant, runs counter to common sense and would be a travesty of justice. It would allow an accused at large upon bail to immobilize the commencement of a criminal trial and frustrate an already overtaxed judicial system until the trial date meets, if ever, with his pleasure and convenience. It would permit a defendant to play cat and mouse with the prosecution to delay the trial in an effort to discourage the appearance of prosecution witnesses or to continue it in the event he finds the designated trial judge or jury venire disagreeable. A defendant has a right to his day in court, but he does not have the right unilaterally to select the date and hour. He may not distort that right to thwart the effective administration of justice. In these circumstances, the words of Justice Cardozo are particularly appropriate:

But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.

The judgment of the district court will be affirmed.

      . After the objection of defense counsel, there was an unreported conference at sidebar at which the judge apparently asked defense counsel the whereabouts of his client. The judge then addressed the prospective jurors:
      Before I begin, I want to make it very clear to the panel you should draw no inference as to the absence of Mr. Terrence [sic] Brown. I don’t know why he is not here. And as I mentioned before, since we took so long in empaneling the jury in the first case it may very well have been he thought he wouldn’t have been reached until this afternoon, and we are now looking for him to try to get him to come to the courtroom. But since you are here and we have called such a large array of jurors I would like to go forward with as much of the voir dire as we possibly can so you won’t be detained all day.

      . Prior to recessing, the judge said to the jury:
      Now, ladies and gentlemen, we have a very peculiar situation. I do not like to have the attorneys exercise peremptory challenges without the presence of their client, so I am going to ask you to come back at 2:30, . . . and we might be in a position to go forward with the exercise of peremptory challenges.
      I am sorry this happened this way. But I don’t want any inferences drawn against the defendant, we don’t know what happened, why he is not here. And we just hope we can solve this problem after lunch. So it will be at 2:30 if you will come back at that time.

      . The rule has been amended, effective August 1, 1975, to read in pertinent part:
      (a) Presence required. — The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
      (b) Continued presence not required.— The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,
      (1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), . . .
      416 U.S. 1001 [62 F.R.D. 271] (1974).

      . In Diaz, the defendant had been present at all the proceedings preliminary to, and the commencement and major part of, the trial. However, in the latter stages of the trial he voluntarily absented himself. The Court wrote:
      [W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.
      223 U.S. at 455, 32 S.Ct. at 254.

      . We recommend to the district courts that when the trial commences they note on the record the presence of the defendant.

      . Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Michael DANKERT, Defendant-Appellant.
    No. 74-3282
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 22, 1975.
    J. V. Eskenazi, Federal Public Defender (Court-appointed), Michael L. Brod-sky, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Donald L. Ferguson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.

   PER CURIAM:

This is an appeal from a part of the sentence imposed as a result of a plea of guilty to a charge of conspiring, in violation of 21 U.S.C.A. § 963, to import cocaine, a Schedule II narcotic controlled substance, into the United States, a violation of 21 U.S.C.A. § 952(a). The complaint is to that part of the sentence imposing a special parole term of three years following release from incarceration.

It is conceded that a special parole term following incarceration is mandatory under 21 U.S.C.A. § 960(b)(1), upon conviction of a substantive violation of § 952(a)(1). The argument is that the conspiracy statute, § 963, does not include the special parole term provision of § 960(b)(1). We disagree. § 963 provides:

Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

The punishment provision of § 963 must be considered in light of §§ 952(a) and 960, since it is these statutes which define the offense which was the object of the conspiracy, and provide for punishment therefor. They provide:

§ 952(a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter * * * * * *
§ 960(a)(1)
Any person who— contrary to section 952, 953, or 957 of this title, knowingly or intentionally imports or exports a controlled substance,
******
shall be punished as provided in subsection (b) of this section.
§ 960(b)(1)
In the case of a violation under subsection (a) of this section with respect to a narcotic drug in schedule I or II, the person committing such violation shall be imprisoned not more than fifteen years, or fined not more than $25,000, or both. If a sentence under this paragraph provides for imprisonment, the sentence shall include a special parole term of not less than three years in addition to such term of imprisonment.
* * * * * *

We have no trouble whatever in understanding the language of § 963 to permit punishment not exceeding that provided for an offense in violation of § 952(a). Appellant was charged with conspiring to commit such an offense and pleaded guilty thereto. The ‘substantive offense in question carried a special parole term of three years. Appellant received a special parole term of three years.

Affirmed.


author: GEWIN, Circuit Judge:

text:
    Julian CARR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-2589
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.
    Rehearing Denied March 6, 1975.

      James A. Baccus, Miami, Fla., for plaintiff-appellant.
    Robert W. Rust, U. S. Atty., C. Wesley G. Currier, Asst. U. S. Atty., Miami, Fla., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. 1970, 431 F.2d 409, Part I.

   GEWIN, Circuit Judge:

While on active duty with the United States Air Force, appellant was hospitalized on October 10, 1949 for a liver ailment. The disease eventually led to his retirement from the armed services on June 30, 1950, with a disability rating of thirty percent. He has received retirement pay equal to thirty percent of his base pay since that date, pursuant to the Career Compensation Act of 1949, ch. 681, 63 Stat. 802.

In 1965 appellant petitioned the Court of Claims for a determination that amended § 415 of the Act had deprived him of a vested right to remuneration at seventy-five percent of base pay under original § 415. He argued that Congress, by deleting certain phrases from the original version, had unlawfully removed him from the category of persons entitled to receive benefits computed on the basis of laws in effect prior to the Compensation Act. The Court of Claims, however, disagreed with his underlying assumptions. Upon consideration of written and oral arguments, the court held that appellant was not covered by either original § 415 or its ameñded counterpart. Hence, he was not entitled to increased retirement benefits.

He brought this action several years later seeking a declaration that amended § 415 is unconstitutional. His prayer for relief before the district court, however, requested damages equalling the difference between seventy-five percent and thirty percent of base pay. Thus, the ultimate relief sought before both the Court of Claims and the United States District Court was identical. The district court denied the petition on res ju-dicata grounds.

Appellant now maintains that no court has ever decided the constitutionality of amended § 415, and that he should be given the opportunity to prove that it violates his rights to equal protection and due process of law. While appellant is perfectly correct in his first assertion that no judicial body has ruled on the amendment’s constitutionality, the propriety of his second contention does not inexorably follow.

The doctrine of res judicata makes a final valid judgment conclusive on the parties as to all matters of fact and law that were or should have been adjudicated in the proceeding. IB Moore’s Federal Practice § 0.405(1) (2d ed. 1948). The rule “is founded upon the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court.” Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970, 976 (1946).

Constitutional questions may be raised before the Court of Claims, 28 U.S.C. § 1491, so appellant had an opportunity to litigate the issue before that tribunal. The conclusiveness of res judicata, however, also depends upon whether the second suit is based upon the same “cause of action” as the prior proceeding. Acree v. Air Line Pilots Association, 390 F.2d 199 (5th Cir. 1968); Wilson Cypress Co. v. Atlantic Coast Line Railroad Co., 109 F.2d 623 (5th Cir. 1940). Here the appellant demands the same type of relief he sought before the Court of Claims: monetary damages. The acts complained of — the government’s refusal to award a higher rate of retirement pay — are identical. ' No material facts have been alleged that were absent from the Court of Claims’ deliberations. In essence, the only difference is appellant’s theory of recovery. See Norman Tobacco and Candy Co. v. Gillette Safety Razor Co., 295 F.2d 362 (5th Cir. 1961); Williamson v. Columbia Gas and Electric Corp., 186 F.2d 464 (3d Cir. 1950). Since the primary right and the alleged wrong are the same in each action, Carr’s present claim is barred by res judicata. Wasoff v. American Automobile Insurance Co., 451 F.2d 767 (5th Cir. 1971).

The judgment of the trial court is affirmed.

      . Any member who, on October 1, 1949, was a hospital patient and who, prior to January 1, 1951, is retired as a result of a physical disability growing out of the injury or disease for which he was hospitalized, may elect to receive retirement benefits computed under the laws in effect on September 30, 1949.
      Ch. 175, 64 Stat. 158.

      . Any member who, on the effective date of this Act, is a hospital patient and who within six months of the effective date of this Act is retired as a result of a physical disability growing out of the injury or disease for which he was hospitalized as of the date of enactment of this Act, may elect to receive retirement benefits computed under the laws in effect on the date preceding the date of enactment of this Act.
      Ch. 681, § 415, 63 Stat. 825.

      . As notes 1 and 2 demonstrate, Congress amended the provision by replacing “effective date” and “date of enactment” with the single date “October 1, 1949.”

      . Although the Court of Claims summary order does not explicitly state the grounds for its conclusion, it was apparently based on the fact that effective date was defined in the original act as October 1, 1949. See § 533(a), 63 Stat. 841 (App. 9). Since appellant was not hospitalized on October 1, he did not fall within the purview of the original § 415 nor, as he concedes, within the amendatory provision.

      . We note, parenthetically, that if Carr’s second suit had not presented the same cause of action, his claim would nonetheless be barred by collateral estoppel. While res judi-cata bars relitigation of the same cause of action, collateral estoppel bars relitigation of the same facts or issues that were necessarily determined in the prior proceeding. IB Moore’s Federal Practice, §§ 0.405 and 0.441(2) (2d ed. 1948). In Carr’s previous suit the Court of Claims squarely held that he did not meet the prerequisites of original § 415. Any award of seventy-five percent base pay in the present litigation would necessarily rest on the opposite conclusion, i. e. that Carr did fit within the earlier provision. This we could not do, because the Court of Claims decision settled that issue. Thus, even applying principles of collateral estoppel, an adjudication of the constitutionality of the amendment is unnecessary and should be avoided. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688, 711 (1936) (Brandeis, J., dissenting in part); Texas v. Grundstrom, 404 F.2d 644 (5th Cir. 1968).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wallace FRUIT et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Robert MILES, Defendant-Appellant.
    Nos. 74-1518, 74-1519.
    United States Court of Appeals, Sixth Circuit.
    Dec. 9, 1974.
    James E. Wells, Detroit, Mich., J. B. Stoner, Marietta, Ga., for defendants-appellants.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., William C. Ibershof, Asst. U. S. Atty., J. Stanley Pottinger, Asst. Atty. Gen., Robert A. Murphy, Michael H. Cor-ley, Civil Rights Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before WEICK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

The five defendants have appealed to this Court from their convictions in the District Court on both counts of a two-count indictment charging a criminal conspiracy in violation of 18 U.S.C. §§ 241 and 1509. The first count charged them with a felony, namely, with a conspiracy to injure, oppress, threaten, and intimidate Negro students of the Pontiac, Michigan School District, in their right and privilege as citizens secured by the Constitution, to attend school without regard to race or color.

The plan of the conspiracy was to dynamite school buses and to fire at the buses with a mortar weapon, in violation of 18 U.S.C. § 241.

The second count charged them with a misdemeanor, namely, a conspiracy to interfere with the performance of an order of the United States District Court for the Eastern District of Michigan, relating to said School District, in violation of 18 U.S.C. § 1509.

The defendants waived trial by jury and were tried by the District Court, which adopted findings of fact and conclusions of law and found each of the defendants guilty on both counts of the indictment.

The Court imposed varying concurrent sentences ranging from three to five years’ imprisonment on Count I, and one year’s imprisonment on Count II. Two and one-half years of the three years’ sentences imposed on defendants Distel and Quick on Count I were suspended, and they received probation for two years and two years’ probation on Count II. .

The defendants had moved that the Government be required to elect as to which count it would proceed, but the Court denied the motion.

The appellants do not contend that the convictions are not supported by substantial evidence. They contend, however, that there was no state involvement in the charge in Count I which is required for violation of the Fourteenth Amendment to the Constitution. The trouble with this contention is that the acts of the defendants did violate Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq., which statute Congress had the authority to enact under Section 5 of the Fourteenth Amendment.

Convictions under §§ 241 and 1509 of Title 18, under facts very similar to those in the case at bar, were upheld in Hayes v. United States, 464 F.2d 1252 (5th Cir. 1972). While we are not bound by this decision, we do think its reasoning is persuasive and we will follow it.

In our opinion there was only one conspiracy in the present case, which violated two different statutes. It is the conspiracy, and not the object, which is punished. Sentence can therefore be imposed on only one count. United States v. Adcock, 487 F.2d 637 (6th Cir. 1973). The District Court erred in imposing sentences on both counts of the indictment.

The sentences on both counts are therefore vacated and the cases are remanded for resentencing.


text:
    In re John E. DUNN, Appellant.
    No. 74-1386.
    United States Court of Appeals, First Circuit.
    Argued Dec. 4, 1974.
    Decided Dec. 11, 1974.

      William J. Cintolo, Revere, Mass., for appellant.
    Jeremiah T. O’Sullivan, Sp. Atty., Dept, of Justice, with whom James N. Gabriel, U. S. Atty., and Gerald E. McDowell, Sp. Atty., Dept, of Justice, Boston, Mass., were on brief, for appel-lee.
    Before COFFIN, Chief Judge, McEN-TBE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Having been granted “use” immunity and having been ordered to testify before a special grand jury investigating extortionate credit transactions, appellant was held in contempt and was confined as a recalcitrant witness upon his continued refusal to answer questions before the grand jury. 28 U.S.C. § 1826. We granted appellant a degree of relief when he was similarly situated earlier this year. In re Lochiatto, 497 F.2d 803 (1st Cir. 1974). Since that time he has continued to refuse to testify although the procedures mandated in In re Lochiatto were followed.

Appellant now asserts that the wiretaps upon which questions were allegedly based were illegal because the wiretapping application did not measure up to the standards in 18 U.S.C. § 2518(l)(c) and (3)(c). Under section (l)(c), a wiretap application must include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” In this case the court which issued the wiretap order had before it the affidavit of an F.B.I. agent to the effect that the “target”, one Pel-licci, was, according to informants, suspicious of strangers; that physical sur-veillances would be “extremely difficult” due to the possibility of detection and to potential danger to a named undercover agent who was in touch with Pellicci; that the agent had found it extremely difficult to increase the frequency of contacts without disclosing his undercover role; and that the very nature of loan sharking deterred conventional methods of investigation since victims were characteristically frightened of their creditors and afraid to testify. We believe that the affidavit provided a sufficient factual statement to enable the court to find, as it did, that normal investigative procedures reasonably appeared unlikely to succeed if tried or to be too dangerous. 18 U.S.C. § 2518(3)(c). The sufficiency of the application is to be tested in a practical and commonsense fashion. The court could consider the nature of the alleged crimes, and could give weight to the opinion of those investigating Pellicci that in the described circumstances other means were too dangerous and might be counterproductive if pursued.

Appellant also contends that he was denied due process in the proceedings below, and that he was entitled to more discovery than he received. We find no merit in either contention, nor in other contentions made on this appeal.

Affirmed. Mandate to issue forthwith.

      . See United States v. Pellicci, 504 F.2d 1106 (1st Cir. 1974).


text:
    UNITED STATES of America, Appellant, v. James HARRIS, Jr., and Angelo Palermo.
    No. 74-1671.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 13, 1974.
    Decided Jan. 2, 1975.
    Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Chief, Appellate Section, Asst. U. S. Atty., Alan M. Lieberman, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
    Nicholas M. D’Alessandro, Philadelphia, Pa., for appellee James Harris, Jr.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

The government takes this appeal under 18 U.S.C. § 3781 from an order of suppression. We are to decide whether the F.B.I. agents were present on the premises lawfully, under the teachings of United States v. Horton, 328 F.2d 132 (3d Cir.), cert. denied sub nom. Edgar v. United States, 377 U.S. 970, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964), so as to permit reception of their testimonial observations and interrogations. The district court found that there was no consent to their entrance and suppressed observations made or statements taken thereafter. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We affirm.

In Horton, the police officers accompanied by one Weiss were admitted “from a public hallway through a door opening into the room,” and identified “themselves as soon as the door was opened.” 328 F.2d at 135. Judge Hastie distinguished two sets of circumstances. The first, found to exist in Horton, is “when the business visitor, whether policeman or private person, merely steps within the door that has been opened” pursuant to a request to open a door. Under these circumstances the officers are permitted “within the entrance area where business conversations are normally conducted.” Ibid, at 136. Contrasted were circumstances in which “the police officer who, once the outer door is opened, presses on into a residence to search for something, even though the householder who has opened the door to him does not overtly protest. Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Williams v. United States, D.C.Cir. 1959 [105 U.S.App.D.C. 41], 263 F.2d 487; Honig v. United States, 8th Cir. 1953, 208 F.2d 916. Such intrusion is normally objectionable and the householder’s failure to protest is likely to impart submission to authority rather than consent.” 328 F.2d at 136.

Under the testimony presented in the instant case, the district court could have found facts which would have brought this ease within the ambit of Horton. But no such facts were found.

In the laconic pronouncement of the district judge: “From the facts of this case I find the testimony of Crystal Caulk to be credible and reject any testimony in the suppression hearing contradictory to her statements. I find that neither she nor anyone else gave the Special Agents permission to enter the home . . ..” Miss Caulk testified that she did not “ask the agents to come in,” did not “invite them into the house,” did not “give them any type of permission to come into the house.”

Unlike the facts found in Horton, where the door was opened for Weiss and the police officers ostensibly in response to a knock by Weiss, here the door to Miss Caulk’s residence was opened by a householder for her own purpose; the Special Agents followed her inside without invitation and without express or implied consent.

Although the agents gave a different version of the happenings at the doorway, the fact finder did not believe them; the fact finder credited instead the testimony of seventeen-year-old Crystal Caulk. “It is the law of this Circuit, as well as many others, that a fact-finder’s determination of credibility is not subject to appellate review.” Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974).

As a jury is at liberty to make findings of credibility without a reasoned explanation, so may a judge sitting as a fact finder. We do not suggest that the law requires more. We are constrained, nevertheless, to emphasize the awesome responsibility the district courts bear in reaching credibility decisions which not only have the effect of removing a prosecution from the guilt-finding process, t but also take a form which precludes judicial review.

The judgment of the district court will be affirmed.


author: JOHN W. PECK, Circuit Judge.

text:
    MUSKEGON THEATRES, INC., a Michigan corporation, Plaintiff-Appellant, v. CITY OF MUSKEGON, a Municipal Corporation, and the Amazon Company, a Michigan corporation, Defendants-Appellees.
    No. 74-1447.
    United States Court of Appeals, Sixth Circuit.
    Dec. 5, 1974.
    Alexis J. Rogoski, R. Bunker Rogoski, Muskegon, Mich., for plaintiff-appellant.

      Thomas J. O’Toole, James J. Kobza, George A. Parmenter, John M. Briggs, III, Muskegon, Mich., for defendants-ap-pellees.
    Before CELEBREZZE, PECK and MILLER, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

On September 28, 1972, plaintiff-appellant (“appellant”) filed in federal district court a complaint alleging that defendant-appellee city (“City”), through certain urban renewal activities from 1966 to 1971, had “taken” its leasehold interest. Because appellant’s lessor (“lessor”) refused to join as co-plaintiff, appellant joined lessor as co-defendant. On June 1, 1973, City filed its declaration of taking in Muskegon County circuit court. On June 13, 1973, appellant filed in federal district court an amended and supplemental complaint realleging the “taking” to have been without just compensation and alleging that City delayed in filing its state court condemnation proceedings in order to obtain a lower appraisal of appellant’s interest. On September 28, 1973, the district judge dismissed appellant’s original complaint because allegations of lost profits and depreciated property value stemming from surrounding urban renewal failed to state a “taking” in the constitutional sense. On November 7, 1973, appellant, City, and lessor stipulated that title to the realty would vest in City, that City would pay into federal district court its estimate of just compensation, and that City would dismiss without prejudice its declaration of taking in state court. The parties reserved the right to prove the date of “taking” for valuation purposes.

On February 26, 1974, the district judge refused to accept the parties’ stipulation, characterizing it as “transfer[ring) the entire litigation, except so much as has been agreed to, from the Muskegon Circuit Court to this court for final disposition and . . . stipu-lat[ing] that this court has jurisdiction without an admission of same or a specific finding thereof by this court.” The judge found that federal-state comity dictates that parties cannot, by stipulation, remove state court proceedings to federal court; moreover, he found that he was unable to say that the state courts would fail to afford appellant its constitutional rights.

Appellant appeals the district court’s sua sponte dismissal of its amended and supplemental complaint. We hold that the district court had power to abstain from exercising jurisdiction, but should have retained jurisdiction pending state court proceedings.

Of course, parties cannot stipulate the subject matter jurisdiction of federal courts. Arenas v. United States, 95 F.Supp. 962, 972 (S.D.Cal.1951), aff’d, 197 F.2d 418 (9th Cir. 1952). See United States v. Anderson, 503 F.2d 420 (6th Cir. 1974), Mill Owners Mut. Fire Ins. Co. v. Kelly, 141 F.2d 763, 766 n. 1 (8th Cir. 1944), Commonwealth ex rel. Woods v. Cavell, 157 F.Supp. 272, 276-277 (W.D. Pa.1957), aff’d, 254 F.2d 816 (3rd Cir. 1958). But an alleged “taking” in violation of the Fifth and Fourteenth Amendments presents a “serious constitutional question,” Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), Eleopoulos v. Richmond Development Agency, 351 F.Supp. 63, 64 (N.D.Cal.1972), clearly within the district court’s “federal question jurisdiction.” 28 U.S.C. § 1331 (1970).

Even so, the district court could abstain from exercising such jurisdiction. Even if City’s entering into the stipulation is deemed as waiving City’s motion to dismiss for abstention reasons, the district court still properly raised the abstention issue because the propriety of a district court’s raising abstention sua sponte is well-settled. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Empire Pictures Distributing Co. v. City of Fort Worth, 273 F.2d 529 (5th Cir. 1960); Mitchell Family Planning, Inc. v. City of Royal Oak, 335 F.Supp. 738, 740 (E.D.Mich.1972).

Recently, this court and the Supreme Court have focused on “the oft-mentioned, but seldom fully understood, issue of abstention.” Though abstention, being an equitable doctrine, often turns on case-by-case facts, courts generally have recognized the purposes of abstention as including the avoidance of premature and unnecessary decisions of federal constitutional law and of “any [unnecessary] possible irritant[s] in the federal-state relationship.” Reetz v. Boza-nich, 397 U.S. 82, 87, 90 S.Ct. 788, 790, 25 L.Ed.2d 68 (1970).

The Supreme Court several times has dealt with abstention in eminent domain contexts. Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959), rev’g 160 F.Supp. 404 (W.D.Pa. 1958), is the closest to being on-point because it, like the instant complaint, invoked the district court’s federal question jurisdiction. In Martin, plaintiffs claimed that a state statute unconstitutionally limited compensable “takings.” Though the district court originally stayed its exercise of jurisdiction pending plaintiffs’ resort to state courts, it later exercised its jurisdiction because of its view that continuing its stay would irreparably harm plaintiffs. The Supreme Court found that such exercise was error.

“The circumstances which should impel a federal court to abstain from blocking the exercise by state officials of their appropriate functions are present here in a marked degree. Reflected among the concerns which have traditionally counseled a federal court to stay its hand are the desirability of avoiding unseemly conflict between two sover-eignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions. All those factors are present here.” 360 U.S. at 224, 79 S.Ct. at 1037 [citations omitted].

Perhaps with a view toward federal judicial economy, the Court found an “additional reason” for abstention in the statute’s varying impact on different landowners.

“Some [landowners] may be completely deprived of access; others may have access to existing roads or service roads to be constructed; still others may have access to the highway itself through points of ingress and egress established under the statute. In the state court proceedings the case of each landowner will be considered separately, with whatever particular problems each case may present.” 360 U.S. at 224-225, 79 S.Ct. at 1037.

In several reported opinions, courts have abstained from exercising their federal question jurisdiction in eminent domain contexts. In Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968), the court of appeals found that the district court should have abstained from deciding plaintiffs’ claim that the city had “taken” their property in violation of the federal constitution. Though the city in Creel had filed an action in state court to condemn such property, Hohensee v. State of Pennsylvania Dep’t of Highways, 383 F.2d 784 (3rd Cir. 1967), as well as Martin, supra, makes it clear that the lack of a pending state court condemnation action creates no preclusion to abstention. Accord, Elterich v. City of Sea Isle City, 477 F.2d 289 (3rd Cir. 1973); see Comment, The Need for More Definitive Standards in Employment of Federal Court Abstention, 1969 Utah L.Rev. 196, 205 — 207; cf. Peace v. City of Center, 372 F.2d 649 (5th Cir. 1967). Contra Eleopoulos v. Richmond Development Agency, 351 F.Supp. 63 (N.D.Cal.1972).

Some federal courts, of course, have exercised their jurisdiction in eminent domain contexts. Ballard Fish & Oyster Co. v. Glaser Const. Co., 424 F.2d 473 (4th Cir. 1970), rejected a contention that plaintiff initially “should be required to seek a remedy in the state courts under Virginia’s constitutional prohibition against taking property for a public use without just compensation.” The court of appeals found that plaintiffs must resort to state judicial remedies only in “exceptional circumstances.” Ballard, though, termed the issue exhaustion rather than abstention. Moreover, public service corporations with delegated eminent domain powers, rather than municipalities, were involved in Ballard.

Town of East Haven v. Eastern Airlines, Inc., 282 F.Supp. 507 (D.Conn. 1968), Eleopoulos v. Richmond Development Agency, 351 F.Supp. 63 (N.D.Cal. 1972), and Joiner v. City of Dallas, 380 F.Supp. 754 (N.D.Tex.1974), explicitly rejected abstention claims. Eleopoulos, of course, is easily distinguishable in that there, as in Foster, infra, the state remedy became adequate only after the filing of the federal complaint. Joiner involved only federal claims, 380 F.Supp. at 761, and, moreover, failed to even cite, much less distinguish, Creel which the Joiner court’s court of appeals decided just six years earlier. In East Haven, certain property owners claimed, inter alia, that a municipally-operated airport had “taken” their property without just compensation in violation of the Fourteenth Amendment’s due process clause. The city, claiming that such would also violate state law, including the state constitution, argued that the property owners had to seek redress initially in state court. The district court, relying on Mosher v. City of Phoenix, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148 (1932), rejected the city’s claim. The district court recognized the validity of Martin, but found Martin inapplicable because

“the circumstances which would merit abstention are not present in the instant action. The constitutional question is not a novel one, . . . and the activities from which the plaintiffs seek relief have already occurred. Furthermore, a state statute is not under attack and the state courts have not, as they had in Martin, signified in

a related action that relief [would] be granted.” 282 F.Supp. at 516.

We decline to follow East Haven for several reasons. First, East Haven also involved independent federally- and diversity-based claims against certain airlines, cf. footnote 1, supra, as to which the district court had no right to abstain. Consequently, the district court, in exercising the equitable doctrine of abstention, could properly consider that abstaining as to the city would fail to foster judicial economy. Second, we feel that the district court relied too heavily on Mosher, which predates Pullman and Martin. Though neither Pullman nor Martin explicitly overruled Mosher, Martin, of course, favors a federal court “stay[ing] its hand” in order to avoid unnecessarily deciding federal constitutional issues and unnecessarily irritating federal-state relationships. The Supreme Court, particularly in the 1970s, has favored such policies. Moreover, Mosher itself exclusively dealt with federal jurisdiction rather than abstention. Third, the fact that the East Haven activities, like the instant ones, had already occurred, we feel, arguably favors federal abstention because a delay in exercising federal jurisdiction is less likely to irreparably harm the party asserting federal jurisdiction; the harm, where the underlying actions have occurred, has already been done. See Martin v. Creasy, 360 U.S. 219, 223, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959). Fourth, though the instant complaint fails to involve a narrow claim of statutory invalidity like Martin, the complaint alleges that the result of the city ordinance and enabling statute is an unconstitutional “taking.” Though abstention generally has been invoked where there is a claim of an unconstitutional statute, we feel abstention is just as properly invoked in the instant case where the claim is that the legislative enactments have resulted in unconstitutional state action because, in either event, a state court determination of the state issues could avoid an unnecessary and premature decision of the federal constitutional issues.

Pullman abstention applies only where the party invoking federal court jurisdiction has state and federal claims so that

“[i]f the statute is struck down under [state law], resolution of the federal constitutional issue would, of course, be avoided. . . . [A] federal court should abstain from deciding the constitutionality of a state statute if that statute is attacked on alternative state law grounds and decision of the state law question might obviate the need for decision of the federal question.” Hill v. Brinegar, 371 F.Supp. 1166, 1170 (D.Del.1974) (citing Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971), and Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970)).

Appellant’s amended and supplemental complaint, however, claims only that City has “taken” its leasehold in violation of the federal constitution. The failure to explicitly claim that the “taking” violated state statutory and constitutional law, however, is immaterial because, as the Second Circuit has recognized,

“[i]t is no answer to the contention that the district court should have abstained, that appellants did not raise their state claims in their complaint. Appellants cannot be allowed to frustrate the policies underlying the doctrine of abstention by this simple expedient.” Reid v. Board of Educ., 453 F.2d 238, 242 n. 7 (2d Cir. 1971).

Moreover, appellant’s brief demonstrates that it has state claims.

“The Constitution and laws of the State of Michigan have always provided that private property may not be taken for public use without due process of law and compensation. A crucial question involved in the implementation of such provisions has been, when is property actually ‘taken’? The Michigan Supreme Court has been committed to a liberal interpretation of ‘taking.’ ” Appellant’s Brief at 11.

Indeed, the authority appellant cites for the proposition that City’s urban renewal activities amounted to an unconstitutional “taking” belies its claim in its complaint that it was asserting a claim that such activities violated the federal constitution. Of eight cases cited, six were Michigan state court cases.

Traditionally, the party asserting abstention has had to tread a narrow path by demonstrating that resort to state proceedings would be meaningful, Foster v. City of Detroit, 405 F.2d 138, 141 (6th Cir. 1968), Jim Young Development Corp. v. State Highway Comm’n, 56 F.R.D. 38 (W.D.Mo.1971), cf. McNeese v. Board of Educ., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), yet that the state law issue involved is “unclear.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Government & Civic Employees Organizing Comm., CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957); Gay v. Board of Registration Comm’rs, 466 F.2d 879 (6th Cir. 1972); Note, Judicial Abstention from the Exercise of Federal Jurisdiction, 59 Colum.L. Rev. 749, 756-757 (1959). Appellant’s brief and Michigan case law, e. g., Tamulion v. State Waterways Comm’n, 50 Mich.App. 60, 212 N.W.2d 828 (1973), conclusively demonstrate that resort to state proceedings would hardly be futile or lacking adequacy. Yet appellant has cited us no authority, and we have found none, holding that City’s urban renewal activities clearly constituted a “taking” of its leasehold. Though somewhat similar, In Re Urban Renewal, Elmwood Park Project, 376 Mich. 311, 136 N.W.2d 896 (1965), involved somewhat different activities which were found to have constituted a “taking.”

Neither the Foster series nor Cheatham v. Carter County, 363 F.2d 582, 4 A.L.R.Fed. 226 (6th Cir. 1966), requires that the district court exercise its jurisdiction. This court specifically recognized that, at the filing of plaintiffs’ inverse condemnation complaint in Foster,

“Michigan had not by statute or clear decisional announcement provided a remedy whereby to compensate property owners for damages consequent upon the long pendency of an ultimately-discontinued condemnation proceeding.” 405 F.2d at 141.

One federal district court has recognized “the unmistakeable implication [that Foster] might have been dismissed under the doctrine of abstention had Michigan provided appropriate remedies in 1960 when the action was commenced.” Jim Young Development Corp. v. State Highway Comm’n, 56 F.R.D. 38, 43 (W.D.Mo. 1971). Cheatham invoked diversity jurisdiction, failed to address abstention issues, and was decided in the mid-1960s when the scope of abstention may have been somewhat narrower than today. Reid v. Board of Educ., 453 F.2d 238, 241-242 (2d Cir. 1971).

Though federal court congestion alone, of course, is insufficient to require abstention, Weiss v. Doyle, 178 F.Supp. 566, 570 (S.D.N.Y.1959), this court, like the district court in its instant decision and the Supreme Court implicitly in Martin, is cognizant that “there is the possibility of a federal question in every taking by eminent domain under state authority.” Nichols, Law of Eminent Domain § 4.13(2) (1973). Because of that possibility, district courts should be aware of the role of abstention in avoiding prematurely and unnecessarily deciding federal constitutional questions. Cf. Jones v. Branigan, 433 F.2d 576 (6th Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1205, 20 L.Ed.2d 327 (1971).

Though the district court’s dismissal without prejudice arguably would not harm appellant, Hill v. Victoria County Drainage District No. 3, 441 F.2d 416 (5th Cir. 1971), the “better practice,” Zwickler v. Koota, 389 U.S. 241, 244 n. 4, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), and the “proper course,” American Trial Lawyers Ass’n v. New Jersey Supreme Court, 409 U.S. 467, 469, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973), is for the district court to retain jurisdiction pending the state court proceedings. In such instance, the district court, upon state court disposition of appellant’s state claims, will be an available forum for the airing of appellant’s federal claims (assuming appellant has properly preserved those claims). See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Government & Civic Employees Organizing Comm., CIO v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957).

Accordingly, we vacate the judgment of the district court and remand the case for proceedings consistent with this opinion.

So ordered.

      . The amended and supplemental complaint, as a pendent claim, alleged that the “taking” terminated appellant’s obligation to pay rent to. lessor. Appellant and lessor both being Michigan corporations, there was no independent diversity jurisdiction over that claim. 28 U.S.C. § 1332(c) (1970).

      . Neither Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir.), cert. denied, - U.S. -, 95 S.Ct. 65, 42 L.Ed.2d 64 (1974), nor Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970), found that such an alleged “taking” would be insufficient to invoke the federal question jurisdiction of the federal district court. In fact, both cases involved the propriety of granting or denying summary judgment. Such granting or denying is proper only if the district court had jurisdiction.

      . Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 169-170 (6th Cir. 1973); Gay v. Board of Registration Comm’rs, 466 F.2d 879 (6th Cir. 1972); Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972).

      . Prounier v. Martinez, 416 U.S. 396, 400-404, 94 S.Ct. 396, 40 L.Ed.2d 224 (1974); Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L,Ed.2d 196 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). Askew and Reetz have been characterized as expanding the scope of abstention. Reid v. Board of Educ., 453 F.2d 238, 242 (2d Cir. 1971).

      . Pennsylvania Ass’n for Retarded Children v. Commonwealth, 343 F.Supp. 279, 290 (E.D. Pa.1972). See Crawford v. Courtney, 451 F.2d 489, 491 (4th Cir. 1971); Note, Judicial Abstention from the Exercise of Federal Court Jurisdiction, 59 Colum.L.Rev. 749, 750 (1959); Comment, The Need for More Definitive Standards in Employment of Federal Court Abstention, 1969 Utah L.Rev. 196.

      . Abstention has been characterized as a matter of discretion. Zwickler v. Koota, 389 U.S. 241, 245, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 170 (6th Cir. 1973); Foster v. City of Detroit, 405 F.2d 138, 145 (6th Cir. 1968); Pell, Abstention — a Primrose Path by Any Other Name, 21 DePaul L.Rev. '926, 933-34 (1972).

      . The policy of avoiding unnecessarily deciding federal constitutional issues, in fact, predates the Pullman abstention doctrine formulated in Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See Siler v. Louisville & N. R.R., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); Note, Judicial Abstention from the Exercise of Federal Jurisdiction, 59 Colum.L.Rev. 749, 752 (1959).

      . Eminent domain, for purposes of this opinion, includes allegations of unconstitutional “takings,” or inverse condemnation.

      . Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968), County of Allegheny v. Frank Mashu-da Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), invoked the district court’s diversity jurisdiction. The rationale for federal court abstention from exercising federal question jurisdiction differs from the rationale for abstention from exercising diversity jurisdiction. Abstaining from exercising federal question jurisdiction avoids often unnecessarily deciding federal constitutional issues; abstaining from diversity jurisdiction avoids federal “guesswork” of the meaning of an unclear and unconstrued state law. Alabama Public Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951), which invoked diversity and federal question jurisdiction, abstained in deference to state regulatory procedures.

      . Creasy v. Lawler, 389 Pa. 635, 133 A.2d 178 (1957), refused to judicially declare a right to compensation because plaintiffs had an adequate remedy at law in a statutorily prescribed proceeding before viewers with appeal through the state judicial system.

      . Unfortunately, none are factually on-point with the instant claim. Hill v. Victoria County Drainage District No. 3, 441 F.2d 416 (5th Cir. 1971), also involved a claim that a state statute was unconstitutional. Plaintiffs in Luedtke v. County of Milwaukee, 371 F.Supp. 1040 (E.D.Wis.1974), had also filed a state court claim. Though Jim Young Development Corp. v. State Highway Comm’n, 56 F.R.D. 38 (W.D.Mo.1971), favored abstention, it failed to order it, pending a determination of the adequacy of the state remedy. Similarly, the pro-abstention pronouncement in City of Boston v. Massachusetts Port Auth., 444 F.2d 167 (1st Cir.), aff’g 320 F.Supp. 1317 (D.Mass.1971), was dictum.

      . See cases cited in County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 194, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959).

      . Generally, there is no need to exhaust state judicial remedies. C. Wright, Law of Federal Courts 187 (1970).

      . The Supreme Court, if not commentators, has characterized Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), as “first fashion[ing] the judge-made doctrine of abstention.” Compare Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967) with C. Wright, Law of Federal Courts 197 (1970).

      . See footnote 4, supra.

      . East Haven, in fact, was the first time Mosher has been cited in reference to abstention. Generally, Mosher has been cited for the proposition that well-pleaded allegations, rather than later evidence, determine the existence of federal jurisdiction. E. g., Levering & Garringues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933).

      . City adopted an urban renewal ordinance on October 8, 1968.

      . The record fails to show what enabling statute underlay City’s urban renewal activities. The enabling statute could have been the blighted area rehabilitation act, Mich. Comp.Laws Ann. § 125.71 et seq. (1967); Mich.Stat.Ann. § 5.3501 et seq. (1969).

      . Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), has been characterized as the leading case supporting that branch of the abstention doctrine favoring abstention where state action is challenged as contrary to the federal constitution and possibly dispositive state law. Of four types of recognized abstention, Pullman abstention undoubtedly is the best settled. C. Wright, Law of Federal Courts 197-205 (1970); accord, Comment, The Need for More Definitive Standards in Employment of Federal Court Abstention, 1969 Utah L.Rev. 196, 197.

      . Of course, the adequacy in itself of state proceedings is insufficient to require district court abstention. Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Foster v. City of Detroit, 405 F.2d 138, 145 (6th Cir. 1968).

      . Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), rev’g 207 F.Supp. 71 (E.D.Mich.1962); Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968), aff’g 254 F.Supp. 655 (E.D.Mich. 1966).

      . One federal appellate judge has implied that the existence of federal constitutional issues in “almost every state criminal prosecution” contributed to the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Hufstedler, Comity and the Constitution: the Changing Role of the Federal Judiciary, 47 N.Y.U.L.Rev. 841, 866 (1972).