Starkey v. District of Columbia, 11288.

• Decision Date: 01 August 1977
• Docket Number: No. 11288.,11288.
• Citation: 377 A.2d 382
• Parties: Lucille STARKEY et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 382

377 A.2d 382

Lucille STARKEY et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.

No. 11288.

District of Columbia Court of Appeals.

Argued January 17, 1977.

Decided August 1, 1977.

Nathan L. Silberberg, Arlington, Va., with whom Howard B. Silberberg, Washington, D. C., was on the brief, for appellants.

Richard W. Barton, Deputy Corp. Counsel, with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, E. Calvin Golumbic, Asst. Corp. Counsel, Washington, D. C., at the time the brief was filed, and Nancy R. Dorsch, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before KELLY and KERN, Associate Judges, and PAIR, Associate Judge, Retired.

KELLY, Associate Judge:

We review here the probate court's construction of the will of Paul Prentice, deceased. The document itself is simple. In the body of the will the testator left a watch and a ring to his "nephew."¹ He disposed of the rest of the estate as follows:

3. All the rest, residue and remainder of my estate, real and personal, wheresoever situate, I devise and bequeath to my sister-in-law, my niece, . . . my nephew, . . . and to Dr. S. H. Roberts, . . . share and share alike. In the event any of the persons mentioned in this Paragraph 3 of my LAST WILL AND TESTAMENT do not survive me, then, in that event, his or her and bequest shall lapse.

Dr. Roberts predeceased the testator by several months. In a lengthy opinion² the probate court held that in view of the testator's instructions that in such event the bequest would lapse, Roberts' share passed by intestacy and as the testator had no heirs, Roberts' share of the estate escheated to the District of Columbia.

Lucille and James Starkey, co-executors of the estate, contend on appeal that contrary to the court's ruling, the testator intended that any share which lapsed according to his instructions should be divided equally among the other residuary legatees. They urge as controlling that portion of D.C.Code 1973, § 18-308, which provides that any gift which is void or fails or is otherwise incapable of taking effect should pass under the residuary clause.³ The issue is, therefore, whether the testator's direction that if a legatee did not survive him the bequest shall "lapse" precludes the antilapse statute from operating to save the one-fourth share of his estate from passing by intestacy.

In reaching its decision, the probate court relied on George Washington University v. Riggs National Bank of Washington, D. C., 66 App.D.C. 389, 88 F.2d 771 (1936). In that case the testator left his residuary estate to four institutions as tenants in common. One of the residuary gifts was void under then § 42, Title 29 of the District of Columbia Code [the Mortmain Statute].⁴ As the testator had made no provision for such contingency, the court held that the void share must pass by intestacy rather than to the other residuary legatees. Specifically, the court held:

We are therefore clearly of the opinion that in the absence of definite language in the will giving the void legacy to the other residuary legatees, it must be held that the testator died intestate as to the void legacy. It cannot go to increase the shares of the other tenants in common. [Id. at 392, 88 F.2d at 774.]

In the case before us, the testator did anticipate that a residuary legatee might predecease him and provided that in such event his or her share would lapse. The significance of that instruction is only that the heirs of the predeceased legatee would not share in the estate. And in the absence of any ambiguity in this language, extrinsic evidence was inadmissible to prove what the testator intended should happen to the lapsed share. In re Estate of Kerr, 139 U.S.App.D.C. 321, 332, 433 F.2d 479, 492 (1970); Baker v. National Savings and Trust Co., 86 U.S.App.D.C. 161, 162, 181 F.2d 273, 274 (1950). Thus, as in George Washington University, we are left with a void or lapsed gift and no indication as to what the testator desired to happen to that legatee's share of the estate. As the cases are indistinguishable, the trial court correctly held that the lapsed share passed by intestacy and escheated by law to the District of Columbia.⁵

Appellants' argument that under D.C.Code 1973, § 18-308 (the anti-lapse statute) the lapsed share should pass to the residuary clause and thence to the remaining tenants in common is not convincing.

Although it is now settled that § 18-308 does apply to gifts in residuary clauses,⁶ In re Estate of Kerr, supra, 139 U.S.App.D.C. at 325, 433 F.2d at 483, the lapsed share in this case was already in a residuary clause containing clear language that the testator did not wish the issue of the residuary legatees to take under the will and lacking any direction that the...