# Petition for a Writ of Certiorari — Fairclaw v. Forrest

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1943
- **Citation:** 318 U.S. 756

## Text

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In THE

Supreme Court of the United States

OcroBER TERM

No. © & 9

Masir Swaces Fairciaw, Petitioner

Vv.

Joun Forrest, Respondent

‘PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA .

Grorce K. C. Haves,
Pair W. Tomas,
Tuomas W. Parks,

Attorneys for Petitioner.

THE LAW REPORTER PRINTING COMPANY

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SUBJECT INDEX

Prayer Asking Issuance of Writ of Certiorari__ 1
Opinions of Courts Below. 2
Jurisdiction __. RP PAPEL RS ROL, STEARATE
RN sacks aS ea et a oe
Questions Presented 3
Specification of Errors... 4

Discussion ....._.....____.

Petitioner’s Theory pGstalccueksi nett Aonietiseetkp aaa
Analysis of Opinion Below. . sesiheptaliies.cdopesga oa eae
Majority Opinion _ inte acte ee teeuia ae
Excerpts from Majority Opinion__ cedecion ce a a
Minority Opinion PA TS
Excerpts from Minority Opinion ; _1, 18
COMIN sei Screen ccc a
TABLE OF CASES
Alsop v. Fedarwisch, 9 App. (D.C.) 409_. .. 6, 8, 9
American Wholesale — v. Aronstein, 56 6 ADD. . C.)
126; 10 F. (2d) 991_. rea ater nce ay 3S

Ashbaugh v. Ashbaugh, 273 Mo. 353; 201 S.W. 72 18, 19
Baker v. Sharpe, 51 Ind. App. 547; 96 N.E. 627.7, 8, 17

Beddingfield v. Estill, 100 S.W. 108... Gnendaidecbean eee
Bradford v. Matthews, 9 App. (D. C. ) 4 SE ee 7, 14
Chaplin v. Leapley, 35 Ind. App. 511; 74 N.E. 546... «6
Crenshaw v. McCormick, 19 App. (D.C.) 494... 7, 14
Eckhardt v. Osborne, 338 Ill. 611; 170 N.E. 774... «12
Flaherty v. Columbus, 41 App. (D.C.) 525.0000,
Golladay v. Knock, et al., 85 N.E. 64900000000. 10
he et Git Sl ne:
Hays v. Jackson, 6 Mass. 149... 8 14

oe

In re Davis, 120 N.C. 9; 26 S.E. 636_.-----------------
Jeffers v. Lampson, 10 Ohio St. 101_-......------------------

Lang v. Commissioner of Internal Revenue...

Loughran v. Lemmon, 19 App. (D.C.) 141... 6
McAleer v. Schneider, 2 App. (D.C.) 461_------------------ 7,14
Settle v. Settle, 56 App. (D.C.) 50; 8 F. (2d) 911. 5, 6, 11
Stuckey v. Keefe’s Executors, 26 Penna. a
Suskin & Berry v. Rumley, 37 F, (2d) 304..........------- 11
Taylor v. U.S., 281 U.S. 497; 50S. Ct. 356... 19, 20
Webber v. Webber, 217 Mich. 178; 185 N.W. 761... 6
White v. Summers, L.R. 2 Ch. 256... 8

STATUTES
Judicial Code—Section 240_- See 2

District of Columbia Code (1929), Title 29, : Cena s 3,
Section 45... 3, 4, 7, 10, 13, 14, 15, 16, 17, 18, 20

In THE

Supreme Court of the United States

Ocroser TERM

| eae ES ek

Mase Swates Fatirciaw, Petitioner
Vv.
Joun Forrest, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA

To the Honorable

The Chief Justice and the

Associate Justices of the Supreme Court
Of the United States:

Your petitioner, Mable Swales Fairclaw, respectfully
prays that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the District of
Columbia, rendered in the above captioned cause on August
4, 1942, affirming the judgment of the District Court of the
United States for the District of Columbia dismissing, on
the merits, the complaint filed by the petitioner seeking
construction of a last will and testament in favor of peti-
tioner and a resultant partition of certain real estate situ-
ated in the District of Columbia.

2

OPINIONS OF COURTS BELOW

The District Court did not render a written opinion; its
judgment dismissing the petitioner’s complaint on the mer-
its appears in the Record (R. 4).

The opinion of the United States Court of Appeals for the
District of Columbia, No. 7909, rendered August 4, 1942,
is reported in 130 F(2) 829, and appears in the Record
(R. 15).

JURISDICTION

The decision of the Court of Appeals was rendered Au-
gust 4, 1942 and judgment entered on same date (R. 28).
A petition for rehearing was filed August 19, 1942 and
denied September 30, 1942 (R. 24).

The jurisdiction of this Court is invoked under the pro-
visions of Section 240 of the Judicial Code as amended by
the Aet of February 13, 1925.

STATEMENT

In January, 1926, certain real estate situated in the Dis-
trict of Columbia and known as premises 120 You Street,
N. W., was conveyed to Harry C. Pryor and his wife, Mable
Pryor, as joint-tenants, in fee simple. On November 20,
1928, while said husband and wife were so seised of said
real estate, Mable Pryor executed her last will and testa-
ment, the residuary clause of which devised said real estate
-o her brother, John Forrest, the respondent herein (R. 3-4).
Harry Pryor and his wife, Mable Pryor, continued to be so

_ ceised of said real estate until January, 1933, when the hus-
band died, leaving his wife, the testatrix, surviving him as
the surviving tenant of said estate. Mable Pryor continued
seised of said real estate until January, 1939, when she died
without having changed or republished her said will (R. 3).
The will was duly admitted to probate and record.

In January, 1941, the petitioner, Mable Swales Fairclaw,

_—

ak PORES « SO pe OK > Bree oe ke a OOS Or a eee We

3

one of the two then surviving heirs at law and next of kin
of said Mable Pryor, deceased, filed a complaint in the
District Court of the United States for the District of
Columbia, against John Forrest, the respondent and other
surviving heir at law and next of kin of said decedent, seek-
ing a judicial construction of said last will and testament
and seeking a partition ef said real estate, on the ground
that said testatrix had died intestate as to said real estate
(R.1).

On motion of the respondent the District Court dismissed
tlle complaint on the merits on the ground that said decedent
did not die intestate as to said real estate, but that the same
had passed. under the residuary clause of said will to the
respondent. Judgment was entered accordingly. The peti-
tioner appealed (R. 5). The Court of Appeals affirmed the
judgment of the District Court (R. 23).

QUESTIONS PRESENTED

The questions presented for the determination of this
Honorable Court are:

1. Whether or not, in the absence of a regulatory statute,
a will executed by one of the entirety spouses during
the existence of the entirety estate and which purports
to devise the entirety real estate situated in the Dis-
trict of Columbia, operates as an effective devise of
said real estate if the testator becomes the surviving
entirety tenant and dies seised of said real estate with-
out having changed or republished said will?

2. Whether or not any interest of a surviving tenant by
the entirety in real estate situated in the District of
Columbia is after-aequired real estate and subject to
the provisions of Title 29, Chapter 3, Section 45, of
the District of Columbia Code (1929)?

———

3. Whether or not the testatrix died intestate as to the
real estate involved in this case?

4

STATUTE INVOLVED

(a) Statute involved:

Title 29, Chapter 3, Section 45 of the District of Columbia
Code (1929) (Section 19:205, District of Columbia Code
(1940), the pertinent part of which reads as follows:

‘‘ . . any will executed after January 1, 1902, which
shall by words of general import devise all the estate
or all of the real estate of the testator shall be deemed,
taken, and held to operate as a valid devise of any real
estate acquired by said testator after the execution of
such will, unless it shall appear therefrom that it was
not the intention of the testator to devise such after-
acquired property.”’

SPECIFICATION CF ERRORS
The Court of Appeals erred:

(1) In not holding that this will, executed by one of the
entirety spouses during the existence of the en-
tirety estate and which purports to devise the entirety
real estate situated in the District of Columbia, does
not operate as an effective devise of said real estate
where the testatrix became the surviving entirety
spouse and died seised of said real estate and without
having changed or republished her will.

(2) In not holding that this will, with respect to this real
estate, took effect on the date of its execution, and not
on the date of death of the testatrix.

(3) In not holding that Title 29, Chapter 3, Section 45 of
the District of Columbia Code (1929) was inappli-
cable to the solution of this case.

Sf EAE ERROR ARRON —
aun ee ree ;

5

(4) In not holding that with respect to this real estate,
said testatrix died intestate as to it.

DISCUSSION

The undisputed facts in this case are: That on January
18, 1926, the real estate in question was conveyed by a deed
in fee simple to Harry C. Pryor and his wife, Mable Pryor,
as joint-tenants; that on November 20, 1928, while said
husband and wife were so seised of said real estate, Mable
Pryor executed her last will and testament and by the resid-
uary clause therein devised said real estate to her brother,
the respondent; that said husband and wife continued so
seised of said real estate until January 26, 1933, when the
husband, Harry C. Pryor, died leaving his wife, the testa-
trix, surviving him as the surviving tenant of the estate;
that on January 28, 1939, Mable Pryor died seised of said
real estate and without having changed or republished her
will, and at the date of the filing of the complaint seeking
a construction of said will the respondent and petitioner
were the only two surviving heirs at law and next of kin
of said testatrix.

Under the foregoing facts the petitioner contends that
the testatrix died intestate as to said real estate and as an
heir at law the petitioner is entitled to a partition of said
real estate, under the following theory: :

PETITIONER’S THEORY

The deed of January 18, 1926, conveying said real estate
to husband and wife as joint-tenants in fee simple, created
an estate by the entirety in fee simple, and not a joint-
tenancy.

Settle v. Settle, 56 App. (DC) 50

The essential characteristics of an estate by the entirety
are that each spouse is seised of the whole of the entirety,
and not a share, moiety or divisible part. Each spouse is

6

seised per tout et non per my, and not per my et per tout
as joint tenants.

Settle v. Settle, 56 App. (DC) 50

Flaherty v. Columbus, 41 App. (DC) 525

Tenancies by the entireties, in the District of Columbia,
are not modified by the Married Woman’s Act. The estate
exists as at common law, unaffected by statute.

Loughran v. Lemmon, 19 App. (DC) 141

In the Loughran Case, it was said:

‘There is nothing in the Married Woman’s Act, in
force in this District, that in any way defeats or de-
stroys the common-law estate by the entireties, as that
estate subsists between husband and wife by purchase.

The estate exists as at common law unaffected by
statute.”’

An estate by the entirety cannot be devised by either
spouse during the existence of the tenancy.
Alsop v. Fedarwisch, 9 App. (DC) 409
Chaplin v. Leapley, 35 Ind. App. 511; 74 NE 546
Webber v. Webber, 217 Mich. 178; 185 NW 761

In the Webber Case where entirety real estate was involved,
the testator devised the property to his wife for life, re-
mainder to his son in fee. The son died, intestate, during
the widow’s lifetime, and in a suit by the heirs at law of
the testator claiming to be the fee simple owners against the
widow, the Court in sustaining a dismissal of the suit said,
in part, as follows:

‘¢ | The death of Mr. Weber ended his estate by en-
tirety in this property, and during his lifetime he could
no more devise it by will than he could by deed.”’

A will, with respect to the real estate it purports to de-
vise, takes effect as of the date of its execution, and not the
date of death of the testator.

7

McAleer v. Schneider, 2 App. (DC) 461
Bradford v. Matthews, 9 App. (DC) 438
Crenshaw v. McCormick, 19 App. (DC) 494

Title 29, Chapter 3, Section 45 of the District of Columbia
Code (1929) which has been discussed in connection with
the solution of this case deals with the testamentary disposi-
tion of real estate acquired by a testator after he executes
his will, and to that extent modifies the foregoing common
law rule. But with respect to real estate acquired by the
testator before he executes his will there is no statute in the
District of Columbia that changes this common law rule.
Therefore, it is vitally material in this case whether the real
estate here involved is ‘‘pre- or after-acquired’’ property.

This testatrix, as surviving tenant by the entirety, did
not take or acquire any new or additional interest in said
real estate after the execution of her will. The only event
which gave rise to any such possibility was the death of the
other entirety tenant, the testatrix’ husband, in 1933. In
Lang v. Commissioner of Internal Revenue, 289 US 109,
in holding that the surviving tenant by the entirety did not
take or acquire any new or additional interest in the entirety
real estate upon the death of the deceased spouse, the Court
said:

‘*An estate by the entirety is held by the husband and
wife in single ownership, by single title. They do not
take moieties, but both and each take the whole estate,
that is to say, the entirety. The tenancy results from
the common law pripziple of marital unity; and is said
to be sui generis. Upon the death of one of the tenants
the survivor does not take as a new acquisition, but
under the original limitation, his estate being simple
freed from participation by the other. In the present
case when the husband died the wife, in respect to this
estate, did not succeed to anything. She simply con-
tinued, in virtue of the nature of the tenancy, to pos-
sess and own what she already had. . . .’’

ae
bee. em ry ty LINE TE LEE ETL ERP LIF ELIE PELL FERRE FE Oe EE Oe ee

7

If there is any interest of any nature whatsoever that is
acquired by the surviving entirety spouse in joint entirety
property upon the death of his entirety mate, it seems it
certainly would have been recognized in Beddingfield v.
Estill, 100 SW 108. In that case husband and wife owned
certain real estate as tenants by the entirety. The husband
feloniously killed his wife. There was a statute which pro-
hibited a murderer from taking any property from his de-
ceased victim in any manner or form. In holding that the
statute in question did not affect the husband’s interest in
the entirety estate, because he acquired no interest of any
kind from the murdered wife, the Court said:

8

“The estate of husband and wife in an estate by the
entirety is a unit, not made up of any devisible parts
subsisting in different natural persons, but an indi-
visible whole, nested in two persons who are actually
distinct, yet who, according to legal intendment, are
one and the same. On the death of husband or wife,
the survivor takes no new estate or interest—nothing
that was not in him or her before. It is a mere change
in the properties of the legal person holding—not of
the legal estate holden.’’

See also:
Baker v. Sharpe, 51 Ind. App. 547; 96 NE 627
Stuckey v. Keefe’s Executors, 26 Penna. 399

If the testatrix did not acquire this real estate, nor any
interest therein, after she executed her will, then her inten-
tion to devise it is immaterial because conceding that she
intended to devise said real estate her intention cannot
be given effect because to do so would contravene some well
settled rules of law.

Alsop v. Fedarwisch, 9 App. (DC) 408
White v. Summers, L. R. 2 Ch. 256
Hays v. Jackson, 6 Mass. 149

9
In Alsop v. Fedarwisch, 9 App. (DC) 408, the Court said:

‘We fail to see how this conclusion can well be af-
fected by the will of Joseph Frank, even if he owned
no other property than his interest in the land in con-
troversy. It may be that Joseph Frank made the mis-
take of supposing that he owned an interest in this
land which he could devise, or even that he owned the
whole of it. That mistake did not make him such an
owner; .. .’’

The substance of petitioner’s contentions in the language
of the layman amounts to this:

When the testatrix tried, she couldn’t;
when the testatrix could, she didn’t!

ANALYSIS OF OPINION BELOW

While the opinion of the Court of Appeals unanimously
affirmed the judgment of the lower court, the reasons as-
signed in support thereof were divided: two of the Justices
concurring in reasons supporting their view, and the other
Justice, in a separate opinion, assigned other and different
reasons leading to his concurrence in the final result. There-
fore, for purposes of this petition the opinion will be re-
ferred to herein as the majority opinion and the minority
opinion. :

Majority Opinion

The majority opininon holds that a will executed by the
surviving entirety tenant during the existence of said ten-
ancy and which purports to devise said real estate and
which remains unchanged and unrepublished until the death
of said survivor seised of the realty, is effective to devise
said real estate.

Two reasons are assigned in support of this conclusion,
the first of which is on page six (6) of the opinion. After
stating that each entirety spouse has only a contingent pos-

10

sibility of ever enjoying the estate exclusively, the opinion
proceeds to give the basis of its conclusion, the substance
of which seems to be: That in an estate by the entirety the
contingent possibility as to which spouse will be the sur-
vivor being coupled, in legal theory, with a presently vested
estate, is such an interest that may be devised under a will
executed by the surviving tenant during the existence of the
tenancy.

The second reason given by the majority deals with th
pertinent applicability of the common law rule: that a will,
with respect to the real estate it purports to devise, takes
effect on the date of its execution, and not the date of death
of the testator. After acknowledging that the rule formerly
controlled the devise of real estate, the majority opinion
states:

‘the rule is now merely a principle of construction.

So far as this is merely a rule of construction,
it cannot overcome the testator’s clearly expressed in-
tention. So far as it formerly applied to exclude after-
acquired property from the effect of the will, Section 45
has overruled it. . . . On the contrary, the will is effee-
tive as of the date of death.’’

We respectfully submit that each of the foregoing reasons
assigned in support of the majority conclusion is error.

First Reason. There are two types of contingent interests:

(a) If the contingency relates to something other than
the identity of the person who is to take the estate,
then the interest is said to be a vested contingent one
(sometimes referred to as a contingent interest with
a vested aspect), and as such is subject to alienation
and levy and sale on execution and will support title
by estoppel.

Golladay v. Knock, et al., 85 NE 649

(b) If the contingency relates to the identity of the per-

ss

—

11

son who is to take the estate the contingent interest
is said to be a mere expectancy or possibility, and as
such is not subject to alienation, nor to levy and sale

on execution.
Suskin & Berry v. Rumley, 37 F(2) 304.

In applying these rules to the present case we find that
the uncertainty referred to in the majority opinion, to wit:
as to which one of the entirety spouses would become the
survivor,—was a contingency relating to the identity of the
spouse who would become entitled to the sole enjoyment of
the entirety estate, and therefore was a mere expectancy
or possibility. Irrespective of what the rule may be in
other jurisdictions with reference to the interest of an
entirety tenant being subject to encumbrance, levy and sale
on execution during the existence of the tenancy, the rule
in the District of Columbia is that such interest is not sub-
ject to alienation, encumbrance, levy and sale on execution
nor to partition during the continuance of the entirety
estate.

American Wholesale Corp. v. Aronstein, 56 App. (DC)
126; 10 F(2) 991
Settle v. Settle, 56 App. (DC) 50; 8 F(2) 911

It follows therefore, that said mere expectancy or possi-
bility was not coupled with a presently vested estate such
as was alienable by either spouse alone during the existence
of the tenancy, nor one which was subject to levy and sale
on execution on a judgment against either spouse during the
other’s lifetime.

Settle v. Settle, 56 App. (DC) 50

American Wholesale Corp. v. Aronstein, 56 App (DC)

126

The case at bar does not even come within that class of
cases where a transfer of a mere expectancy, if coupled
with an alienable vested estate, has been sustained if the
transfer is made to a party in interest, but void if made to

—

a stranger. The reasons why this case does not come within

the foregoing rule are: (1) the vested estate here involved

was not alienable by the testatrix alone to a stranger at the

time she made her will; and (2) the attempted testamentary

transfer was to a stranger to the interest being dealt with.
Jeffers v. Lampson, 10 Ohio St. 101

12

The majority opinion cites Eckhardt v. Osborne, 338 Ill.
611; 170 NE 774, as an adjudicated authority in support
of its conclusion. But the Eckhardt Case is readily distin-
guishable from the case at bar. In that case both spouses
joined in making a joint will devising real estate held by
them as joint-tenants. In American Wholesale Corp. v.
Aronstein, 56 App. (DC) 126, the Court in stating the essen-
tials of an estate by the entirety, said:

‘‘In an estate by the entirety there must be unity of
estate; unity of control, and unity of conveying or in-
cumbering it.’’

Since a will devising real estate is considered as an appoint-

ment of a person to take the specific real estate, in the nature

of a conveyance, though fluctuating until death ;
Hardenberg v. Ray, 151 US 112,

and since an estate by the entirety has always been subject
to disposition by the joint voluntary act of both entirety
spouses ;
American Wholesale Corp. v. Aronstein, 56 App. (DC)
126

and since the better rule seems to be, that a will jointly
executed by husband and wife devising property which is
owned jointly by both testators is not subject to probate
until the death of the survivor;

In re Davis, 120 N. C. 9, 26 SE 636,

it therefore follows that the decision in the Eckhardt Case

13

is in harmony with the logical application of the rules of
law governing the disposition of an estate by the entirety.
But in the present case the will was executed during the
existence of the tenancy of one spouse only, who subse-
quently became the surviving tenant, therefore, this case
lacks that indispensable essential of joint concurrence in
the effective transfer of an estate by the entirety.

Second Reason. One of the pillars upon which petition-
er’s ease rests is: that a will, with reference to the real
estate it purports to devise, takes effect as of the date of
its execution, and not the date of the testator. Before peti-
tioner’s case ean fall this pillar of strength must be removed ;
not merely by saying in effect that it does not exist, but it
must be removed by applying some applicable rule of law
that has the legal effect of removal. The instrument used
in the majority opinion to remove this barrier is the rule
of construction theory. The application of its use is to be
found in the last paragraph of the majority opinion on
page seven (7) and therein is also found the heart of the
error leading to the majority conclusion. After stating that
the rule formerly applied to the testamentary disposition
of real estate, the majority say, in part:

‘The statement, upon which appellant relies, ‘that
the will speaks as of the date of execution, not of the
date of death,’ is now merely a principle of construction.
... So far as this is merely a rule of construction, it can-
not overcome the testator’s clearly expressed intention.
So far as it formerly applied to exclude after-acquired
property from the effect of the will, Section 45 has over-
ruled it. We do not understand it to be a rule of law in
the sense that it renders property incapable of being

devised. On the contrary, the will is effective as of the
date of death.’’

Petitioner admits that the combined general effect of the

provisions of Title 29, Chapter 3, Sections 41; 43, and 45 of
the District of Columbia Code (1929) (Sections 19:201;

a ——

14

19 :203 and 19 :205, D. C. Code (1940) ), governing the testa-
mentary disposition of real estate is to make a will, with refer-
ence thereto, take effect as of the date of the death of the testa-
tor. The reason supporting this general statement is based
upon the fact, that with reference to the real estate owned by
a testator at the time he executes his will he usually has a
devisable interest in said property at that time, which is the
effective date of said will as to it; and with reference to real
estate acquired by a testator after the execution of his will,
the effective date of the will, as to it, is the date of death of
the testator. Therefore, the combined general effect of these
two effective dates on the pre- and after-acquired real estate
respectively in which the testator had a devisable interest on
the respective dates is to make the will take effect as of the
date of death.

But the facts in this case form a Cefinite and well defined
exception which does not come within the foregoing general
rule because, notwithstanding the testatrix owned the real
estate here involved at the time she executed her will, said
real estate, unlike that presently owned and covered by the
eeneral rule, was not devisable at the time said testatrix
executed her will, which was the effective date of her will as
to said real estate.

The Court of Appeals for the District of Columbia has on
three separate occasions specifically stated the common law
rule—that a will, with respect to real estate, takes effect as
of the date of its execution, and not the date of death of the
testator—is in force and effect in the District of Columbia;

MeAleer v. Schneider, 2 App. (DC) 461
Bradford v. Matthews, 9 App. (DC) 438
Crenshaw v. McCormick, 19 App. (DC) 494

and this common law rule has always been considered a rule
of law and not a rule of construction.
Hays v. Jackson, 6 Mass. 149

In a further analysis the petitioner contends that in the

15

District of Columbia the common law rule under discussion
still governs the testamentary disposition of real estate
acquired by the testator before he executes his will; but
that Title 29, Chapter 3, Section 45 of the District of Co-
lumbia Code (1929) has modified the rule with respect to
the testamentary disposition of real estate acquired by the
testator after he executes his will, the result being that
as to after-acquired real estate the will takes effect as of
the date of death of the testator. The effect of the applica-
tion of this common law rule, as modified by said Section 45,
to the case at bar was attempted by petitioner on the argu-
ment below. The illustration put by counsel, and com-
mented upon in the majority opinion, was a forensic effort
to demonstrate the three types of circumstances under which
this will might have been executed; under two of which the
will would have been effective to pass the property, and
under the other, with respect to the real estate, it was a
nullity. Thus:

(1) If the original grant had been made after the execu-
tion of the will the real estate would have passed
under it as after-acquired real estate by virtue of
Section 45 which makes a will, with respect to after-
acquired real estate, take effect as of the date of death
of the testator.

(2) If the will had been changed or republished after the
death of the husband, the real estate would have
passed under the will as an original devise thereof.

(3) But the will having been executed during the exist-
ence of the entirety estate and at a time when the
testatrix did not have a devisable interest in said real
estate, the will was ineffective to devise the real estate
in question.

The majority opinion in commenting on this illustration
says in part:

nr - < ~ a

16

‘If the interest of a tenant by the entirety is not
devisable or alienable, it is so because that is an inci-
dent of the estate, not because the will is made before
or after the grant which creates the tenancy. Yet appel-
lant concedes the interest is devisable if the will is
executed before the grant is made. . . .”’

It is respectfully submitted that under circumstances as
here exist and in view of the provisions of said Section 45,
it is the very essence of materiality as to whether or not the
will was executed before or after the grant was made. The
reason is this: The statute does not touch or affect an
estate by the entirety as such; the estate still retains all
of its qualities and characteristics, including the one of
being non-devisable by one of the spouses during its con-
tinuance. Notwithstanding the property is acquired after
the execution of the will, if the testator spouse dies during
the existence of the estate, Section 45 will not make the
will effective to pass the decedent’s interest in the entirety
real estate because his interest would not be devisable at
the date of his death, which is the date the will takes effect
as to this after-acquired real estate under the provisions
of Section 45. But, if the testator spouse becomes the sur-
viving entirety tenant and dies seised of the real estate
which he acquired after he executed his will, said property
would pass under the will because (1) the real estate was
acquired after the execution of the will; (2) at the time the
testator died his estate had changed from an estate by the
entirety in which he did not have a divisable interest, to an
estate in severalty in which he did have a devisable interest
at the date of his death; and (3). with respect to this real
estate acquired after the execution of the will, Section 45
makes the effective date of said will as to said real estate
as of the date of death of the testator, at which time the
testator had a devisable interest in said property.

LEO GLE GOEL ILE DLE LORD SPI

17
Minority Opinion

While the minority opinion supports a major portion of
the contentions upon which petitioner bases her claim, yet
an erroneous conclusion is reached because (1) of a mis-
interpretation of the qualities and incidents of an estate
by the entirety; and (2) the misapplication of said Section
45 of the District of Columbia Code (1929) to this case.

The first error in the process of reasoning of the minority
opinion comes in a discussion of joint tenancy estates and
estates by the entirety. On page (8) of the opinion, the
Court says:

“‘The principle of survivorship which is applicable
to joint tenancies in persons other than husband and
wife is applicable to tenancies by the entirety also. .. .”’

Because the minority opinion turns on the point that some
after-acquired interest passed to the wife upon the death
of the husband the correctness of the application of the
principle of survivorship to tenancy by the entireties be-
comes very material. Petitioner admits the principle of
survivorship attaches to estates in joint tenancy; but peti-
tioner contends that it does not attach to estates by the
entirety. There are many fundamental distinctions between
an estate in joint tenancy and an estate by the entirety, and
one of the most important of these is to be found in the
number of unities which go to make up the essence of the
estates. An estate in joint tenancy has four unities, viz.:
the unities of time, title, interest and possession, with the
right of survivorship or jus accrescendi attaching; while
an estate by the entirety has five unities, viz.: the unities
of time, title, interest, possession and person, and there is
no right of survivorship attaching thereto. The reason why
the right of survivorship does not attach to an estate by
the entirety as stated in Baker v. Sharpe, 96 NE 527, as
follows:

18

“If a joint tenant dies during the existence of the
joint tenancy, his moiety goes to the survivor by the
jus acerescendi, or right of survivorship; but when a
tenant by the entirety dies the survivor holds the entire
estate, not by virtue of any right which he acquires as
survivor, but by virtue of the original grant or devise.
Upon a vesting of an estate by the entirety, both ten-
ants, by reason of the unity of their person by marriage,
become seized of the whole estate, and neither is seized
of any divisible part thereof; and therefore, upon the
death of one the survivor being already seized of the
whole, can acquire no new or additional interest by
virtue of his survivorship.”’

To the same effect are—
Ashbaugh v. Ashbaugh, 273 Mo. 353; 201 SW 72
Stuckey v. Keefe’s Executors, 26 Penna. 399.

We submit, therefore, if the minority opinion were based
in whole or in part upon the element of survivorship attach-
ing to this estate, it is error to that extent.

The turning point in the minority opinion, however, is
stated by the Court as follows:

‘Such complete control was acquired by Mrs. Pryor
only at the moment of her husband’s death, and that
addition to her interest was I think in a proper sense
of the term property acquired after the execution of
her will. That being true . . . I think the property
in question passed by virtue of her ea

The basis of the foregoing conclusion seems to be: That
the right of freedom of sole control of the property which
the testatrix had after the death of her husband was ac-
quired after she executed her will and therefore came
within the purview of said Section 45, thereby causing the
property to pass under the will as after-acquired real
estate. This, we respectfully submit, was error.

Every and all of the rights and incidents of an estate
by the entirety which the death of one spouse leaves the
other spouse free to exercise as the sole owner thereof, were

= .
EE ANE MDS DAV Pe ee
BS Sierpmagesgaeng TRIE

19

acquired by the survivor at the date of the creation of the
estate. Tenants by the entirety are seised per tout et non
per my. The result of this is that each entirety spouse,
jointly and severally, holds and owns the whole entire
estate together with all of the incidents and rights that go
with and are peculiar to this type of estate, and whatever
are the interests the entirety tenants have, they, and each
of them, take at the date of the creation of the estate.
Lang v. Comm. of Int. Rev., 289 US 109

One of the results of entire ownership of any property
is that of the right of exclusive control. In an estate by
the entirety each of the spouses has that right to be enjoyed
in the future, subject to its defeat by a survival of the other
spouse. Since the ownership is joint and several in the
entirety spouses, their control is joint and several: the joint
control being presently enjoyed; the several control to be
enjoyed in the future, subject to the predemise of the other
spouse. This, as well as all of the other incidents of owner-
ship they, and each of them, take at the date of the grant.
The result being that when one entirety spouse dies leaving
the other as the sole surviving owner, each and every inci-
dent of ownership which the survivor may now exercise
alone, said survivor already had prior to the death of the
deceased spouse. °

Lang v. Commissioner of Internal Revenue, 289 US 109
Ashbaugh v. Ashbaugh, et al., 273 Mo. 353; 201 SW 72
Beddingfield v. Estill, 100 SW 108

Finally, it is respectfully submitted that this case does
not come within the ‘‘generating source’’ principle as an-
nounced in those cases arising under the Federal revenue
tax statutes of 1916 and 1921 and which was recognized and
applied by this Court in Taylor v. U. S., 281 US 497 ; 50S.
Ct. 356. The tax cases are distinguished as not being appli-
cable, as follows:

20

a. The Federal revenue tax statutes of 1916 and 1921
under which the tax cases were decided, specifically
bring ‘‘all property, real or personal, tangible or in-
tangible’’, as well as ‘‘estates in (by) the entirety’’,
upon the death of one of the spouses, within the pur-
view of those Acts; whereas, in the District of Columbia
there is no statute which specifically or otherwise
makes an estate by the entirety, either (1) devisable;
or (2) after-acquired real estate under circumstances
as here exist.

b. The property rights referred to in the tax cases spe-
cifically include those of an intangible and personal
nature; whereas, the property contemplated within the
meaning of Title 29, Chapter 3, Section 45, of the Dis-
trict of Columbia Code (1929), is real estate.

ce. In the taxes cases, the question as to whether or not
there had been, in the strict sense of the word, a ‘‘trans-
fer’’ of property by the death of the decedent, was not
involved; whereas the answer to that question is de-
cisive if said Section 45 is applicable to the case at bar.

The language Mr. Justice Sutherland in Taylor v. U.S.,
281 US 497, on this latter point is as follows:

‘“‘The question here, then, is not whether there has
been in the strict sense of the word, a ‘transfer’ of the
property by the death of the decedent, or a receipt of it
by right of succession, but whether the death has
brought into being or ripened for the survivor, property
rights of such character as to make appropriate the
imposition of a tax upon the result (which Congress
may call a transfer tax, a death duty, or anything else
it sees fit), to be measured in whole or in part by the
value of such rights.’’

21
CONCLUSION

It is respectfully submitted that this petition for a writ
of certiorari to bring before this Court for review the deci-
sion and judgment of the United States Court of Appeals
for the District of Columbia entered in this cause, should
be granted.

GerorceE E. C. Hays,

Puitie W. Tuomas,

Tuomas W. Parks,
Attorneys for Petitioner.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1380%3A1. Public record. Not legal advice.