Tracy v. Atwell

• Decision Date: 01 April 1929
• Docket Number: No. 4715.,4715.
• Citation: 32 F.2d 392,58 App. DC 397
• Parties: TRACY v. ATWELL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

58 App. DC 397, 32 F.2d 392 (1929)

TRACY v. ATWELL.

No. 4715.

Court of Appeals of District of Columbia.

Submitted February 5, 1929.

Decided April 1, 1929.

R. F. Downing, Jos. J. Malloy and Francis P. Brassor, all of Washington, D. C., for appellant.

Charles F. Diggs, of Washington, D. C., for appellee.

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

MARTIN, Chief Justice.

This is an appeal from a decree of the lower court dismissing the bill of complaint filed by appellant as plaintiff. The issue in the case calls for a construction of the last will and testament of Maud L. Atwell, deceased.

On August 4, 1925, the decedent, who was a resident of the District of Columbia, departed this life testate, without living issue, survived by her husband, Frank L. Atwell, and by a brother, A. Lester Tracy, who is the appellant herein. Her last will was duly admitted to probate, and in conformity with its terms her husband was appointed executor.

The disposing paragraphs of the will read as follows:

"First; It is my will and desire and I hereby direct my Executor, hereinafter to be named, to first pay and discharge all of my lawful debts, including my funeral expenses.

"Second; I give, devise and bequeath to my brother A. Lester Tracy, my undivided one-half interest in dwelling houses #614 and #616 K Street, N. W. and #916 5th Street, N. W., Washington, D. C. Also my one-half interest in two lots in Garrett Park, Md., and one lot in Woodment, Md. This property now being owned jointly by us. Also my residence #1641 Hobart Street, N. W., Washington, D. C. being lot #716, square E591. Also all household effects that formerly belonged to my mother, now in my residence #1641 Hobart Street, N. W. I also direct that a note for Five Hundred Dollars signed Lillian D. Tracy and secured by deed of trust on property 916 6th Street, N. W. be cancelled and returned to him.

"Third; I give, devise and bequeath to my aunt Mamie L. German, lot #813, square 398, being residence #1432 5th Street, N. W., Washington, D. C.

"Fourth; I give, devise and bequeath to my niece Isabelle D. Tracy, lots 9 and 10, square 3924, Brookland, D. C. Also my Knabe piano, and mahogany dining room set.

"Fifth; I give, devise and bequeath to my husband Frank L. Atwell, all stocks, bonds, notes and personal property of whatever kind of which I may die possessed other than the articles mentioned in paragraphs two and four. Also lot #5, square 3065, Brookland, D. C."

Accordingly, testatrix directs that all of her lawful debts shall first be paid. She next devises her residence No. 1641 Hobart street, together with certain other property, to her brother, A. Lester Tracy. And finally she bequeaths to her husband, Frank I. Atwell, all stocks, bonds, notes, and personal property of whatever kind of which she may die possessed, subject to certain minor exceptions.

The present controversy arises from the fact that at the time of testatrix's death her residence, No. 1641 Hobart street, was incumbered by a mortgage indebtedness of about $3,000, and her brother as devisee of the property claims that the debt should be paid from the personal assets of the estate, whereas her husband as residuary legatee contends that the property was devised cum onere and that the debt should be paid by the devisee.

The record discloses that testatrix purchased the realty in question from one Breuninger subject to the mortgage indebtedness aforesaid, and received a deed of conveyance therefor in the year 1914. The deed specifically refers to the mortgage indebtedness, and recites that the grantee "assumes and agrees"...