113 F.2d 525 | D.C. Cir. | 1940
The testatrix, Paulina Rocca, a resident of the District of Columbia, died on September 4, 1907. Prior to her death she made an advancement to one of her daughters, Mary Hall, in the amount of $9500. In her will she devised and bequeathed all her estate, except $500, to be held in trust. Concerning the advancement theretofore made to Mary, the will provides: “* * * And whereas I have heretofore at the request of my daughter Mary Hall advanced to her the sum of ninety five hundred dollars with full knowledge on her part that the same was to be accepted as an advance to her from my estate, now I direct that in ascertaining the amount of said residue of my estate said sum of ninety five hundred dollars (without interest) be included said residue of my estate to be held by my said named trustee as follows: (Charging
On May 1, 1937, Mary Hall, the last of the children of testatrix to survive her, died. Thereafter, on June 17, 1937, The Washington Loan and Trust Company, substituted trustee, brought suit in the court below and asked for instructions concerning the proper interpretation of the will and the distribution of the estate. This appeal was taken from the decree of the lower court by two of Mary Hall’s three children, who, together with the other beneficiaries and successors in interest, were named as defendants in the court below. That portion of the decree which is challenged here reads as follows:
“3. That the sum of $9500.00 advanced by Paulina Rocca to Mary Hall be thrown into hotchpot in the distribution of the estate of the said Paulina Rocca and charged against the one-sixth share of the estate of Paulina Rocca devised and bequeathed under the provisions of her will to Mary Hall and her children.
“4. The advancement of $9500.00 to Mary Hall is chargeable with interest which has been paid by Mary Hall and no further interest on said advancement is chargeable.
Appellants contend that the lower court erred: “In adjudging that by her will, Mrs. Rocca charged the advancement against the estate which she devised in fee to Mary Hall’s children;” and that, instead, she intended the advancement to be charged against the income from one-sixth of the residue, alone. They argue that Mary’s children take nothing by succession from their mother; instead, that they take independently of her and directly from their grandmother. But this is not important. The question is not how the succession takes place, but precisely against what the advancement is intended to be charged.
Appellants’ contention depends upon finding, in the pertinent language of the will, evidence that the testatrix intended to distinguish between “Mary’s share” and the estate which she devised in fee to Mary’s children; but there is no such evidence in the will. The language which must be interpreted in deciding this point is, for convenience, again set out, as follows :
“* * * said residue of my estate to be held by my said named trustee as follows: (charging Mary’s share with the said advancement.)
“One sixth thereof hold for the use of my daughter Mary Hall, and the income arising therefrom pay over to her during her life, and on her death leaving children pay over said income to said children in equal shares, per stirpes and not per capita, until her youngest living child arrives at the age of twenty one years, and then pay over and convey the same in equal shares to said children.” [Italics supplied]
The words descriptive of the estate devised to the children are the same. These words refer back to the words one sixth thereof. Careful analysis of the quoted language proves that they can have no oth- • er reference. The words, one sixth thereof, in turn, refer back to said residue. Moreover, the trustee is directed — upon the death of Mary and until her youngest living child arrives at the age of twenty one — to pay over said income to said children. Said income refers to the income arising therefrom; that, in turn, refers to one sixth thereof; which, in turn, refers to said residue. Now it is to be observed that the words one sixth thereof are the identical words which testatrix used to describe Mary’s share. It was the income arising therefrom (one-sixth of the residue) which the trustee was directed to pay over to Mary during her life. And it is to be observed further that the words said residue were used by testatrix in directing (1) that the trustee should hold the same, and (2) that in holding said residue he should charge Mary’s share thereof with the advancement.
We read, therefore, in this language of the will, a perfect sequence of consistent references from one statement to the other, indicating the intention of the testatrix that the undivided one-sixth share of the residue of the estate should be used as the common measure (1) of Mary’s share; (2) of the share against which the advancement was to be charged; (3) of the share from which the income was to be paid to Mary during her lifetime; (4) of the share from which the income was to be paid to Mary’s children, after her death and pri- or to the attainment of majority by the youngest; (5) of the share of the estate devised in fee to Mary’s children. On the other hand, there is no sentence, clause or word in the will which suggests a different meaning, or that the testatrix intended to make the distinction for which appellants contend.
Moreover, in providing for the devise over in event of the death of any of her children leaving no descendants, the testatrix directed that “the part of the residue above devised in trust” for such children should be held upon “the same trusts as hereinbefore provided for the shares devised for the use of’ the other children. The testatrix thereby gave to the word “share” its ordinary meaning,
To support their contention appellants rely, also, upon a contract of December 31, 1907, between the trustee and the children of the testatrix, the pertinent provisions of which are set out in the margin.
Appellants contend, also, that the court erred: “In adjudging that the advancement of $9,500 bore interest.” They rely upon the use by the testatrix of the words without interest in that item of her will which reads: “* * * in ascertaining the amount of said residue of my estate said sum of ninety five hundred dollars (without interest) be included, said residue of my estate to be held by my said named trustee as follows: * * *” But the position, in the sentence, of the words without interest shows that the formula thus provided contemplated that this act of inclusion — in the process of ascertaining the residue — should take place immediately upon the death of the testatrix and the coming into possession by the trustee. This is shown by the fact that only by so doing could the trustee carry out his further duties specified in the will, i. e., that he hold the residue “for the use of” — Mary— David — Giovanni.—and the- others; and that he pay over “the income arising therefrom” during the life of Mary and during the lives of the others. Consequently, the words without interest had no application beyond the time of inclusion of the advancement for the purpose of ascertaining the residue; and their use in the will
Appellants attempt, also, to support their contention by arguing that the same considerations which influenced the testatrix to give to her two sons rent-free use of her house,
Our conclusion upon this point is supported also by the fact that Mary Hall, the donee of the advancement, voluntarily entered into the contract
Moreover, assuming, solely for the purpose of argument, that appellants are correct in their contention that Mary Hall was not liable for the payment of interest upon the advancement, still it is clear that the court properly refused to apply the amount paid in liquidation of the amount of the advancement. Any claim which may have arisen in her favor, against the trustee or other persons as a result of such payments,
We have considered carefully all the other contentions of appellants and find them to be without merit.
Affirmed.
See Treadwell v. Cordis, 5 Gray, Mass., 341, 354-357.
Evans v. Ockershausen, 69 App.D.C. 285, 290, 100 F.2d 695, 700, certiorari denied, 306 U.S. 633, 59 S.Ct. 462, 83 L.Ed. 1034; Young v. Munsey Trust Co., 71 App.D.C. —, 111 F.2d 514; Smith v. Bell, 6 Pet., U.S., 68, 76, 8 L.Ed. 322; Adams v. Cowen, 177 U.S. 471, 20 S.Ct. 668, 44 L.Ed. 851.
Walker v. Thomas, 64 App.D.C. 148, 150, 75 F.2d 667, 669, 99 A.L.R. 713; Baldwin v. National Sav. & Trust Co., 65 App.D.C. 174, 376, 81 F.2d 901, 903, certiorari denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393; Robison v. Female Orphan Asylum, 123 U.S. 702, 707, 8 S.Ct. 327, 31 L.Ed. 293. Smith v. Bell, 6 Pet., U.S., 68, 75, 8 L.Ed. 322: “It is emphatically the vAll of the person who makes it, and is defined to be ‘the legal declaration of a man’s intentions, which he wills to be performed after his death.’ 2 Bl.Com. 499. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law.” [Italics supplied]
Blake v. Hawkins, 98 U.S. 315, 324, 25 L.Ed. 139; Adams v. Cowen, 177 U.S. 471, 475, 20 S.Ct. 668, 44 L.Ed. 851.
Evans v. Ockershausen, 69 App.D.C. 285, 290, 100 F.2d 695, 700, certiorari denied, 306 U.S. 633, 59 S.Ct. 462, 83 L.Ed. 1034; Walker v. Thomas, 64 App.D.C. 148, 150, 75 F.2d 667, 669, 99 A.L.R. 713.
Cf. Treadwell v. Cordis, 5 Gray, Mass., 341.
Rady v. Staiars, 160 Va. 373, 168 S.E. 452: “The primary significance of words should ordinarily attach and does attach, unless it is manifest from the will itself that other definitions are intended.” Evans v. Ockershausen, 69 App.D.C. 285, 292, 100 F.2d 695, 702, certiorari denied, 306 U.S. 633, 59 S.Ct. 462, 83 L.Ed. 1034.
See In re Bond & Mortgage Guarantee Co., 157 Misc. 240, 283 N.Y.S. 623, 639. Cf. Glover v. Condell, 163 Ill. 566, 582, 45 N.E. 173, 178, 35 L.R.A. 360.
"Whereas the said Mary Hall owes to the estate of Paulina Roeca, deceased, the sum of Nine thousand five hundred ($0500.00) dollars money advanced to her by the said deceased, the said sum bearing interest at Six (6%) per centum per annum, which said sum under the terms of the will of the said deceased is to be deducted from said Mary’s share of the income of said estate as one of the devisees of the said will.
“Now therefore, in consideration of One ($1.00) Dollar and other good consideration, it is hereby agreed by the parties hereto, devisees under said will that the interest charge upon said indebtedness shall be reduced from Six (0%) per cent to four (4%) per cent and instead of paying the said Six (0%) per cent interest, in the future, she is to pay but four (4%) per cent, which is to be deducted from her share of the income of said estate.
“And it is further agreed that the original of this agreement be placed in the hands of John B. Roeca, Executor and Trustee of the last will and testament of the said Paulina Roeca deceased as a notice and authority to act under this agreement as above written.”
Baldwin v. National Sav. & Trust Co., 65 App.D.C. 174, 176, 81 F.2d 901, 903, certiorari denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393; Evans v. Ockershausen, 69 App.D.C. 285, 290, 100 F.2d 695, 700, certiorari denied, 306 U.S. 633, 59 S.Ct. 462, 83 L.Ed. 1034; Robison v. Female Orphan Asylum, 123 U.S. 702, 707, 8 S.Ct. 327, 31 L.Ed. 293.
Campbell v. Fowler, 226 Ky. 548, 553, 554, 11 S.W.2d 423, 425.
Pate v. French, 122 Ind. 10, 14-15, 23 N.E. 673, 675.
De Raismes v. Rice, 125 N.J.Eq. 21, 4 A.2d 25; Campbell v. Fowler, 226 Ky. 548, 11 S.W.2d 423; Quinton v. Kendall, 122 Kan. 814, 824, 253 P. 600, 604; Stone v. Stine, 105 Neb. 33, 37, 178 N.W. 838, 839.
"To permit my sons Giovanni Rocca and David Rocca to use, and occupy my house No.: 207 F Street, north-west, in the city of Washington, in the District of Columbia, free of rent during th1eir joint lives and the life of the survi~ror of them, and on the death of the survivor said house to become a part of the residue of my estate and take the course provided for said residue."
See Smith v. Bell, 6 Pet., U.S., 68, 75, 8 L.Ed. 322.
Cronan v. Cronan, 286 Mass. 497, 500, 190 N.E. 721, 722; Dealy v. Keatts, 157 Miss. 412, 128 So. 268; Cumming v. Pendleton, 112 Conn. 589, 153 A. 175; In re Torchiana's Estate, 292 Pa. 470, 141 A. 294; German v. Frey Planing Mill Co., 257 Ky. 128, 77 S.W.2d 414; Whitehurst v. White, 160 Va. 859, 169 S.E. 724; Hickey v. Costello, 80 Colo. 461, 251 P. 595.
See note 10, supra.
See Starr v. Starr, 132 N.Y. 154, 159, 30 N.E. 384, 385; Dorrance v. Dorrance, 3 Cir., 238 F. 524; Guilford v.
Cf. Carpenter v. Southworth, 2 Cir., 165 F. 428, 429; Goldman v. Staten Island Nat. Bank & Trust Co., 2 Cir., 98 F.2d 496, 498; Leonard v. Gage, 4 Cir., 94 F.2d 19, 23, certiorari denied, 303 U.S. 653, 58 S.Ct. 752, 82 L.Ed. 1113; 5 Williston, Contracts (Rev.Ed.1937) § 1590. Cf. also, Hibbs v. Beall, 41 App.D.C. 592, 599. See for reference purposes, 48 C.J. 755 et seq.
Case v. Kelly, 133 U.S. 21, 29, 10 S.Ct. 216, 33 L.Ed. 513; Ducker v. Butler, 70 App.D.C. 103, 104 F.2d 236, and authorities there cited; Green v. Brophy, 71 App.D.C. —, 110 F.2d 539, 541-542.