Werner v. Frederick

• Decision Date: 13 December 1937
• Docket Number: No. 6993.,6993.
• Citation: 94 F.2d 627,68 App. DC 158
• Parties: WERNER v. FREDERICK et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 158, 94 F.2d 627 (1937)

WERNER v. FREDERICK et al.

No. 6993.

United States Court of Appeals for the District of Columbia.

Decided December 13, 1937.

E. Hilton Jackson, of Washington, D. C., for appellant.

Charles H. Quimby and Marcus Borchardt, both of Washington, D. C., for appellees.

By leave of Court George C. Gertman, of Washington, D. C., filed a brief as amicus curiæ.

Before GRONER, STEPHENS, and MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is a special appeal from an order of the District Court of the United States for the District of Columbia, holding a probate court. The appeal questions the correctness of a preliminary issue framed for submission to a jury in a will contest.

As shown by the record, the facts are as follows: Gustav Werner, a citizen of the United States and a resident of the District of Columbia, died July 27, 1935. On July 30th of the same year, a purported will dated June 1st of the same year was, by the appellant, Charles Werner, who was named executor, offered for probate in the Supreme Court of the District of Columbia (now the District Court of the United States for the District of Columbia and hereafter referred to as the District Court); the instrument was on the same day admitted to probate. This will purported to revoke all prior wills. For convenience it will hereafter be referred to as the will of 1935. On October 17, 1935, a date within the three months' period, after probate, which is allowed by the District of Columbia Code for the filing of a caveat, D.C.Code 1929, tit. 29, § 59, 31 Stat. 1212, § 137, Eugene Frederick, Gustav A. Frederick, and George H. Frederick, Jr., the appellees, filed a caveat against the will of 1935. They were not beneficiaries under that will. Their caveat alleged, inter alia:

"2. That the said Gustav Werner, deceased, on the 6th day of September 1934, being then of sound and disposing mind, executed a certain paper writing, purporting to be his last will and testament and then declared the same to be his last will and testament, all of which occurred in the presence of Emma L. Fletcher, Doris Poole Jones and Charles H. Quimby, who then and there at his request and in his presence and in the presence of each other subscribed their names to said paper writing as attesting witnesses; that due search has been made for said paper writing but the petitioners are informed and believe that it can not be found, but that it was accidentally destroyed and that such destruction was not brought about by said Gustav Werner or with his knowledge or consent, and that until and at the time of his death he believed and intended said paper writing to be in full force and effect as and for his last will and testament. That all of your petitioners are named as beneficiaries in said will."

The caveat further alleged that the paper of September 6, 1934, for convenience referred to hereafter as the will of 1934, was typewritten, that a carbon copy had been made and that the same had been filed with the Register of Wills in the District of Columbia, and that a petition to establish this paper as a lost will would be filed in due course. The caveat continued with further allegations attacking the validity of the will of 1935, it being asserted that Gustav Werner had not been of sound mind at the time of its execution, that the attesting witnesses had not signed at his request, and that the execution of the will had been procured by fraud and coercion. The caveat then prayed that an issue be framed to be tried by a jury to determine the facts concerning the will of 1935, and that the same be set aside and held for naught. The carbon copy referred to in the caveat was filed with the Register of Wills at the time of the filing of the caveat in the District Court. The petition to establish the will of 1934 was filed November 29, 1935, after the expiration of the three months' period, above referred to, within which a caveat must be filed.

The answer of the appellant, as caveatee, asserted that the caveat failed to disclose that the caveators, the appellees, had any interest to file a caveat against the will of 1935; in respect in particular of paragraph 2 of the caveat, the appellant's answer said:

". . . this respondent neither admits nor denies the averments of said paragraph, and calls for strict proof thereof insofar as the same may be deemed material to the issues herein. Further answering said paragraph two, this petitioner says that if any paper writings purporting to be the last will and testament of the deceased were executed prior to the last will and testament of the deceased dated June 1, 1935, that said paper writings were revoked by the last will and testament of the deceased dated June 1, 1935, as aforesaid, duly admitted to probate and record . . . ."

The answer denied the allegations of the caveat assailing the validity of the will of 1935.

After certain proceedings which it is not necessary to mention, issues were framed by the appellees, as caveators, and were offered on motion. These issues were confined to the validity of the 1935 will. The appellant opposed the motion on the ground that a preliminary issue as to the execution of the will of 1934 had not been included, and the motion offering the issues was denied. But leave to amend was granted; and, by amendment, a preliminary issue as to the execution of the 1934 will was added. Thereupon an order was made framing the preliminary issue thus:

"Did the deceased, Gustav Werner, ever execute a last will and testament dated the Sixth day of September, 1934, in which the said Eugene Frederick, Gustav A. Frederick, and George H. Frederick, Jr., were named as beneficiaries?"

From the order thus framing the preliminary issue this appeal was taken.

Numerous errors are assigned by the appellant, but they present in effect but three questions: 1. Was the caveat sufficient to support the framing of a preliminary issue? 2. Assuming the sufficiency of the caveat, was the preliminary issue correctly framed? 3. Must the petition for probate of the will of 1934 have been filed within the three months' period required for the filing of a caveat?

The proposition primarily relied upon by the appellant is that one contesting a will must show, preliminarily, an interest so to do; and that where such interest is based upon an asserted right arising under a prior will, which right has been reduced or destroyed by the will attacked, it is necessary for the caveator to allege, and ultimately to prove, not only that the prior will was executed, but also that it remained the last will and testament of the testator until his death. The proposition is sound in requiring the caveator to prove more than that the prior will was executed, but as stated it is too broad in that it requires proof that the later will did not revoke the earlier one. This ought not be required of the caveator under the preliminary issue, because the revocatory effect of the later will is dependent upon its validity and its validity is the ultimate issue. The preliminary issue should be stated so as to require the caveator to allege and prove, preliminarily, that the prior will was executed, and that it remained the last will and testament of the testator until his death, except for the effect of the subsequent will, if valid, to revoke it.

Under D.C.Code 1929, tit. 29, § 59, 31 Stat. 1212, § 137, any person in interest may file a caveat in opposition to a will admitted to probate. Under similar statutes it has been held that one named as a beneficiary in a prior will has an interest to contest a later one by virtue of which his share has been reduced or destroyed, and this whether or not he is heir at law or next of kin of the testator. Hamill v. Hamill, 162 Md. 159, 159 A. 247, 82 A.L. R. 878, 1932; Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336, 1928; earlier cases are collected in Note, L.R.A.1918A 470. Any implications seemingly to the contrary which might be drawn from language used by this court in Angell v. Groff, 42 App.D.C. 198, 1914, and Naylor v. Mealy, 62 App.D.C. 321, 67 F.2d 693, 1933, are incorrect. But one who seeks to establish, as a beneficiary under a prior will, an interest to attack a later one cannot content himself with showing that the prior will was executed. He must show also that, except for the effect of the later will, if valid, to revoke the earlier one, the latter remained the last will and testament of the testator until his death. The reason for requiring an interest to set aside a will to be shown, before an attack upon the will may proceed, is that the estate of a decedent ought not be subjected to the trouble and expense of an attack, except by one who, if the attack prove successful, would have some legal claim upon the estate. See Safe Deposit & Trust Co. of Baltimore v. Devilbiss, 128 Md. 182, 187, 97 A. 367, 369, 1916. And if the former will relied upon, though executed, had been revoked by the testator in some manner other than by the later will, if valid, whatever interest might have arisen in the beneficiary by virtue of execution of the prior...