The opinion of the court was delivered by: MCGARRAGHY
This is a proceeding for the construction of the will of Edward W. Donn, Jr., and the complaint presents three questions to be determined, as follows:
'First: Under Clause Third of the said will, what interest, if any, does Minona Donn Smoot take in existing circumstances? Said clause opens with the language 'If I am survived by my two sisters, Elizabeth Donn Bryant, 10 E. Bradley Land, Chevy Chase, Md., and Minona Donn Smoot, Tilden Gardens, Washington, D.C., I give, devise and bequeath unto them all my property, real, personal and mixed, equally, * * *'. Testator was not survived by the two named sisters, but by one of them only, namely, Minona Donn Smoot.
'Second: Clause Sixth of the will appoints the plaintiff as executor and trustee 'to distribute to the beneficiaries, devisees and legatees hereunder, any property of any character of which I die the owner or which comes into my estate during administration.' Under this clause, the question is whether the plaintiff is required to undertake sufficiently active duties so that it must take title to the real estate and proceed with its distribution as the will directs.
'Third: At the time of decedent's death, there were outstanding two executed contracts of sale of certain District of Columbia real estate in which decedent had an interest and in which certain infants also had an interest, and the contracts were made subject to confirmation by the court because of the interest of said infants. The question presented by the complaint with respect to the real estate involved in these contracts is whether such contracts worked an equitable conversion so that the plaintiff holds the proceeds thereof as personalty.'
The position of the Courts in this jurisdiction in construing a will is set forth in George Washington University v. Riggs Nat. Bank of Washington, D.C., 66 App.D.C. 389, 88 F.2d 771, 772, as follows:
"Where there is nothing in the will itself to show the intention of the testator as to the disposition of his property in the condition which has actually arisen, the court cannot hold that the will disposes of the property in a particular way, on the supposition that the testator would probably have disposed of it in that way if his attention had been called to the particular circumstances."
If testator has failed to provide, either in the will itself, or from his language viewed in the light of circumstances which surrounded him when he wrote the will, some indication as to his intent on the particular point sought to be clarified, this Court is without power to place any construction on the will or parts thereof. Baker v. National Sav. & Trust Co., 86 U.S.App.D.C. 161, 181 F.2d 273.
The stipulated facts disclose that at the time testator wrote his will in 1941, his nearest relatives were his two sisters. The next nearest relatives were a nephew and a niece of a previously deceased sister. To each of the latter, testator bequeathed One Thousand Dollars. To his sisters he devised the remainder of his estate, with request for certain payments. What better indicia of intent can be presented to the Court than the manner in which the testator attempted to dispose of his property. Such a wide disparity in the amounts of the bequests -- virtually excluding the relatives other than his sisters -- can only indicate that the testator wanted these two sisters preferred to the virtual exclusion of all his other relatives.
This, then, was the intent of the testator. In order to give effect to that intent, it remains for the Court to determine what estates were given the sisters.
The law is well settled that where a testator devises an estate to named persons, to be divided equally, those persons take as tenants in common. George Washington University v. Riggs Nat. Bank of Washington, D.C., supra; Partridge's Lessee v. Colegate & Garretson, 1793, 3 Har. & McH. 339.
In Massachusetts, the Court expressed the general view in saying:
'It is a well recognized rule that when there is a gift to several legatees described by name of an aggregate sum to be divided equally among them, if one dies before the testator, his share will lapse.' Boston Safe ...