Elam v. Leach
Elam v. Leach
Opinion of the Court
This appeal involves the interpretation of the will of Harriet Underwood Sy-monds. Decedent was a widow who left no surviving children or grandchildren and who was predeceased by both her parents and her brother and sisters. Her next of kin were nephews and a niece.
Her last will and testament directed that all taxes, debts, funeral and probate expenses be paid and that certain specific bequests be made to members of her family and blood and marriage relatives and to the minister of her church, and that the residue of the estate be disposed of as follows:
Item VI. All the rest and residue of my estate I direct' my executor to sell or otherwise convert to cash and to pay out the proceeds (after deducting all of the above costs and expenses) :
(a) $10,000 (Ten Thousand Dollars) to the Trustees of the Dumbarton Avenue Methodist Church, Washington, D. C.,
(b) Up to Five Hundred Dollars ($500) for a new headstone for the grave of my great grandfather Israel Underwood in the cemetery at Ephra-ta, New York.
*930 (e) An equal subdivision of the remainder, to be paid out as cash bequests, if living at my death:
(i) The children (or their estates if they are deceased at my death) of Edward U. Elam, Arthur F. Underwood, Raymond Underwood, Martha Underwood Pauli, and Ernest Underwood, these named persons being nephews and a niece. If any one of these children is under 18 years of age at my death, the sum due him (or her) is to be paid out to him (without interest accrued) by my executor when he (or she) arrives at 18 years.
(ii) Robert L. Leach
2407 — 37th St. N.W.
Washington 7, D.C.
or his wife if he is dead at time of my death.
(iii) Anne Reed
4828 Reservoir Road, N.W.
Washington, 7, D.C.
The immediate problem of interpretation
The general rule of law is that the intention of the testator is controlling in the interpretation of a will and that such intent is to be determined from the whole will and not from detached paragraphs. Dean v. Tusculum College, 90 U.S.App.D.C. 304, 305, 195 F.2d 796, 797 (1952); Hilton v. Kinsey, 88 U.S.App.D.C. 14, 17, 185 F.2d 885, 888, 23 A.L.R.2d 830 (1950).
Appellant’s argument here is based primarily upon the use of the word “subdivision” instead of the word “division” and she admits that if the words “equal division” had been used then all the parties named in subparagraph (c) would take equally on a per capita basis. Division is the act of dividing into parts or portions. Subdivide is to further divide (what has already been divided) : to divide the parts into more parts. Webster New International Dictionary (3d ed.). If the word “subdivision” in the will is taken as requiring some prior division before the subdivision of the residue of the estate, then such requirement is satisfied by the prior provisions of the will which in effect could be said to direct a “dividing into parts or portions” to pay taxes, expenses of administration, funeral expenses and the two specific bequests, one for $10,000 for the trustees of the Dumbarton Avenue Methodist Church, and the other for $500 for a new headstone for the testatrix’ great grandfather before the residue of the estate is divided.
For such light as it might throw upon the intention of the testatrix, we note that the entire inventory of the money and debts due the deceased totaled $38,-038.53. The amount in the residue of the estate is not disclosed in the record.
The general rule is that where a bequest is made to one or more named persons and to the children of another or others, the persons referred to will take per capita in the absence of anything showing a contrary intention. In re Rauschenplat’s Estate, 212 Cal. 33, 297 P. 882, 78 A.L.R. 1380 (1931); In re Larson’s Estate, 256 Iowa 1392, 131 N.W.2d 503 (1964); Neil v. Stuart, 102 Kan. 242, 169 P. 1138 (1918); Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233, 29 N.E.2d 844 (1940); Leslie v. Wilder, 228 Mass. 343, 117 N.E. 342 (1917); Burton v. Cahill, 192 N.C. 505, 135 S.E. 332 (1926); Perry v. Brown, 34 R.I. 203, 83 A. 8, 17 (1912); In re Scheffler’s Estate, 3 Wis.2d 421, 88 N.W.2d 370 (1958); 4 Page on Wills § 36.19, at 580.
Guided by these principles, and the indications of intent disclosed by the four corners of the will, we are of opinion that the testatrix intended by her will that the children of her designated nephews and niece and Julia R. Leach should share the residue of the estate equally on a per capita basis.
Affirmed.
. The United States District Court for the District of Columbia has probate court jurisdiction. D.C.Code § li-522, 77 Stat. 482, based on the Act of February 27, 1801, ch. 15, § 12, 2 Stat. 107. The Maryland law of wills and probate, as existing on February 27, 1801, is the law of the District of Columbia, except as since altered by Congress. Campbell v. Porter, 162 U.S. 478, 482, 16 S.Ct. 871, 40 L.Ed. 1044 (1896); Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880 (1945); Clawans v. Sheetz, 67 App.D.C. 366, 368, 92 F.2d 517, 519 (1937).
. “A direction for an equal distribution, or a distribution,' share and share alike, seems, in some courts, to strengthen the inference that a per capita distribution was intended.” 4 Page on wills § 36.19, at 579 (1961).
. [Referring to gifts to named individuals and a class] A direction for a distribution “equally,” “share and share alike,” and so on, is held, by some courts, to show an intention to divide equally between the individuals and the class, taken as a unit. 4 Page on Wills § 36.19, at 580 (1961).
Reference
- Full Case Name
- In re ESTATE of Harriet Underwood SYMONDS, Edward Underwood ELAM v. Julia R. LEACH, legatee, and John J. Toomey, guardian ad litem, for Minor
- Cited By
- 5 cases
- Status
- Published