Evans v. Ockershausen

• Decision Date: 31 October 1938
• Docket Number: No. 7062-7065.,7062-7065.
• Citation: 69 App. DC 285,100 F.2d 695
• Parties: EVANS v. OCKERSHAUSEN and three other cases.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 285, 100 F.2d 695 (1938)

EVANS v. OCKERSHAUSEN and three other cases.^*

Nos. 7062-7065.

United States Court of Appeals for the District of Columbia.

Decided October 31, 1938.

Rehearing Denied November 23, 1938.

COPYRIGHT MATERIAL OMITTED

John E. Laskey, of Washington, D. C., for Ella M. Ockershausen.

Thomas F. Burke and G. Bowdoin Craighill, both of Washington, D. C., for Henrietta Kolipinski Evans.

Michael M. Doyle and Frederick A. Thuee, both of Washington, D. C., for Emilie Kolipinski Bucy.

David F. Smith, of Washington, D. C., for Eleanore Kolipinski Smith, guardian ad litem for the Smith infants; and appellant in pro. per.

Austin F. Canfield, of Washington, D. C., guardian ad litem for the Bucy and Evans infants.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

VINSON, Associate Justice.

The construction made by the lower court of the last will and testament of Dr. Louis Kolipinski, deceased, is the subject matter of these several interrelated appeals, filed from a single cause below and argued as one appeal.

We insert below the last will and testament of Dr. Kolipinski.¹

Dr. Kolipinski married Ella M. Kolipinski on August 20, 1902. On November 2, 1910, his 51st birthday, he made his last will and testament. His wife was 19 years his junior. At that time there were six children, ranging in age from 7 months to 7 years, all of whom, with his wife, survived his death on December 15, 1914. From marriage until his death he was a resident of the District of Columbia.

The will of testator was admitted to probate and his wife qualified and acted as executrix thereof. He left real estate in the District of Columbia appraised at approximately $432,000 and personalty inventoried at $39,855.65. During the period of administration the executrix collected all income, including rents, and paid all expenses of maintaining the real estate. Decedent's funeral expenses and just debts, including all taxes, were fully paid.

The executrix turned over to herself as Trustee a fund of $12,000 created for the benefit of Emilie Weiss, a sister of testator, for life; a fund of $20,000 to herself as Trustee to settle and satisfy any claims that might arise against her as Trustee in the management and protection of the real estate; and paid the residue of the personalty, $9,437.34, to herself as residuary legatee. Final account of the executrix was approved and passed. Thereafter she entered upon her duties as trustee under the will, and managed and controlled the real estate and collected the income therefrom arising.

On August 15, 1918, Ella M. Kolipinski was married to one Louis F. C. Ockershausen. At the time of this marriage the eldest child was 15 years of age. No proceedings were instituted for the appointment of a substitute trustee under the will, and she continued to act as such trustee in the management and control of the trust estate. Emilie Weiss died May 28, 1923, and Mrs. Ockershausen thereupon paid to herself individually the $12,000 trust fund set up aforesaid. Henrietta Kolipinski, now Henrietta Evans, second of testator's oldest two living children reached the age of 21 years on September 17, 1925. At that time this daughter was very ill. Mrs. Ockershausen continued to act as trustee in fact of the estate of Dr. Kolipinski after Mrs. Evans attained her majority.

After the death of Dr. Kolipinski, Mrs. Ockershausen used the income of the estate, after paying the expenses of the estate, to maintain the family home, to support herself and her children, to educate them and to provide medical attention; before their respective marriages she gave them spending money and whatever they asked for; after their marriages, in lieu of the spending money, she gave each a regular "allowance", which was increased from $100 a month each to $175 per month each, and on special occasions made gifts to them.

On December 23, 1930, Emilie Kolipinski Bucy and Henrietta Kolipinski Evans (the two oldest children), at the request of their mother, signed and verified a petition, in which they were averred to be trustees of the estate of Louis Kolipinski, deceased, asking authority to accept the offer of the District of Columbia for the purchase of a parcel of real estate. This petition was filed and sale was thereupon duly authorized by the lower court for the sum of $84,000 which was thereafter consummated. A check for $84,000 payable to the order of Mrs. Bucy and Mrs. Evans, trustees, was received by Mrs. Ockershausen and sent by her to her daughters with the request that they indorse it and return it to her. The check was thereupon indorsed by the daughters, as trustees, and transmitted by them to Mrs. Ockershausen, who paid from the proceeds of sale the charges and expenses incident to such sale, and deposited the remainder of the proceeds in savings accounts, at interest.

In 1935, at the request of Mrs. Bucy and Mrs. Evans, Mrs. Ockershausen transferred to them, as trustees, $64,144.22 the remainder of the proceeds of sale, supra, which was on deposit in banks. On December 31, 1935, under order of the lower court, Mrs. Ockershausen turned over to her daughters, Mrs. Bucy and Mrs. Evans, as trustees, the active management and control of the trust estate, and formally delivered to them as such substituted trustees all of the real estate of the trust estate then in her possession.

On September 25, 1935, Mrs. Ockershausen filed her bill in the lower court, naming her four children and seven grandchildren (made parties defendant by amendment) as defendants, and prayed (1) that the court construe the will of Dr. Kolipinski, deceased, and determine her rights and the rights of the defendants thereunder in and to the income of decedent's estate; and (2) that the court construe the will with reference to her right to the principal of the trust funds of $12,000 and $20,000. Answers or cross-bills were filed by all defendants, the minor children being represented by guardians ad litem.

On June 15, 1936, the lower court, Mr. Justice Bailey, filed an opinion, and on June 22, 1936, filed an order in the cause which decided that Mrs. Ockershausen was entitled in her own right, during her life to the net income of the trust estate created by the will of Dr. Kolipinski, and that her children had no right to any part of this income until after her death; that Mrs. Bucy and Mrs. Evans, trustees, must pay over to Mrs. Ockershausen, in her own right, all the net income of and from the trust estate created by the will of Dr. Kolipinski; that the fund of $20,000 was a part of the trust estate created by the will; that the fund of $12,000 belonged absolutely to Mrs. Ockershausen in her own right; and referred the cause to the Auditor of the lower court for an accounting by Mrs. Ockershausen of the corpus of the trust estate, for the receiving of testimony and the making of recommendations as to the fees and allowances, if any, to be made out of the trust estate to the guardians ad litem for the infant defendants, and to counsel for the adult parties to the cause, and for the reporting of the account and recommendations and the evidence taken to the court. The cause was continued to await this report.

On November 27, 1936, several of the infant defendants, by their guardian ad litem, filed a motion requesting the Auditor to make special findings and conclusions, on the evidence, of depreciation and obsolescence of the properties which comprised the trust estate. The Auditor failed to comply with the requested motion, and duly filed his report on May 19, 1937. Exceptions were filed with the lower court because of the failure of the Auditor to make the requested findings; and, also, to the findings and conclusions of the report.

On July 12, 1937, the lower court, Mr. Justice O'Donoghue, entered a final decree, in accordance with the foregoing opinion filed on June 15, 1936 and order filed on June 22, 1936. This final decree held substantially the same as the prior one, and in addition overruled the exceptions to the Auditor's report filed in the case on May 19, 1937, and the motion to remand to the Auditor. It approved and confirmed the report of the Auditor; and held that Mrs. Ockershausen was indebted to the substitute trustees in the amount of $19,120.60, for which they were given execution as at law. The decree also directed the substituted trustees to pay from corpus to counsel for Mrs. Ockershausen $5,000, to counsel for the trustees $3,000, and to each of the two guardians ad litem of the minor remaindermen $2,000.

Numerous exceptions were taken by and allowed to the several parties to this final decree. These exceptions present the following questions to be decided in this opinion:

1. Is Mrs. Ockershausen entitled during her lifetime to the income of the real estate trust?

2. Is the fund of $12,000 set up in trust for testator's sister payable to Mrs. Ockershausen, as residuary legatee?

3. Is the fund of $20,000 set up in trust for the wife, as trustee, to protect against claims and damages, a part of the real estate trust?

4. Is the expenditure for electric refrigerators, the tax on capital gains, and the special assessments for street paving chargeable to corpus or income therefrom?

5. Was there a duty upon the trustee to set up a reserve for depreciation of the real estate?

6. Is David F. Smith, husband of Eleanore Kolipinski Smith, properly dismissed as counsel for his wife and does he have an attorney's lien against the wife?

(1) This will must be interpreted so as to effectuate the true intent of the testator as expressed in the will. This is the primary and basic rule to which all others must yield. Smith v. Bell, 6 Pet. 68, 74, 31 U.S. 74, 8 L.Ed. 322. It is not to be construed by isolated expressions, but must be construed in its entirety. Further it is true that "In determining the intent of the testator, little aid is derived from a resort to formal rules or a consideration of...