In re Estate of Kerr

• Decision Date: 13 February 1970
• Docket Number: No. 22603.,22603.
• Citation: 433 F.2d 479,139 US App. DC 321
• Parties: In re ESTATE of Florence Voelzel KERR, a/k/a Florence V. Kerr, Deceased. Ralph L. ATCHISON, Administrator, C.T.A. v. Lucille Voelzel HALL, Gustave W. Voelzel, Jr., Bernice Reed Evans, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 321, 433 F.2d 479 (1970)

In re ESTATE of Florence Voelzel KERR, a/k/a Florence V. Kerr, Deceased Ralph L. ATCHISON, Administrator, C.T.A. v. Lucille Voelzel HALL, Gustave W. Voelzel, Jr., Bernice Reed Evans, Appellant.

No. 22603.

United States Court of Appeals, District of Columbia Circuit.

Argued May 2, 1969.

Decided February 13, 1970.

Petition for Rehearing Denied March 18, 1970.

Mr. Donald B. Robertson, Washington, D. C., with whom Mr. Richard S. T. Marsh, Washington, D. C., was on the brief, for appellant Evans.

Mr. Edmund D. Campbell, Washington, D. C., with whom Messrs. Jaquelin A. Marshall and Stuyvesant K. Bearns, Washington, D. C., were on the brief, for appellees.

Before BURGER^*, TAMM and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Florence Voelzel Kerr, an attorney, died on April 18, 1966, domiciled in the District of Columbia.¹ She left a considerable estate in personalty,² and a will, dated November 12, 1946, which has been admitted to probate in the District. By that will, the testatrix made small bequests to Charles H. Voelzel, her brother, and Boswell F. Reed, her "esteemed friend,"³ and, for her only other disposition, directed

that all the rest of my estate, whether real, personal or mixed, of which I die seized, possessed, or entitled, whether now owned by me or hereafter acquired, and whereever sic found or situated, be divided equally between my brother Charles H. Voelzel and my esteemed friend Boswell F. Reed, if they both be living at the time of my demise and if one shall have predeceased me then all of my estate to the one remaining.

As time marched on from the execution of the will, the testatrix was predeceased by each of the two beneficiaries she designated therein. Boswell F. Reed died on November 15, 1952, leaving a daughter, the appellant, who is his only issue surviving the testatrix. Charles H. Voelzel died on December 12, 1962, without issue. At the testatrix' death, her next of kin were the appellees, children and sole issue of Gustave W. Voelzel, a brother of the testatrix pretermitted by her will, who had died on January 6, 1962. So it was that a contest over the residuary estate⁴ took shape with the issue of the non-relative whom the testatrix named as a legatee on one side and, on the other, the testatrix' next of kin whom, as well as their ancestor-relative, the will totally ignored.

Appellant, as sole surviving issue of the only residuary legatee having issue, stakes her claim on the District of Columbia antilapse statute,⁵ which preserves a testamentary settlement on a beneficiary predeceasing the testator for the beneficiary's issue surviving the testator "unless a different disposition is made or required by the will."⁶ Appellees, as next of kin of the testatrix, contend that the bequest of the residuum was conditioned upon survival of the testatrix by at least one of the named beneficiaries, with the result that a different disposition — intestate devolution — of the residuum is a consequence inevitable from the terms of the will.

Such were the opposing positions in the District Court, whose authority to construe the will was invoked on petition by the personal representative⁷ for guidance. In the court's view, the residuary clause made survivorship of the testatrix a condition precedent to any sharing thereunder, and that circumstance rendered the antilapse statute inapplicable. The court accordingly granted judgment on the pleadings directing distribution of the residuary estate under the District's intestacy laws⁸ to appellees as the testatrix' next of kin. We modify the judgment slightly,⁹ and affirm it as modified.¹⁰

I

Absent both a controlling statute and a contrary intention manifested by the will,¹¹ well settled rules ordinarily seal the fate of a testamentary interest sought to be conferred upon one who predeceases the testator. A devise or bequest to a single beneficiary lapses upon his death prior to that of the testator.¹² Similarly, the death during the testator's lifetime of one of two or more beneficiaries slated to take otherwise than as a class¹³ or as joint tenants¹⁴ lapses the interest of the deceased beneficiary.¹⁵ The residuary bequest before us plainly contemplated a non-class gift¹⁶ which, in our view, the legatees were to share not as joint tenants but as tenants in common,¹⁷ if ensuing events made possible any sharing at all. Just as plainly, the language of the residuary clause, of its own force, interposed no barrier to lapse.

Our antilapse statute provides, however, in relevant part that

Unless a different disposition is made or required by the will, if a devisee or legatee dies before the testator, leaving issue who survive the testator, the issue shall take the estate devised or bequeathed as the devisee or legatee would have done if he had survived the testator.¹⁸

Boswell F. Reed, one of the residuary legatees, predeceased the testatrix but left a child, the appellant, who has survived her. The antilapse statute, as we have previously held, applies to gifts of the residuum as well as to other devises and bequests contained in the will.¹⁹ Thus we are brought to the question, crucial to determination of the conflicting claims to the residuum, whether "a different disposition than to appellant is made or required by the will, * *."²⁰

As an expedient to mitigate the rigors of common law doctrine,²¹ the antilapse statute is to be interpreted liberally with a view to attainment of its beneficent objective.²² To render the statute inoperative, a purpose inconsistent with that objective must fairly appear,²³ and from the terms of the will itself.²⁴ In final analysis, however, the statute furnishes but a rule of construction to pilot the decision where the will indicates little or nothing of the testator's desires on lapse.²⁵ Where, on the other hand, the will reflects a countervailing intention with reasonable clarity, the statute does not save the gift from lapse.²⁶

Such an intention is manifested, and plainly so, where the will articulates the gift in words effectively conditioning its efficacy upon the beneficiary's survival of the testator.²⁷ If, in such a situation, the beneficiary predeceases the testator, the statutory bar to lapse and the concomitant substitution of issue in the beneficiary's stead are at war with the testator's purpose that the gift shall take only in the event that the beneficiary outlives the benefactor. Not at all surprisingly, then, the cases teach that antilapse legislation has no application to gifts limited to vest upon the beneficiary's survival of the testator and not otherwise.²⁸ It matters not, in this connection, whether the gift is to a single²⁹ or to multiple³⁰ beneficiaries, or whether there is³¹ or is not³² a limitation over to another upon the death of the primary beneficiary during the lifetime of the testator.

Words referable to survivorship do not, however, necessarily condition a testamentary gift or, when they do, necessarily impose a condition of survival of the testator. They may, on the other hand, only describe the beneficiary,³³ or the time at which he will begin to enjoy the estate given.³⁴ In that event, the gift confers, not a future interest, but one presently vested, postponing at most only the right to its possession.³⁵ Even if the gift is conditioned on survival, the condition is not necessarily survival of the donor, as distinguished from someone else. Where the gift is to more than one person, it may refer simply to survival inter sese;³⁶ whether or not the gift is single, it may refer only to survival of a third person.³⁷ The construction properly to be placed on the survivorship language is, of course, a product of testorial intention.³⁸

It is important, too, in this connection, to bear in mind the fundamental difference between gifts that are inter vivos and those that are testamentary in character. Inter vivos gifts, by definition, vest some interest in some donee at some point in the donor's lifetime. A testamentary gift, again by definition, never becomes operative until the testator's death. While in the case of the former the purpose may possibly be to vest the interest during the donor's lifetime, although with possession deferred until after his death, such a contruction is never possible if the disposition is testamentary in character. Thus words that at first blush connote survival of the testator may on closer scrutiny be found to have been intended to refer only to the time at which, in the natural course of events, the beneficiary expectably will begin to enjoy the estate.

II

In the case at bar, the will specifies that the residuary estate is to "be divided equally between" the two beneficiaries named "if they both be living at the time of my demise" and, alternatively, "if one shall have predeceased me then all of my estate to the one remaining." It is against these provisions that we are summoned to measure the reach of the antilapse statute with a view to determining whether it furnishes the solution to the problem at hand. At the outset, we find it profitable to analyze a decision treating an almost exactly parallel situation.³⁹

That decision is In re Wintermute.⁴⁰ A testatrix bequeathed her residuary estate to two sisters, Susanna and Marilda, to be divided equally between them, but with the further provision that "in case at the time of my decease either one of my sisters as aforesaid should not be living then it is my will and I do hereby give the whole of my estate to the one surviving."⁴¹ Both sisters predeceased the testatrix. Susanna, who married and died first, left a son, but Marilda was totally without issue. The court recognized that the New Jersey antilapse statute would have applied to the residuary clause had the testatrix not inserted the survivorship language.⁴² On examination of that language, however, the court was "struck at once by the evident intent that it is survivorship...