Mead v. Phillips

• Decision Date: 30 April 1943
• Docket Number: No. 8149.,8149.
• Citation: 135 F.2d 819
• Parties: MEAD v. PHILLIPS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

135 F.2d 819 (1943)

MEAD v. PHILLIPS et al.

No. 8149.

United States Court of Appeals for the District of Columbia.

Decided April 30, 1943.

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Mr. Arthur J. Hilland, of Washington, D. C., with whom Mr. DeWitt S. Hyde, of Washington, D. C., was on the brief, for appellant.

Mr. Arthur C. Keefer, of Washington, D. C., with whom Mr. Arthur Peter, of Washington, D. C., was on the brief, for appellees.

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

MILLER, Associate Justice.

Thomas Newkirk Phillips, in his will, bequeathed his household furniture and furnishings and personal effects and jewelry to his wife Mary Elizabeth Phillips, during her life, and thereafter to his two sisters. All the rest of his estate he devised and bequeathed to his sister Katharine and the Washington Loan and Trust Company, in trust, (1) to pay the net income to his sister Katharine, to be used by her for the care of his wife during her life; (2) to use part of the corpus of the trust for the same purpose, if this became necessary; (3) upon the death of his wife, the corpus of the trust and accrued income to be distributed to his two sisters; (4) with further provision for distribution to the issue of these sisters, or to the survivor, or to his brothers, or to their issue, in various eventualities. At the time of Phillips' death on February 21, 1935, his wife was mentally and physically incompetent, unable to read, write or talk; helpless, and unable to make known any of her wants or desires. She remained in that condition until her death on January 28, 1940. Needless to say, she did not file a renunciation of the bequest contained in her husband's will. On April 19, 1935, the probate court appointed a guardian ad litem to represent the incompetent widow.¹ On May 1, 1935 he filed an answer in which he consented to the granting of letters to the executors named in the will. On May 15 the will was admitted to probate, and letters were granted to Katharine Phillips and the Washington Loan and Trust Company. On June 24, 1935 a fee of $75 was awarded to the guardian ad litem. He made no further appearance and the incompetent widow was unrepresented from that time forward, except by the executors and trustees, until September 23, 1935, when Katharine Phillips — sister of the testator, a beneficiary under the will, one of the executors, and a trustee of the trust created by the testator — was appointed and qualified as trustee of the estate of the incompetent widow. Neither she nor the guardian ad litem ever requested action by an equity court to exercise, on behalf of the incompetent, the power of renunciation, or to determine in what manner her interests could be best protected, in that respect.

Following the death of the incompetent, appellant was appointed administratrix of her estate. In that capacity she sued to recover the widow's share of her husband's estate, and to recover the widow's property and damages from the trustee of the estate of the incompetent. In her complaint she alleged that it was the duty of Katharine Phillips, as trustee of the estate of the incompetent, to apply to a court of competent jurisdiction for an order electing, on her behalf, "between the supposed provision made for her in the last will and testament of her deceased husband, Thomas Newkirk Phillips, and the distributive share of his estate which she would have received had he died intestate, * * *." Among other things, she asked, by way of relief: "That the Court assert and establish the rights of said Mary Elizabeth Phillips, and of her estate, the same as though she or a Court of competent jurisdiction on her behalf had asserted and established her rights in the estate of her deceased husband, Thomas Newkirk Phillips, within the statutory limitation." The court granted appellees' motion to dismiss the complaint, without opinion. On this appeal they contend that: 1 an election by the widow was required; 2 the death of a mentally incompetent wife terminates her power of election; 3 the power of election does not pass to her legal representatives; 4 equity has no jurisdiction to make an election in her behalf after the statutory period of six months and the death of the widow; 5 Katharine Putnam Phillips, as executrix and trustee under the will of Thomas N. Phillips, was trustee for the wife, as well as for every other legatee; to say that she, as trustee for Mrs. Phillips, was charged with the duty of instituting proceedings by which the will would be rendered inoperative would be to charge her with antagonistic duties so conflicting as to be almost irreconcilable with faithfulness of her performance: under the law, she, as executrix and trustee, was bound to maintain the will; 6 if appellant or any of the next of kin of Mary Elizabeth Phillips had desired, they could have filed a bill requesting the Court to elect between conflicting or antagonistic claims; but no such duty devolved upon Katharine Putnam Phillips; 7 even had the Court been called upon to decide the question, in view of Mrs. Phillips' mental condition, and especially because of the ample and liberal provisions made for her in her husband's will, the provisions of the will would have been elected for her, since they were indubitably designed for her personal interest, welfare, and advantage.

Section 18 — 210 of the District of Columbia Code² provides that a devise of land or bequest of personal estate to the wife of the testator shall be construed to be intended in bar of her dower in lands or share of the personal estate, respectively, unless it be otherwise expressed in the will. Section 18 — 211 of the Code³ provides that a widow shall be barred of her right of dower and share in the personal estate by such a devise or bequest, unless, within six months after administration may be granted on her husband's estate, she shall file, in the probate court, a written renunciation. But the bar is not an absolute one. Thus Section 18 — 211 also specifies that if, during the six months' period following the granting of administration, a suit should be instituted to construe the will of the husband, the six months allowed for filing a renunciation shall not commence to run until the date when such suit shall be finally determined. And Section 18 — 214 of the Code⁴ provides that, if in effect nothing shall pass by such a devise in the will of her husband, the widow shall not be barred, whether or not she renounce, it being the intent of the statute "that a widow accepting or abiding by a devise or bequest,⁵ in lieu of her legal right shall be considered a purchaser with a fair consideration."⁶ Italics supplied.

In Cahill v. Eberly⁷ this court decided that the power of election by a competent widow is personal; hence, that it does not survive her death. That case did not involve the question whether the death of an incompetent widow also terminates the power; and that is the question which must be decided in the present case. An incompetent widow cannot, personally, make the election which is involved in a renunciation.⁸ Nevertheless, a court of competent jurisdiction can exercise the power, in her behalf, during the statutory period⁹ or thereafter, prior to her death.¹⁰ So far the authorities are substantially in accord. They are in conflict upon the question whether such a court can exercise the power, in her interest, after her death. A numerical majority of reported cases hold, or suggest, that it cannot.¹¹ The better reasoned cases support a contrary conclusion.¹²

A number of the cases which swell the numerical majority decide no more than that the power of renunciation is personal to the widow; hence, that it does not descend to her representative; consequently, that it cannot be exercised in her interest by such a representative.¹³ But the question now under consideration is an entirely different one, namely, whether a court of equity can exercise its power in her behalf; and what result will follow if no election is made in her interest. The widow's representative cannot even act in her behalf, during her lifetime and during the statutory period, except with permission of the court,¹⁴ or unless the statute confers the power.¹⁵ It is significant, in this respect, that Harding's Adm'r v. Harding's Ex'r,¹⁶ one of the cases upon which appellees rely, was followed, eight years later, by another decision of the Court of Appeals of Kentucky, which made this distinction clearly; and held that an infant, under circumstances similar to those of the present case, was not precluded from contesting the will after her incapacity had ended.¹⁷

This court has declared the long established policy of the law to be the protection of the wife and the securing to her of a reasonable portion of her husband's estate.¹⁸ In so doing, it relied upon the early decisions of the Maryland courts, particularly Coomes v. Clements.¹⁹ In that case the court said:²⁰ "* * * it was the common law of England, at the colonization of Maryland, or the grant of the charter to Maryland, and long antecedent to that time, that a widow was entitled to her reasonable part of the goods of her husband, his debts and funeral expenses having been first deducted; and that that reasonable part was one-third, or one-half, according to the predicament in which she stood at the time of the death of her husband; that this reasonable part was not subject to the dominion or control of her husband; that her right was paramount his power, and that he could not, by his will, deprive her of it." Under the common law existing in Maryland prior to creation of the District of Columbia, a husband was not permitted to deprive his wife of her reasonable share of his estate, either directly or indirectly, and a bequest to the wife was not considered in lieu of her legal interest; instead she took both.²¹ It was to avoid the result reached by the early cases, permitting a wife to take both under...