80th case on the non-jury trial list of this court and will, in the absence of unusual circumstances, be reached for trial in the fall.
The decedent's death of July 3, 1955, was followed by a great deal of publicity given to the discovery of his failure to file any returns or pay his income taxes for the years 1947 to 1954. A Grand Jury was convened by this court in October 1955 to investigate 'the income taxes of the late Lemuel B. Schofield, Esquire' and it made a presentment on January 5, 1956, stating, inter alia,
'At the outset of the investigation it was ascertained that the last federal income tax return ever filed by Mr. Schofield was his return for the calendar year 1946. No returns were ever filed in his lifetime for the years 1947 to 1954, inclusive. It was unmistakably established that the failure to file these returns was deliberate. The persons whom Mr. Schofield had employed for many years to keep his books and to prepare yearly summaries of his income and expense, testified that they had prepared such summaries for each of the years in which Mr. Schofield had omitted to file returns and had presented them to him so that the returns could be prepared, as customary, by an accountant. There was further testimony that Mr. Schofield was repeatedly reminded of his delinquencies, commencing with that for the calendar year 1947, but that he never permitted any of the returns to be prepared.'
Under these circumstances, the moving parties had a duty, at least by July 1956, to investigate what had happened to the property which they had entrusted to the decedent and to intervene in this suit reasonably promptly after it was instituted.
The court can take judicial notice that this suit, as well as the Grand Jury investigation, was given extensive publicity in the Philadelphia area, where the moving parties reside.
On May 1, 1958, the moving parties, through their attorney, agreed in the Orphans' Court of Chester County, to the surcharge of the decedent's estate for the benefit of the trust under the will of Carolina Anderson, and yet they made no attempt to intervene in this action until over a year later. There is no allegation in the motion as to the time when the moving parties learned of the use of their money for improvements, and yet these moving parties have the burden of establishing their case.
C. This suit is an in personam action to set aside alleged fraudulent transfers by the decedent for improvements to property, and there is no property of the moving parties in the custody of the court.
The moving parties contend that the above-mentioned land on which the improvements made with decedent's money is located 'is in the custody or subject to the control or disposition of the court' (see F.R.Civ.P. 24(a)(3)) because of a stipulation filed in this case on October 4, 1956, and an order of the same date based on this stipulation (see Documents Nos. 8 1/2 and 9 in Clerk's file). However, an examination of the stipulation discloses that its purpose and terms substitute for the above-mentioned improved land, which is named as an in rem defendant in this suit, part of the proceeds of the sale of such land. If the plaintiff is not able to prove its case, the action will be dismissed and no order of this court will be necessary to dispose of the proceeds of the sale of such land which are in the custody of the guardians of the title holder who are subject to the supervision and control of the Orphans' Court of Chester County and not of this court. See 20 P.S. § 2080.301(4.1) and In re Wertz' Estate (No. 2), O.C.York, 1955, 6 Pa.Dist. & Co.R.2d 439; cf. In re Wormley's Estate, O.C.Phila., 1949, 67 Pa.Dist. & Co.R. 616
Under these circumstances, the moving parties are not entitled to intervene under F.R.Civ.P. 24. See Cameron v. President and Fellows of Harvand College, 1 Cir., 1946, 157 F.2d 993, 996; Hunt Tool Co. v. Moore, Inc., 5 Cir., 1954, 212 F.2d 685, 688; Palmer v. Guaranty Trust Co. of New York, 2 Cir., 1940, 111 F.2d 115, 116-117.
The motion will be denied.
Upon presentation to the pre-trial judge of an appropriate order, it is most probable that counsel for the moving parties will be permitted to submit their position on legal and factual issues to the trial judge as an amicus curiae. It is doubtful whether such counsel would have any substantially broader rights if allowed to intervene. See Rules 28(b) and 29(a) of this court, adopted as of June 30, 1959, and effective September 1, 1959.