O'MEARA v. Shreve

• Decision Date: 04 June 1928
• Docket Number: No. 4713.,4713.
• Citation: 58 App. DC 220,26 F.2d 998
• Parties: O'MEARA v. SHREVE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 220, 26 F.2d 998 (1928)

O'MEARA v. SHREVE.

No. 4713.

Court of Appeals of District of Columbia.

Submitted May 8, 1928.

Decided June 4, 1928.

C. H. Merillat, of Washington, D. C., for appellant.

C. S. Shreve, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

It appears that Margaret V. Cox, deceased, by her last will and testament, devised to Margaret T. Whelan a certain house and lot situate in the District of Columbia, which, at the time when the will was written, and also at the date of testatrix's death, was incumbered by a certain mortgage indebtedness; and the question arose in the settlement of the testatrix's estate whether the mortgage debt was to be paid by her executor from the personal assets of her estate, or was chargeable solely against the mortgaged property in the hands of the devisee, as a devise cum onere. Margaret T. Whelan died testate before this question was settled, but after her death the lower court instructed the executors of the respective estates that the mortgage debt was not chargeable against the personal estate of Margaret V. Cox, but only against the mortgaged property in the hands of the devisee. An appeal was taken by the devisee's executor.

The facts appear in the record without dispute. The devised real estate was formerly owned by one John K. Pitcher, who borrowed from a building association the sum of $6,600, and gave a deed of trust thereon as security for the loan. Pitcher succeeded in reducing the mortgage indebtedness to $4,000, when he died, leaving a widow and infant daughter surviving him. The property was then sold through court proceedings to Margaret V. Cox, for a consideration of $8,350, of which she paid $4,350 in cash, and assumed to pay the indebtedness of $4,000 then owing on the mortgage to the building association. This arrangement was agreed to by the association, whereupon the debt was charged by it to Margaret V. Cox. The latter executed the papers required for this purpose by the building association, and continued to pay the regular monthly dues to the association until the time of her death, by which time the debt was reduced to $3,372.67. The real estate in question consists of a city lot improved by a 6-room brick dwelling house. It is agreed that the personal estate of Margaret V. Cox is sufficient to pay all legacies and expenses, and also the mortgage indebtedness upon the devised property; and it is conceded that, had testatrix's life been spared, she would have fully paid the mortgage debt from...