Hall v. Killingsworth, 13837.

• Decision Date: 27 February 1958
• Docket Number: No. 13837.,13837.
• Citation: 253 F.2d 43,102 US App. DC 307
• Parties: Wesley HALL, Jr., Appellant, v. Laura A. KILLINGSWORTH and Yeolen S. Thomas, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

102 US App. DC 307, 253 F.2d 43 (1958)

Wesley HALL, Jr., Appellant, v. Laura A. KILLINGSWORTH and Yeolen S. Thomas, Appellees.

No. 13837.

United States Court of Appeals District of Columbia Circuit.

Argued December 12, 1957.

Decided February 27, 1958.

Mr. Arthur L. Willcher, Washington, D. C., with whom Mr. Eugene H. Rothberg, Washington, D. C., was on the brief, for appellant. Mr. Sol Rothbard also entered an appearance for appellant.

Mr. James C. Toomey, Washington, D. C., with whom Mr. Walter E. Gillcrist, Washington, D. C., was on the brief, for appellees.

Before EDGERTON, Chief Judge, and DANAHER and BURGER, Circuit Judges.

PER CURIAM.

The named trustees of a purported testamentary trust of realty applied to the District Court for instructions as to the construction of the will of Helen Penn Pender, deceased. The District Court held that the paragraph purporting to create a trust was void because it named no beneficiary, devised no trust object, and gave complete discretion to the named trustees to manage, operate or sell the realty. The District Court considered "it would not do to strike down the clause creating the trust and then construe the first clause of Paragraph 6 as a devise in fee simple absolute." The court concluded that "there is an intestacy as to the real property referred to in Paragraph 6 of the will * * *."

No task falling to a court, trial or appellate, is more perplexing or productive of less satisfying consequences than that of attempting to construe inartfully drawn wills; but few tasks impose on courts a greater obligation to do all in their power to discern the intent of the testator. As this court described that duty in an earlier opinion, we are to do this "by construction of the whole will and not from detached paragraphs; and where the intention is apparent, it should be given effect — and this is true — even though to do so involves the rejection of the literal meaning of particular words."¹ In this case we need not reject the literal meaning of particular words but only decide whether the plainly identified beneficiaries shall take the testatrix' bounty in trust or in fee.

Taking account of the will as a whole and then examining Paragraph Sixth,² we discern an intent to create a trust for the benefit of five named persons, Hubert A. Penn, Thirkield Penn Kelley, Phoebe Z. Penn, Wesley Hall, Jr., and Sinkler B. Penn, and to confer benefits in the nature of remainder interests on four named persons, Hubert A. Penn, Thirkield Penn Kelley, Wesley Hall, Jr., and Sinkler B. Penn, if the property is sold because the income therefrom is not sufficient to pay the principal and interest on existing mortgages. The named trustees had full power to sell; it is suggested that the rents and income received were not adequate to carry or pay the principal and interest on the deed of trust and it appears that the realty has been sold by order of the Probate Branch and is awaiting settlement at the title company.

The testatrix and the clearly and plainly discernible objects of her ultimate bounty should not be made to suffer the consequences of the almost incredible ineptitude of the lawyer who undertook to draft what was vaguely thought to be a testamentary trust. Unsatisfactory as it may be, we think it better to give effect to what we can see clearly as 80% of the testatrix' intent rather than none at all. The circumstances do not call for an all or nothing result. By its four corners the document discloses as its unmistakable objective the creation of something in the nature of a trust in realty, with five named persons privileged to live on the premises, and an ultimate disposition of the proceeds of that realty to four of those five...