Schooler v. Schooler

• Decision Date: 22 November 1948
• Docket Number: No. 9641.,9641.
• Citation: 173 F.2d 299
• Parties: SCHOOLER et al. v. SCHOOLER et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

173 F.2d 299 (1948)

SCHOOLER et al. v. SCHOOLER et al.

No. 9641.

United States Court of Appeals District of Columbia Circuit.

Argued June 7, 1948.

Decided November 22, 1948.

On Petition for Rehearing, February 14, 1949.

Mr. Leo A. Rover, of Washington, D. C., with whom Mr. Harry Friedman, of Washington, D. C., was on the brief, for appellants.

Messrs. David Wiener and Samuel R. Blanken, both of Washington, D. C., for appellees.

Before STEPHENS, Chief Judge, and EDGERTON and PROCTOR, Circuit Judges.

PROCTOR, Circuit Judge.

At the trial of this action in the District Court, the defendants (appellees) moved for judgment at the close of the plaintiffs' case in chief. The motion was granted and judgment entered. Plaintiffs appeal.

The evidence tended to prove the following facts:

Louis Schooler had six children by three marriages. Wilfred Schooler, Yetta B. Lesser, Mary S. Reiskin and Ida Sherman, plaintiffs (appellants), are children of his first and second marriages. Jack and Robert Schooler are children of his third marriage to Sophie Schooler. These three persons were defendants. For brevity all parties will be referred to by their first names. Louis and Sophie owned several parcels of income-producing real estate in the District of Columbia as tenants by the entirety. On October 9, 1941, while at a hospital awaiting an operation, Louis made a will leaving all his estate to Sophie. He further stated it to be his "will and wish" that during the lifetime of Sophie one-fourth of the net income from the rented property should be paid to Wilfred; that he should control the bookkeeping and accounting and be consulted as to repairs; that Jack should receive $25 a week and act as manager in the "collections and maintenance" of the property, and that upon the death of Sophie all the property should be divided equally among the six children. Wilfred was named executor. Pursuant to an understanding when the will was made an instrument denoted "agreement" was executed by Louis and Sophie. It bore the same date as the will, although drawn and signed some days later. This writing stated that in consideration of the execution of the will Sophie agreed that "the will and wish clause" thereof should become a part of the agreement, and that she would carry out the same as though it were a bequest of property belonging solely to Louis in which she should have only a life estate. On June 25, 1942, an "agreement" was executed by Sophie, Wilfred and Jack. After reciting ownership of the real estate by Louis and Sophie as tenants by the entirety and the above-mentioned agreement it was stated that in consideration of the execution of the will of Louis and other valuable consideration passing between the parties Sophie agreed that so long as she lived Wilfred would receive one-fourth of the net income from the rented property and that Jack should collect the rents and manage the same and receive $25 weekly therefor. This instrument and the earlier one dated October 9th, 1941, were signed and sealed by the parties thereto and acknowledged before a notary. Louis died July 30, 1942. His will, although filed with the registrar, has not been offered for probate. For sometime after Louis' death Sophie made payments to Wilfred totaling more than $2,900, allegedly from the rental income.

Finally, about four and one-half years after Louis' death Wilfred filed his complaint against Sophie and Jack for accounting of moneys received since the death of Louis and for judgment for moneys claimed to be due him out of income from the property. Yetta, Mary and Ida, other children of the first and second marriages, were added as plaintiffs. They prayed for judgment declaring all six children vested with a remainder in the real property subject to a life estate in Sophie. Robert was joined as a defendant. Answering, the defendants claimed sole ownership in Sophie, as survivor of the tenancies by the entireties, of all real estate covered by the will, and that the property was not subject to disposal by Louis; that there was no valid consideration for the agreement of October 9, 1941; that Sophie executed the same to please the whim of her ill husband; that the agreement of June 25, 1942, was without consideration and that payments made to Wilfred were to avert arguments which caused her much physical harm. She included a counterclaim to recover back the moneys paid.

Proffers of testimony were made by plaintiffs, to prove certain other acts and declarations by Sophie indicating acknowledgment and acceptance of the terms of the will and agreement of October 9, 1941, and as tending to show her understanding and intentions respecting the same. These were rejected by the court. The trial court found that all the properties in question were owned at the time of Louis' death jointly by him and Sophie as tenants by the entirety; that upon Louis' death all were in the sole ownership of Sophie; that there was no evidence to establish in any plaintiff a right, title or interest in said properties; that Sophie had paid no moneys to Wilfred pursuant to any legal obligation, and that plaintiffs had not sustained the burden of proof in attempting to establish their claims. Accordingly, judgment was entered for defendants and the cause dismissed. The counterclaim was dismissed without prejudice.

Appellants contend that the "agreement" of October 9, 1941, is in legal effect a deed, vesting a life estate in Sophie, subject to a charge against the net income of 25% to Wilfred and $25 weekly to Jack, with remainders in fee to the six children upon the death of Sophie. References are also made to the writing as a gift or trust. But in either case a deed was necessary. No explanation is advanced for the instrument of June 25, 1942, except that it "clarifies" and "corroborates" the one of October 9th. The primary question then is whether this last mentioned instrument meets the requirements of a deed.

The following provisions of Title 45, District of Columbia Code 1940 bear directly upon the question:

Section 106.

"No estate of inheritance, or for life, or for a longer term than one year, in any real property, corporeal or incorporeal, in the District of Columbia, or any declaration or limitation of uses in the same, for any of the estates mentioned, shall be created or take effect, except by deed signed and sealed by the grantor, lessor, or declarant, or by will."

Section 301.

"The following forms or forms to the like effect shall be sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed to, or introduced in the said forms. Any other form conforming to the rules herein laid down shall be sufficient."

Measuring the instrument by the foregoing requirements, enlightened by the forms set forth, which cannot be disregarded, we think it is not sufficient to grant or create any estate or use in the property. A deed is a written expression of the act of granting or creating an estate or use in land. It bespeaks a present act, rather than a promise for future action. Agricultural Bank v....