Before PRETTYMAN, FAHY and BAZELON, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PRETTYMAN
PRETTYMAN, Circuit Judge.
The trustee under the will of Alice Evelyn Garnett brought a civil action in the District Court of the United States for the District of Columbia for construction of the will. From judgment in that action five appeals were taken.
Mrs. Garnett reserved from the general provisions of her will certain real estate in the District of Columbia. She devised this real estate to a trustee, directing it to divide the net income arising therefrom equally among her three children, William, Evelyn and Rita, so long as they or any of them should live, with a survivorship provision as to any child dying without lineal descendants. The disposition of the principal upon the termination of the trust was as follows: "Upon the death of all of my children, I give, devise and bequeath all of my trust, estate, in fee simple, and free of this trust, to my grandchildren, or other descendants that shall then be living, my said grandchildren, or their descendants to take per stirpes and not per capita, or in other words, to inherit the portion of my estate that would pass to their parents if I had died intestate." (This punctuation is precisely as in the original.) There was no other clause dispositive of this property.
The controversy concerns the disposition of the principal of the trust estate under the foregoing quoted provision.
Mrs. Garnett died in February, 1922. Surviving her were three children and one grandchild. One son, William H. Garnett, was then 54 years of age and had been married for fourteen years. The other son, Evelyn S. Garnett, was 52 years old and had been married for twelve years. The daughter, Mrs. Rita G. Boykin, was 61 years old and had been a widow for twenty years. The grandson, Aubrey Boykin, the son of Rita, was a mental incompetent, then in an institution, and he died intestate, unmarried and without issue in September, 1922. William Garnett died without issue in 1938, leaving his wife as his residuary devisee, and she assigned her interest to three cousins of her husband. Evelyn Garnett died without issue in 1943, leaving his wife as his residuary devisee. Mrs. Rita Boykin died without surviving issue in 1946, leaving as her residuary devisees four nieces of her husband.
The District Court held that Aubrey Boykin had a vested remainder in the principal of the trust estate, subject to divestment if he were survived by descendants; that, since he was survived by no descendants, his interest passed to his sole heir, who was his mother, Rita Boykin; that when Mrs. Boykin died this interest passed by her will to her residuary devisees; and that, therefore, these four devisees took the whole of the trust property.
Six groups of parties are involved. Appellees are the residuary devisees of Mrs. Rita Boykin. The appellants and their contentions are as follows:
In No. 10174 appellants are the assignees of the widow and residuary devisee of William Garnett. They contend that Aubrey's remainder was divested by his death without issue during the lives of the life tenants; that the remainder thereupon reverted to the heirs of the testatrix and their successors; and that they (appellants), being successors to one of the three heirs of the testatrix, take one-third of the property.
In No. 10175 appellants are heirs at law of Mrs. Rita Boykin. They contend that since the original testatrix did not provide for the disposition of the principal of the trust estate in the event that there were no living grandchildren or descendants of grandchildren at the time of the death of the last of the life tenants, a possibility of reverter remained in her estate; that this possibility descends but cannot be devised or assigned; that the possibility descended to the three children of the testatrix but, upon the death of two children, passed to Rita as the survivor of the three; that this interest remained only a possibility until Rita's death, because of the conclusive presumption of law that she might at any time have had another child; and that upon Rita's death this possibility descended to her heirs as tenants in common.
In No. 10176 the appellant is the widow and sole residuary devisee of Evelyn Garnett. She contends that the original testatrix failed to provide for the disposition of the principal of the estate in the events which have transpired; that the interest, whatever it was, descended to the testatrix's three children; that the interest of Evelyn Garnett passed under his will; and that, therefore, she is entitled to one-third of the trust property.
In No. 10177 appellants are five grandchildren of two half sisters of the testatrix; thus, they are grandnieces and grandnephews of the testatrix. They contend that, if the will made a complete disposition of the property, on the death of the last life tenant (Rita Boykin) a resulting trust arose in favor of the heirs of the testatrix determined as of that date, and, on the other hand, that if any portion of the property remained in the testatrix that interest was a possibility of reverter which was not descendable; that thus, in either event, the heirs of the testatrix, determined as of the date of the death of the last life tenant, take the whole of the trust property.
In No. 10178 the appellant is an heir at law of Rita Boykin, and if Rita Boykin is eliminated from consideration as the heir of Aubrey, this appellant becomes an heir at law of Aubrey Boykin. She makes alternative contentions. First, she contends that the word "descendants" in the will of the testatrix should be construed to mean heirs and that, therefore, Aubrey's remainder vested in his heirs who were living at the death of the last surviving life tenant; that these heirs should be determined according to the law which was in effect at the date of the death of the original testatrix; *fn1 that this law would limit such heirs to those of this grandfather on his maternal side; and that this appellant is entitled to one-half of the estate, because she is the sole heir of one of the two brothers of Aubrey's maternal grandfather. In the alternative, this appellant says that she is also one of the heirs of Rita Boykin, and, as such, she adopts the contentions made by the appellants in No. 10175; that in this event she is entitled to ...