Simon v. Simon

• Decision Date: 07 May 1928
• Docket Number: No. 4629.,4629.
• Citation: 58 App. DC 158,26 F.2d 530
• Parties: SIMON et al. v. SIMON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 158, 26 F.2d 530 (1928)

SIMON et al. v. SIMON et al.

No. 4629.

Court of Appeals of District of Columbia.

Submitted April 3, 1928.

Decided May 7, 1928.

L. M. Denit, of Washington, D. C., for appellants.

Pearl Bellman Klein, of Washington, D. C., for appellees.

Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.

SMITH, Acting Associate Justice.

This is an appeal from a decree dismissing on the merits the amended bill of complaint filed by Mabel H. Simon and Edwin C. Brandenburg, trustees and complainants, against Mabel H. Simon, Helen Flora Goldstein, and James H. Simon, Berenice H. Simon, Babette H. Mandle, Lewis Hopfenmaier, Berneda Goldstein, and Lois Goldstein, minors, and the trustees of the estate of Milton Hopfenmaier, defendants.

Lewis Hopfenmaier died in the District of Columbia on the 16th of August, 1917, leaving him surviving, as his sole and only heirs at law, his widow, Mrs. Yettie Hopfenmaier, and three children, Mrs. Mabel H. Simon, Milton Hopfenmaier, and Mrs. Helen Flora Goldstein. Mrs. Yettie Hopfenmaier, widow of Lewis Hopfenmaier, died on the 1st of April, 1919. The defendants James H. Simon and Berenice H. Simon are the minor children of Mrs. Mabel H. Simon. The defendants Berneda Goldstein and Lewis Goldstein are the minor children of Helen Flora Goldstein. The defendants Babette H. Mandle and Lewis Hopfenmaier are the minor children of Milton Hopfenmaier, who died in the District of Columbia on the 23d of March, 1926, leaving him surviving his widow and said minor children.

Lewis Hopfenmaier, in and by his last will and testament, bequeathed the net income of his estate to his wife and three children for life, such income upon the death of his wife to be divided equally among the three children, and, in the event of the death of any of the children, the share of the income to which such child was entitled to be paid to his or her surviving children. The will also specifically provided that no distribution of the principal of his estate should be made until 20 years after the death of the survivor of his children, at which time said will directed the trustees of his estate to convert the real property left by him into cash and to distribute the proceeds of such conversion equally per stirpes, but not per capita, between the children of Mrs. Mabel H. Simon, Milton Hopfenmaier, and Mrs. Helen Flora Goldstein. Not only did the will prohibit any distribution of the estate of the deceased until 20 years after the death of the survivor of his children, but it specifically provided that under no conditions should the executor, trustee, or trustees of his estate have the right to incumber or sell any of the real estate during that period, unless the property were taken by the government, in which event the proceeds derived from the property were to be reinvested.

Among the properties of the estate now held by the trustees for the trust purposes specified in the will is lot 815 in square 387. Upon that lot was erected more than 50 years ago a three-story brick residence known as No. 413 Ninth Street S. W. That building is now undesirably located for residence purposes and is in a dilapidated condition, notwithstanding the expenditure in May, 1926, of more than $300 for papering, painting, and general repairs. The building now requires a new roof, which would cost several hundred dollars and other extensive repairs. Due to the location of the residence and the condition of the building, the trustees of the estate have found it impossible to keep the premises occupied and to derive an income from it sufficient to pay taxes, insurance, repairs, and to make any adequate return on the capital value of the property. On this state of facts, the trustees of the estate of Lewis Hopfenmaier, deceased, filed their bill in equity and prayed that the court authorize and direct the sale of the premises at 413 Ninth Street S. W. at the best price obtainable, the proceeds of such sale to be turned over to the trustees of the estate for reinvestment as capital funds of said estate. All of the parties entitled to distributive shares of the estate consented to the sale, with the exception of the minors, Berenice H. Simon, Babette H. Mandle, Lewis Hopfenmaier, Berneda Goldstein, and Lois Goldstein, who, by their guardian ad litem, objected to the jurisdiction of the court, and moved that the amended bill of complaint be dismissed, on the ground that under the will the court had no power to authorize the sale for which the bill prayed. The court decreed that the amended bill of complaint be dismissed on the merits, and from that decree this appeal was taken.

The appellants, in support of their appeal, contend, first, that the court below had jurisdiction to order the sale, and that section 97 of the District of Columbia Code has no application to the facts alleged in the bill; second, that section 100 of the District Code grants power to the court to decree, if it be to the interest of all concerned, a sale of real property in any case where one or more persons are entitled to an estate for life or years in lands to which any other person or persons are entitled to a vested or contingent remainder.

Section 97 and the parts of section 100 pertinent to the case read as follows:

"Section 97. Sale of Contingent Interests. — Where real estate is limited to one or more for life, with a contingent limitation over to such issue of one or more of the tenants for...