126 F.2d 217 | D.C. Cir. | 1942
This is an action begun in the District Court by appellee, Katherine K. Newlon, against appellants as executors under the will of Daniel Loughran, Jr. Mary L. Duke, residu legatee devisee, was named as a co_deftndant. The purpose of the ^ was tQ obtain ^ construction of para. h 2 of the win of Daniel Lougllrall) ? . Jr., as follows: J ’
ítemr ^wo' Pui °f ,t le ne\ Pro~ ceeds °f estate 1 £jve and bequeath and “X ,sald trustees are directed to pay at convement periods m each year a sum not to exceed One Hundred Fifty and no/100 Dollars ($150.00) per month, totaling the sum °t One Thousand and Eight Hundred dollars ($1800.00) annually, for and during natural life of my friend Katherine K. Newlon, the daughter of W. R Newlon, of Alexandria, Virginia, Provided, however that lf< for anX reason the ,net Proceeds of shall not equal the sum of One Hundred Fifty Dollars ($H0.0O) per month>the sald tru?tee sha11 ^ }° ^r such lesser sum- as such “t proceeds shall indicate> and provided further that the one Hundred and Fifty Dollars ($.50.00) per montb sha11 n°*,be cumulative from year to Xear> and provided further that immediately uPon the death ,of the sald Katherine K. Newlon, the said trust and the bequest herem set f°rth sha11 cf seT and determine and forever be at an end. I made this provision for said Katherine K. Newlon, because of the many kindnesses she has , , „ „ shown to me.
The controversy grew out of the action of the trustees in withholding from Miss Newlon monthly payments of $150 for four months in 1936, two in 1939, and one in 1940. The position taken by the trustees to justify this action, is that they were directed by the will to pay Miss Newlon an amount totaling $1800 annually only in the event the monthly net income, considered separately from month to month, equals the sum of $150. ^ In other words that each monthly distribution to the amount of $150 is conditioned on the receipt by the executors of net income amounting to that sum in that particular month. Miss Newlon insists she is entitled to receive $1800 during
The single question, therefore, is whether the unit of measurement of the bequest is based on the amount of net income actually collected in each month or in each year, and the answer, of course, depends upon the intent of the testator, which in turn is to be ascertained upon a reasonable interpretation of the words of the will. Judge Bailey held that the testator intended to provide a legacy of $150 per month cumulative monthly each year, but not from year^ to year, and we are of opinion that this is correct. The will directs the trustees to pay at convenient periods in each year a sum not to exceed $150 per month, totaling the sum of $1800 annually, Provided * * * that if * * * tire net proceeds * * * shall not equal the sum of One Hundred Fifty Dollars ($150.00) per month, the said trustees shall pay to her such lesser sum” and provided further, that the $150 per month “shall not be cumulative from year to year”. These latter words, we think, clearly imply that the bequest shall be cumulative from month to month, for otherwise the provision that the income shall not be cumulative from year to year” would be wholly superfluous. Not ^lynothlS’ v thedause pr7ldf+that the $1,800 is to be paid to appellee at convenient periods in each year”, which negatives the idea that the monthly payment of $150 is conditioned upon an accumulation of that much income in that particular month, And this is further accentuated by the succeedin& dfste of wili- whidl directs PW*** of, the residuapy mcome to testator s er “ excess of said $150.00 per monthbequeathed to appellee,
Considered in its entirety, we are in ac-cor¿ with the view of the lower court that £he wpj expresses the clear intent of testa£0r (.jjat appellee shall receive the full sum 0£ <j;igoo in each year, provided only the income 0f the estate for the year in question £0tais that amount. The estate consisted majnjy 0f reaj estate, and the income for distribution arose out of rents collected on (¿egg properties. If it were optional with ^g executors to pay the expenses of repairs and taxes for a year in one or two or three uxonths and thus exhaust the whole income £or those months, appellee would be left wholly at their mercy, and obviously testator had no such intent
Where, as is the case here, the intent of the testator is clear, the principle of testamentary construction favoring heirs ¿s not applicable. Sherman v. American Security & Trust Co., 57 App.D.C. 273, 20 F.2d 446; Presbrey v. Simpson, 53 App.D. C. 358, 290 F. 333; Baldwin v. National Savings & Trust Co., 65 App.D.C. 174, 81 F.2d 901.
Affirmed.