In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3019

SUSAN GUSTAFSON,

Plaintiff-Appellant,

v.

KATHRYN ZUMBRUNNEN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-C-94—John C. Shabaz, Judge.

SUBMITTED MAY 16, 2008—DECIDED OCTOBER 1, 2008

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. This diversity suit governed by

Wisconsin law presents an issue of federal diversity

jurisdiction.

The original complaint named as plaintiff Georgia

Gustafson, suing as the personal representative of the

estate of her grandfather, George Skille, who had appointed her in his will, which left most of his estate to his

eight grandchildren by his first wife. The suit named as

defendants Skille’s lawyer, the lawyer’s law firm, and a
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bank in which Skille and his second wife, Betty Skille, had

a joint account with some $150,000 in it, constituting,

according to the complaint, the bulk of George Skille’s

wealth. All the defendants, but none of the grandchildren,

are citizens of Wisconsin, as George Skille had been.

Shortly after George Skille’s death, his widow had

withdrawn the money from the joint account. Georgia

Gustafson, who as personal representative of Skille’s estate

was legally entitled to control all the property of the estate,

Wis. Stat. § 857.01; In re Estate of Peterson, 225 N.W.2d 644,

646 (Wis. 1975); Peters v. Kell, 106 N.W.2d 407, 413 (Wis.

1960), sued the defendants in a Wisconsin state court to

recover the money in the joint account for the decedent’s

estate. The suit was settled by the entry of a judgment

that required Betty Skille to transfer $100,000 from the

joint checking account to her lawyer’s trust account and

specified that “any money that may remain at the time of

Betty Skille’s death which came from the now-closed [joint

checking account] . . . will go to certain beneficiaries named

in the last will of George Skille.” The agreement further

provided that “neither party may raise any further claim

or cause of action against the other party except to

enforce this Stipulation and Judgment.”

Still in her capacity as personal representative of the

decedent’s estate, Georgia Gustafson brought the present

suit in a federal district court in Wisconsin. It seeks the

other $50,000 that was in the joint checking account, plus

the attorneys’ fees incurred in the previous suit, plus

punitive damages based on such allegations as that the

lawyer defendant had “intentionally and tortiously
No. 07-3019 3

interfered with the beneficiaries’ expectancy of inheritance

by concealing or destroying the list [of beneficiaries under

Skille’s will] and suppressing evidence of [Skille’s] testamentary intention.”

The suit, though based ultimately on the will, is not

within the probate exception to federal jurisdiction. The

judgment sought would just add assets to the decedent’s

estate; it would not reallocate the estate’s assets among

contending claimants or otherwise interfere with the

probate court’s control over and administration of the

estate. Marshall v. Marshall, 547 U.S. 293, 310-12 (2006);

Struck v. Cook County Public Guardian, 508 F.3d 858, 859-60

(7th Cir. 2007); Jones v. Brennan, 465 F.3d 304, 306-07 (2006).

The defendants, however, moved to dismiss the suit for

want of federal subject-matter jurisdiction on a different

ground—lack of complete diversity of citizenship. All the

defendants, as we mentioned, are citizens of Wisconsin,

and while Georgia Gustafson is a citizen of Minnesota the

federal diversity statute treats “the legal representative” of

a decedent’s estate (or the estate of an infant or an incompetent) as a citizen of the same state as the decedent, and

that is Wisconsin. 28 U.S.C. § 1332(c)(2). So Georgia

Gustafson was a Wisconsinite for purposes of her federal

suit and that placed citizens of that state on both sides of

the suit.

She responded to the motion to dismiss by asking the

court for leave to amend her complaint to change the

plaintiff from herself in her representative capacity to

herself plus the other grandchildren. (The grandchildren

are the “beneficiaries” referred to in the settlement of the
4 No. 07-3019

first suit and the complaints in this one.) But then she

noticed that this wouldn’t work either, because the eight

grandchildren are to share equally in the decedent’s estate

and when $370,000 (the total amount of damages sought in

the amended complaint) is divided by eight, the quotient

($46,250) is below the minimum amount in controversy

($75,000) required for a diversity suit. So Georgia then

filed (though improperly, because without seeking leave

of the court) a second amended complaint, in which the

only plaintiff is another one of the grandchildren, Susan

Gustafson, suing on behalf of the estate. The district judge

dismissed the suit for want of federal jurisdiction, and

Susan Gustafson appeals.

She argues that Georgia Gustafson, as the personal

representative under Skille’s will, is the sole “legal representative” of the decedent’s estate within the meaning of 28

U.S.C. § 1332(c)(2). Wisconsin law, however, permits any

person having an interest in a decedent’s estate, such as

Susan Gustafson, to sue “on behalf of the estate . . . in the

court in which the estate is being administered” to recover

any property “which should be included in the estate.”

Wis. Stat. § 879.63. (We need not consider whether, in

the teeth of the statutory language, such a suit can be

brought in a different court, namely a federal district

court, from the court in which the estate is being administered.) The second amended complaint charges one of

the defendants, the lawyer, with having tortiously interfered with the legacies to which the will entitled the

grandchildren by advising the widow to withdraw the

money in the joint checking account rather than turn it

over to the estate, from which it would have passed to
No. 07-3019 5

the grandchildren. The bank is charged with negligence,

among other things in allowing the money to be withdrawn from the account, but we can limit our consideration to the tortious-interference claim.

However, the Wisconsin statute permits someone other

than the estate’s personal representative to sue to bring

property into the estate only if “the personal representative

has failed to secure the property or to bring an action to

secure the property.” Georgia Gustafson, the personal

representative, did bring such a suit, as we know. It is true

that suits for tortious interference with an anticipated

bequest, brought by the intended recipient of the bequest,

are permitted under Wisconsin law, as under the law of

other states. Wickert v. Burggraf, 570 N.W.2d 889, 890 (Wis.

App. 1997); Harris v. Kritzik, 480 N.W.2d 514, 516-17 (Wis.

App. 1992); Anderson v. McBurney, 467 N.W.2d 158, 161-62

(Wis. App. 1991); Marshall v. Marshall, supra, 547 U.S. at

312; Restatement (Second) of Torts § 774B (1979) (“one who

by fraud, duress or other tortious means intentionally

prevents another from receiving from a third person an

inheritance or gift that he would otherwise have received

is subject to liability to the other for loss of the inheritance

or gift”); Irene D. Johnson, “Tortious Interference with

Expectancy of Inheritance or Gift—Suggestions for Resort

to the Tort,” 39 U. Toledo L. Rev. 769, 772 (2008). And it is

also true that the tortious-interference claim is not, as one

might at first glance suppose, identical to the claim in

the original Wisconsin suit. It starts out the same, by

asking for the $50,000 balance that remained, after the

settlement, in the widow’s hands, but then it adds claims

for attorneys’ fees and punitive damages. However, it
6 No. 07-3019

alleges that Susan is acting not on behalf of herself or the

other legatees but “on behalf of the estate.” All the damages sought against lawyer, law firm, and bank are to be

awarded to the estate rather than to Susan or to any of the

other individual legatees.

If there were antagonism between Georgia and the other

grandchildren and she were accused of failing to protect

their interests in the decedent’s estate, they could sue

the defendants in their own names, as in McDonald v.

McDonald, 228 N.W.2d 727, 732 (Wis. 1975), and Schaefer v.

Schaefer, 278 N.W.2d 276, 279 (Wis. App. 1979); see also

Tallmadge v. Boyle, 730 N.W.2d 173, 182 (Wis. App. 2007).

And then there would be no problem with 28 U.S.C.

§ 1332(c)(2); it would not be a suit by the legal representative of the estate. Susan says that Georgia has refused to

continue as the plaintiff in this suit and therefore is refusing to protect the other legatees’ interests; and that is

literally true. But her action is not motivated by any

antagonism or disloyalty toward the other legatees. It is a

ploy for keeping this case alive in federal court. Her refusal

to litigate is the consequence of collusion, not antagonism.

And anyway Susan is not suing on her own behalf or that

of other disappointed legatees, but, as we said, on behalf of

the estate.

The plaintiff argues that there can be only one “legal

representative” of a decedent’s estate within the meaning

of the diversity statute, and that is Georgia, and so Susan’s

suit, though on behalf of the estate, is not governed by

section 1332(c)(2). But nothing in the statute limits the

number of legal representatives that a decedent’s estate can

have. Co-trustees and co-administrators are common in
No. 07-3019 7

Wisconsin, as elsewhere. In re Disciplinary Proceedings

Against Forester, 530 N.W.2d 375, 378 (Wis. 1995); In re

Guardianship of Bose, 158 N.W.2d 337, 339 (Wis. 1968);

Guaranty Bank & Trust Co. v. Quad Drilling Corp., 273 So. 2d

717, 718 (La. App. 1973); In re Stahl’s Estate, 44 N.E.2d 529,

532 (Ind. App. 1942).

The purpose of section 1332(c)(2) is to prevent the

manufacture of diversity jurisdiction by the appointment

of an out-of-state representative for an in-state decedent’s

estate, or the destruction of diversity jurisdiction by

appointing an in-state representative of an out-of-state

decedent’s estate. Steinlage ex rel. Smith v. Mayo Clinic

Rochester, 435 F.3d 913, 917-18 (8th Cir. 2006); Tank v.

Chronister, 160 F.3d 597, 599-600 (10th Cir. 1998). This

purpose would be thwarted by a rule that an estate can

have only one legal representative, so that a second person

who sues on behalf of the estate cannot be a representative

within the meaning of the federal statute even though that

is what he or she really is—as in this case. Susan is suing

expressly on behalf of the estate, and any damages recovered in the suit are to be added to the estate, just as if

Georgia were the plaintiff, which she would be were it not

for the legatees’ desire to sue in federal court. To say

that Susan is not a legal representative of the estate

within the meaning of section 1332(c)(2) would be to say

that an estate that wants to litigate state-law claims in

federal court despite the absence of diversity can appoint

a second representative to do everything the first one

would have done and can simply refuse to acknowledge

that the second representative is the estate’s legal representative for purposes of that suit. A facile evasion indeed.
8 No. 07-3019

Before subsection (c)(2) was added to the diversity

statute in 1988, the jurisdictional issue in this case would

have been governed solely by 28 U.S.C. § 1359, which

requires dismissal of a case “in which any party, by

assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such

court.” The vague word “improperly” is given meaning

by the specific prohibition in section 1332(c)(2) against

basing diversity jurisdiction on the state of the legal

representative of a decedent’s estate rather than on the

state of the decedent.

As there is no doubt that Susan Gustafson is suing on

behalf of a decedent’s estate, we needn’t consider the

bearing of that section on other suits arising out of death,

such as wrongful death suits brought by wrongful death

trustees, as in Steinlage ex rel. Smith v. Mayo Clinic Rochester,

supra.

The dismissal of the suit for want of federal jurisdiction

is

AFFIRMED.

10-1-08