Fairclaw v. Forrest , 130 F.2d 829 ( 1942 )

STEPHENS, Associate Justice:

I concur in the result for the reasons hereinafter stated. As I understand the facts the testatrix Mable Pryor took title to certain real property in the District of Columbia on January 18, 1926, as a tenant by entirety (per tout et non per my). When she executed her will, devising the residue of her estate, real, personal and mixed, to her brother, John Forrest, the appellee herein, her husband, Harry C. Pryor, was living. He died January 26, 1933, Mrs. Pryor died January 28, 1939, seized of the property in question. She had not republished her will. The local after-acquired property statute provides, so far as here pertinent:

“...any will executed after January 1, 1902, which shall by words of general import devise all the estate or all 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. (Mar. 3, 1901, 31 Stat. 1433, ch. 854, § 1628; June 30, 1902, 32 Stat. 545, ch. 1329.) [D.C.Code (1940) § 19—205] Except for this statute a will in the District of Columbia, as at common law, takes effect as to realty from the date of execution, not from the date of death. Cf. Crenshaw v. McCormick, 1902, 19 App.D.C. 494, 500; Bradford v. Matthews, 1896, 9 App.D.C. 438, 442; McAleer v. Schneider, 1894, 2 App.D.C. 461, 467.

It is contended by the appellant Mable Swales Fairclaw, who is a niece of Mrs. Pryor and who would, with the appellee, take the real property as an heir at law of Mrs. Pryor if she died intestate in respect of such property, that it was not, within the meaning of the statute just quoted, after-acquired property, and that therefore it did not pass by Mrs. Pryor’s will.

A tenancy by entirety is a species of joint tenancy peculiar to the relationship of husband and wife, which can be created only by a conveyance to them during coverture. 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. Once the estate is created and while it continues the husband and wife each have a concurrent interest in the whole, and therefore upon the death of one of them the whole remains to the survivor. During the joint lives of the husband and wife neither can definitively alienate or devise the estate. Upon the death of one such tenant, however, there remains to the survivor the interest in the whole which was acquired at the time of the conveyance, but also the survivor is then freed from the restriction against alienation or devisation which theretofore existed.¹ Tenancy by entirety is still recognized in the District of Columbia. Settle v. Settle, 1926, 56 App.D.C. 50, 8 F.2d 911, 43 A.L.R. 1079; Flaherty v. Columbus, 1914, 41 App.D.C. 525; Loughran v. Lemmon, 1901, 19 App. D.C. 141; cf. American Wholesale Corporation v. Aronstein, 1926, 56 App.D.C. 126, 10 F.2d 991; Alsop v. Fedarwisch, 1896, 9 App.D.C. 408, 415.

Since at the time Mrs. Pryor executed her will she was already as a tenant by entirety owner and seized of the real property, it cannot be said that the same was “after-acquired property” in the usual sense of property title to which has been taken after the execution of a will. But although she was when she executed the will owner and seized of the property, she was not then capable of making a definitive devise of it, her husband still being alive. There was therefore lacking in her interest in the property as a tenant by entirety complete control in the sense of unrestricted power to deal with the property. 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 and it being plain upon the face of her will that Mrs. Pryor intended to devise real property, if any she had, I think the property in question passed by virtue of her will and that therefore the decision of the trial court in the appellee’s favor was correct.

1 For ’ a lucid discussion of joint tenancies, including tenancy by entirety, see “Introduction to the Law of Real Property,” by Harry A. Bigelow, 1919, ch. 4.