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July 12, 1967

James C. WILKES, Trustee under the Will of James F. Freer, Deceased, Plaintiff,
Edna L. FREER et al., Defendants

The opinion of the court was delivered by: JONES

 This action is brought by the plaintiff for construction of the will of James F. Freer, deceased, and for instructions to the plaintiff as to which persons are lawfully entitled to receive the trust assets now held by plaintiff as trustee under the will. A pretrial conference was held on January 26, 1967 and the pretrial order was filed on January 30, 1967. At pretrial it was stipulated that the parties might file cross motions for summary judgment. Defendant District of Columbia filed such a motion. Defendants Edna L. Freer, H. Edward Freer, J. Richard Freer, Laird B. Freer, John W. Freer, Charles A. Freer and Mrs. Helen Olin also filed a motion for summary judgment.

 The undisputed facts, as stipulated by the parties in the pretrial order, are:

James F. Freer died July 27, 1938, a resident of the District of Columbia, leaving a last will and testament dated June 26, 1937 which was admitted to probate and record on May 3, 1939, in Administration No. 53,992 in this Court. Plaintiff administered said estate as executor and his final account was approved on February 2, 1940.
Plaintiff has served as the trustee of the residuary testamentary trust created by the provisions of Article 'THIRD' of said will, in accordance with his appointment as such trustee under Article 'FIFTH' of said will. Said trust provides for the payment to a certain Mrs. Pearl A. Lewis of the sum of $50.00 per month for life and it is directed that upon her death the principal and income shall be permitted to accumulate for twenty years whereupon the trust should terminate and all principal and income be disbursed one-half to testator's brother, Harry L. Freer, if then living, and one-half to testator's brother, Clifton C. Freer (a/k/a Charles C. Freer), if then living, but that if either of said brothers should then be deceased, his one-half share should be disbursed to said brother's heirs who are then living. The said Mrs. Pearl A. Lewis died on August 25, 1944, and the 20th anniversary thereof being August 25, 1964, at which time plaintiff trustee became authorized by the will to disburse the trust principal and income.
Article 'FOURTH' of the will sets forth a so-called 'anti-contest' provision as follows:
'FOURTH: Should any beneficiary hereunder or any other party, attempt in any way to dispute, control or set aside any of the provisions of this will, or any codicil thereto, such party and his heirs shall forfeit all rights to take under the provisions of this will, and it is my will that neither such party nor his heirs shall receive any part of my estate. Should any beneficiary take excepting [sic] under the terms of this will, such party shall not serve as executor, administrator or trustee hereunder or of my estate.'
Testator was survived by three of his brothers, Harry L. Freer, Charles C. Freer, a/k/a Clifton C. Freer and George Albert Freer. Plaintiff is informed by Edna L. Freer, widow of Harry L. Freer, that the fourth brother, Robert Franklin Freer, had left the Washington, D.C. area in the year 1925 and has not been heard from since, it being unknown whether he is now living or dead, or, if dead, whether he was survived by any spouse or descendants or died testate or intestate. The aforementioned parties were testator's sole heirs at law and next of kin upon his death. The three brothers known to have survived testator were deceased on the trust distribution date (August 25, 1964) and were survived by the following known heirs at law and next of kin:
As to Harry L. Freer: Edna L. Freer, widow, H. Edward Freer, son, J. Richard Freer, son, Laird B. Freer, son, John W. Freer, son.
As to Charles C. Freer, a/k/a Clifton C. Freer: Charles A. Freer, son, Mrs. Helen Olin, daughter.
As to George Albert Freer: Albert P. Freer, son.
On November 12, 1938, George Albert Freer, Harry L. Freer and Charles C. Freer, a/k/a Clifton C. Freer, jointly filed their petition for Caveat against said will attacking the validity of said will on grounds including lack of mental capacity, invalidity of execution and attestation, and fraud, coercion, duress and undue influence in the obtaining and the execution of said will. On May 1, 1939 the jury returned its verdict sustaining the will on all of the issues and the Court on May 3, 1939, entered its decree admitting the will to probate and record.
The only real estate acquired by the trust under said will consisted of Lot 804 in Square 920 which was improved by a brick dwelling then known as No. 6 - 8th Street, S.E., Washington, D.C., which property was subsequently sold by plaintiff under testamentary power of sale, the net sales proceeds being added to the personal assets of the trust, which as of the present amount to about $104,000 of personal property.

 Plaintiff asserts that a forfeiture resulted upon the institution of the caveat proceedings in 1938 by Harry, Charles and George Albert Freer and that the heirs at law of Harry and Charles who are defendants here may not take under the will. *fn1" Defendant District of Columbia joins in that contention. The defendant heirs at law claim that the 1938 will contest did not work a forfeiture and that under the terms of the testamentary trust they are entitled to take what Harry and Charles ...

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