Brinker v. Humphries, 11047.

• Decision Date: 31 January 1952
• Docket Number: No. 11047.,11047.
• Citation: 194 F.2d 350,90 US App. DC 180
• Parties: BRINKER et al. v. HUMPHRIES et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 180, 194 F.2d 350 (1952)

BRINKER et al. v. HUMPHRIES et al.

No. 11047.

United States Court of Appeals District of Columbia Circuit.

Argued December 12, 1951.

Decided January 31, 1952.

Ralph A. Ricketts, Washington, D. C., with whom Henry E. Manghum, Washington, D. C., was on the brief, for appellants.

Richard B. Kelley, Washington, D. C., for appellees.

Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

In this case we are asked to decide whether assets from the sale of certain real property shall go to named legatees under the disputed provisions of a will or to the next of kin by intestacy. The trial court ruled in favor of appellees, the next of kin, and the legatees brought this appeal.

The real property in question was the subject of alternative provisions of the will. Paragraph Second stated that, in the event the testatrix should predecease her husband (who was an invalid) and he should continue disabled, it was her "sincere desire" and she therefore requested that her sister "make arrangements for his care during the remainder of his life, using for that purpose moneys which may be derived from the renting or leasing" of the real property. Paragraph Third conveyed this real property to the sister if she should survive the testatrix "subject, however, to a life estate in my said husband if he survive me." Paragraph Fourth conveyed the realty to the sister absolutely "in the event that my said husband shall predecease me." The next paragraph, Fifth, which is the subject of this dispute provides: "In the event that both my said husband and my said sister predecease me, then I direct that the aforesaid real property be sold and the proceeds realized therefrom be distributed as follows * * *." (Italics supplied.) Those named are a friend, several second cousins, two grandsons of her husband, and a church, and constitute all of the appellants herein. Paragraph Sixth names the sister only as residuary legatee.

It is clear enough from all the provisions of the will that the testatrix' primary concern was for the welfare of her invalid husband. To that end she sought to preserve the real estate intact as a means of insuring his care and maintenance after her death. This purpose vanished, however, for shortly after the execution of the will the husband died. In 1945, the year following his death, she sold the real estate and deposited the net proceeds of $8,988.83 to her credit in a bank account. There is no dispute as to what became of this money. At her death in 1949, there remained from these funds $7,764.50 in stocks, bonds and cash. Of the difference, she had expended $854.44 "for her own purposes" and $369.89 "on account of her Civil Service Retirement and Disability Fund." In September 1946, more than a year after the real property was sold, the testatrix' sister died without issue. Her death rendered the residuary clause of the will inoperative and left appellants as the only remaining named objects of her testamentary bounty.

The parties' contentions, briefly, are these. The next of kin urge that testatrix intended the legatees to take only if they survived the husband and sister and if testatrix died possessed of the realty. The legatees, on the other hand, argue that testatrix intended them to take the proceeds whether or not she possessed the realty on her death, provided only that the husband and sister had predeceased her.

Our task, of course, is to ascertain and give effect to the testatrix' intent. In so doing, we must look at the entire will in the context of the problems faced by testatrix when she drew it. As we have already indicated, the testatrix' dominant purpose appears to have been to keep the property intact so long as income was required to assure the care and maintenance of her invalid husband. But she was also concerned for the welfare of her "beloved sister." To provide for both, she willed this property to her sister with a life estate to her husband, but to her sister absolutely in the event that her husband predeceased her sister. Then, in an apparent effort to envelop all the discernible contingencies within her then-existing horizon, she (1) made her sister the residuary legatee, and (2) added the disputed Fifth paragraph to take effect should testatrix survive both sister and husband. Laymen might well say that the testatrix intended to dispose of all her property under all the conditions she could then foresee. Not once, however, among all those mentioned specifically, did she mention the three next of kin who now claim that she intended them to take the bulk of her estate.

As so often happens, despite the seeming care and precision with which the will was drawn, the testatrix' basic purpose was subject to being frustrated by other unanticipated events, in addition to the one before us. First, if the sister had predeceased the testatrix and the invalid husband was still living at the testatrix' death, there would have been no express provision for him. Only by finding that the will created a trust with a life estate for the husband's benefit would a court have been able to protect him. And, second, if after the testatrix sold the property, she had predeceased her sister, the question of whether the proceeds would pass to the sister as residuary legatee or to the appellants under paragraph Fifth could have presented a problem of ademption similar to the one now before the court. These instances do not, however, cast doubt on testatrix' intent, for it could not have been reasonably urged in these cases...