author: FRIENDLY, Circuit Judge:

text:
    PHILLIPS, NIZER, BENJAMIN, KRIM & BALLON, Plaintiff-Appellee, v. Lewis S. ROSENSTIEL, Defendant-Appellant.
    No. 59, Docket 73-1568.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 5, 1973.
    Decided Dec. 10, 1973.

      Walter S. Beck, New York City (Dins-more Adams, Janet P. Kane and Phillips, Nizer, Benjamin, Krim & Ballon, New York City, of counsel), for plaintiff-appellee.
    Roy M. Cohn, New York City (Saxe, Bacon, Bolán & Manley, New York City, of counsel), for defendant-appellant.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   FRIENDLY, Circuit Judge:

I.

After twelve years of litigation, with countless suits in the courts of New York, Connecticut and Florida, the much-publicized marital dispute between Lewis and Susan Rosenstiel has improbably found its way into a federal court of appeals. The original marital dispute is now far behind; what brings the parties here is the mundane subject of attorneys’ fees.

The plaintiff, a New York law firm which represented Susan in a variety of matters between 1962 and 1968, brought this suit in the District Court for the Southern District of New York, under 28 U.S.C. § 1332, claiming that under New York law Rosenstiel, then a citizen of Connecticut and later of Florida, was liable for a variety of legal services that the firm had rendered to Susan.

The Rosenstiels were married in New York in 1956. By 1961 they had separated, and their legal battles soon began. Lewis initially sought an annulment on the ground that Susan’s earlier Mexican divorce was invalid. After a bitter squabble involving allegations of international intrigue and bribery, the New York appellate courts reversed the annulment decree. Rosenstiel v. Rosenstiel, 21 A.D.2d 635, 253 N.Y.S.2d 206 (1st Dep’t 1964), rev’g 43 Misc.2d 462, 251 N.Y.S.2d 565 (Sup.Ct.), aff’d, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965), cert, denied, 384 U.S. 971, 86 S.Ct. 1861, 16 L.Ed.2d 682 (1966). The parties then returned to the New York State Supreme Court for a determination of the support and maintenance payments due to Susan during the separation, and the counsel fees that should be awarded her lawyers. The state judge granted a sizeable sum on each count, awarding the plaintiff law firm $360,000 for its services and Susan $2400 per month after taxes as alimony. The law firm had sought more than $600,000 in counsel fees for its services in that case and in a variety of other actions in which it had represented Susan, but the court found that the statutory provision allowing a fee award, N. Y. Domestic Relations Law § 237, McKinney’s Consol.Laws, c. 19, extended only to services rendered in the marital action and related proceedings. The Appellate Division modified the decree by increasing the alimony payments to Susan but reducing the counsel fees to $282,000. Rosenstiel v. Rosenstiel, 28 A.D.2d 651, 280 N.Y.S.2d 624 (1st Dep’t 1967). Both parties appealed, but the Court of Appeals affirmed without opinion, Rosenstiel v. Rosenstiel, 20 N.Y.2d 925, 286 N.Y.S.2d 278, 233 N.E.2d 292 (1967).

Besides the annulment action, the Ro-senstiels were involved in a variety of other legal disputes during the same period, in many of which the plaintiff law firm either represented Susan or provided some legal services to her. Among these were an abortive Connecticut annulment action brought by Lewis; a conversion suit brought by Lewis in the New York courts; a replevin action brought by Lewis to recover his furniture and other personal effects that Susan had either retained or sold when the couple separated; a joint action by Susan and the law firm against the St. Paul Fire and Marine Insurance Company on its surety bond to recover for Lewis’ failure to make timely support payments; and a number of vendors’ actions brought against Susan or against Susan and Lewis for purchases made by Susan during the separation. In this action the law firm sought to recover for its services in each of these suits, as well as for its work on the appeal from the support and attorneys’ fee awards in the annulment suit. In addition, the firm sought to recover various disbursements made in connection with several of the other suits mentioned above.

The district court held that it had jurisdiction because the plaintiff had established diversity of citizenship, and the suit was not one for divorce or alimony but simply for attorneys’ fees. Having taken jurisdiction, the court held that under New York common law action for “necessaries” the plaintiff could recover for the various services rendered to Susan, although it reduced the plaintiff’s claim from a total of $200,000 to $122,615.37. The defendant has appealed, contending that the district court misread the applicable New York law in several significant respects, and that the judgment was therefore grossly inflated. In addition, the defendant contended at oral argument that the district court improperly assumed jurisdiction over the case and should either have dismissed the suit or stayed it to permit a state court to resolve the difficult questions of New York law here presented.

II.

We must first consider the correctness of the district court’s ruling that the suit was not barred by the rule that diversity jurisdiction does not extend to matrimonial actions. This principle has its origin in a dictum in Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859).

We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board.

The three Justices who- dissented from the assumption of jurisdiction in Barber supplied a rationale for the dictum. The case had been brought as a diversity suit in the district court for Wisconsin to enforce a New York decree for separation and alimony, and the majority held that the court had jurisdiction since the case was not a suit for allowance of alimony, but merely a suit to prevent a valid state court decree from being defeated by fraud. The dissenters responded that chancery jurisdiction in England had not extended to divorce and alimony, with the result, presumably, that a proceeding seeking such relief did not come within the language, “all suits of a civil nature at common law or in equity,” of the diversity statute, 1 Stat. 78. The Court gave support to this reasoning in Maynard v. Hill, 125 U.S. 190, 206, 8 S.Ct. 723, 31 L.Ed.2d 654 (1888), where it noted that the power to grant divorces in England had been divided between the ecclesiastical courts, which could grant divorces from bed and board, and Parliament, which alone could grant absolute divorces.

In Simms v. Simms, 175 U.S. 162, 167, 20 S.Ct. 58, 44 L.Ed. 115 (1899), the Court reaffirmed the Barber dictum, although in that case it exercised appellate jurisdiction over a divorce decree of a territorial court. The Court applied the dictum in Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L. Ed. 489 (1930), in refusing to issue a writ of prohibition against an Ohio proceeding in which a consul was sued for divorce, despite the constitutional provisions on the subject and the statutory reservation to the federal courts of exclusive jurisdiction “of all suits and proceedings” against consuls and the grant of jurisdiction of such suits and proceedings to the district courts and the Supreme Court. After stating that the exclusive jurisdiction statutes “do not purport to exclude the State Courts from jurisdiction except where they grant it to Courts of the United States,” Mr. Justice Holmes, no tyro in legal history, continued, id. at 383-384, 50 S.Ct. at 155:

Therefore, they do not affect the present case if it be true as has been unquestioned for three-quarters of a century that the Courts of the United States have no jurisdiction over divorce. If when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States, there is no difficulty in construing the instrument accordingly, and not much in dealing with the statutes. ‘Suits against consuls and vice-consuls’ must be taken to refer to ordinary civil proceedings and not to include what formerly would have belonged to the ecclesiastical Courts.

We have no disposition to question that conclusion, whether the history was right or not, cf. Spindel v. Spindel, supra, 283 F.Supp. at 802-803. More than a century has elapsed since the Barber dictum without any intimation of Congressional dissatisfaction. It is beyond the realm of reasonable belief that, in these days of congested dockets, Congress would wish the federal courts to seek to regain territory, even if the cession of 1859 was unjustified. Whatever Article III may or may not permit, we thus accept the Barber dictum as a correct interpretation of the Congressional grant.

However, the scope of the exception relating to matrimonial actions, like that of the related one concerning matters of probate and administration, has been rather narrowly confined, see generally Hart & Wechsler, supra, at 1186-92 (2d ed. 1973). As already noted, in the very case enunciating the matrimonial exception the Supreme Court sustained federal jurisdiction to enforce an alimony award already made by a state court in a divorce proceeding. Accord, Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 54 L.Ed. 905 (1910). We have upheld federal jurisdiction in an action to determine whether a Connecticut divorce decree was invalid as having failed to give full faith and credit to a previous Nevada decree, Southard v. Southard, 305 F.2d 730, 731 (2 Cir. 1962). In Harrison v. Harrison, 214 F.2d 571 (4 Cir.), cert, denied, 348 U.S. 896, 75 S.Ct. 217, 99 L.Ed. 704 (1954), the court sustained federal jurisdiction in a diversity action to declare a Mexican divorce decree invalid and to order payment of past and future alimony under an earlier Ohio decree. A different view has been taken where the amounts ordered to be paid as alimony were subject to modification by the state court, Lynde v. Lynde, 181 U.S. 183, 187, 21 S.Ct. 555, 45 L.Ed. 810 (1901); Morris v. Morris, 273 F.2d 678 (7 Cir. 1960), a view paralleled in the field of custody and visitation by our decision in Hernstadt v. Hernstadt, 373 F.2d 316 (2 Cir. 1967). Other relevant eases will be found in Judge Weinstein’s learned opinion in Spindel v. Spindel, supra, 283 F.Supp. at 810-811.

As indicated, the bulk of the complaint is concerned with legal services in no way connected with the matrimonial action, recoverable only in an action at common law for necessaries. The only claim that could have been asserted in the matrimonial action was that for services on the appeal relating to alimony and counsel fees. It may well be that this claim would have been subject to dismissal for lack of federal jurisdiction if it had stood alone. Assuming that to be true, we need not debate whether the doctrine of pendent jurisdiction nevertheless would permit its consideration here, in view of our holding that, for closely related reasons, this claim lies within the exclusive jurisdiction of the New York courts.

III.

The holding that, with one possible exception, federal jurisdiction was not barred by the dictum in Barber v. Barber, supra, 62 U.S. (21 How.) at 584, 16 L.Ed. 226, does not necessarily entail a conclusion that the district court should have adjudicated this action. It would be difficult to think of a case where invocation of federal jurisdiction by a plaintiff was less justified than here; indeed, anyone challenged to produce an example why diversity jurisdiction should be abolished or severely curtailed would hardly have conceived so dramatic an illustration. The action not only presents the anomaly of a jurisdiction intenhed to protect out-of-staters against local prejudice being invoked by an instater, see ALI, Study of the Division of Jurisdiction Between State and Federal Courts 99-110 (1968), but the instater is a law firm that has practiced, long and successfully, in the New York courts. The defendant, although a resident of Connecticut or later of Florida, maintained a New York City apartment and his business interests were focused in New York. The services for which compensation is sought were rendered in New York courts. Most important of all, decision requires exploration of a difficult field of New York law with which, because of its proximity to the exception for matrimonial actions, federal judges are more than ordinarily unfamiliar. Moreover, the claim for services on appeal on the award of alimony and counsel fees necessitates the interpretation of a decree of a New York Supreme Court Justice who sits only a few hundred yards from the Federal Courthouse in New York CUy.

Despite the expansive language used thirty years ago in Meredith v. Winter Haven, 320 U.S. 228, 236-238, 64 S.Ct. 7, 88 L.Ed. 9 (1943), we do not believe that the Supreme Court today would demand that federal judges waste their time exploring a thicket of state deci-sional law in a case such as this. Some movement away from Meiedith took place in Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), and again in Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968). Although these cases concerned state law issues important to the state itself, courts of appeals, inspired no doubt by feelings akin to those we have voiced, have stayed diversity actions for resolution of difficult state law problems by the state courts even when the issues were of concern mainly'to the parties. See United Services Life Ins. Co. v. Delaney, 328 F.2d 483 (5 Cir. 1964); Reichman v. Pittsburgh Nat’l Bank, 465 F.2d 16, 18 (3 Cir. 1972) (similar issues concerning construction of trust pending in Pennsylvania Orphans’ Court which has “special ability . to decide those issues in view of its exclusive state jurisdiction over trusts and estates”); Magaziner v. Mon-temuro, 468 F.2d 782, 787 (3 Cir. 1972) (expertise of Family Division of Pennsylvania Court of Common Pleas with respect to child support). As the two latter cases suggest, there is particularly strong reason for abstention in cases which, though not within the exceptions for matters of probate and administration or matrimony and custody actions, are on the verge, since like those within^ the exception, they raise issues “in’ which the states have an especially strong interest and a well-developed competence for dealing with them.” Wright, Federal Courts § 25, at 84 (2d ed. 1970). Beach v. Rome Trust Co., 269 F.2d 367 (2 Cir. 1959), is not to the contrary since that case involved “[n]o controlling or obscure question of state law.” Id. at 374.

In view of these factors, if defendant had made a timely motion for a stay pending plaintiff’s initiating appropriate proceedings in the New York courts, the judge should have granted it. From an examination of the transcript below, we think it quite evident that he would have done so. But his efforts to elicit such a motion from defendant’s counsel proved unsuccessful. The action was filed on May 10, 1968. After many rounds of motions before a number of judges of the district court, the case was tried on September 1 and 2 and December 7, 1971. Only at that time did defendant’s counsel move for a stay, and the judge thought it would be an abuse of discretion for him to grant one at that late date when so much professional and judicial time had already been expended in the federal court. We surely cannot say it was an abuse of discretion for him to have denied one. Compare Louisiana Power & Light Co. v. City of Thibodaux, supra, 360 U.S. at 27 n.2, 31, 79 S.Ct. 1070 (Stewart, J., concurring). And so, in his words, we “will treat the merits, painful as that may be.”

IV.

As earlier indicated, in attempting to impose upon Lewis Rosenstiel the costs of legal services rendered to Susan during their separation, the plaintiff has relied on the common law action for “necessaries” as applied in New York. The principle behind the suit for necessaries is that until the marriage relationship is severed, the husband is liable to his wife or his wife’s creditors for her support and the support of his children. DeBrauwere v. DeBrauwere, 203 N.Y. 460, 96 N.E. 722 (1911); Laumeier v. Laumeier, 237 N. Y. 357, 364, 143 N.E. 219, 221 (1924); Rudnick v. Tuckman, 1 A.D.2d 269, 271, 149 N.Y.S.2d 809, 811 (1st Dep’t 1956) ; cf. Wanamaker v. Weaver, 176 N.Y. 75, 68 N.E. 135 (1903). Although he cannot be charged with every expenditure that she may choose to make, the husband will be held responsible to the wife’s creditors for all services and purchases found to have been necessary to support her in a style consistent with her habits and his means. Keller v. Phillips, 39 N.Y. 351, 354 (1868); DeBrauwere v. DeBrauwere, supra, 203 N.Y. at 464-465, 96 N.E. at 723; Garlock v. Garlock, 279 N.Y. 337, 340, 18 N.E.2d 521, 522 (1939); Grishaver v. Grishaver, 225 N.Y.S.2d 924, 935-936 (Sup.Ct. 1961); Tausik v. Tausik, 38 Misc.2d 11, 235 N.Y.S.2d 776 (Sup.Ct.1962). The wife can maintain her action for necessaries even after the couple separates, as long as she did not cause the separation by her misconduct. Pearson v. Pearson, 230 N.Y. 141, 146, 129 N.E. 349, 350 (1920); cf. Griston v. Rosenfield, 280 App.Div. 273, 113 N.Y.S.2d 616 (1st Dep’t 1952); Steisel v. Gratzer, 3 Misc. 2d 816, 66 N.Y.S.2d 526 (Sup.Ct.1947). Only termination of the marriage or a judicial or private financial settlement will relieve the husband of his liability for necessaries under most circumstances. Winter v. Winter, 191 N.Y. 462, 84 N.E. 382 (1908); Turner v. Woolworth, 221 N.Y. 425, 429, 117 N.E. 814, 815 (1917); Elder v. Rosenwasser, 238 N.Y. 427, 432, 144 N.E. 669, 671 (1924); Ashmead v. Sullivan, 198 App. Div. 885, 888, 191 N.Y.S. 205, 206-207 (1st Dep’t 1921); Rudnick v. Tuckman, supra; Marson v. Marson, 6 App.Div.2d 786, 175 N.Y.S.2d 82 (1st Dep’t 1958), aff’d, 6 N.Y.2d 925, 190 N.Y.S.2d 998, 161 N.E.2d 212 (1959).

Traditionally, the action for necessaries has included food, clothing, shelter, medical bills, and incidental living costs of various sorts, see Laumeier v. Laumeier, supra; Bloomingdale Bros. v. Benjamin, 200 Misc. 1108, 112 N.Y.S.2d 33 (City Ct., New York City, 1952); Abraham & Straus v. Teller, 37 Misc.2d 797, 236 N.Y.S.2d 435 (Civil Ct., New York Co., 1962). However, it has also been held to include necessary counsel fees that the wife may incur, Dravecka v. Richard, 267 N.Y. 180, 196 N.E. 17 (1935); Naumer v. Gray, 28 App.Div. 529, 51 N.Y.S. 222 (2d Dep’t 1898); Friou v. Gentes, 11 App.Div.2d 124, 204 N.Y.S.2d 836 (2d Dep’t 1960); Gallin v. Stafford, 10.A.D.2d 915, 200 N.Y.S.2d 498 (1st Dep’t 1960), aff’d 9 N.Y.2d 894, 216 N.Y.S.2d 705, 175 N.E.2d 832 (1961). Such fees have been allowed as “necessaries” for purposes ranging from the wife’s defense against criminal charges, see, e. g., Elder v. Rosenwasser, supra, to costs incurred in connection with the marital dispute itself, Goldberg v. Keller, 236 App.Div. 541, 260 N.Y.S. 65 (2d Dep’t 1932). The principles applicable to recovery of legal fees in a marital dispute are similar to those applicable in a suit for necessaries of other kinds, although they are complicated somewhat by § 237 of the New York Domestic Relations Law. That statute provides for the award of counsel fees in marital actions of various sorts, including proceedings

(1) to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against the wife who was the defendant in any action outside the State of New York and did not appear therein where the wife asserts the nullity of such foreign judgment, or (5) by a wife to enjoin the prosecution in any other jurisdiction of an action for a divorce, or (6) upon any application to annul or modify an order for counsel fees and expenses made pursuant to this subdivision. .

Prior to the amendment and recodifi-cation of the statute in 1963, it was understood that the statutory provision would be the exclusive remedy in any marital suit in which the wife sought counsel fees, but that if the wife or her attorney had not requested a statutory award, they could sue for fees under the common law action for necessaries. Naumer v. Gray, swprn; Elder v. Coch-rane, 209 App.Div. 665, 205 N.Y.S. 292 (2d Dep’t 1924); Gallin v. Stafford, supra. This rule was criticized as cumbersome and productive of judicial inefficiency, see, e. g., Horn v. Schmalholz, 150 App.Div. 333, 134 N.Y.S. 652 (2d Dep’t 1912); Handelman v. Peabody, 285 App.Div. 689, 140 N.Y.S.2d 374 (1st Dep’t 1955), but the New York courts declined to depart from it.

There was some conjecture that the 1963 amendments had made the statute the sole remedy for obtaining fees for legal services rendered in a matrimonial action, see Christensen v. Christensen, 39 Misc.2d 370, 373, 240 N.Y.S.2d 797, 800 (Sup.Ct.1963); Tompkins & Lauren v. Glass, 44 Misc.2d 239, 253 N. Y.S.2d 465 (Civil Ct., New York Co., 1964); Ellis v. Shapiro, 56 Misc.2d 379, 288 N.Y.S.2d 841 (Civil Ct., New York Co.), aff’d, 57 Misc.2d 633, 293 N.Y.S.2d 26 (Sup.Ct.1968), but the lower New York courts appear to have determined that the common law action is still available when a statutory request is not made. Levine v. Levine, 48 Misc.2d 15, 263 N.Y.S.2d 997 (Civil Ct., New York Co., 1965), aff’d, 50 Misc.2d 39, 269 N.Y.S.2d 243 (Sup.Ct.1966); Schwartz v. Aberbach, 66 Misc.2d 246, 319 N.Y.S.2d 1021 (Civil Ct. Bronx Co., 1971). Similarly, if the wife brings a new action to enforce or modify an earlier decree, she or her lawyer can bring a subsequent action for necessaries to collect counsel fees for that suit from the husband, Gallin v. Stafford, supra; Friou v. Gentes, supra. But if the wife or her attorneys elect the statutory remedy in a single marital action, they cannot later bring a suit to recover counsel fees relating to that action, Turner v. Woolworth, supra; Draveeka v. Richard, supra.

The question here is whether the wife’s attorneys can have it both ways —an allowance under § 237 for counsel fees at trial and an action for necessaries for counsel fees on appeal. It is plain enough that the attorneys could have requested a supplementary allowance under § 237 for services on the appeal. See Carlo v. Carlo, 30 A.D.2d 530, 291 N.Y.S.2d 410 (2d Dep’t 1968). Authority is scant whether they must. The only case directly on point which has been cited to us, Tompkins & Lauren v. Glass, supra, answers that question in the affirmative. The court rendering the decision in the Tompkins & Lauren case does not stand high in the New York judicial hierarchy, and we would not feel bound by its decision if we had any reason to believe the New York Court of Appeals would think otherwise. However, we do not. Judge Greenfield’s opinion is well-reasoned, and the result accords with the general distaste of the New York courts for resort to the action for necessaries for compensating legal services in a case where an allowance under § 237 is available. Surely the court in which this matrimonial action was tried and which has awarded compensation for legal services to the wife in the trial is in a far better position to determine reasonable compensation for appeal than another tribunal which comes to the case cold.

Judge Tyler, who did not discuss the Tompkins & Lauren decision, was greatly influenced by the fact that, in fixing plaintiff’s fees in the matrimonial action, Supreme Court Justice Helman appeared to consider only services rendered through the trial. But that does not mean that Justice Helman was disclaiming jurisdiction with respect to a further allowance for services on appeal. To the contrary, his decree provided “that the parties hereto shall have such other and further relief at the foot of this judgment as may be just and proper in the premises” and “that this order or decree may be enforced or modified only in the Supreme Court.” Under these circumstances, the New York law appears to be that once having applied for statutory compensation in the marital action, plaintiff could not seek any further fees except from the court that had made the original statutory award. We take no position on whether an application for a modification of the decree to allow further compensation can still be made. Cf. Christensen v. Christensen, supra; Davies v. Davies, 65 Misc.2d 480, 318 N.Y.S.2d 97 (Sup.Ct.1971). It suffices that another court, state or federal, cannot lawfully award counsel fees as “necessaries” in the face of a prior statutory allowance in the New York matrimonial action. We therefore reverse the portion of the district court’s judgment awarding $32,000 to plaintiff for its services on the appeal from the state court’s support decree, without prejudice to any proceeding it may be able to take in the Supreme Court of New York in the matrimonial action.

Rosenstiel next challenges the $25,000 award for fees in the replevin action. He argues that counsel fees are not available in an action for necessaries when the wife’s suit is frivolous or her defense to a suit is baseless. New York law applies the same standard in determining whether legal services are “necessary” as it does in evaluating other services supplied to the wife. Weidlich v. Richards, 276 App.Div. 383, 94 N.Y. S.2d 546 (1st Dep’t 1950). The services must be for the protection and support of the wife, and they must be reasonable and proper, see Lanyon’s Detective Agency v. Cochrane, 240 N.Y. 274, 277, 148 N.E. 520, 521 (1925); Steuer v. Hart, 175 App.Div. 829, 162 N.Y.S. 489 (1st Dep’t 1916); Rosenblatt v. Wolf, 17 A.D.2d 396, 236 N.Y.S.2d 68 (1st Dep’t 1962). The state court granted judgment for Lewis in the replevin action, enabling him to recover his furniture and other possessions, which Susan had retained, and awarding him $150,000 damages for the loss of his property that Susan had disposed of without his permission. In addition, the state court referee pointed out that Susan’s defense was founded largely on fabrications and falsehoods, including her wholly baseless claim that some of Lewis’ property had been destroyed in a fire when, in fact, she had caused it to be sold. Plaintiff correctly points out that victory is not a prerequisite to recovery of legal fees. But Susan’s case in the replevin action was not simply a losing one, it was a sham.

Although we have not been able to find any New York cases directly in point, we do not think the New York courts would require a husband to underwrite his wife’s legal fees under these circumstances. To permit the wife to impose huge attorney’s fees on her husband in a meritless defense to a suit he had been forced to bring against her would encourage frivolous litigation and impose a double burden on the husband in his efforts to vindicate his rights. It would seem odd, at the least, to require Lewis to pay debts incurred by Susan in a unjustified attempt to block him from recovering his own property. We therefore reverse the award of $25,000 to plaintiff for defense of the replevin action and direct that plaintiff recover nothing against Lewis for these services.

The next major item that the defendant challenges is the award of $55,000 to the plaintiff for its services in the consolidated vendors’ actions. The district court granted plaintiff $40,000 for its services in the trial of these actions, and $15,000 for its services on appeal. Lewis does not contend that the defense of the vendors’ actions was frivolous, nor do we find it to be so. However, he asks us to award legal fees only in accordance with the percentage that he was required to pay in the joint actions against Susan and himself. We see no basis for doing this. Once it is determined that the legal services rendered to the wife were “necessary,” the court must give judgment against the husband for the reasonable value of the services rendered. Lewis is therefore liable for all “necessary” legal services rendered in the vendors’ actions prior to the date of the support decree, December 28, 1966. Since the trial of the actions took place prior to that date, we affirm the $40,000 award for legal services rendered in the trial.

The $15,000 awarded for the appeal in the vendors’ actions stands differently. The record shows that the plaintiff did not render any significant services with regard to the appeal until well after the date of the support judgment. Since under New York law an alimony award is held to provide for all “necessaries” that the wife might incur except for legal fees in further marital litigation, People ex rel. Commissioners of Charities v. Cullen, 153 N.Y. 629, 635-636, 47 N.E. 894, 895-896 (1897); Turner v. Woolworth, supra; Dravecka v. Richard, supra; Klein v. Dula, 217 App.Div. 473, 217 N.Y.S. 221 (1st Dep’t 1926); Berry v. Jaworski, 187 Misc. 481, 67 N.Y.S.2d 400, aff’d, 271 App. Div. 932, 68 N.Y.S.2d 432 (1947), the plaintiff cannot obtain reimbursement from the husband for these post-judgment services rendered in a commercial contract suit. We therefore reverse the award of $15,000 for services on the appeal from the consolidated vendors’ actions and direct that plaintiff take nothing from Lewis on that account.

The remaining sums are all relatively small. The parties have not said much about them, nor shall we. The district court awarded plaintiff $3,000 for its services in the surety bond suit against the St. Paul Fire Marine Insurance Company, which Susan instituted when Lewis failed to make timely alimony payments. New York law permits recovery of counsel fees as necessary for services rendered in a separate suit to enforce a support decree, see Sheer v. Foley, 145 Misc. 819, 260 N.Y. S. 252 (City Ct., New York City, 1932); Gallin v. Stafford, 18 Misc.2d 786, 791, 188 N.Y.S.2d 137, 143 (City Ct., New York City, 1959), rev’d on other grounds, 10 A.D.2d 915, 200 N.Y.S.2d 498 (1st Dep’t 1960), aff’d, 9 N.Y.2d 894, 216 N.Y.S.2d 705, 175 N.E.2d 832 (1961); In re Freundlich’s Estate, 112 N.Y.S.2d 653 (Sur.Ct., New York Co., 1952). Since it appears that no counsel fees have previously been sought or awarded in the surety bond suit, we affirm the award of $3,000 as reasonable compensation for plaintiff’s services in that action.

The district court granted plaintiff $2,000 for its part in the Connecticut annulment action brought by Lewis prior to the institution of the New York annulment suit. Once again, the services were necessary and the award appears reasonable. We therefore affirm.

Finally, the district court granted $500 for plaintiff’s services in the conversion suit brought by Lewis in New York Supreme Court. Defendant does not contend that the minimal services rendered in that action were not “necessaries,” and we therefore affirm that award.

The defendant concedes that $1,499.45 • of the disbursements granted by the district court were in connection with actions that were “necessary” to Susan’s defense. However, he challenges the remaining $3,615.92 of disbursements. Since the district court did not indicate in what actions those were incurred, we must remand for a determination whether the disbursements were in connection with an action for which the plaintiffs can here recover counsel fees. If those disbursements were incident to any of the allowances of compensation we have upheld, they also should be awarded to plaintiff. However, if they were incident to any of the awards that we have reversed, they must be denied. Perhaps it is not too much to hope that the parties can agree on this relatively small item and spare Judge Tyler from having to conduct another trial.

If our decision here has inadvertently rent a seam in New York matrimonial law, we trust the New York courts will speedily repair it in some other case. The injury was not of our making.

Judgment affirmed in part, reversed in part, and remanded in part. Appellant may recover half his costs.

      . The parties have not questioned that the eai rather than of Connecticut. i is to be decided under the laws of New York

      . Judge Tyler’s ruling was in accordance with a similar ruling by Judge Tenney in an earlier proceeding. Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y.1967).

      . The dissenters also argued that during the pendency of the marital relationship, the husband and wife could not legally be citizens of different states. Therefore, they concluded, divorce jurisdiction was barred because the parties by definition could never satisfy the jurisdictional requirements. 62 U.S. (21 How.), at 600-602, 16 L.Ed. 226. In addition, the dissenters felt that it was not “in accordance with the design and operation” of the federal government that it should “assume to regulate the domestic relations of society.” It was beyond the proper competence of the federal courts, the dissenters wrote,
      to control the duties or the habits of the different members of private families in their domestic intercourse. This power belongs exclusively to the particular communities of which those families form parts, and it is essential to the order and to the very existence of such communities.

        Id. at 602, 16 L.Ed. 226. Thirty years later the Court appeared to adopt this portion of the dissenters’ view, writing, “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the law of the States and not to the laws of the United States,” In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890). The issue in that case, child custody, was held to be “one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction,” thus apparently extending the prohibition to judicial as well as legislative action. See Hart & Weehsler, The Federal Courts and the Federal System 1189 (2d ed. 1973).

      . In De la Rama v. De la Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765 (1906), the Court again heard an appeal from a divorce decree granted by a territorial court, but it cited only two reasons supporting the dictum in Barber that federal courts lack diversity, jurisdiction in divorce actions or suits for alimony : first, that husband and wife cannot normally be citizens of different states, and second, that a suit for divorce involves no pecuniary value. 201 U.S. at 307, 26 S.Ct. 485. The Court has subsequently rejected the first justification for the Barber rule, see Haddock v. Haddock, 201 U.S. 562, 571, 26 S.Ct. 525, 50 L.Ed. 867 (1906) ; Williamson v. Osenton, 232 U.S. 619, 625-626, 34 S.Ct. 442, 58 L.Ed. 758 (1914), and the second has been criticized, see Spindel v. Spindel, 283 F.Supp. 797, 812 (E.D.N.Y.1968) ; Vestal & Foster, Implied Limitations on the Diversity Jurisdiction of Federal Courts, 41 Minn.L.Rev. 1, 28 (1956). In any event, by twice taking jurisdiction in appeals from territorial divorce actions, the Court seemed to suggest that these actions are within the judicial power of the federal courts but outside the scope of -the diversity statute. See Wright, Federal Courts § 25, at 84.
      Judge Weinstein’s criticism that in Simms and De la Rama, “the Court said federal courts lacked jurisdiction and then acted as if they possessed judicial power over divorce cases,” Spindel v. Spindel, supra, 283 F. Supp. at 803 (emphasis in original), while seemingly unanswerable if the Court was proceeding on a constitutional basis, id. at 804, is lacking in force if, as indicated, the basis for lack .of jurisdiction was the language of the diversity statute. While the latter spoke of “all suits of a civil nature at common law or in equity,” the appellate jurisdiction statute applicable in Simms, Rev. Stat. § 702, empowered the Supreme Court to review “[t]he final judgments and decrees of the supreme court of any Territory,” and the statute applicable in De la Rama, 32 Stat. 695, permitted it to review “the final judgments and decrees of the supreme court of the Philippine Islands in all actions, cases, causes and proceedings . . ..”

      . It could be argued that pendent jurisdiction cannot overcome a lack of federal jurisdiction arising from Article III. But, apart from the confusion whether or not the Supreme Court has been proceeding on constitutional rather than statutory grounds, see note 4 supra, many instances of ancillary jurisdiction in diversity cases project the court into areas not covered by Article III, although the constitutional lack of jurisdiction arises from the identity of the parties rather than the subject matter. See Hart & Wechsler, supra, at 1079-80. Similarly, in pendent jurisdiction cases involving related federal and state claims, the federal courts have been held to have constitutional power to exercise jurisdiction over the entire “ease.” United Mine Workers v. Gibbs, 383 U.S. 715, 725-726, 86 S.Ct. 1130, , 16 L.Ed.2d 218 (1966). There would seem to be no constitutional bar to extending pendent jurisdiction to closely related claims as part of the same “controversy” under 28 U.S.C. § 1332, even though those claims, standing alone, would not be within the court’s jurisdiction. Cf. Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 810 n.12 (2 Cir. 1971). Of course, as the Gibbs Court pointed out, the courts would retain the discretion not to consider the pendent claim if considerations of judicial economy, convenience, and fairness to litigants were not present, 383 U.S. at 726, 86 S.Ct. 1130.

      . Although the complaint alleges that the members of the plaintiff law firm are residents of New York and New Jersey, the overwhelming majority reside in New York.

      . At argument we asked why plaintiff had brought this action in such an inappropriate forum. The answer was that defendant had taken the position that the New York courts had no power to make an award for necessaries. Examination of the papers submitted to support this shows that defendant’s claim was rather that, save for services on the appeal in the matrimonial action, a New York court could not make such an award in that action.

      . The word “waste” is appropriate not only because we cannot predict New York law with authority and our attempt to do so prevents a clarification by the state courts that would otherwise have occurred, but also because of the unlikelihood that any of the federal judges who have been concerned with this case will ever have to confront these or similar issues again.

      . The scope of the decision in City of Thibo-daux was restricted by County of Allegheny v. Frank Masliuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L.Ed .2d 1163 (1959), decided the same day. The two cases are difficult to reconcile, as both were diversity suits invoking state eminent domain law in which the district court had stayed or dismissed the federal action in favor of a state court determination of the applicable state law. In City of Thibodaux, the Court, 6-3, approved the district court’s stay as being within the court’s discretion. In the Allegheny County case, by contrast, the Court, 5-4, held that the district court’s dismissal of the diversity suit constituted an abuse of discretion. The majority in City of Thibodaux stressed the difficulty of the underlying state law questions, while the majority in the Allegheny County case stated that the state law in question was “clear and certain,” 360 U.S. at 196, 79 S.Ct. 1060. Although this suggests a possible distinction between the cases, the Court did not expressly rely on the difficulty vel non of state law issues and in fact made no apparent effort to reconcile the opinions in the two cases. See Wright, Federal Courts, § 52, at 200-02.

      . Judge Tyler later directed a further trial, which was held on September 21 and October 19, 1972.

      . The New York courts have permitted a jury trial to lawyers and businessmen seeking compensation under the action for necessaries, see, e. g., Lanyon’s Detective Agency v. Cochrane, 240 N.Y. 274, 148 N.E. 520 (1925) ; Elder v. Cochrane, 209 App.Div. 665, 205 N.Y.S. 292 (2d Dep’t 1924) ; Kahn v. Ronson, 72 Misc.2d 551, 340 N.Y.S.2d 344 (Sup.Ct.1972), although plaintiff mercifully did not seek one here.

      . Plaintiff notes that it represented Susan only during the preliminary stages of the re-plevin action and was not involved in the case at the time Susan presented her allegedly fabricated defense. AVhile we assume plaintiff was entirely blameless, its own clean hands do not make “necessary” the rendition of legal services to the wife in a defense she must have known to be merit-less. Cf. Schussheim v. Cohen, 16 N.Y.S.2d 989 (Sup.Ct.1939) ; Savage v. Savage, 54 N.Y.S.2d 441 (Sup.Ct.1945). Plaintiff’s remedy lies against Susan.

      . It goes -without saying that we are not ruling on plaintiff’s rights against Susan.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge.

license: Public Domain

text:
    The CHOCTAW NATION and the Chickasaw Nation, Plaintiffs-Appellants, v. STATE OF OKLAHOMA and the Commissioners of the Land Office of the State of Oklahoma, Defendants-Appellees.
    No. 73-1447.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 14, 1973.
    Decided Jan. 10, 1974.

      Lon Kile, Hugo, Okl. (Kile & Rabón, Hugo, Okl., on the brief), for plaintiffs-appellants.
    Odie A. Nance, Asst. Atty. Gen., and R. R. Williamson, Jr., Oklahoma City, Okl. (Larry Derryberry, Atty. Gen. of Oklahoma, on -the brief), for defen d-ants-appellees.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges. »
   McWILLIAMS, Circuit Judge.

The present appeal is the latest chapter in the dispute between certain Indian Tribes and the State of Oklahoma over the ownership of the bed of the Arkansas River between its confluence with the Grand River and the Oklahoma-Arkansas boundary. Brief reference to the history of this rather protracted litigation will place in focus the narrow issue presented by this appeal.

The Cherokees brought suit against Oklahoma and the holders of various sand, gravel, and oil and gas leases granted by Oklahoma and covering parts of the land here in dispute. The relief sought was an accounting and an injunction. Oklahoma and certain of its lessees counterclaimed for a decree quieting title in Oklahoma. The Choctaws and Chickasaws were permitted to intervene and assert a joint claim with the Cherokees. On trial, judgment was rendered in favor of Oklahoma, and, on appeal by the Tribes, we affirmed. Cherokee Nation or Tribe of Indians in Oklahoma v. State of Oklahoma, 402 F. 2d 739 (10th Cir. 1968).

On appeal to the Supreme Court that court reversed and held that the United States had conveyed title to the bed of the Arkansas River below its junction with the Grand River within the present State of Oklahoma in the various grants it had theretofore made the several Tribes. The case was then remanded to the trial court for further proceedings. Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970).

On remand to the trial court a dispute first arose as to whether the Supreme Court by its opinion had decided present title to the river bed, or had only determined that sometime in the past the United States had conveyed title to the Tribes. On this particular matter the trial court held that the Supreme Court had determined present title, and declined to permit Oklahoma to relitigate the matter.

A second dispute arose on remand concerning damages. The Choctaws, on the one hand, initially contended, though they later abandoned their contention, that they were entitled to the value of the minerals taken from the river bed. The lessees, at the other end of the spectrum, themselves sought return of the rentals paid the State. The State in turn contended that damages should be limited to those recoverable in a trespass action. The order of the trial court was that the leases should be cancelled and that Oklahoma should account for, and pay into the registry of the court, all sums received by Oklahoma as lease bonuses, rentals, and royalties, which in turn would, be given the Tribes.

On appeal, we affirmed both of these particular rulings of the trial court, though we did reverse a portion of the trial court’s judgment which has no bearing on the present controversy, and then remanded the case for further proceedings. Cherokee Nation v. State of Oklahoma, 461 F.2d 674 (10th Cir. 1972), cert, denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972).

On second remand, the trial court conducted further hearings and eventually approved an accounting made by the Commissioners of the Land Office of the State of Oklahoma which showed total receipts derived from the lands in question in the amount of $786,541.67. At the same time, the trial court disallowed certain offsets claimed by the Commissioners in the amount of $59,125.05, such sum representing “direct costs” and “administrative expenses.” At this hearing, Oklahoma immediately paid the sum of $786,541.67 into the registry of the court and it is our understanding that such funds have been invested by the court and have been drawing interest while the present appeal was being perfected.

The present appeal relates to the refusal of the trial court to require Oklahoma to account for and pay into court the interest and income received by it from the investment of the receipts received from the leasing of the river bed land here in question. In thus disallowing such interest and income, the trial court also refused certain credits amounting to $33,442.90 claimed by Oklahoma for other administrative expense. The trial court clearly indicated that if it awarded such interest and income, it would then allow the claimed credit; but disallowed each, on the ground that under the circumstances, it would be “inequitable” to hold otherwise. The Choctaws and the Chickasaws, but not the Cherokees, now appeal the order of the trial court refusing to require Oklahoma to account for the interest and income realized by it on the investment of receipts realized from leases on the Arkansas River bed. Before considering the exact nature of the “interest” here claimed by the Choctaws and the Chiekasaws, reference should first be made to certain provisions of the Oklahoma Constitution.

Section 2 of Article XI of the Oklahoma Constitution creates a so-called permanent school fund to be used for the benefit of the common schools in the state. Section 6 of that same article provides for the investment of monies placed in the permanent school fund, and, as concerns the return on such investments, section 2 specifically provides that it is only the income realized from the fund which is to be used for the maintenance of the common schools, and that the principal is deemed a trust fund which shall remain inviolate and never diminished, though it may be increased. Section 3 of Article XI of the Oklahoma Constitution provides that the interest and income derived from the investment of the permanent school fund monies shall be used and applied each year for the benefit of the common schools in the state.

The Commissioners, relying on official opinions of the state’s attorney general, have historically treated the Arkansas River bed lands as falling in the category of undesignated public lands and accordingly the rentals derived from the leasing of such river bed land have been deemed a part of the permanent school fund and such rentals have in fact in the past been delivered by the Commissioners into the school fund, where it has been commingled with many other common school fund collections. The funds constituting the permanent school fund have, as indicated, been invested, and, pursuant to the aforesaid constitutional provisions, the income therefrom has been distributed to the common schools. Section 3 states that such income “shall be used and applied each year” and we are advised that as a practical matter the income from the permanent school fund is distributed on a monthly basis to each county in the state on a pro rata basis based on school attendance.

As indicated, the accounting made by Oklahoma indicated that down through the years it had received total receipts in the sum of $786,541.67 from the leasing of river bed land of that portion of the Arkansas River which is the subject of this litigation. In this general regard, we are further advised that Oklahoma first began selling sand and gravel leases from the river bed of the Arkansas River shortly after Statehood in 1907, and that the practice of leasing such lands has continued to date. Such receipts were, as mentioned above, placed in the permanent school fund. They were, however, but a part of the total permanent school fund, and the funds from the various sources having been commingled, it was difficult to determine with any degree of exactitude the precise amount of income utilized from the investment of the particular receipts realized from the leasing of the Arkansas River bed. However, the figure of $212,423.83 was presented to the trial court as being an “educated guess” as to the income derived over the years from the receipts realized from the State’s rental of this river bed land. There has been no challenge to this “educated guess” and accordingly the sum of $212,423.83 is the amount here in controversy.

Before considering the argument advanced here as to why the judgment of the trial court should be reversed, we would first note the true nature of the interest thus claimed. As indicated, we are not here concerned with interest after judgment. The State has already paid into the registry of the court the monies determined to be due the Indian Tribes, and did so immediately upon such determination, and that particular sum has as a practical matter been invested and is now drawing interest. Rather, it is the position of the Indian Tribes that Oklahoma should be required to account for all interest and income derived from the investment of the rentals on the river bed lands, apparently from the date of the first lease of such land, years ago, to the present time.

In this court, counsel for both the Indian Tribes and the State argue the same three cases. They are: (1) Brunson v. Commissioners of Land Office, 145 Okl. 219, 292 P. 562 (1930), hereinafter referred to as Brunson the First; (2) Commissioners of Land Office of Oklahoma v. Brunson, 175 Okl. 101, 51 P.2d 500 (1935), hereinafter referred to as Brunson the Second, and (3) State ex rel. Commissioners of Land Office v. Warden, 206 Okl. 223, 242 P.2d 129 (1952). In this regard the Indian Tribes contend that Brunson the First and Warden dictate a reversal of the trial court’s judgment. As concerns Brunson the Second, counsel suggests that the Oklahoma Supreme Court in that case misconceived and failed to follow its earlier decision in Brunson the First and, in any event, that its subsequent holding in Warden overruled, in effect if not in so many words, Brunson the Second.

As concerns these same three cases, Oklahoma argues that Brunson the First and Warden are inapplicable to the present controversy and that Brunson the Second is akin to the present controversy and supports the trial court’s action disallowing recovery of interest. We are in accord with the State’s analysis of these three eases. A consideration of this trilogy will indicate our thinking.

The Brunson cases arose out of a dispute between Oklahoma and Texas as to the ownership of the river bed of the Red River, both claiming title thereto. Before this controversy was finally resolved by the Supreme Court adversely to Oklahoma, the latter issued certain oil and gas leases to Brunson on the river bed of the Red River. These leases provided that all rentals would be held by the Commissioners of the Land Office, and, if it should be later determined that Oklahoma did not have title, then the money so held would be refunded. The money thus received from Brunson was in fact held only briefly by the Commissioners in an escrow account and then transferred to the official state depository. After the Supreme Court’s resolution of the matter, Brunson made demand upon the Commissioners to refund the rentals previously paid. The Commissioners refused, and Brunson brought suit. The trial court ruled in favor of the Commissioners, but on appeal the Oklahoma Supreme Court reversed.

In Brunson the First, the Oklahoma Supreme Court, in holding that Brunson was entitled to a refund of all rentals paid the State when the latter’s title failed, made the following pertinent comment:

“In the case at bar, the state of Oklahoma had no title to the Red river bed and its attempted leasing thereof was null and void. The defendant commissioners received the money involved herein under an agreement to hold it pending the determination of the ownership of said river bed and to return it if Oklahoma’s title failed. To say that the defendants could transfer this money to the state in violation of such agreement and not incur any obligation to repay the same under such circumstances is nothing short of saying that the money of the plaintiffs could be taken without due process of law. After Oklahoma’s title failed, it became the duty of the defendant commissioners to return this money to the plaintiffs.”

On remand after Brunson the First, the trial court entered judgment requiring the Commissioners to refund all rentals received by them from Brunson under the lease agreement. Such rentals, incidentally, had, as in the instant case, been placed in the permanent school fund. Additionally, Brunson then asked the trial court to require the Commissioners to also account for the interest and income realized from the investment of the rentals for the time when such were a part of the school fund. There, as here, the right to recovery was based on general principles of equity whereby trustees are required to account to the beneficiary for all profits acquired out of, or by reason of, the trust estate. The trial court granted a peremptory writ of mandamus requiring the Commissioners to pay Brunson the sum of $9,500, said sum representing the income realized from the investment of the lease rentals. In Brunson the Second, the, Oklahoma Supreme Court reversed this ruling of its trial court.

In Brunson the Second, as here, the provisions of sections 2 and 3 of Article XI of the Oklahoma Constitution were brought into play. There, as here, the so-called interest and income realized from the investment of the monies in the permanent school fund had periodically been distributed to the common schools of the state pursuant to constitutional provision and had in turn then been spent by the schools. Hence, there remained no corpus, as concerns income monies, against which Brunson could proceed. Accordingly, the Oklahoma Supreme Court, after rejecting other possible grounds for reversal, reversed on the narrow ground that Brunson had failed to prove “the existence of any sum of money representing interest on said trust fund.” In thus holding, the Oklahoma Supreme Court further observed as follows:

“The difficulty in the case at bar is the application of the rule to the facts. Herein there is no balance remaining intact equal to or greater than the alleged accumulations on the trust fund. The interest, if any was ever paid upon the loan of this money, which in fact, but by error of law, became a part of the permanent school fund, has long since lost its identity and has been expended. The interest, if any was ever derived, is not similarly situated with the trust fund itself. The permanent school fund, as the designation indicates, was intended to be permanent. It may not be exhausted for current expense purposes. If funds wrongfully become a part of it, they may rightfully be extracted and recovered, but accruals thereon are expendable and by law they are required to be disbursed. There is no presumption of the existence of the fund which is sought to be secured by warrants to be drawn under the authority of the writ issued below.”

In Warden, the Commissioners had invested monies from the permanent school fund in a first mortgage on a tract of land consisting of some 107 acres. The Commissioners foreclosed on this mortgage, and while the tract was thereafter in their possession, the Commissioners received rentals from several oil and gas leases which they granted on the property in question. These oil and gas leases were entered into with the approval of the court in which the foreclosure proceedings were still pending, such approval being on the condition the proceeds from such leases be held subject to order of the court. Later, the foreclosure proceedings were set aside and judgment was subsequently entered in favor of the mortgagor and against the Commissioners for the rentals received by the Commissioners when they were in possession, such judgment providing for “interest thereon at 6% per annum from said date until paid.” The Commissioners immediately paid a portion, but not all, of this judgment and later appealed the unpaid portion of the judgment as well as the award of interest thereon. On appeal, the Oklahoma Supreme Court affirmed. In affirming, that court held that the very narrow question was whether a statute providing for interest at the rate of 6% per annum on a judgment in a court of record from and after its date applied to the State when the latter is “voluntarily” within the jurisdiction of the court. The court answered the question in the affirmative.

As indicated, the position of the Indian Tribes in this court is that Brunson the First and Warden require reversal. We disagree, as such is not our reading of those cases. In Brunson the First, the court was concerned only with the rentals and not with the income realized from the investment of the rentals while the latter were in the possession of the State. In Warden, the court was concerned with the State’s liability for statutory interest after judgment had been rendered against it in a proceeding which the State itself had instituted. Neither Brunson the First nor Warden is the present case. We agree with the State that Brunson the Second is more akin to the present case, and the trial court’s refusal in the instant case to require the State to account to the Indian Tribes for income realized from the investment of the rentals would seem to us to be in accord with the reasoning of Brunson the Second. In short, Oklahoma law, as we view it, does not dictate a reversal, and, on the contrary, the trial court’s disallowing income realized from the investment of the rentals finds support in Oklahoma law.

The Indian Tribes, though relying primarily on Brunson the First and Warden for reversal, also take aim at the trial court’s statement that “in the particular circumstances of this case it would be inequitable” to permit the Tribes to recover interest and income realized through the years from investment of lease rentals. The Tribes, citing no authority, suggest that it was inequitable to disallow such interest. We disagree. The problem faced by the trial court in the instant case is about the same as that faced by the court in Brunson the Second, namely, the monies for which an accounting was sought were no longer in existence, having been expended by the State pursuant to constitutional mandate. Facing the realities of the situation, then, the trial court here disallowed recovery of such interest and income and at the same time disallowed credit for administrative expense in connection therewith. Under the circumstances of this case we cannot in good conscience say that the trial court’s concept of what was “doing equity” between the parties was erroneous. In this regard, we would refer briefly to our second opinion in this controversy, Cherokee Nation v. State of Oklahoma, 461 F.2d 674 (10th Cir. 1972).

The trial court on first remand had the question of selecting the proper manner in which an accounting should be made. It ultimately determined that the State should account for all sums received as lease bonuses, rentals, and royalties. In rejecting the claim of the Choctaws that they were entitled to the value of the minerals taken from the river bed down through the years, the trial court noted that the Tribes had owned the river bed for some 140 years without doing anything about it, and that Oklahoma for almost 63 years had acted in good faith under the belief that it owned the bed.

On second appeal to this court, we upheld the trial court’s selection of what under the circumstances it deemed to be the proper manner and extent of the accounting to be made by the State, i. e., a turnover of rentals received by Oklahoma to the Tribes. In thus affirming, we stated that the trial court had reached the fairest and best result possible in a difficult situation, and observed that in an equitable proceeding, such as this, the trial court should give “whatever relief may be necessary under the circumstances.” So, in our second opinion in this matter, we declined to hold that the trial court’s determination as to how damages would be ascertained was inequitable under the circumstances there presented and, on the contrary, we believed its disposition of the matter to be fair and proper. We concluded there by holding that the trial court’s choice as to how damages should be determined was not clearly erroneous and its resolution of the matter properly and satisfactorily disposed of a troublesome problem. In that case we then went on to say that “without exploring whether Oklahoma law controls damages in a federal equity action,” we were at the same time convinced that the Oklahoma law on the subject also sustained the trial court’s choice as to measure of damage.

So, too, in the instant case, we believe the trial court’s action disallowing interest under all the circumstances was equitable, and not clearly erroneous, and at the same time we believe its action to be in accord with the Oklahoma law on the subject.

Judgment affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. SIN NAGH FONG, Appellant.
    No. 73-2352.
    United States Court of Appeals, Ninth Circuit.
    Jan. 11, 1974.

      William C. Snouffer, Portland, Or. (argued), for appellant.
    Jack C. Wong, Asst. U. S. Atty., Portland, Or. (argued), for appellee.
    Before BROWNING and SNEED, Circuit Judges, and BURKE, District Judge.

       Hon. Lloyd H. Burke, District Judge for the Northern District of California, sitting by designation.

   OPINION

PER CURIAM:

Appellant was charged under a three-count indictment with conspiracy to distribute narcotic drugs and possession of narcotic drugs with intent to distribute in violation of Title 21 U.S.C. §§ 841(a)(1) and 846. The facts which underlie this conviction essentially revolve around four trips by co-defendant Eugene Rogers and a Government informer, Allen Johnson, from Seattle, Washington to Portland, Oregon where Rogers met with Appellant.

On December 27, 1972, agents of the Bureau of Narcotics and Dangerous Drugs in Seattle, Washington were contacted by an informer named Allen Johnson regarding possible purchases of heroin from one Eugene Rogers. On December 29, 1972, after federal agents had searched both Johnson’s person and his automobile for contraband, the informer was supplied Government funds and followed to Eugene Rogers’ residence in Seattle. Surveillance was maintained as the two men proceeded to Portland, Oregon and checked into a motel room. Immediately after their arrival at the motel, Rogers left the room and made a telephone call. Within a short time, Appellant was observed arriving at the motel parking lot and engaging in a bmef conversation with Rogers after the latter had entered Appellant’s automobile. Following the conversation, Appellant quickly left the area. Later that evening, Johnson and Rogers returned to Seattle. Johnson subsequently turned over to the agents approximately 10.5 grams of heroin which he had obtained from Rogers.

On January 13, 1973, Johnson again contacted the federal agents to inform them of an impending heroin transaction. Johnson and his car were searched for contraband, then followed to Rogers’ residence. Surveillance continued as Johnson and Rogers traveled to Portland and checked into a motel in the early hours of the next day. Surveillance was simultaneously being maintained on Appellant, who was observed leaving his residence and meeting with Rogers in the latter’s motel room. During this time Johnson was not present, having met with the federal agents, had his person and automobile again searched for contraband, and been instructed to obtain a sample of any heroin which Rogers was able to purchase if possible. After Rogers had left the motel Johnson supplied the agents with a sample, later established to be heroin, which he had taken from a plastic baggie containing approximately 1 ounce of brown powder.

On January 15, 1973, Appellant was seen for the third time meeting with Rogers at a Portland motel. The agents observed Appellant entering Rogers’ room, whereupon one of the officers proceeded to station himself in an adjoining room. Without using any form of listening device and without either opening or putting his head to the connecting door between the two rooms, the agent was able to overhear the two discussing their narcotics transactions. Subsequent surveillance verified that Appellant and Rogers were the only two men in the room at that time.

On January 18, 1973, Johnson once again met with the federal agents and was instructed to make a heroin purchase from Rogers. He was searched, followed to Rogers’ residence, searched again and given government funds with which to transact the deal. Surveillance was then instituted. Later that evening, the agents saw Rogers meet briefly with Appellant and then return to his home, where Johnson had been left waiting. Johnson subsequently turned over to the federal agents some 22 grams of heroin, which he had purchased from Rogers.

On January 29, 1973, Johnson contacted BNDD agents for the fourth time regarding the heroin activities of Rogers. The agents again placed Rogers under surveillance, following him as he proceeded to drive Johnson’s automobile into Portland. In the early hours of the next morning, Rogers was observed checking into a Portland motel. Shortly after Rogers had arrived, Appellant, who was also under surveillance, left his residence and drove toward Rogers’ motel. When he reached the motel, he was placed under arrest and a thorough search of his person was conducted. The search revealed two packages, one later determined to contain approximately 25 grams of heroin and the other approximately 6 grams of cocaine. ■

Appellant raises a series of issues in this appeal which are sufficiently well-established in this Circuit that we need deal but briefly with them here. First, Appellant contends that his conviction was erroneously based in part upon evidence obtained as a result of illegal eavesdropping by the Government. His contention rests on the argument that a motel room is in essence a bedroom, to which society attaches significant rights of privacy. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L. Ed.2d 668 (1960); Griswold v. Connecticut, 381 U.S. 479, 485-486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). This general proposition, it is argued, supports Appellant’s assertion that all discussion which occurs in a bedroom should therefore be fully protected by the courts. We cannot agree, and hold that the evidence was admissible under our decision in United States v. Fisch, 474 F.2d 1071 (9th Cir., 1973). See also, Ponce v. Craven, 409 F.2d 621 (9th Cir., 1969); Hunter v. United States, 339 F.2d 425 (9th Cir., 1964).

Next Appellant asserts that there was insufficient evidence to establish either a conspiracy or the intent necessary to uphold a conviction under 21 U.S.C. § 841(a)(1). However, Appellant’s reliance on this Court’s decision in United States v. Spanos, 462 F.2d 1012 (9th Cir., 1972), and the holding in United States v. Peoni, 100 F.2d 401 (2d Cir., 1938), is misplaced.

As an initial matter, we note that evidence of a conspiracy will usually be circumstantial given the nature of the crime, see e. g., White v. United States, 394 F.2d 49, 51 (9th Cir., 1968); Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9th Cir., 1966), cert, denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966), and that each case must be evaluated on its own particular set of facts, Diaz-Rosendo v. United States, supra at 130.

Viewing the evidence in the light most favorable to the Government, see e. g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Cape v. United States, 283 F.2d 430 (9th Cir., 1960), the finder of fact could well conclude that the distribution and attempted distribution of approximately 3 ounces of heroin and 6 grams of cocaine were of wholesale amounts for redistribution by Rogers. The finder of fact could also conclude that Appellant, as a wholesale distributor of narcotics, had an interest in Rogers’ success in redistributing the heroin which appellant had supplied. See e. g., Valentine v. United States, 293 F.2d 708 (8th Cir., 1961); United States v. Rich, 262 F.2d 415 (2d Cir., 1959); United States v. Tramagli-no, 197 F.2d 928 (2d. Cir., 1952); United States v. Bruno, 105 F.2d 921 (2d Cir.) rev’d on other grounds 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939).

In United States v. Peoni, supra, the court was confronted with a single sale of counterfeit bills which were then resold to a third party. Aside from Appellant’s mistaken attempt to analogize the showing necessary to establish a conspiracy to commit a crime which is totally unrelated to the underlying offense charged here, see United States v. Rich, supra at 417, the Second Circuit has clearly distinguished its holding in Peoni where a “chain” conspiracy to distribute drugs is involved. United States v. Agueci, 310 F.2d 817 (2d Cir., 1962). As the court in that case noted, in contrasting Peoni with United States v. Bruno, supra:

In Bruno the evidence sufficed to warrant the jury’s finding that the defendants knew remote links must have existed. In Peoni they did not. Had the prosecution been able to establish more than one sale from Peoni to Regno, the inference that Peoni knew that sales beyond his own would be made, and that he thus shared a common purpose with Dorsey as Reg-no’s vendee, might well have warranted submission to the jury. United States v. Agueci, supra at 827.

Similarly, in United States v. Spanos, supra, this Court was faced with a single sale of amphetamines which we viewed as falling within the “very narrow field” to which Peoni applies. The defendant in Spanos had subsequently refused to sell additional quantities of pills to the Government informer, and thus no reliance upon the purchaser’s business could be shown. Because the purchaser was not shown to have been one upon whom the success of Spanos’ dealership depended, no common purpose was established and therefore no conspiracy existed. Spanos, supra at 1017-1018 (concurring opinion). In the instant ease; Appellant engaged in multiple sales over a relatively brief period while actively encouraging Rogers to expand the volume of his business. Under these facts a conspiracy has been established.

As a final ground for appeal, Sin Nagh Fong contends that his conviction should be reversed because the Government failed to produce the informer, Johnson, for defense counsel to interview as a potential witness. It is not disputed that Appellant knew the identity of the informer, and that if he had not the government might well have been required to disclose his identity under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The sole issue before this Court is thus whether the Government should have been required to demonstrate, under our holding in Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir., 1965), that it had neither taken steps to insure that Johnson would be unavailable as a witness nor failed to make reasonable efforts to produce him.

In Velarde-Villarreal, we were faced with a situation in which the defendant had presented a “typical case of entrapment” and there was testimony suggesting that Government agents were directly responsible for the informer’s disappearance. Under the facts then before us, the defendant had no prior criminal record, had engaged in but a single sale of narcotics, and the sole witness who could testify as to his entrapment defense was the missing informer. In distinguishing Washington v. United States, 275 F.2d 687 (5th Cir., 1960), we noted that:

. the defendant [in Washington had] made no showing of entrapment. He had made prior sales of narcotics. He did not hesitate in making the sale there in question. . The heroin was in his own possession. He complained he was not getting enough narcotics purchasers, and objected to his customers buying from others. 354 F.2d at 12.

Viewed in its context, we determined that Velarde-Villarreal was a “special case in which the Government should be required to demonstrate its inability through reasonable efforts to produce [the informer]” (emphasis added). Id. at 13.

In the instant case, no such basis exists for placing an affirmative burden of proof on the Government. While Johnson’s testimony may have been relevant and material, requiring disclosure of his identity under Roviaro, supra, there has been no entrapment defense raised. Further, Appellant has prior convictions for narcotics violations, there has been no showing that the Government was in any way responsible for Johnson’s absence and there is no indication that the informer was even present when the narcotics transactions took place. Absent the kind of special facts before us in Velarde-Villarreal, we do not feel that the Government has an affirmative duty to produce the informer. See e. g., Wilson v. United States, 409 F.2d 184 (9th Cir., 1969); Clingan v. United States, 409 F.2d 849 (5th Cir., 1968); United States v. Cimino, 321 F.2d 509 (2d Cir., 1963); Williams v. United States, 273 F.2d 781 (9th Cir., 1959); Eberhart v. United States, 262 F.2d 421 (9th Cir., 1958).

Judgment is affirmed.

BROWNING, Circuit Judge, concurs in the result.

      . The facts as set out below have in substantial part been taken from the Government’s brief.

      . The agent overheard and was able to testify to the following exchange :
      At the time I entered, Mr. Fong and Mr. Rogers were involved in a conversation about Chinese Restaurants, talked in general terms in the operations involved. During this conversation, Mr. Rogers interrupted Mr. Fong and asked him if he had the stuff. Mr. Fong stated that he couldn’t get it until Mr. Rogers got the money. Mr. Fong stated that his connection in Los Angeles had promised him one to six kilos, but something was wrong, since it hadn’t arrived yet. He jokingly-mentioned at that point that someone could have heat them for $6,000. He stated that he had called tills man in Los An-geles and this individual had told him to fly down to Los Angeles and they should be able to straighten out the problem.
      Mr. Fong indicated that he was unable,, to move because they liad a hold on him. He indicated that it was almost like still being in jail. At this point Mr. Rogers agreed. Mr. Fong stated that until he received his load, that he could only deal brown H. Told Mr. Rogers that the hrown heroin toas fifty percent, could he cut four times, and would double Mr. Rogers’ money.

      Mr. Rogers stated that he had obtained a connection for brown stuff in Seattle. He referred to a negro male who was at that time involved in testing the brown heroin for quality and yvould report to Mr. Rogers when Mr. Rogers returned to Seattle.
      At this — at this point, Mr. Fong told Mr. Rogers that he could deal, that is Mr. Fong could deal, two pieces of brown any time Mr. Rogers could get the money together.
      Mr. Rogers asked Mr. Fong when he believed his — he would get his problem straightened out. Mr. Fong replied that his load would probably not come in for another two weeks. Mr. Fong then reiterated that he could deal the two pieces of hrown anytime Mr. Rogers got the money. Mr. Rogers stated that he was in a process of putting the money together, that he should have it, have the money, by the following day and would call Mr. Fong at noon the following day.
      Q. Okay, Mr. Hunt. Now, going back to your testimony, when Mr. Fong mentioned the problem about transportation, was anything else said about using other people?
      A. Yes. At that point in the conversation, Mr. Fong did indicate that traveling was his big problem and that he was trying to — or, he was in the process of trying to hire a girl that would do his traveling and conduct Ms business for him. He indicated that he had tested five girls, but that none had worked out yet. (Tr. P. 197-199). (emphasis added).

      . Taken in “the light most favorable to the Government, the finder of fact could conclude that Appellant had made or was in the process of making distributions of heroin on four occasions to Rogers totalling approximately 3 ounces of heroin and 6 grams of cocaine. Testimony in the record also revealed that the approximately 25 grams of heroin found on Appellant’s person at the time of his arrest would have a wholesale value of $1,200, would make 120 individual doses for a heroin addict and would have a street value of several thousand dollars. (Tr. pp. 224, 233). The 5.8 grams of cocaine was worth approximately $600, would make over 100 individual doses for a user and would last the normal user up to four weeks. (Tr. p. 222-224).

      . The discussion overheard by the agents between Appellant and Rogers supports the finding that Appellant had knowledge that Rogers was purchasing for redistribution. Multiple-sales, coupled with Appellant’s attempts to encourage further purchases, only bolsters the conclusion that Appellant had a stake in the success of Rogers’ activities.


author: BUTZNER,' Circuit Judge:

text:
    FIRST VIRGINIA BANK (a corporation), Administrator of the Estate of Mary E. Helms, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1595.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Jan. 10, 1974.

      Robert O. Tyler, Washington, D. C., for appellant.
    Charles R. Burnett, Atty., Tax Div. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Loring W. Post, Attys., Tax Div., U. S. Dept, of Justice, and Brian P. Gettings, U. S. Atty., E. D. Va., on brief), for appellee.
    Before CLARK, Associate Justice, BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

       Supreme Court of the United States, retired, sitting by designation.

   BUTZNER,' Circuit Judge:

The First Virginia Bank, administrator c. t. a. of the estate of Mary E. Helms, appeals from a judgment of the district court denying a refund of estate taxes. The district court ruled that Mrs. Helms’ gross estate included prop-, erty valued at approximately $88,000 because she held a general power of appointment with respect to it. A sense of unfairness casts a shadow over this case, and others of its kind, because Mrs. Helms never exercised the power, and a change in its phrasing might well have accomplished its purpose without subjecting her estate to additional taxes. Nevertheless, the Revenue Act, Treasury Regulations, and judicial precedent dictate affirmance.

Mrs. Helms’ husband, Thomas W. Helms, died in 1967 at the age of 85, survived by his wife and their daughter, Edna Helms Simms. Mrs. Helms died six months later, at the age of 84. Mr. Helms wrote his own will. The second paragraph provides:

“All my stock and holdings in the Helms Self Service Market Corporation, T. W. Helms Land Development Corporation, Grand View Hotel Corporation, I leave to my beloved wife, Mary E. Helms, for her comfort and care so long as she may live. It shall be her right to dispose, sell, trade or use said holdings during her lifetime for her comfort and care as she may see fit. At her death, all of the said holdings, if any, are to go to my daughter, Edna Helms Simms, to have and to hold as she may so decide.”

The stock of the store corporation was valued at $88,000, but the stock in the other corporations had no value.

All the family, including Mrs. Simms and her children, had worked in Mr. Helms’ store. They lived frugally, invested their earnings, and Mr. and Mrs. Helms accumulated jointly held property worth $305,000. In addition, from the proceeds of insurance policies, and as residuary legatee of her husband’s estate, Mrs. Heljns received cash and miscellaneous property aggregating some $20,000.

Section 2041 of the Internal Revenue Code of 1954 [26 U.S.C. § 2041 (1970)], dealing with powers of appointment, governs taxation of the stock. Subsection (a)(2) includes as a part of the decedent’s gross estate the value of property over which the decedent had a general power of appointment. Subsection (b)(1) defines a general power of appointment to include a power which is exercisable in favor of the decedent, but with this important exception:

“A power to consume, invade, or appropriate property for the benefit of the decedent which is limited by an ascertainable standard relating to the health, education, support, or maintenance of the decedent shall not be deemed a general power of appointment.”

Thus, the issue to be resolved is whether the power to sell the stock and spend the proceeds conferred on Mrs. Helms by her husband’s will was limited to an ascertainable standard relating to her health, support, or maintenance within the meaning of the statute.

The government claims that the value of the stock must be included in Mrs. Helms’ estate because she could sell it and spend the proceeds for things not related to her health, support, or maintenance. The administrator, on the other hand, contends that Mrs. Helms did not receive a general power of appointment because (1), her right to consume the property for her comfort and care is limited by state law to the frugal life to which she was accustomed — a standard of living that tolerated expenditures only for health, support, or maintenance, and (2) state law would give effect to an inference that Mr. Helms intended Mrs. Helms to use the stock for her support only after she had consumed her other ample resources.

Mrs. Helms’ power to dispose of the stock is measured by state law. Whether her power, as defined by state law, is subject to the federal tax must be determined by federal law. Morgan v. Commissioner, 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585 (1940). Therefore, Mr. Helms’ will must first be examined in the light of Virginia law to determine the nature and extent of Mrs. Helms’ “right to dispose, sell, trade, or use [the stock] during her lifetime for her comfort and care as she may see fit.”

Virginia formerly held that a life estate coupled with the absolute power of disposition created a fee simple estate invalidating the remainder. May v. Joynes, 61 Va. (20 Gratt.) 692 (1871). This rule obviously could defeat a testator’s intent, and, therefore, a statute was enacted to validate the remainder to the extent that the life tenant had not disposed of it. The statute, however, does not restrict the life tenant’s power of disposition. The most recent Virginia case explaining the nature of a life tenancy coupled with a power of sale is Rawlings v. Briscoe, 214 Va. 44, 197 S.E.2d 211 (1973), which involved the construction of a will that created a life estate in the residue of the testator’s property with a remainder over to designated beneficiaries. The will authorized the life tenant “to sell any or all of the said residue at her discretion and use any part of the principal thereof that may be necessary for her care and maintenance.” The life tenant gave a substantial portion of the property to her grandchild. After the life tenant died, the gift to the grandchild was challenged on the ground that the life tenant was empowered to sell the property and to use the proceeds only if necessary for her care and maintenance. The Supreme Court of Virginia rejected this interpretation of the will. Upholding the gift to the grandchild, the Court ruled that the life tenant’s authority to sell the property at her discretion gave “her absolute dominion over the subject property with full power of disposition.” The Court added that the language concerning her “care and maintenance” merely expressed a motive for the devise and did not limit her power to dispose of the property. This decision, we conclude, establishes that Mrs. Helms’ “right to dispose, sell, trade or use [the stock] during her lifetime for her comfort and care as she may see fit” was not limited by state law to an aseertainable standard relating to her health, support, or maintenance.

Hughes v. Williams, 99 Va. 312, 38 S. E. 138 (1901), on which Mrs. Helms’ administrator relies, does not furnish authority for limiting Mrs. Helms’ right to dispose of the stock. That case dealt with the discretion allowed a trustee in expending the principal of a trust to provide necessary supplies for the comfort of the beneficiaries, but it does not define the rights of a life tenant who possesses the power of sale. The Virginia Court has shown no disposition to treat these situations similarly. Nor do we find in state law any implied restriction on Mrs. Helms’ right to sell the stock because she had other resources. Moreover, the Treasury Regulations make a restriction of this kind immaterial.

In the absence of Virginia law limiting Mrs. Helms’ power to consume the proceeds from the sale of the stock to an ascertainable standard relating to her health, support, or maintenance, the value of the stock must be included in her gross estate. While the power to consume need not be limited to the bare necessities of life, the Regulations specifically state: This narrow interpretation of the exemption from taxation found in § 2041(b)(1)(A) has been generally followed when the appointee could exercise the power to provide for his comfort. Lehman v. United States, 448 F.2d 1318 (5th Cir. 1971) (support, maintenance, comfort and welfare); Miller v. United States, 387 F.2d 866 (3rd Cir. 1968) (expenses incidental to her comfort and well-being); Cf. Strite v. McGinnes, 330 F.2d 234, 239 (3rd Cir. 1964) (benefit or comfort); Stafford v. United States, 236 F.Supp. 132 (E.D.Wis.1964) (care, comfort or enjoyment); But cf. Pitts-field National Bank v. United States, 181 F.Supp. 851, 853 (D.Mass.1960) (comfort, support and maintenance).

“A power to use property for the comfort, welfare, or happiness of the holder of the power is not limited by the requisite standard.”

The district court’s denial of a refund for estate taxes paid on the stock of the store corporation is affirmed, but at the suggestion of the government, the case is remanded for consideration of additional deductions.

      . See e. g. Lehman v. United States, 448 F. 2d 1318, 1320 n. 4 (5th Cir. 1971) ; Miller v. United States, 387 F.2d 866, 867 (3rd Cir. 1968).

      . Treas.Reg. [26 C.F.R.] § 20.2041-1 (b) (1) (1973) provides in part:
      “The term ‘power of appointment’ includes all powers which are in substance and effect powers of appointment regardless of the nomenclature used in creating the power and regardless of local property law connotations.”

      . Title 26 U.S.C. § 2041(a)(2) (1970) provides in part that a decedent’s gross estate shall include the value of:
      “[A]ny property with fespect to which the decedent has at the time of his death a general power of appointment created after October 21, 1942 . . . . ”

      . Title 26 U.S.C. § 2041(b)(1) (1970) provides in part:
      “The term ‘general power of appointment’ means a power which is exercisable in favor of the decedent, his estate, his creditors, or the creditors of his estate

      . Title 26 U.S.C. § 2041(b)(1)(A) (1970).

      . Va.Code Ann. § 55-7 (1969) provides:
      “If any interest in or claim to real estate or personal property be disposed of by deed or will for life, with a limitation in remainder over, and in the same instrument there be conferred expressly or by implication a power upon the life tenant in his lifetime or by will to dispose absolutely of such property, the limitation in remainder over shall not fail, or be defeated, except to the extent that the life tenant shall have lawfully exercised such power of disposal . . . . ”

      . Treas.Reg. [26 C.F.R.] § 20.2041-1 (c) (2) (1973) provides in part:
      “In determining whether a power is limited by an ascertainable standard, it is immaterial whether the beneficiary is required to exhaust his other income before the power can be exercised.”

      . Treas.Reg. [26 C.F.R.] § 20.2041-1 (c) (2) (1973) provides in part:
      “A power to consume, invade, or appropriate income or corpus, or both, for the benefit of the decedent which is limited by an ascertainable standard relating to the health, education, support, or maintenance of the decedent is, by reason of section 2041(b)(1)(A), not a general power of appointment. A power is limited by such a standard if the extent of the holder’s duty to exercise and not to exercise the power is reasonably measurable in terms of liis needs for health, education, or support (or any combination of them) . . . [T]lie words ’support’ and ‘maintenance’ are synonymous and their meaning is not limited to the bare necessities of life. A power to use property for the comfort, welfare, or happiness of the holder of the power is not limited by the requisite standard. Examples of powers which are limited by the requisite standard are powers exercisable for the holder’s ‘support,’ ‘support in reasonable comfort,’ ‘maintenance in health and reasonable comfort,’ ‘support in his accustomed manner of living,’ . . . ‘health,’ and ‘medical, dental, hospital and nursing expenses and expenses of invalidism’