Walker v. Thomas

GRONER, Associate Justice.

Appellant is the son of Admiral John G. Walker, who died in 1907, and whose will was admitted to probate in the District of Columbia. While no appraisal is included in the record, we assume from the amounts which the children severally received that the value of the estate was in excess of half a million dollars. Admiral Walker left surviving him his widow and five children, and in his will provided that $120,000 should be placed in trust for the four children other than appellant, and that the widow, to whom the balance of the estate was left for life, should pay to appellant during his lifetime an amount annually which should equal the income which each of the other children received by reason of the establishment of the trust. After the death of his wife, he provided for proportionate distribution of his entire estate (including the trust) among his five children, but in the case of appellant alone the portion which he would otherwise have received was placed in the hands of two of the daughters, Frances and Susan, as trustees, in trust “to have and to hold the same for and during the term of the natural life of the said James W. G. Walker (appellant), paying to him from time to time for his own use and upon his separate receipt the income accruing therefrom, less the expenses of administering said trust and less such further sums as shall be required to keep the principal of said trust fund intact and to make good any losses, by depreciation or otherwise, in the investment thereof.” The will gave the trustees authority to sell the trust estate and invest and reinvest the proceeds, and provided that at appellant’s death, the principal sum remaining should pass to appellant’s children per stirpes.

At the death of Mrs. Walker and when the trust became effective, it consisted of cash and securities of the market value of $109,363.96. Approximately nine and a half years later the market value had increased to above $125,000, but four and a half months after this, the market value had fallen to $62,680. Owing to this decrease, the trustees became doubtful of their right to continue to pay any part of the income'to appellant because of the wording of the clause creating the trust, and thereupon they filed their bill making appellant and his children parties and asking the' court to construe the will. In the bill they say “plaintiffs believe that the true intention of the testator and the correct construction of the said will is that the fluctuations in the market value of securities held in said trust are to be disregarded by the said trustees and only in the event of actual loss through sale or other disposition during the existence of the life estate is it their duty to apply the income to restore such losses,” etc. The’case was heard upon the bill, answers, and certain agreed facts.

The trial judge found that the trustees had not sold or otherwise disposed of any of the securities at a lower price than their value when received or acquired; that at the time of the delivery of the fund to the trustees on August 3, 1922, the cash and securities had an aggregate market value' of $109,363.96; that on December 31, 1931, the market value was $125,884.11; that on May 11, 1932, when the bill was filed, the value was $62,680; and that at the time of the hearing on June 12, 1933, the value was $91,286. On this state of the facts the court construed the trust paragraph of the will to mean “that any reduction in the market value of the securities held in the trust as a whole below their market value at the time of acquisition of the original fund by the trustees is to be made up out of current income”; and that payment of income to the life tenant, the appellant, is only to be made when the trust fund has been restored to its original value. From a final decree in accordance with this view, this appeal was taken.

We think this construction of the will waa wrong. The question, as we have seen, arises out of the meaning of the language used in paragraph 8 of the will establishing the trust. In that paragraph it is provided that the whole income of the trust should from time to time be paid to appellant for and during the term of his natural life, less the expenses of administration, “and less such further sums as shall be required to keep the principal of said trust fund intact and to make good any losses, by depreciation or otherwise, in the investment thereof.” If the lower court is correct in its construction of this language, the result is to make appellant’s income subject to stock-market fluctuations and, as it happens here, to deprive him-wholly of income from the filing of the bill to the present time and indefinitely in the future. The testator had been himself a distinguished admiral in the Navy of the United States, and his son (appellant) was likewise, at the time the will was made and at the time of his father’s death, an officer in the Navy. His duties frequently took him out of the country for long periods of time, and it was this fact and its logical — - indeed its inevitable — consequences which-, induced- his father to place his share of the-estate in trust, for in item 2 of the will he-says: “My desire and purpose is to treat my children equally, as nearly as possible,, in the disposition of my property, but as-my son, James W. G. Walker, is in the naval service and will often be so situated that he cannot give-proper attention to his own-business affairs, I propose to place what I give, devise, and bequeath to him and for his use and benefit, in trust, etc.” The good faith of this statement is manifest throughout the will, as also is manifest the fact that in making the provision the testator had his son rather than his grandchildren in mind, for he speaks of the trust as “what I give, devise, and bequeath to him and for his use and benefit,” and in the-trust itself he says it is established “for my son,” while the grandchildren as remain-dermen are spoken of only as a class.

From all of this it is obvious that Admiral Walker in creating the trust had in-mind to .provide appellant an annual sum, which should as nearly as possible equal the return in income which his other children might expect to receive from the shares left outright or nearly outright to-them, and which likewise would be managed at all times, but particularly during his absence from the country, with such reasonable care as would provide his son with a sufficient annual stipend to meet his reasonable needs.

The effect of the decision of the lower court, if it stands, will be to destroy this purpose and to leave appellant dependent upon charity in his old age, for it is agreed! he is now without other means of support. This is a harsh construction, which we ought not to adopt if the will, construed as-a whole, fairly permits a different result. And we think it does.

The law in this jurisdiction, as well as in all the states of the United States, is that the intention of the testator is the basic and fundamental rule in the construction of wills, and the intention should be determined by construction of the whole will and not from detached paragraphs; and where the intention is apparent, it should be given effect — and this is true — even though to do so involves the rejection of the literal meaning of particular words. DeVaughn v. DeVaughn, 3 App. D. C. 50, 53; Bradford v. Matthews, 9 App. D. C. 438, 446; Washington Loan & Trust v. Hammond, 51 App. D. C. 260, 278 F. 569. But we think in a reasonable construction of this will we are not required to give the particular words used a strained or unnatural meaning to reach the conclusion we do. The holding by the court below that whenever the value of the trust properties, on the basis of stock-exchange quotations, is less than the original value, a loss occurs, is, we think, not justified by a consideration of the clause in question separate from the other provisions of the will; and as applied to the paragraph in question, considered in view of the testator’s obvious intent, is wholly incorrect. It is a matter of general knowledge that the word “loss” as used in the federal tax statutes means not a possible or contingent loss but a realized loss, just as the word “gain” means profit obtained through sale or conversion of capital assets. As used generally the word “loss” means that which is gone and cannot be recovered. It is quite true, as commonly used, it may mean that which is withheld or that of which a party is dispossessed, and so business losses are said to occur where debts are due but are uncol-lectible; but ordinarily where the thing itself — the property — is held intact, undiminished in quantity and unchanged in character (and that is true here), no loss can be properly said to have occurred. Fluctuations in market value do not determine that ultimately there will be loss or gain. The event in either case must abide the sale of the property. Nor do we think the use by testator of the word “depreciation” takes away from the force of what we have said, for while the word may and does frequently mean a fall in value, as used here in conjunction with the word “investment,” it could have meant only realized losses by the actual sale or exchange of a particular part of the trust property, for the word “in-, vestment” as generally used means to change; to convert into another form, etc. All of this would be obvious if the trust property were land, and we think it is not less so because it consists of corporate stocks and bonds.

Here, as we have already pointed out,. Admiral Walker expresses in simple and easily understandable language the intent actuating him in the disposition of his property. We do not need, therefore, to indulge in conjecture to find his purpose. It is apparent it has a twofold object: First, to treat appellant and his brothers and sisters equally, and, second, to provide the former an income for his support secured, as far as possible, against diminution through mismanagement or nonmanagement by reason of his situation. And since, as we have likewise already pointed out, the trustees have not sold or disposed of any part of the trust property at less than its cost price,, and the trust therefore remains intact and entire, it would be contrary, as we think, to the literal meaning of the words used' in the paragraph in question and even more contrary to the intent and purposes of the-testator to hold that a loss had occurred because of a decline in any particular year at any particular time in the market value of the securities forming the corpus of the trust. In this view, the construction of the will by the court below was wrong and should be, and is reversed.

Reversed.