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05/23/90 WASHINGTON HOSPITAL CENTER HEALTH SYSTEM

May 23, 1990

WASHINGTON HOSPITAL CENTER HEALTH SYSTEM, APPELLANT
v.
THE RIGGS NATIONAL BANK OF WASHINGTON, D.C., ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Emmet G. Sullivan, Trial Judge

Rogers, Chief Judge, Newman and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

The issue in this appeal is whether the trial court erred in granting summary judgment to appellees on the ground that Garfield Memorial Hospital was divested of a residuary bequest as a result of its dissolution in 1962 prior to the death of all life tenants under the Will of R. Ross Perry, Jr. Riggs National Bank of Washington, D.C., trustee of the trust, petitioned for a declaratory judgment that the bequest to Garfield must "fail to take effect," and should be divided among the other five charitable institutions entitled to the residue of the trust following the death of the last life tenant. *fn1 The trial Judge ruled that although the gift to Garfield Memorial Hospital had vested at the time of the testator's death, in 1953, the language of the Will, providing that if a gift shall "fail to take effect," then the failed gift shall be distributed to the other named legatees, operated as a divesting provision, and not as an anti-lapse provision, when Garfield Memorial Hospital was dissolved in 1962 after joining the Central Dispensary and Emergency Hospital and the Episcopal Eye, Ear and Throat Hospital in 1958 to form the Washington Hospital Center Health System. *fn2 We reverse.

I

The facts are undisputed. Under Item VII of his Last Will and Testament (Will) executed May 24, 1941, R. Ross Perry, Jr., a skilled attorney experienced in the law of trusts and estates, left all of the residue and remainder of his estate to Riggs, in trust, and instructed Riggs to establish four equal trust estates for the benefit of certain life tenants. Item VII clause (c) provided that upon the termination of each life estate, or "in the event any of them shall fail to take effect," Riggs was to pay three specific bequests. Finally, under clause (D) of Item VII (c):

The residue of the said trust estates shall he paid over in equal shares, without priorities, to the Children's Hospital of Washington, D.C., a Corporation; the Garfield Memorial Hospital of Washington, D.C., a Corporation; the Central Dispensary and Emergency Hospital of Washington, D.C., a Corporation; the Washington Home for Incurables, of Washington, D.C., a Corporation; the Instructive Visiting Nurse Society, of Washington, D.C., a Corporation, and the Central Union Mission of Washington, D.C., a Corporation. Should any of the bequests in this clause (D) fail to take effect, I direct that the same be equally divided among the other legatees of this clause (D) of my will. I direct my said Trustees to make payments on the said bequests as soon and often as practicable and not to wait until it has the entire amount necessary to pay any bequest . . . [emphasis added].

At the time of the testator's death in 1953 Garfield Memorial Hospital (Garfield) was a fully operational corporation. In 1958, Garfield conveyed all of its real property to the federal government and the balance of its assets to WHC. This occurred pursuant to a 1952 agreement between Episcopal Eye, Ear and Throat Hospital (Episcopal), the Central Dispensary and Emergency Hospital (Emergency), Garfield, and the United States whereby the three hospitals, desirous of participating in the hospital center mandated by federal law, were to transfer their activities to the new WHC and, in return for the land and buildings owned by the charitable non-profit corporations, the government, as directed by Pub. L. 79-648, 60 Stat. 846 (August 7, 1946), would construct, "in order to assist in providing more adequate hospital facilities in the District of Columbia," a building to be used by WHC for general hospital purposes. *fn3 Following the transfer of its activities and assets to WHC, Garfield petitioned for and was granted corporate dissolution in 1962. In re Garfield Memorial Hospital, CA 1412-62 (D.D.C. August 22, 1962).

The last life tenant died in 1985. After payment of the specific legacies, costs, and administration fees, a residue of approximately $500,000.00 remains for distribution to the named charitable organizations. Riggs, being of the Opinion that the bequest to Garfield "failed to take effect," filed for a declaratory judgment to clarify which organizations would be entitled to participate in the distribution of the trust residue.

The trial Judge, by memorandum opinion and order, ruled that the bequest to Garfield Memorial Hospital vested upon the death of the testator, but that the hospital was subsequently divested of its remainder interest as the result of its 1962 dissolution. The Judge found that the testator had not included any expression of his intent to postpone the vesting of the residuary bequests, but only to postpone payment, possession, and enjoyment of the trust residue until termination of the intervening life estates. As to the matter of divestment, however, the Judge relied on the specific nature of the bequest, noting that the testator, a scrivener of wills, had named six specific residuary legatees, provided for the possibility that a gift could "fail to take effect" even after it has vested, and did not include a provision for a bequest to pass to a residuary legatee's successor or assigns, although he included such a provision in naming his executor. *fn4 In the trial Judge's view, the "fail to take effect" language made clear the testator's intent to preclude the possibility of any entity other than the named legatee claiming an interest in the residuary trust estate. Thus, in his view, the "defunct legatee" cannot take under Item VII (c)(D) of the Will, and to permit WHC to do so would be to interpret the judicially ordered dissolution as a codicil to the Will. The Judge also rejected the argument that the doctrine of cy pres was applicable since the Will provided for alternative Disposition of the failed gift.

II

In construing a will, the intent of the testator is paramount. Read v. Legg, 493 A.2d 1013, 1016 (D.C. 1985); Wyman v. Roesner, 439 A.2d 516, 520 (D.C. 1981). The court's function is to ascertain the testator's intent and give full effect to that intention unless contrary to law. *fn5 Read v. Legg, supra, 493 A.2d at 1016; O'Connell v. Riggs National Bank, 475 A.2d 405, 407 (D.C. 1984). Where the intent is clear from the four corners of the will, there is no need for extrinsic evidence or further rules of construction. See Read v. Legg, supra, 493 A.2d at 1016; Davis v. Davis, 471 A.2d 1008, 1009 (D.C. 1984).

As the trial Judge correctly ruled, there is no clear expression of the testator's intent to postpone the vesting the residuary bequests. The language merely postpones payment, possession and enjoyment of the trust residue until termination of the intervening life estates. See American Securities & Trust Co. v. Sullivan, 72 F. Supp. 925, 931 (D.D.C. 1947). Consequently, the bequest vested upon the death of the testator. See In re Estate of Kerr, 139 U.S. App. D.C. 321, 326-27, 433 F.2d 479, 484-85 (1970); Pyne v. Pyne, 81 U.S. App. D.C. 11, 154 F.2d 297 (1946). The only question is whether the testator intended the residuary bequests to be subject to subsequent divestment.

The general rule, however, is that absent explicit testamentary intent to the contrary, there is no condition of survivorship until the time of possession of the gift, and a beneficiary's interest in a portion of the residuary is indefeasibly vested when the beneficiary survives the testator, and is not divested by the beneficiary's death prior to the time of possession. In re Bogart's Will, 62 Misc. 2d 114, , 308 N.Y.S.2d 594, 599-600 (1970); 5 PAGE ON WILLS § 43.18 at 383-85 (1962). See also Uphaus v. Uphaus, 315 S.W.2d 801, 804-05 (Mo. 1958); Crowley v. Vaughan 347 S.W.2d 12, 16 (Tex. Civ. App. 1961). The District of Columbia appears to have adopted this rule. Bank of Galesburg v. Lawrenson, 99 U.S. App. D.C. 345, 346-47, 240 F.2d 31, 32-33 (1956).

Looking to the four corners of the Will, the testator's use of the phrase "fail to take effect" does not, as the trial Judge concluded, "unambiguous" reveal an intent that only those legatees still in their original corporate existence at the termination of the life estates could share in the residue of the trust. The testator used the phrase "fail to take effect" in connection with the life estates, and, at least with respect to the life estates the phrase can only be read as a gift over in the event a life tenant predeceased the testator. Thus, the clause provides for an alternative Disposition if there was an original lapse of the bequest. Accordingly, appellants argue that the phrase "fail to take effect" should be read consistently throughout the Will, and particularly here where it appears twice in the same paragraph, to provide for the contingency of an original lapse, before vesting, rather than as creating a divesting condition for a residuary legatee. See Riggs National Bank v. Summerlin, 144 U.S. App. D.C. 131, 136, 445 F.2d 201, 206, cert. denied, 404 U.S. 851, 92 S. ...


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