US SUPREME COURT DECISIONS

Final decrees of the Court of Appeals of the District of Columbia in respect of final settlements in the Orphans' Court may be reviewed in this Court on appeal.

Where, in a controversy between an executrix and next of kin, a decree of the Orphans' Court approving the final account of the executrix has been reversed by the Court of Appeals on the appeal of the next of kin, and the cause remanded that the account might be restated in accordance with the principles set forth in the opinion of the Court of Appeals, involving a recasting of the entire account, the decree of the Court of Appeals is not final.

The Court of Appeals of the District of Columbia, sitting as an Orphans' Court, has jurisdiction over the settlement of estates, and controversies in relation thereto between the next of kin and the executrix, and resort to the chancery court is unnecessary.

Certain familiar rules of construction of wills reiterated: (a) that the intention of the testator must prevail; (b) that the law prefers a construction which will prevent a partial intestacy to one that will permit it, if such a construction may reasonably be given; (c) that the courts in general are averse from construing legacies to be specific.

Ademption is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation or clearly indicative of an intention to revoke.

In this case, in view of the general intention of the testator as plainly shown by the provisions of his will taken together, and of the rules against partial intestacy and against treating legacies as specific, the bequest of money as therein made to testator's widow is construed not to have been a specific legacy, but rather in the nature of a demonstrative legacy, and a change, between the date of the will and the death of the testator, chanrobles.com-red

Page 179 U. S. 607

from money into bonds held not to be an ademption, and so a rule of law rather than a question of intention.

This was a proceeding for the settlement of the final account of Mary Louise Kenaday, as executrix of Alexander M. Kenaday, in the Supreme Court of the District of Columbia, holding a special term for Orphans' Court business. Alexander M. Kenaday died in the District of Columbia, March 25, 1897, leaving a will, which was probated in the Orphans' Court of the District at the April term, 1897, and was as follows:

"In the name of God, Amen. I, Alexander McConnell Kenaday, resident of Washington, District of Columbia, being of sound and disposing mind and memory, calling to mind the frailty and uncertainty of human life, and being desirous of settling my worldly affairs and directing how the estates which it has pleased God to bless me shall be disposed of -- after my decease -- while I have strength and capacity so to do, do make and publish this last will and testament, hereby revoking and making null and void all other last wills and testaments by me heretofore made. And first I commend my mortal being to Him who gave it, and my body to the earth, to be buried with [as *] as little expense by my executor hereinafter named."

"Imprimis. My will is that all my just debts and funeral charges shall be paid out of my estate, by my executrix."

"Item. I give, devise and bequeath to my beloved wife, Mary Louise Kenaday, all my real estate, household furniture, and claims pending in the courts in relation to said real estate, to-wit:"

"House and lot known as No. 507 & 509 on F Street, Northwest, Washington, D.C., lot No. 2 (east half) of square 482, 30 x 101.10."

"House and lot known as No. 621 H Street, Northwest, lot No. 483 sq. No. 483, 20 3/4 x 133 to an alley."

"House and lot known as No. 2006 G Street, Northwest, lot No. 25 in square No. 103, 20 3/4 x 120 ft. to an alley. "

Page 179 U. S. 608

"And I hereby authorize my wife, as executrix, to convey by deeds in fee simple any or all of said real estate in accordance with the laws of the District of Columbia under the advice of some competent attorney."

"Item. Included as claims pending in the courts are an account for taxes against the estate of De Vaughn v. De Vaughn, unjustly withheld, in charge of my attorney Woodbury Wheeler, Esq. Also, an account for moneys withheld by the trustees of Edwards v. Maupin, in charge of my attorney Frank W. Hackett, Esq., amounting to $1,078 with interest at six percent per annum from March 7, 1888."

"Also, my business as a claim agent and as publisher of 'The Vedette,' together with all books, papers, files, office furniture &c. &c. Also, 200 shares of Sutro Tunnel stock and Comstock bonds; also, notes and evidences of indebtedness to me, of more or less value; also, deposits of currency entered on my bank book of the National Metropolitan Bank, amounting to $10,000.00, more or less."

"Item. I give, devise and bequeath to my beloved sister Arabella D. Sinnott, residing in New Orleans, La., twelve thousand dollars in registered U.S. 4 % bonds, on special deposit in the National Metropolitan Bank."

"Item. I give, devise and bequeath to the surviving children of my deceased sister, Martha J. Piles, out of the residue of 4% bonds deposited as aforesaid ($3,500.00) as follows: To Mrs. Belle Hubert, $500.00. To Wm. A. Piles, $500.00. To Ida Piles, $500.00. To Eloise Piles, $500.00. To Edith K. Piles, $750.00. To Henry C. Piles, $250.00."

"Item. The promissory note for $1,100.00 filed with a chattel mortgage in my name in the office of the recorder of deeds in the District of Columbia, signed by Mrs. Anna Hemenway, shall be cancelled, and my executrix may allow Mrs. Hemenway $500 in settlement of her account."

"The bond of the City of Richmond, for $5,000.00 bearing 5 percent interest, payable January and July (on special deposit with the 4%, bonds of the U.S. in the National Metropolitan Bank) is hereby devised and bequeathed to my wife and executrix. "

Page 179 U. S. 609

"The sum of $5,000.00 advanced to Wm. C. McGeorge of San Francisco, California, no account of which has been rendered by him, is hereby devoted to the relatives of my wife, and used according to her discretion."

The will was subscribed by the testator April 3, 1894, in the presence of three witnesses, whose attestation was sworn to.

Mrs. Kenaday duly qualified as executrix, and proceeded in the discharge of her duties. On June 10, 1898, under the order of the Orphans' Court, the executrix gave notice, appointing Friday, July 8, 1898, as the day for the settlement of her final account as executrix by that court, and for making distribution of the estate under its orders.

Arabella D. Sinnott, William A. Piles, Ida Piles Miller, and Belle Hubert appeared and filed their petition, claiming as distributees as the only surviving next of kin and heirs at law of the decedent. They admitted the receipt from the testatrix of their respective legacies under the will, and that another legatee therein named, Edith K. Piles, since dead, had also received her legacy, and said:

"The other two legatees, to-wit, Henry C. Piles, and Eloise Piles, have not been paid the amounts left them, the said Eloise having died before the testator, Alexander M. Kenaday, and the said Henry C. not having been heard from during the last six years and who your petitioners believe is dead."

The final account of the executrix was made up and filed July 15, 1898, showing that she charged herself with a $5,000 bond of Richmond, Virginia; $24,500 United States registered bonds; 200 shares stock Comstock Tunnel Company and one certificate of scrip of that company, appraised as valueless; cash found on deposit in National Metropolitan Bank, $810.60, and some items of interest, etc.; that the Hemenway note had not been found; that she credited herself with disbursements for costs, funeral expenses, etc.; with commissions, and with legacies paid or otherwise satisfied, but not including therein the $810.60 on deposit, and that there was in her hands $9,218.76, "consisting mainly of United States bonds and deposits in bank," which the executrix credited herself with "on account chanrobles.com-red

Page 179 U. S. 610

of the bequest to her by the testator of "notes and evidences of indebtedness to me," "deposits of currency entered on my bank book," and other personal estate," and thus balanced and closed the account in full.

The intervening next of kin claimed the balance on the ground that it was residuary estate, and that, there being no residuary clause in the will, it necessarily belonged to them, and filed their exceptions to the account as stated, particularly excepting to the credit of the $9,218.76.

A certificate of the Register of the Treasury was filed, to the effect that the records of his office showed that registered four percent bonds of the United States were standing in the name of Alexander M. Kenaday on the 1st day of April, 1897, to the amount of $24,500; of which, bonds to the amount of $15,500 bore date April 23, 1889, and bonds to the amount of $9,000 bore date April 1, 1895.

The Orphans' Court, Hagner, J., presiding, on October 11, 1898, overruled the exceptions and approved the final account of the executrix as stated. All said next of kin thereupon appealed from this order to the Court of Appeals for the District of Columbia.

At the January term, 1899, the cause was heard, the order was reversed with costs, and the cause was remanded to the court below with a direction "that the account be restated in accordance with the principles of the opinion of this Court." 14 App.D.C. 1. The mandate having gone down, the account of the executrix was restated as directed by the Court of Appeals, and approved February 10, 1899.

The balance for distribution according to that account was stated to be $8,285.64, and the distributive shares as follows:

To Arabella D. Sinnott, sister, 1/2 . . . . . . . $4,142.82

To Mrs. Belle Piles Hubert, niece, 1/5 of 1/2 . . 828.56

To Edith K. Piles, " " " " . . 828.56

To Ida Piles Miller, " " " " . . 828.56

To William A. Piles, nephew, " " " . . 828.56

To Henry C. Piles, " " " " . . 828.56

Fractions . . . . . . . . . . . . . . . . . . . . .02

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$8,285.64

chanrobles.com-red

Page 179 U. S. 611

[611]

On the same tenth of February, Mrs. Kenaday was ordered to pay over and deliver to the said Arabella D. Sinnott, through her attorneys of record, the sum of $4,142.82, being her distributive share of said estate, taking receipt for the same. Thereupon Mrs. Kenaday appealed in open court to the Court of Appeals from the order of February 10 approving and passing the account, and from the order directing the distribution to Arabella D. Sinnott of the amount therein mentioned as her share. An appeal bond in the sum of $8,000 running to Arabella D. Sinnott, to operate as a supersedeas to the order directing the payment to her of $4,142.82 was required by order of court, and it was also directed that the penalty of a bond for costs in the matter of the appeal from the order approving the account, filed the same day, be fixed at $50, or in lieu of such bond for costs, a deposit of that amount in cash. A supersedeas bond in the penalty of $8,000 was approved, filed, and recorded, and $50 was deposited in lieu of bond on appeal from the order approving the account. The Court of Appeals filed an opinion per curiam that, on examining the transcripts of record, it was found that the court below had, in the restatement of the account, followed and observed the mandate sent down on the former appeal, and that it was ordered that the motion made by the said Arabella D. Sinnott to dismiss or affirm the order of the court below approving and passing said final account of the estate, under rule sixteen of the court, be denied, but that the said final order of said court approving and passing said account, the same bearing date the tenth day of February, 1899, on the appeal of the said Mary L. Kenaday, executrix, be affirmed, "the said account appearing to be stated in accordance with the mandate of this Court issued on the former appeal." Thereupon judgment was entered April 5, 1899,

"that the order of the said supreme court in this cause, of February 10, 1899, approving and passing account be, and the same in hereby, affirmed with costs."

A writ of error to remove the cause to this Court was thereupon allowed by that court, and issued, a supersedeas bond being given and approved. Subsequently the executrix, being in doubt whether the proceedings to obtain a review should be by writ of error, or appeal, prayed an appeal, which chanrobles.com-red

Page 179 U. S. 612

was granted in these words:

"On motion of Mary L. Kenaday, executrix, by her attorney, and it appearing to the court that the practice in cases exactly of the character of the present one has not been established by precedent, it is adjudged and ordered by the court this 17th day of April, 1899, that said executrix be, and she is hereby, allowed an appeal from the order of this court passed herein April 5, 1899, and that the same bond in the sum of $10,000 to act as a supersedeas upon the issuing a writ of error in this case, shall stand and act as a supersedeas upon said appeal, or according as a writ of error or appeal is ultimately decided to be the method of obtaining a review of the decision of this Court in said cause."

The supersedeas bond was in the sum of $10,000, and ran to Arabella D. Sinnott, William A. Piles, Ida Piles Miller, and Belle Hubert.