Katharine Umsted; Alexandra Stodghill; Truxton Umsted v. Linda J. Umsted, in her capacity as Co-Executor of the Estate of Scott Umsted, Jr.

Of the United States Court of Appeals for the Eighth *
Circuit, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 05-1484
KATHARINE UMSTED; ALEXANDRA STODGHILL; TRUXTON UMSTED,
Plaintiffs, Appellants,
v.
LINDA J. UMSTED, in her capacity as Co-Executor of the
Estate of Scott Umsted, Jr., and as Trustee of the
Scott Umsted, Jr. Family Trust, and as Trustee of the
Scott Umsted, Jr. Marital Trust; QUENTIN ANTHONY, in his
capacity as Co-Executor of the Estate of Scott Umsted, Jr., and
as Trustee of the Scott Umsted, Jr. Family Trust, and as Trustee
of the Scott Umsted, Jr. Marital Trust,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bowman, Senior Circuit Judge, *
and Howard, Circuit Judge.
Bernard A. Jackvony, with whom Richard J. Welch and Moses
Afonso Jackvony, Ltd., were on brief, for appellants.
Quentin Anthony for appellees.
April 14, 2006

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HOWARD, Circuit Judge. Plaintiffs Katherine Umsted,
Alexandra Stodghill and Truxton Umsted, Jr. (collectively, "the
grandchildren"), brought an action claiming that their late uncle
Scott Umsted, Jr. had tortiously interfered with their expectancy
in an inheritance. The district granted summary judgment to the
defendants, the co-executors of the uncle's estate. We affirm.
I.
Scott Umsted, Sr. and his wife Margaret Umsted had two
children, Scott Jr. and Truxton Umsted. Truxton, who predeceased
his parents, had three children, Katherine, Alexandra and Truxton
Jr. After Scott Sr. died in 1979, Scott Jr. served as the executor
of his father's estate and as trustee of his trusts. Prior to
1983, Margaret owned certain ocean-front property in Rhode Island.
The grandchildren allege that Margaret had intended to leave half
of her interest in that property to them, and the other half to
Scott Jr. Indeed, under Margaret's will, the residuary of her
estate is divided into two equal shares: one-half to the three
grandchildren, and one-half to Scott Jr. It is undisputed that the
ocean-front property would have passed through the residuary clause
had Margaret still owned the property at the time of her death.
But, in 1983, Margaret conveyed all of her interest in
the ocean-front property to herself and Scott Jr. as joint tenants.
According to the grandchildren, following Scott Sr.'s death,
Margaret depended heavily on Scott Jr. for advice and direction

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and, given his role as the trustee and executor of his father's
will, his relationship with Margaret was not only that of a son,
but also of a fiduciary. The grandchildren allege that Scott Jr.
used his position of trust to unduly influence his mother,
tortiously inducing her to make the inter vivos conveyance of the
ocean-front property and depleting the size of her estate.
Scott Jr. obtained sole ownership of the ocean-front
property upon Margaret's death in March 1999 and served as the
executor of her estate until his death in October 2000. Although
the grandchildren first learned of the 1983 conveyance in June or
July 1999, they did not suggest that the ocean-front property be
brought back into Margaret's estate until after Scott Jr. died and
Attorney Richard Boren was appointed administrator of Margaret's
estate in April 2001. Even then, the grandchildren did not make a
formal written request. Boren took no action to reacquire the
property.
Defendants Quentin Anthony and Linda Umsted, Scott Jr.'s
widow, were appointed co-executors of Scott Jr.'s estate in October
2000. Although they were aware that the grandchildren had concerns
about the manner in which Scott Jr. had performed his duties as the
executor of Scott Sr.'s and Margaret's estates, it is undisputed
that they did not notify the grandchildren of the commencement of
the administration of Scott Jr.'s estate, as required by Rhode
Island law. See R.I. Gen. Laws § 33-11-5.1. In April 2002,

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The magistrate judge stated that it did not certify the 1
question to the Rhode Island Supreme Court because it was
"reasonably clear" that Rhode Island would not recognize this cause
of action in the circumstances of this case. Bi-Rite Enters. v.
Bruce Miner Co., 757 F.2d 440, 443 n.22 (1st Cir. 1985).
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pursuant to the terms of Scott Jr.'s will, the defendants conveyed
Scott Jr.'s interest in the ocean-front property to themselves as
trustees of the Scott Umsted Jr. Family Trust and the Scott Umsted
Jr. Marital Trust.
On June 3, 2003, the grandchildren filed a complaint in
federal court seeking to have title to the ocean-front property
placed into a constructive trust for their benefit, and to receive
money damages and attorney's fees. The first count of the
complaint alleged that Scott Jr. had tortiously interfered with
their expectancy of inheritance, and the second count alleged that
Scott Jr. had exercised undue influence over Margaret, which
resulted in the 1983 conveyance that caused them injury by
depleting their inheritance.
The defendants' subsequent motion for summary judgment
was referred to a magistrate judge. In his report and
recommendation, the magistrate judge noted the lack of case law in
Rhode Island explicitly considering the validity of a cause of
action for tortious interference with an expectancy of inheritance,
and concluded that Rhode Island would not recognize the tort in the
circumstances of this case. As to the second count, the 1
magistrate judge determined that the claim of undue influence

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There lurks an important underlying issue involving the 2
"probate exception" to federal subject matter jurisdiction.
Although jurisdiction was apparently assumed by the parties and the
court below, it is at least arguable that the "probate exception"
negates federal jurisdiction here. See Markham v. Allen, 326 U.S.
490, 494 (1946) (holding that the federal courts have no
jurisdiction to "interfere with" "probate proceedings"); Mangieri
v. Mangieri, 226 F.3d 1, 2 (1st Cir. 2000) (recognizing that
federal courts generally view the probate exception "as extending
to all suits 'ancillary' to the probate of a will") (quotations and
citations omitted). But stating the probate exception has proven
easier than applying it. See, e.g., Dragan v. Miller, 679 F.2d
712, 713 (7th Cir. 1982) (Posner, J.) ("The probate exception is
one of the most mysterious and esoteric branches of the law of
federal jurisdiction."). Although some clarity may be forthcoming
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belonged to Margaret, the victim of the alleged undue influence,
and the grandchildren could not bring a claim on behalf of her
estate because the applicable statute of limitations had expired.
The district court accepted and adopted the magistrate judge's
findings and recommendation that the action be dismissed. The
grandchildren filed a timely appeal from the judgment.
II.
We review the district court's grant of summary judgment
de novo, evaluating the record in the light most hospitable to the
grandchildren. Palmieri v. Nynex Long Distance Co., 2006 WL
268778, --- F.3d --- (1st Cir. 2006). We may affirm on any basis
manifest in the record. Uncle Henry's Inc. v. Plaut Consulting
Co., 399 F.3d 33, 41 (1st Cir. 2005). As jurisdiction is premised
on diversity of citizenship, see 28 U.S.C. § 1332, we apply Rhode
Island's substantive law. See Reicher v. Berkshire Life Ins. Co.
of Am., 360 F.3d 1, 4 (1st Cir. 2004).2

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shortly -- the Supreme Court is currently considering the scope of
the probate exception, see Marshall v. Marshall, 126 S. Ct. 35
(2005) (granting certiorari), -- we bypass the issue here and
assume, arguendo, subject matter jurisdiction under 28 U.S.C. §
1332 because the merits of this appeal are easily resolved against
the party relying on our jurisdiction. Cf. Restoration Pres.
Masonry, Inc. v. Grove European, Ltd., 325 F.3d 54, 59-60 (1st Cir.
2003) (permitting the assumption of hypothetical jurisdiction where
the bypassed jurisdictional question does not go to the court's
Article III power, but concerns only statutory jurisdiction).
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The grandchildren's primary argument on appeal is that
the conclusion that Rhode Island would not recognize a cause of
action for tortious interference with an expectancy of inheritance
was erroneous. They point out that Rhode Island already recognizes
an analogous cause of action for tortious interference with a
prospective business relationship, see Mesolella v. Providence, 508
A.2d 661, 669 (R.I. 1986), and that the Rhode Island Supreme Court
has previously extended well-recognized common law theories into
new contexts, see Mallette v. Children's Friend and Serv., 661 A.2d
67, 71-72 (R.I. 1995) (recognizing the tort of negligent
misrepresentation in the adoption context). Given that at least 23
states have recognized some form of the tort, see Diane J. Klein,
A Disappointed Yankee in Connecticut (or Nearby) Probate Court:
Tortious Interference With Expectation of Inheritance--A Survey
With Analysis of State Approaches in the First, Second, and Third
Circuits, 66 U. Pitt. L. Rev. 235, 240 n.10 (2004), including
Maine, see Cyr v. Cote, 396 A.2d 1013, 1018 (Me. 1979), and
Massachusetts, see Lewis v. Corbin, 81 N.E. 248, 250 (Mass. 1907),

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the grandchildren argue that the Supreme Court of Rhode Island
would likely follow suit. They further assert that the tort would
be governed by Rhode Island's catch-all ten-year limitations
statute. See R.I. Gen. Laws § 9-1-13.
Whatever force this argument may have in the abstract, it
does not help the plaintiffs in this case. The magistrate judge's
report and recommendation does not hold that Rhode Island would
reject recognition of the tort in all instances. Rather, the
magistrate judge concluded that Rhode Island would decline to
recognize the tort in the circumstances presented here because the
Rhode Island Probate Code provided the grandchildren with an
adequate remedy that they failed to pursue before bringing their
tort action. This reasoning accords with that of the majority of
states that have considered tortious interference causes of action.
See, e.g., Moore v. Graybeal, 843 F.2d 706, 711 (3d Cir. 1988)
(applying Delaware law and holding that where "adequate relief [is]
available in a statutory proceeding, a tortious interference claim
may not be pursued"); Jackson v. Kelly, 44 S.W.3d 328, 332 (Ark.
2001) (same); Wilson v. Fritschy, 55 P.3d 997, 1001-02 (N.M. Ct.
App. 2002) (same); DeWitt v. Duce, 408 So.2d 216, 218 (Fla. 1981)
(holding that a plaintiff must exhaust probate remedies before
pursuing a claim for tortious interference); James A. Fassold,
Tortious Interference With Expectancy of Inheritance: New Tort, New
Traps, 36 Ariz. Att'y 26, 28-29 & n.24 (Jan. 2000) (collecting

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cases); cf. Root v. Providence Water Supply Bd., 850 A.2d 94, 102-
03 (R.I. 2004) (holding that a plaintiff alleging a taking in
violation of the state constitution must first pursue the
statutorily specified remedy).
In many of these cases, the adequate remedy available to
the plaintiff was a will contest in probate court. A will contest
would not have provided an adequate remedy here because the
grandchildren do not dispute Margaret's will, but rather the inter
vivos conveyance that depleted her estate. See Hegarty v. Hegarty,
52 F. Supp. 296, 297-98 (D. Mass. 1943). Nevertheless, the Rhode
Island Probate Code provides another avenue to remedy the wrong
alleged by the grandchildren. Under Rhode Island law, legally
interested parties may commence an action on behalf of an estate to
recover property that belongs to the estate if the executor fails
to so act. See R.I. Gen. Laws § 33-18-17. The rationales
supporting probate exhaustion are therefore just as applicable here
as in the above-cited cases.
Rhode Island, like most states, is not inclined to extend
common law remedies into areas covered by statutory law. Cf. Root,
850 A.2d at 103 ("[W]hen the General Assembly creates a new
statutory right or liability . . . and provides for a specific
remedy for any violations of that right, a party aggrieved by the
exercise of that newly created right is bound to follow the
statutorily specified remedy.") (citing Smith v. Tripp, 14 R.I.

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The grandchildren's reliance on Mallette is unavailing. 3
There was no argument in that case that a statutory remedy existed
for adoptive parents claiming that an adoption agency had
negligently misrepresented the health of an adopted child. To the
contrary, the Mallette court noted that "the Legislature remains
conspicuously absent in this area." 661 A.2d at 73.
If the grandchildren are correct that Rhode Island's catch- 4
all ten-year statute of limitations would govern the tort, see R.I.
Gen. Laws § 9-1-13, it would create an anomalous loophole to Rhode
Island's statute of repose, which is designed to extinguish all
actions for or against a deceased person within three years of
death, see R.I. Gen. Laws § 9-1-21. A statute of repose, contrary
to a statute of limitations, terminates an action after a specific
period of time not related to the injury or cause of action. Theta
Props. v. Ronci Realty Co., 814 A.2d 907, 913 (R.I. 2003).
Allowing the tort in these circumstances would unnecessarily
frustrate the Probate Code's goal of attaining the "speedy . . .
repose of titles derived under persons who are dead." Hoxsie, 55
A. at 931.
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112, 114-15 (1883)). Rhode Island has enacted a comprehensive 3
statutory scheme designed to secure the expeditious and conclusive
settlement of estates and quieting of titles. See Lind v. McSoley,
419 A.2d 247, 249 (R.I. 1980); Thompson v. Hoxsie, 55 A. 930, 931
(R.I. 1903). Allowing a freestanding common law tort to be brought
by expectant legatees on their own behalf could unnecessarily
interfere with this scheme by creating the possibility of
conflicting judgments and by extending the time during which an
action could be brought challenging the disposition of a deceased's
estate. See Graham v. Manche, 974 S.W.2d 580, 583 (Mo. Ct. App. 4
1998) (exhausting probate remedies reconciles the competing
interests of compensating injured parties with preserving the goals
of the probate scheme).

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This view is not novel. Massachusetts, which recognizes
tortious interference with an expectancy of inheritance, but also
has a statutory scheme that similarly anticipates the potential for
wrongfully induced inter vivos conveyances, endorses the exhaustion
requirement that we adopt here. See Labonte v. Giordano, 687
N.E.2d 1253, 1256 (Mass. 1997). In Labonte, a daughter alleged
that her brother had tortiously induced their mother to transfer
title of her house to him. In upholding the superior court's
dismissal, the Supreme Judicial Court acknowledged that a will
contest in probate court would not have provided adequate relief
because the house had been transferred out of the mother's estate.
Id. Nevertheless, Massachusetts probate law provided other
remedies that could have adequately vindicated the daughter's
interests. Id. After her mother's death, the daughter could have
requested the executor of the estate to sue her brother. Id.
(citing Mass. Gen. Laws ch. 230, § 1). If the executor refused,
the daughter would have had standing to sue on behalf of the
estate. Id. (citing Mass. Gen. Laws ch. 230, § 5). Given the
adequacy of these statutory procedures, the SJC declined to expand
the scope of the tort. Id.
We find that Rhode Island would adopt the majority
position that a cause of action for tortious interference with an
expectancy of inheritance, if it lies at all, would not lie where
an adequate statutory remedy is available but has not been pursued.

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The question remains, then, whether the Probate Code
offered the grandchildren an adequate remedy. The grandchildren
contend that it did not. They argue that Rhode Island's probate
courts have limited jurisdiction, and, with a couple of exceptions
not relevant, lack the power to order the equitable relief sought
here. See R.I. Gen. Laws §§ 8-9-9 (providing for the limited
jurisdiction of the probate courts); 8-2-13 (providing that the
superior court has "exclusive original jurisdiction of suits and
proceedings of an equitable character and of statutory proceedings
following the course of equity," with the exception that the
probate courts have concurrent jurisdiction to appoint or remove
trustees and to effect certain limited tax and estate planning).
Because the probate courts lack equity jurisdiction, the
grandchildren contend, they are unable to remedy the alleged wrong
by creating a constructive trust for the ocean-front property.
We begin with the text of the statute. Rhode Island's
Probate Code contains the following provision:
If an administrator, executor, or guardian
shall be requested by any person legally
interested in the estate of a deceased person,
. . . to commence an action or proceeding to
recover any property, personal or real, which
the legally interested person may have reason
to believe should be recovered for the benefit
of the estate, and if the administrator,
executor, or guardian shall, for fifteen (15)
days after written notice so to do, . . .
refuse, neglect or for any reason be
incompetent, to commence the action or
proceeding, the legally interested person may
institute proceedings in the name of the

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estate of the deceased person . . . in the
same manner and to the same extent as the
administrator, executor, or guardian may do in
the case of personal property, and in the case
of real estate in the same manner as a
guardian, devisee, or heir at law may do, to
recover the property.
R.I. Gen. Laws § 33-18-17.
This provision creates an express right for "any person
legally interested in the estate of a deceased person" to "recover
any property, personal or real . . . [that] should be recovered for
the benefit of the estate." Id. (emphasis added). As legatees
under Margaret's will, as well as intestate heirs, see R.I. Gen.
Laws § 33-1-1, the grandchildren qualify as persons "legally
interested" in Margaret's estate. Pursuant to this statute, the
grandchildren could have made a written request to Scott Jr. as
executor or to Richard Boren as administrator of Margaret's estate,
to bring an action to recover the ocean-front property. If either
had refused or neglected to initiate such an action within fifteen
days of receiving the written request, the grandchildren could have
brought an action on behalf of the estate. If successful, the
property would have been returned to the estate, where it would
then have passed pursuant to the terms of Margaret's will. Such
relief would have placed the grandchildren in the same position
they would have been in but for the alleged tortious conduct. See
DeWitt, 408 So.2d at 220 n.11 ("Adequacy [of relief] is predicated
on what the probate court can give as compared to what the

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That the grandchildren also seek money damages and attorney's 5
fees does not alter our analysis. As the magistrate judge noted,
the request for damages appears to be pro forma. That is, although
the grandchildren have repeatedly avowed that this action is not
against Scott Jr. or his estate, the complaint does not explain who
should pay the damages or under what legal theory. More
importantly, even if the grandchildren do have a separate claim for
attorney's fees and damages, the doctrines of exhaustion of
statutory remedies, see Root, 850 A.2d at 102-03, and mitigation of
tort damages, see Tomaino v. Concord Oil of Newport, Inc., 709 A.2d
1016, 1026 (R.I. 1998), discourage the ripening of those claims
until the statutory remedy has been pursued. Also irrelevant to
our analysis is the fact that the grandchildren may now be time
barred from bringing the statutory action. See Moore, 843 F.2d at
711 ("A party with an exclusive statutory remedy cannot be
permitted to allow her remedy to be lost and then proceed with a
tort action which would be otherwise unavailable.").
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plaintiff reasonably expected from the testator prior to
interference.").5
The grandchildren's argument that the probate courts have
no jurisdiction to order the relief sought is beside the point.
The Rhode Island legislature has crafted a procedure in the Probate
Code that remedies the type of wrong allegedly committed in this
case; that the probate court cannot effectuate this remedy is of
little consequence. Nothing in § 33-18-17 limits the forum within
which a legally interested person may bring an action to recover
real or personal property. Assuming that the grandchildren are
correct, that only the superior court could grant the relief they
seek, they could have brought an action to recover the ocean-front
property, on behalf of Margaret's estate, in that forum.
The grandchildren failed to follow this statutory
procedure. Although they claim that their attorney "suggested" to

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That we are reticent to recognize the tort in these 6
circumstances should not surprise the grandchildren who
deliberately brought this action in federal court. See Pearson v.
John Hancock Mut. Life Ins. Co., 979 F.2d 254, 259 (1st Cir. 1992)
("A litigant who seeks out a federal forum when a state-court forum
is equally available to him cannot justifiably complain if the
federal court manifests great caution in blazing new state-law
trails.").
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Boren that he bring an action to recover the ocean-front property,
they did not serve him with a written demand to that effect. Nor
did they file an action under § 33-18-17 to recover the property on
behalf of Margaret's estate. Rather, they attempted to circumvent
Rhode Island's statutory procedure by bringing this common-law
action in federal court. Because Rhode Island's statutory
procedure would have provided an adequate remedy, we affirm the
judgment dismissing the grandchildren's tort claim.6
The second count of the grandchildren's complaint --
alleging that Scott Sr. procured the 1983 conveyance through "undue
influence" -- fails for the same reasons elucidated above.
Changing the name of the cause of action does little to obscure the
fact that the second count duplicates the first. It is the alleged
tortious interference with an expected inheritance which forms the
legal basis for the grandchildren's action. The alleged "undue
influence" is simply the means of that interference. See Holt v.
First Nat'l Bank of Mobile, 418 So.2d 77, 81 (Ala. 1982); DesMarais
v. Desjardins, 664 A.2d 840, 845 (Me. 1995) ("In recognizing [this
tort], we emphasize that it is one for the wrongful interference

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with an intended bequest and not an independent action for undue
influence or duress.") (quoting Cyr, 396 A.2d at 1019 n.7); see
also Labonte, 687 N.E.2d at 1255 & n.4 (a tortious interference
claim requires proof of interference by "unlawful means," which
include "duress, fraud, or undue influence"). A comparison of the
two counts confirms this understanding: they both allege that, but
for Scott Jr.'s wrongful inducement of Margaret to convey the
ocean-front property, the grandchildren would have inherited an
interest in it. They also seek essentially the same remedy --
compensation for their expected interest in the ocean-front
property. See DesMarais, 664 A.2d at 845 (the allegations of undue
influence "substantially merged with the principal claim for
interference with the expectation of a legacy").
The grandchildren's claim, whether labeled as a claim for
tortious interference with an expectancy or for undue influence,
should have been pursued in a proceeding pursuant to R.I. Gen. Laws
§ 33-18-17. Because the grandchildren failed to exhaust their
statutory remedies, they are barred from suing in tort.
III.
For the foregoing reasons, we affirm the judgment of the
district court. Costs are awarded to the defendants.

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