In Re Estate of Dorothy H. Burrough, Deceased. Ann Burrough (Donovan) Cennamo v. American Security & Trust Company
475 F.2d 370
D.C. Cir.
1973
Check Treatment

*1 sought, court fix tion shall the date. shape subpena may

Whatever suitably tailored,

ought the date of the final to bear ver-

sion. remanded.

Reversed and Dorothy

In re ESTATE of H. BURROUGHS,Deceased. (Donovan) Burrough CENNAMO,

Ann Appellant,

AMERICAN SECURITY & TRUST al., Appellees. COMPANY et

No. 71-1538. Appeals,

United Court of States District Columbia Circuit.

Feb.

Anthony Cennamo, Columbus, Ohio, D. George Douglas, Jr., R. Washington, D. ,C. were on appellant. the brief for Laskey, Washington, C., John L. D. Cynthia appellee was on the brief for D. Reiche and Dean Reiche, S. Guardian ad Elgin, Litem. Washington, Arthur C. C.,D. was on the for brief Janet T. Reiche. Tolley, Washington, C.,

Benton C. D. Security brief American & Trust Co. SOBELOFF,* Before United States Judge

Senior Fourth Circuit Cir cuit, LEVENTHAL, and TAMM and Judges. * 294(d). Sitting designation pursuant § 28 U.S.C. *2 Judge: ground acceptance

LEYENTHAL, benefits estops recipient under a will from 1969, appellant filed November On contesting validity of a will. The contesting validity of the a caveat Norment, court relied on Utermehle v. on her mother March executed will prior App.D.C. to death aff’d some two months thereto, April on codicil executed and a L.Ed. 655 fraud, alleged un- 1969. The caveat supported there and found that was testamentary due influence and lack misrepresen- fraud or contention of and, amendment, capacity, further might operate to avoid the tation which alleged testamentary violat- trust estoppel. rule of against perpetuities. ed the rule Appellant relied the District Appellant heir at law the the sole beneficiary undisputed testatrix. She also the fact that Court on the she would under a 1966 under which will under amounts she received substantially her mother’s all of obtain amounts she will less than the were though enjoyment would property, full intes under either would received The postponed 35.1 until she became be emphasized tacy prior and or the# effective, would, if and codicil 1969 will (1) no other beneficiaries that there are appellant’s operate interest to reduce who have received distributions substantially.2 by the would be affected the will who to Appellant to admission consented challenge, (2) traditional that under the testamentary docu- probate of the 1969 analysis, in order for a right specifically her reserved ments (here objecting estopped to the be from appellant The to file caveat thereto. only validity), must there will’s pur- to her accepted made distributions part, acquiescence in on his will, to and sub- both suant change part also a caveat, filing sequent to her 3, others, September existed in amounting $17,000 a condition which both as of 1970. on in the and relied Utermehle was opinion. guardians bank, Utermehle The trustee residuary ben- who ad litem those language quoted District Court The under the trust eficiaries it considered from Utermehle which judg- summary sought light rationale, and concluded on its shed ment. quotation “the indicates above Court, F.Supp. el- The District these additional Court found that granted summary they judgment on the estoppel, but that support ements bequests relevant, home) purchase remarry not here 1. After some desire to and mother’s estate was the residuum of the invade discretion to was vested with and Appellant placed corpus in trust. was The 1969 testa- in her favor. beneficiary trust, mentary the sole income of this to terminate trust was empowered given death; appellant’s invade and the trustee was in- she was principal in his discretion for her remainder. terest reaching age Upon codicil, appellant’s use benefit. cash be- Under terminate; ap- $3,000, quest the trust was to was reduced pellant only entire succeed set aside was directed to trustee corpus. ap- $5,000 principal the event purchase pellant a residence. wished to Appellant bequest gave 2. was to receive a cash also the trustee dis- The codicil principal $5,000 realty. cretionary power title in fee to certain to invade again placed appellant’s residue of estate was benefit. appellant trust, with income beneficiary. Court, appears Supreme The trustee was directed to Both apply prin- $10,000 below, court, the sum of from the in this see cipal appellant’s (should 48-49, benefit she 53-54. necessary However, elements.” ates to the of him are not who relies estoppel.6 on note of it as Court did not take the District Utermehle, passages in subsequent both provides c. The statute for caveat emphasized italics— one which person, specified —with an interested within precedent relied that in Massachusetts periods, probate. after admission to legatee caveator, had re presumed d. must be that Con- “[It] *3 legacy the executor turned the before gress, provi- enactment this position “or had settled the account the sion, cognizant general the rule changed,” any person had been other cases, foregoing from the that deductible concluding paragraph and the of TJter party estopped a the will not unless be footnote, mehle, forth in our that set preju- upon act in relied has resulted the change-of-posi emphatically the stressed upon dice of him who it as an es- relies tion factor.5 toppel.” Howenstein, v. turn to We Bowen 39 reasoning This is clear and authorita- App.D.C. (1913). there 585 The court Congress provided tive. in has D.C. estop- there was an considered whether (1967): Code 18-509 § by pel vir- on the sister of the testatrix a After will has been admitted probate, tue of her consented to person probate, may, in interest receipted, accepted, thereafter within six months from the date jewelry. certain Robb’s items of Justice probate, the order of verified file a analysis ran as follows: will, praying caveat that pais estoppel a. “The doctrine of in probate thereof revoked. upon morality, principles is founded Congress may doctrine that and is the ends of intended subserve fairly contemplated to. be said as a justice.” by way estoppel limitation on general party right statutory caveat, b. It is the rule that a which is set estopped oper- is not act it par- unless qualification forth without for quoted following plaintiff 4. The District Court . . while . in error has paragraphs: guilty negligence been also of extreme relating attempting what is the law As to even in to discover what he party taking provision alleges the benefit of a are facts. We are that satisfied will, plaintiff estopped in his favor under error is from now really dispute contesting will, great foundation to in that proposition thereby precluded justice overturning that he is would result from the attacking principle adjudged many from at same of the in so validity instrument under cases.” which he received the benefit. 197 quoted Reynolds 6. Thus court from U.S. at 25 at S.Ct. 296. Adden, 348, 352, v. 10 S.Ct. 843, 845, (1890) 34 L.Ed. 360 : “[The inWhen addition to the fact that he part acts] induced no conduct on the party took a benefit appellant, any or of of the creditors acquiesced many has in its Adden, operated II. John years, opposing party in interest prejudice. They their contained no ele upon has acted such consent and ac- estoppel.” ment of quiescence, changed posi- and has so his Powell, And from Smith’s Ex’r v. 98 tion account that he cannot be Va. 36 524 S.E. : “It it, restored to and where witnesses have estoppel is of the essence of died, in the meantime the reason for the upon act as relied such should have been upon estoppel which an is founded injurious, prejudice and to the of him thereby greatly strengthened. 197 upon estoppel.” who relies it as (emphasis 25 U.S. at quoted And to like effect the court added). Brady Elliott, v. 181 Pa. A. Gay, U.S. at S.Ct. at 297: and cited Lincoln v. parties “In (1895) ; this case the of other Mass. N.E. 95 Drouin litigation materially Co., 343, 355, to this changed, has most & Boston M. R. 74 Vt. already (1902). been shown 52 A. questions, ular heed in trust and estate interest, provided is that ties put “only the court general estoppel; and that contemplated relying act event that his attack party on an quires that the will would be successful there estoppel therefrom. shoe7 would be occasion him to refund prejudice and requisite There legacy paid him executor.” a claim makes when There other considerations taking property outside bearing tender not oth he would will to which under a problem.9 pursue prob- doWe And so been entitled. erwise have proffer lem. It suffices that the lack of 380, 292 Gibson, Gibson bar, to suit is not an absolute held, in another court F. 657 prof- that whether and on terms a what princi Robb, Justice required fer should be was not prevented husband ple of UtermeMe *4 case considered the District Court. claiming curtesy at the and from both the taking interest same given of cur in lieu to him was will that dissenting The of our voice col inequitable, tesy. held to be was This league prompts ponder us to further on required to elect the husband and this case. areWe not the troubled no com there is But the other. one or accusation that stare decisis has been equity election problem and parable of opinion scuttled. Our reflects an atten here, to claimant, is entitled the when regard precedent appreciative tive to — if the will even property taken under estoppel opinions of in statements that outside in claim he succeeds inconsistency, appreciative, focus against will. too, that these cannot be taken broadside any in- that there is said It cannot be regard accompanying without to facts seeking to inequity in relative’s herent statements, reflecting the settled taken under has she a will when break principle estoppel requires preju is that the deceased Her claim the will. wrought by dice detrimental reliance. provide amply her to intended What we are concerned with by the interven- thwarted this was epilogue is whether some sensitive nerve of say, or failure influence undue tion of rightly pained by of would be capacity.7 versal this case. Is the “inconsisten- finally, appel brings us, cy” beneficiary of a in and of itself an This avoided estoppel affront to Justice? Should this court lee’s claim proffer go beyond been a actual there has decisis if requirement precedent, and fashion item received. law inconsistency calls unqualified out of even in the proffer absence justice. In preju- of detrimental reliance or like interest application rulings partic- paid scrapped Maryland, dice? On occasion we have whose for, event, expressly the situa not consider in such an tender do is neces 7. We legacy given provides sary, as no harm can come either to the tion of will attempt party.” made to estate or to interested that no on condition invalid. Smithsonian declare Cf. g., legacy 9. E. whether the is needed 398, Meech, v. U.S. Institution beneficiary for a reasonable standard of (1898). 396, 42 L.Ed. 793 S.Ct. legacy living; being whether used litigation Johnston, 154 Md. finance of minimum sub- v. 8. Schmidt Kelley put heavy (1928). stance that will costs on the 140 A. Hazzard, and other N.E. estate beneficiaries or that will 96 Oh.St. irreparably prejudice however, them; is, another whether “There : back, legacy property unique exception tender was of of a well-settled irreplaceable party chargeable nature, to which is where and that would, if of his caveator would not be entitled in the event tender with the suit, prevailing were set aside. receive at least possession; in his he now has as much as appears inadequate TAMM, Judge (dissenting): an historic rule E.g., modern conditions. Hatch I cannot concur in that ele- Riggs Bank, U.S.App.D.C. National dogma dignity legal vates to the (1966). Here, F.2d 559 how- vaunt, facetious “Heads I win—Tails contrary ever, it would run needs you Again majority lose.” flouts today require- scrap the historic among what was known the ancients ment so incon- as make 1 (the “stare decisis” nature of that doc- sistency legal alone barrier. The imperfectly trine is now understood and litigating prohibited that once possibly incapable of definition with asserting inconsistent claims us). vocabulary that remains relegated pleading been same has legal along history, dustbin of with Craftily recognizing which side her of the common nice distinctions on, appellant bread caviared skill- Supreme forms action. The Court fully provi- acclaims seizure those doctrines in brushed aside those challenged sions the now will which inconsistency had provided largess having to her ex- Lear, to be come viewed as bar. See advantages hausted available and bene- Adkins, Inc. v. brazenly challenges fits she now va- (1969). In L.Ed.2d lidity document whose terms us, case before waiver, shred utilized she to her own benefit. This rights painstak- *5 is, veracity course, subordination of or ingly pursuit preserved, nor of is there carried out without distasteful relief and that are inconsist- remedies turn to the estate assets she has ent. My brethren, received and utilized. justice In this case the interest of is sincerity (to whose question I do not regard furthered our attentive things pure pure), with more precedent, principle and to both settled feeling image piquant for a than for sound; rightly and these not objective facts see this situation the symmetry simpliciter. be subordinated conduct of a dove rather than an alba- ruling estoppel in of Our retains case paradigm appel- tross. To make a of injustice. detrimental reliance or like greed, possible expense lant’s at the of Court We are confident the District other named beneficiaries of testator’s fully prin- remand will alert intentions, jetti- declared is for me the ciple justice of reflected the settled soning virtually historically of all the ruling. applied in doctrine our proven teaching cases that the seeker of Reversed and remanded for further justice. must be a doer of Our proceedings opinions through not inconsistent with this century, presuma- this opinion. bly least, jus- at recount a record of in Howenstein, estoppel. (Emphasis Bowen v. no room for an supplied omitted.) : and citations undoubtedly Norment, While it is Sec also Utermehle person property 40, 57, a takes who 25 S.Ct. 49 L.Ed. 655 presumed (1905) will must be to have elected and cases cited therein: preference relating abide what As to is the law to a rights law, party taking provision as an heir at in the ab- his the benefit of sence, course, imposition, fraud, or really of of in his favor under a misrepresentation, dispute proposition we found no no foundation to holding temporary thereby precluded ac- from, case that he is ceptance resulting benefit, time, attacking such the same of disadvantage parties, other instrument under which he re- estoppel. amounts to an On the con- ceived the benefit. trary, Security has been held that the return See also Cennamo American legacy, parties Co., F.Supp. (D.D.C. the condition of the & Trust changed, is, 1970). holding The wealth of state cases —that prejudice having past great resulted from the tem- as we have held in the is so porary accept legacy, negate anee as citation. —leaves - idolizing meaningless legal objectivity ancient as an right by put our tices opinion those who their search majority landmarks my brethren’s preposterous. accomplish- utopia It cultivate the my of our causes admiration opinions se- is tired truth that courts’ suspicion. into Current to melt ments working subjectively towards recognition riatim popular a code of mini- ruling, a note strengthened by today’s end not on the “GREAT WHEN” morals is exasperation.3 of exhaustion but of vaults bounds since the court judicial limpid legally undoubtedly Such brave principles fairness alternately legal blessed, then excursions are scholars. the conscience shock Although tarnished, then cursed. appellant’s unconscionable To validate legal change great constant, today’s assigned chicanery upon the basis wanderings founda- from the solid certainly requires far majority the most gov- objective interpretations of tions of reasoning Lewis since Carroll.2 novel erning edge precariously close law case distressing outright the immediate than the basic More abandonment of government majority impact principle ours is a immediately Although involved of those fortunes laws and not of men. be- however, provisions herein, which ease with lief that the basic again the earlier narcotizes the court predictable established cornerstone naively thought opinions had es- I which upon judicial built the machin- governing defined the law tablished ery apparently out went with Mc- present to our factual situations akin Guffey’s readers, the hard fact remains today’s Perhaps by and tomor- record. has not this so-called creative law normal times standards these are row’s lasting a track record for so- majesty be built of the law is to legal day-to-day lutions of mankind’s ever-changing proliferation problems. Undiscouraged, however, my unproved panaceas. The untested bravely pursue brethren their uncharted away dis- has washed of time stream *6 voyage into THE TRY LAND OF disciplines, many other fabric of soluble AGAIN. away it to flood if integrity the law as sci- courts words, jere- I write these not as a decision, producing rules of certain ence miad, but in the belief that unless the reviewing appellate courts will then guidance courts adhere to of fixed respect for the principles, bring objective No doubt ambush. we will soon regarded sepulcher. to its the law is tenets of g., Carroll, See, Alice’s Adventures F.2d L. States v. e. United pub. Brawner, 1865), (Orig. U.S.App.D.C. 1, in Wonderland 471 F.2d Looking unwaiveringly Through Carroll, Glass we L. pub. 1872). (Orig. in each successive case abandoned profound earlier declaration of what we out) (temporarily de- con- had turned our 3. An account of confused governing labyrinth roaming through fusing would For clared law. bar, insanity trial courts and the law was cases in criminal defense being recognized years eighteen whatever we would from Durham a record opinion. U.S.App.D.C. next States, to be declare v. United