Vogel v. Saunders

• Citation: 92 F.2d 984
• Decision Date: 21 June 1937
• Docket Number: No. 6879.,6879.
• Parties: VOGEL v. SAUNDERS.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

92 F.2d 984 (1937)

VOGEL v. SAUNDERS.

No. 6879.

United States Court of Appeals for the District of Columbia.

Argued March 9, 1937.

Decided June 21, 1937.

Andrew Wilson and Rawleigh L. Tremain, both of Washington, D. C., for appellant.

Elizabeth M. Cox, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

This is an appeal from an order of the District Court, sitting as probate court, for the sale of ten shares of stock and the application of the proceeds of such sale to the payment of debts of an estate.

At the outset we are confronted with a motion to dismiss this appeal, on the ground that the transcript of record was not filed in this court within the sixty-day period prescribed by rule 15. The instant appeal was perfected on August 11, 1936, and the time limit fixed by the rule expired on October 21, 1936. Appellant filed her transcript of record on November 14, 1936. Appellee moved to dismiss on November 17, 1936, consideration of the motion being postponed to the hearing on the merits.

Appellee points out that we have consistently granted motions to dismiss appeals where the transcript has been filed after the time limit prescribed by our rules. McCrane v. McGann, 2 App.D.C. 221; Dist. of Columbia v. Humphries, 11 App.D.C. 68, 70; Dist. of Columbia v. Roth, 18 App.D.C. 547; Gros v. Norment, 30 App.D.C. 574, 575.

Appellant urges that our holding on this point is contrary to that of the Supreme Court and the lower federal courts in enforcing similar rules. The federal rule is that a motion to dismiss on the ground that the transcript has not been filed within the prescribed time comes too late when the transcript has actually been filed. Bingham v. Morris, 7 Cranch, 99, 3 L.Ed. 281; Owings v. Tiernan, 10 Pet. 24, 9 L.Ed. 333; Sparrow v. Strong, 3 Wall. 97, 103, 18 L.Ed. 49; Southern Lumber Co. v. Ward, 208 U.S. 126, 28 S.Ct. 239, 52 L.Ed. 420; Altenberg v. Grant (C.C.A.6th), 83 F. 980; The Kawailani (C.C.A.9th) 128 F. 879.

After due consideration, we conclude that the federal rule operates more effectively to accomplish the desired result. Under that rule, in order for an appellee to avail himself of the fact that appellant has not filed his transcript within the time prescribed, he must file a motion to docket and dismiss before such transcript is actually filed; if appellee waits until the transcript is filed, even though it be filed after the time prescribed, a motion to dismiss on this ground comes too late. This tends to insure diligence on the part of an appellee, and to expedite the determination of appeals.

We are convinced that notwithstanding the decisions of this court in the past to the contrary, we should adopt the rule followed by the federal courts, and the same shall hereafter be regarded as the rule of practice on this point. The motion to dismiss in this case is accordingly denied.

Jennie T. Davis, a resident of the District of Columbia, died on September 14th, 1934, leaving a last will and testament dated June 4th, 1928, with a codicil attached thereto dated March 31st, 1934. The will was admitted to probate and record January 9th, 1935. The executor named therein having renounced, appellee Mildred Saunders was appointed administratrix c. t. a.

It appears that the testatrix died owning real estate in the District of Columbia assessed at $5,451; three farms in Pennsylvania valued in the petition for probate at $13,800; ten shares of American Telegraph & Telephone stock worth $1,100; personal effects, appraised at $600; and $100 cash. Debts totaled approximately $3,700.

At the time of the institution of the present suit the administratrix had sold the personal effects, appraised at $1,037.50, for approximately $1,200, and had applied this sum to the payment of debts against the estate, except the sum of approximately $585; which she still held unexpended. In her petition in the court below she alleged that the debts exceeded the balance on hand, and the American Telegraph & Telephone stock is the only personalty left belonging to the estate. Of the ten shares, four are pledged as collateral on a $200 note of the testatrix, which is still unpaid. The administratrix asked authorization to sell the ten shares, pay off the $200 note, and apply the balance — approximately $1,400 — to the payment of debts and expenses.

Appellant, Bertha B. Vogel, contested the authority of the administratrix to sell the American Telegraph & Telephone stock and to apply the proceeds to the payment of the debts against the estate, for the reason that she was, by the terms of the will, specifically given "fourteen shares of American Telegraph and Telephone stock." From an order of the court below directing the sale of the ten shares of stock, and the application of the proceeds thereof to the payment of debts of the estate, this appeal was taken.

The third paragraph of the will reads as follows: "I bequeath to my friend Bertha B. Vogel, of the District of Columbia, fourteen shares of American Telegraph and Telephone stock, provided she survives me." The principal question is whether or not this constitutes a specific legacy. It is contended by appellee, and it was held by the court below, that it is a general legacy.

The primary subject of consideration is the intent of the testatrix with reference to this legacy, as it appears from the four corners of the will. Douglass v. Douglass, 13 App.D.C. 21, 28. While it appears to be true that the courts will usually lean toward construing a legacy as general, rather than specific (Kenaday v. Sinnott, 179 U.S. 606, 618 et seq., 21 S.Ct. 233, 238, 45 L.Ed. 339), yet if it clearly appears that the testator's intention is that the legacy shall be specific, such intention must be given effect.

An examination of the will, and especially of the codicil thereto, clearly indicates that appellant was the chief object of the bounty of the testatrix. We think that the will evinces a clear intention on the part of the testatrix to make special provision for the maintenance and comfort of the appellant. In item 4 appellant is given a life annuity, payable quarterly; in item 8 she is given one-eighth of the residue; in the codicil she is further provided for by a life estate in testatrix' farm known as "Londonderry Place." Appellant is referred to in the will as "my friend" and in the codicil as "my dear friend and companion." In addition to the foregoing, appellant is given fourteen shares of American Telegraph & Telephone stock by item 3, here involved.

The reason for the rule above mentioned, that the courts are generally averse to construing legacies to be specific, is stated in Kenaday v. Sinnott, supra, in a quotation from Tifft v. Porter, 8 N.Y. 516, as follows: "The inclination of the courts to hold legacies to be general, rather than specific, and one which the rule is based that to make) a legacy specific, its terms must clearly require such a construction, rests upon solid grounds. The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue. An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator's property being unchanged, instead of upon the continuance of the same feelings which in the first instance prompted the selection of the legatee, requires, as it ought, clear language to convey that intention."

The reason for applying the rule is absent in this instance. Here provision for appellant does not depend solely upon the legacy of fourteen shares of American Telegraph & Telephone stock. Appellant is well provided for during her lifetime by the annuity and the life estate in "Londonderry Place." Suppose appellant had been bequeathed only fourteen shares of American Telegraph & Telephone stock under the will, and it was found upon the death of the testator that she owned no American Telegraph & Telephone stock at all. In that case the courts would be loathe to construe the legacy as specific, and hold that it had been adeemed. But that situation does not exist here. Testatrix made careful and generous provision for appellant, exclusive of the legacy in question. We think that it was testatrix' intention that appellant should, in addition, have, specifically, fourteen shares of American Telegraph & Telephone stock owned by her at the time of her death, or such part of that number of shares as testatrix had not disposed of during her lifetime.

We think the bequest in question meets the requirements of a specific legacy. First, the property bequeathed is separated and distinguished from the other property of the testatrix. Indeed, it appears that the testatrix owned no stock other than American Telegraph & Telephone stock. Second, the testatrix at her death owned ten shares of the stock bequeathed.

Appellee urges that the absence of such words as "my stock" or "the stock now owned by me" indicates that testatrix did not intend to bequeath these shares specifically. The lack of such words is not conclusive. In Baker v. Baker, 319 Ill. 320, 150 N.E. 284, 286, 42 A.L.R. 1514, 1518, the Supreme Court of Illinois said: "It is immaterial whether the property given is described as being part of the testator's estate at the time of making the will, but to be a specific legacy it is essential that the property be owned by the testator at the time of his death, and that it be so described that it can be distinguished from the rest of his estate."

Appellee takes the position that this is a general legacy. Let us suppose that the...