Armstead v. Union Trust Co. of the District of Columbia, 5767.

• Decision Date: 31 October 1932
• Docket Number: No. 5767.,5767.
• Citation: 61 F.2d 677,61 App. DC 269
• Parties: ARMSTEAD et al. v. UNION TRUST CO. OF THE DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 269, 61 F.2d 677 (1932)

ARMSTEAD et al. v. UNION TRUST CO. OF THE DISTRICT OF COLUMBIA et al.

No. 5767.

Court of Appeals of the District of Columbia.

Argued October 7, 1932.

Decided October 31, 1932.

John U. Gardiner, of Washington, D. C., for appellants.

B. S. Minor, H. P. Gatley, A. P. Drury, G. E. Hamilton, J. J. Hamilton, G. E. Hamilton, Jr., H. R. Gower, and W. H. Holloway, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District construing the will of Albert Sewell Kenny.

Item 2 of the will directs the payment of debts and funeral expenses.

By items 3 and 7 certain specific devises and bequests are made.

Items 4, 5, and 6 bequeath pecuniary legacies as follows: To Hester Armstead, $1,000; to Emma Jackson Belt, $500; to Annie T. Smith, $500; and to Mary A. McCollom, $2,500.

Item nine reads:

"Whereas there will be found, among the securities belonging to me, certain certificates of common stock of the United States Steel Corporation; and

"Whereas there will be money due from my estate for funeral expenses, taxes, executor's fee, minor household bills, and for debts owing by me, and for certain bequests in items four, five, and six of this will,

"Now, therefore, I direct my executor to sell the certificates of stock standing in my name in the United States Steel Corporation (or such portions thereof as may be necessary), for the purposes hereinafter indicated, and to use the proceeds from such sale, together with all dividends which may be paid on all stock belonging to my estate prior to the final settlement thereof, including such stock as may be specifically bequeathed by this will, and also any balance at the time of my death standing to my credit in my checking account in the Union Trust Company, for the payment of my just debts, funeral expenses, taxes, executor's fees, minor household bills, and the pecuniary bequests heretofore designated, and after the foregoing I direct that the total residue of this fund remaining shall be given outright to my niece, Mary A. McCollom, in further recognition of her untiring devotion to my interest.

"Should there remain unsold any stock of the United States Steel Corporation, I desire the certificates transferred on the books of said corporation to my niece, Mary A. McCollom."

The testator's death occurred in 1930. By the time the executor was ready to file its final account in April, 1932, the stock directed to be sold under item 9 had so depreciated in value that there were not sufficient funds to pay all the debts, funeral expenses, taxes, executor's fee, and the pecuniary bequests in items 4, 5, and 6. Thereupon the executor filed the petition herein, seeking instruction as to whether the pecuniary legacies set out in items 4, 5, and 6 are general legacies and must abate and bear the whole burden of the deficiency in assets, or whether such legacies are demonstrative and, together with the specific legacies, abate pro rata.

The court below found and decreed that the legacies bequeathed by items 4, 5, and 6 are general and are not by item 9 converted into...