Fairclaw v. Forrest

• Citation: 130 F.2d 829
• Decision Date: 04 August 1942
• Docket Number: No. 7909.,7909.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: FAIRCLAW v. FORREST.

130 F.2d 829 (1942)

FAIRCLAW v. FORREST.

No. 7909.

United States Court of Appeals for the District of Columbia.

Decided August 4, 1942.

Mr. Philip W. Thomas, of Washington, D. C., with whom Mr. Thomas W. Parks, of Washington, D. C., was on the brief, for appellant.

Mr. Richard E. Shands, of Washington, D. C., for appellee.

Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

At her death in January, 1939, Mable Pryor owned real estate in Washington known as 120 U Street Northwest. The only question is whether this property passed by her will to appellee, her brother and residuary legatee, or descended as intestate property to him and her niece, the appellant, as heirs at law. The trial court dismissed appellant's complaint to have the will construed in her favor and the property partitioned. We think this was right.

In 1926 the property was conveyed to Mable Pryor and her husband, Harry C. Pryor, as joint tenants in fee simple. They remained so seised until he died in 1933. From that time she continued as sole owner until her death in 1939. Her only surviving heirs were appellant, appellee and another brother, Samuel Forrest, who died in June, 1939. Appellant and appellee have succeeded to his estate as his heirs.

Mable Pryor's will was executed in 1928. It was not changed thereafter or republished. After specific bequests, the will provided:

"Seventh, I have purposely excluded my husband from any benefits under this my Last Will and Testament for the reason that all of the real estate in which I am interested is held in joint tenancy between him and me, and all of my earnings for the past twenty-five years have gone into said real estate, which will go to him in the event he survives me;

"All the rest and residue of my estate, both real, personal and mixed, I give, devise and bequeath to my brother, John Forrest, to him and his heirs and assigns forever, share and share alike, as tenants in common." (Italics supplied)

At her death Mable Pryor was sole owner of the premises. The residuary clause is broad enough to include them and all other property not otherwise disposed. Nothing in the will excludes the U Street property or indicates intention to do so. On the contrary, it purports to make complete disposition of her estate. She provided for payment of debts and funeral expenses. She made specific bequests. In these she was generous to appellant, then Mable Swales. She purposely excluded her husband and stated the reason. Then she gave appellee all her remaining property, including realty. The will leaves no room to infer she intended anything to pass as intestate estate.

No such intention concerning this property can be drawn from the item excluding her husband. The purpose was to show that other provision for him had been made. For twenty-five years testatrix' earnings had gone into realty they held jointly. She had no other real estate. There is nothing to show she expected to acquire or hold any in sole ownership, except by surviving him. There were two contingencies, therefore, in light of which the will was drawn, not merely one as appellant contends. One was that the husband would survive the wife. In that event by right of survivorship he would become sole owner. The property would not pass under the will. But all other, whether real or personal, would go according to the testamentary disposition. The other contingency was that the wife would survive the husband. In that case she would become sole owner of the realty and upon her death it would fall into the residuary estate. Considering the situation in which the will was drawn, it is fair to conclude that the very purpose of mentioning realty in the residuary clause was to bring within the residuary estate and devise to appellee the premises in question, as well as any the testatrix might acquire in sole tenancy by surviving her husband or otherwise. She had no other realty. In view of her lifetime practice, it was improbable she would become sole owner in any other way. From the fact the will could not dispose of this property in case of the husband's survival, it does not follow she intended it should not do so if she should survive. The husband, not the property, was excepted from the will's provisions. So far as intention and its testamentary expression could accomplish it, the premises were devised to appellee.

The will was executed after the testatrix and her husband acquired the property and before his death. From this fact appellant erects two arguments. One is that the intention to devise did not exist, the other that it cannot be given effect. The former is actually a version or variant of the latter, to which we therefore turn.

Counsel ably presents appellant's thesis in a series of syllogisms based upon the common-law unity of husband and wife and its particular, perhaps extreme, expression in the tenancy by the entirety. Briefly, the argument is as follows.

The conveyance to Harry and Mable Pryor made them tenants by the entirety. Settle v. Settle, 1925, 56 App.D.C. 50, 8 F.2d 911. Her will, executed while this estate continued, could not devise it. Harry Pryor's death gave her no new estate or right of property. It merely freed the realty from his participation, and she continued to own and be possessed of the entire estate, not by virtue of any right or interest acquired as survivor, but by virtue of the original grant. The will speaks concerning the realty it purports to devise as of the date of its execution or republication, not as of the time of death unless a statute provides the contrary. McAleer v. Schneider, 1894, 2 App.D.C. 461; Bradford v. Matthews, 1896, 9 App.D.C. 438, 442. There is no applicable statute here, where the will was made after the property was acquired. Section 45 of Title 29, D.C.Code (1929) Section 19 — 205, D.C. Code (1940), provides only for the passing of after-acquired property by general words of devise. No property here was after-acquired because by the death of Harry Pryor the testatrix acquired no new or additional interest within the section's meaning. If her intention is material, she must be presumed to have known the law (as counsel states it) and therefore intended the property to descend intestate. Section 45, upon which much of the argument is constructed, in material part is as follows: "* * * any will executed after Jan. 1, 1902, which shall by words of general import devise all the estate or all the real estate of the testator shall be deemed, taken, and held to operate as a valid devise of any real estate acquired by said testator after the execution of such will, unless it shall appear therefrom that it was not the intention of the testator to devise such after-acquired property."

Appellant's argument may be stated in two ways. One is in terms of an interest in realty which is not alienable, hence not devisable. In other words, the will is inoperative to devise the property because neither tenant had an interest capable of being transferred during the existence of the tenancy. Hence, as to the interest which each had, though it included the entire estate, the will or other instrument of alienation was void. In this conception, discussion of Section 45 and after-acquired property is beside the issue. The defect in the will is not want of after-acquisition, but want of devisable interest or estate. It is immaterial whether the property is pre- or after-acquired.

The other conception casts the argument in terms of after-acquired property. This involves two prongs, first, that the testatrix acquired the entire estate and every interest capable of transfer by virtue of the original grant which created the tenancy and was made before the will was executed; second, she acquired nothing which the will could transmit by virtue of her husband's death. It is not denied that after the death of one the survivor stands in a different relation to the property than before it. Instantly it occurs, he may sell, mortgage, encumber, devise or give it away. His heirs may take it as intestate estate. He has, and can exercise, all the rights of an owner in fee simple, whereas beforehand he was limited to use and possession, with possibly some contingently effective powers. Yet all this is attributed to the original grant. Death is the mere contingency which makes it effective. It is not of itself an event of transmission or creation, as it is in almost every other context of descent or devise. Consequently all the death does is to "free the estate from the decedents' participation"; the survivor "acquires no new estate or interest," but "continues merely to hold and be possessed of the entirety from the date of the original grant." There is no "new devisable interest," hence no after-acquired property. Such is the potency of words.

Appellant, however, admits that the property would pass under the will (1) if the original grant had been made after the will was executed; or (2) if the will had been executed or republished after the death of the husband. Only when it is executed during the continuance of the entirety is it inoperative. The concession, we think, nullifies the argument.

If the interest of a tenant by the entirety is not devisable or alienable, it is so because that is an incident of the estate, not because the will is made before or after the grant which creates the tenancy. Yet appellant concedes the interest is devisable if the will is executed before the grant is made. This she does in view of Section 45. It cannot be denied that the testatrix acquired an estate in the property, whether by the grant, by the death of her husband, or by both. Hence appellant is forced to concede the section would apply if the will had been made first. Then acquisition of the estate would have made it "after-acquired" property, and the section provides in such a case that a will "which shall by words of general import devise all the estate or all the real...