Wyman v. Roesner, 80-472.

• Decision Date: 30 December 1981
• Docket Number: No. 80-472.,80-472.
• Citation: 439 A.2d 516
• Parties: Michael WYMAN, et al., Appellants, v. Jerard W. ROESNER, et al., Appellees.
• Court: D.C. Court of Appeals

439 A.2d 516

Michael WYMAN, et al., Appellants, v. Jerard W. ROESNER, et al., Appellees.

No. 80-472.

District of Columbia Court of Appeals.

Argued November 18, 1980.

Decided December 30, 1981.

COPYRIGHT MATERIAL OMITTED

Rotraud M. Perry, Washington, D. C., for appellants.

John A. Kendrick, Washington, D. C., for appellees.

Before KERN, HARRIS, and FERREN, Associate Judges.

FERREN, Associate Judge:

The principal question in this case is whether a legacy of "the remainder due, if any," on a note was adeemed (extinguished) by payment of the note before the testator's death. We agree with the trial court that this gift is a specific bequest which could be lost through ademption. On the undisputed facts, moreover, we agree that the gift was adeemed — that there was no "remainder due" on the note on the date of the testator's death. Accordingly, we affirm summary judgment for appellees.

I.

On October 23, 1970, Charlotte E. Kostick deeded to her nephew, the decedent Thomas F. Wyman, a residence at 4423 P Street, N.W., Washington, D. C. Kostick's sister, Ida Wyman, had raised her son, Thomas, and his three siblings in that house and continued to live there until her death on February 6, 1974.

After his mother's death, Thomas sold the house to John D. Phillips on November 20, 1974. Thomas took back a $45,000 note (guaranteed by a deed of trust) bearing interest at eight percent, with monthly payments scheduled to be paid until November 20, 1996. The printed note gave Phillips "the privilege of making larger payments in any amount," with a typewritten insert adding "at any time without penalty." Thomas endorsed the note over to the National Bank of Washington to hold for collection and to credit the payments to his checking account.

On May 13, 1977, Thomas executed a will. He left to one brother, appellant Michael C. Wyman, "the remainder due, if any, on that note being held by me for the sale of our family home at 4423 P Street, N.W., Washington, D. C. In the event that this amount is less than Ten Thousand dollars, he. . . is to receive an amount of cash, either from bank deposits or sale of bonds to equal Ten Thousand dollars." Thomas bequeathed to a second brother, appellant James A. Wyman, "the sum of Ten Thousand dollars, to come from cash in banks or sale of Bonds." He named as executor and remainderman his "long time friend and associate," appellee Jerard W. Roesner.

In September 1977, Phillips informed Thomas that he wished to pay off the note on the P Street house. An entry in Thomas' checkbook register reads "12-1-77 Deposit Payoff by John Phillip on P St $42,388.24." The note itself showed final payments of principal and interest of $41,999.38 and $391.86, respectively, and was stamped "Paid Washington Collections Dec. 1, 1977 The National Bank of Wash. Washington, D. C." Thomas died of a heart attack at forty-eight years of age on December 6, 1977.

After admission of Thomas' will to probate, appellants, Thomas' surviving siblings, sued the remainderman and executor, appellee Roesner, and two other named beneficiaries, seeking construction of the will before approval of the final account. See Super.Ct. Probate R. 10(a). Appellants asked the court to "instruct the Executor whether the share of the estate of Michael Wyman is the assets from note on the family real property, $41,999.38 or $10,000.00 the minimum specified in [the will]." Appellees moved for summary judgment. After a hearing, the trial court granted the motion. The siblings timely noted their appeal. See D.C.Code 1973, § 11-721(a)(1); D.C.App.R. 4 II(a)(1).

II.

Our standard of review is the same as the trial court's standard for initially considering the motion for summary judgment. Turner v. American Motors General Corp., D.C.App., 392 A.2d 1005, 1006 (1978); Burch v. Amsterdam Corp., D.C.App., 366 A.2d 1079, 1083-84 (1976). A court shall grant summary judgment if "there is no genuine issue as to any material fact and. . . the moving party is entitled to a judgment as a matter of law." Super. Ct.Civ.R. 56(c); see Super.Ct.Probate R. 10(a). The moving party has the burden of demonstrating the absence of a material factual dispute, Turner, supra at 1006; Willis v. Cheek, D.C.App., 387 A.2d 716, 719 (1978); Burch, supra at 1084, and entitlement to judgment as a matter of law. Id. Once the movant has made a prima facie showing, however, the opposing party, to prevail, must rebut with specific evidence. See Willis v. Cheek, supra at 719; Super.Ct. Civ.R. 56(e).

In determining whether an issue of fact exists, the court considers the pleadings and all other material of record. Turner, supra at 1006; Stevens v. Hall, D.C. App., 391 A.2d 792, 794 (1978); Burch, supra at 1083-84. The court must resolve any doubt against the movant, Turner, supra at 1006; Stevens, supra at 794; Willis v. Cheek, supra at 719, and should grant summary judgment "sparingly in cases involving motive or intent." Willis v. Cheek, supra at 719.

III.

In applying these principles we consider, first, the nature of the bequest to Michael Wyman of "the remainder due, if any," on the deed of trust note. Appellants contend that Thomas intended Michael to inherit the proceeds of the final payment on the note — $41,999.38 — even if Phillips made that payment before Thomas' death. To the contrary, we agree with the trial court that the undisputed material facts show the gift was a "specific" bequest of any balance due on the note at the time of Thomas' death (with a contingent "general" legacy of up to $10,000), not a bequest of the proceeds from the final payment.

A. The common law divides legacies into four classes: specific, demonstrative, general, and residuary. See generally 6 W. Bowe & D. Parker, Page on Wills § 48.1 (rev. ed. 1962 & Supp. 1980-81). A specific bequest is a legacy of a particular, designated asset that only the delivery of that asset can satisfy. Kenaday v. Sinnott, 179 U.S. 606, 618-20, 21 S.Ct. 233, 237-38, 45 L.Ed. 339 (1900); Lansburgh v. Lansburgh, 59 App.D.C. 201, 206, 37 F.2d 997 1002 (1930); Plant v. Donaldson, 39 App. D.C. 162, 165 (1912); Douglass v. Douglass, 13 App.D.C. 21, 26 (1898), appeal dismissed by stipulation 20 S.Ct. 1024, 44 L.Ed. 1220 (1900). See generally 6 W. Bowe & D. Parker, supra § § 48.3-.6. A demonstrative legacy, by contrast, is a gift of a stated value that identifies a particular asset as the primary source for payment but permits the executor to draw on the general assets of the estate once the primary source has been exhausted. Kenaday, supra, 179 U.S. at 618-20, 21 S.Ct. at 237-38; Armstead v. Union Trust Co., 61 App.D.C. 269, 270, 61 F.2d 677, 678 (1932); Lansburgh, supra at 206, 37 F.2d at 1002; Plant, supra at 165; Douglass, supra at 26-27. See generally 6 W. Bowe & D. Parker, supra § 48.7. A general legacy is a gift payable from the assets of the estate without a claim on any particular source. Kenaday, supra, 179 U.S. at 618-20, 21 S.Ct. at 237-38; Armstead, supra at 270, 61 F.2d at 678. See generally 6 W. Bowe & D. Parker, supra § 48.7. A residuary bequest disposes of the remainder of the estate after all debtors have been paid and all other legacies satisfied. See generally id. § 48.10.

Courts disfavor specific bequests, for if the designated property is not part of the estate at death, the gift generally will be lost through ademption by extinction. Kenaday, supra, 179 U.S. at 619, 21 S.Ct. at 238; Vogel v. Saunders, 68 App.D.C. 31, 33, 92 F.2d 984, 986 (1937). See generally 6 W. Bowe & D. Parker, supra §§ 48.8, 54.3.20. Courts will characterize a legacy as specific, therefore, only if the will clearly expresses that intention. Kenaday, supra, 179 U.S. at 618, 21 S.Ct. at 237; Vogel, supra at 33, 92 F.2d at 986; Plant, supra at 165; Douglass, supra at 28. See generally 6 W. Bowe & D. Parker, supra § 48.8. Even if a bequest is specific, moreover, the will may evince an intent that if the property is sold before the testator's death, the specific legatee should inherit the proceeds. Dean v. Tusculum College, 90 U.S.App.D.C. 304, 305, 195 F.2d 796, 797 (1952); see Brinker v. Humphries, 90 U.S.App.D.C. 180, 183, 194 F.2d 350, 353 (1952). See generally 6 W. Bowe & D. Parker, supra § 54.9. See also Kaiser v. Brandenburg, 16 App.D.C. 310, 314-16 (1900) (will's command that specific assets be sold and the proceeds divided among certain legatees is specific legacy).

In construing a will, the testator's intent is the guiding principle — the "polestar." In re Estate of Kerr, 139 U.S. App.D.C. 321, 331, 433 F.2d 479, 489 (1970); accord, Brinker, supra at 182, 194 F.2d at 353; Baker v. National Savings & Trust Co., 86 U.S.App.D.C. 161, 162, 181 F.2d 273, 274 (1950). A court looks at the entire will to discern this intent. Brinker, supra at 181, 194 F.2d at 352; Douglass, supra at 27. If the intent is manifest in the language of the will, the inquiry ends there. Baker, supra at 162, 181 F.2d at 274. If the language "upon its face and without explanation, is doubtful or meaningless," however, a court may examine extrinsic evidence in order to understand the will. Id.; accord, Starkey v. District of Columbia, D.C.App., 377 A.2d 382, 383 (1977); Kerr, supra at 331-32, 433 F.2d at 489-90. See generally 4 W. Bowe & D. Parker, Page on Wills § 32.1-.14 (rev. ed. 1961 & Supp. 1980-81). Because the intent of each testator, manifested in the will, is unique, prior cases are instructive but rarely controlling. Brinker, supra at 183, 194 F.2d at 353; Plant, supra at 165; Douglass, supra at 27.

B. In order to determine the nature of the bequest to Michael Wyman, we begin with the undisputed language of the will. Article II(B)(1) provides in full:

To Michael C. Wyman (Brother) or in his demise his wife, Nancy, the remainder due, if any. on a note being held by me for the sale of our family home at 4423 P Street, N.W. Washington, D. C. In the event that this amount is less than Ten Thousand dollars, he or she is to receive an...