Edelman v. National Bank

297 F.2d 188, 111 U.S. App. D.C. 346

Opinions

BAZELON, Circuit Judge.

This is a suit by a surviving husband ¹ to set aside a trust which his wife had created nine months before her death and to which she had transferred virtu ally all her real and personal property ² At the close of the opening statements of counsel at trial, the defendant-trustee moved to dismiss the complaint. The District Court granted the motion.³ The threshold question on this appeal is whether the court erred in limiting its consideration to a single issue on the ground that plaintiff’s counsel had abandoned alternative theories in his opening statement.

Under the provisions of the trust, which the settlor retained the power to amend or revoke, the trustee was directed to administer the property, pay the wife so much of the income and principal as she should request, and, upon her death, to distribute specific sums to named beneficiaries and place the remainder of the corpus in five trusts for her relatives. The complaint alleged, inter alia, that “the trust was ineffective for the purpose of creating a valid inter vivos trust” and “created no more than an agency relationship”; that the disposition by the deceased spouse “was testamentary in character and in violation of the specific requirements of § 19-103 of the District of Columbia Code (1951)”; that the transfer “is illusory * * * and - * * Edna B. Hoffman retained such control over said property * * * and so failed to divest herself * * * thereof * * * that plaintiff’s rights, as surviving spouse, are not barred”; and that the transfer was made “for the purpose of defeating plaintiff’s rights to said property as surviving spouse.”

In the course of plaintiff’s counsel’s opening statement, which included references to the several grounds of the complaint, he stressed the settlor-wife’s power of revocation to show that the trust amounted to a testamentary disposition which was not executed in accordance with the statute of wills.⁴ Thereafter, the court on three occasions inquired of counsel whether the proposition that the settlor’s power of revocation invalidated the trust was the “whole point of the case.” Counsel replied in the affirmative but not without attempting to indicate some qualification.⁵ When it became apparent that the trial court had adopted this narrow view of plaintiff's case, the defendants moved to dismiss. In its ruling the court stated that “the sole attack is based on the proposition * * * that a trust agreement * * * in which the power of revocation has been reserved is ineffective to create a trust.” He granted the motion on the ground that “revocable trusts are valid.” ⁶

The complaint was not so narrowly drawn. It supports alternative the oríes of relief.⁷ And counsel alluded to them in his opening statement. To find that he abandoned them, it would have to clearly appear that he intended to do so.⁸ It does not so appear from the replies which the court elicited from him upon the opening statement. Read in context, these replies permit the inference that counsel regarded the power of revocation as crucial support for three theories of attack: (1) that the trust was ipso facto invalid at its inception, (2) that it was testamentary in character, and (3) that the wife’s control over the trust rendered it a fraud on plaintiff’s statutory rights as surviving spouse.⁹ Plaintiff was “entitled to the benefit of all inferences that may be drawn from his counsel’s statement.” ¹⁰

The order granting the motion to dismiss is reversed and the case is remanded to the District Court with directions to consider the alternative theories for relief. We reach this result reluctantly. Plaintiff's counsel is not entirely without some blame for the view which the District Court adopted since his statements concerning the theory of his case were not models of clarity.

Reversed and remanded for further proceedings consistent with this opinion.

Footnotes

1

. The surviving husband died shortly after this suit began. His executor, a devisee under his will, was substituted as party plaintiff.

2

. In the interest of clarity throughout this opinion, we shall refer to our appellant and appellees as plaintiff and defendants, respectively.

3

. The dismissal order recites “that upon the facts and the law, the plaintiff is entitled to no relief * . * Since “the facts” are not described, we assume they are those alleged in the complaint and those asserted in the opening statement.

4

. D.C.Code § 19-103 (1951) requires that a will be attested by two witnesses. The settlor’s signature on the trust agreement was attested by only one witness.

5

. Thus, during appellees’ opening statement, the following colloquy took place:

“The Court. * * * There is a question in the law as to whether, if a settlor of a trust reserves the power of revocation, he creates a valid trust, whether anything passes, to anybody.

“Mr. Morgan [Counsel for the Bank]. Well, if Tour Honor please, we would be quite happy to allow the case to go on that point.

“The Court. Well I think that is the whole question. Do you agree with that, Mr. Dowdey?

“Mr. Dowdey [Counsel for Appellant]. Oh yes, as opposed to the policy of Congress as expressed in the statute.

“The Court. Now don’t dress it up. Is this the question or isn’t it?

“Mr. Dowdey. That is the question, precisely.”

6

. Plaintiff filed a petition for rehearing which was denied. Defendants contend here that certain remarks by plaintiff’s counsel, in the course of oral argument on the petition, may be read as admissions that the court correctly understood plaintiff’s case upon the motion to dismiss. We think these remarks' are too ambiguous to support this contention.

7

. “On a motion to dismiss, the plaintiff’s allegations are to be taken as true and all reasonable favorable inferences arising therefrom are to be indulged. Dioguardi v. Durning, 2 Cir., 139 F.2d 774.” Callaway v. Hamilton Nat. Bank of Washington, 90 U.S.App.D.C. 228, 231, 195 F.2d 556, 559 (1952) (dictum). Accord: Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); National Used Car Market Report, Inc. v. National Automobile Dealers’ Ass’n, 91 U.S.App.D.C. 313, 200 F.2d 359 (1952); Machado v. McGrath, 90 U.S.App.D.C. 70, 73, 193 F.2d 706, 708 (1951), cert. denied, 342 U.S. 948, 72 S.Ct. 557, 96 L.Ed. 705 (1952).

8

. Pomeroy v. Pennsylvania R. R., 96 U.S.App.D.C. 128, 223 F.2d 593 (1955), cert. denied, 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 859 (1957).

■In summarizing his argument on the motion to dismiss, counsel said:

“The question then is really this: Has this device [the trust] * * * so removed control of that property as it can be said * * * that the property is not owned by the wife during coverture, or after the effective date of the statute ? * * i!!

“ * * * And when the Congress uses the word ‘own,’ did they mean a technical formality of ownership, or did they mean real, substantive ownership? * * * I think that this device of the revocable trust — and I even hesitate to call it a revocable trust, because it is more than that. * * * [P]roperty is owned when you have that right to revoke, to alter, to amend, to direct the trustee to do this, to direct the trustee to do that, by nothing more than a simple letter.”

9

. See generally Mushaw v. Mushaw, 183 Md. 511, 39 A.2d 465 (1944); Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58 N.E.2d 381, 157 A.L.R. 1164 (1944); Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 Md. L.Rev. 1 (1949); Simes, Protecting the Surviving Spouse by Restraints on the Dead Hand, 26 U. of Cinc.L.Rev. 1 (1957).

Md.Ann.Code, Art. 93, § 329 (1957), which authorizes a surviving spouse to elect a share of the deceased’s estate in lieu of any devises or bequests to him, would govern the descent of personalty since the wife was a Maryland domiciliary. If applicable, D.O.Code § 18-211 (Supp. 1960), an analogous statute-which became effective eleven days after the date of the instant trust, would govern the descent of realty since it is located here.

10

. Best v. District of Columbia, 291 U.S. 411, 415-16, 54 S.Ct. 487, 489, 78 L.Ed. 882 (1934). Accord: Ackerhalt v. National Sav. & Trust Co., 100 U.S.App.D.C. 312, 244 F.2d 760 (1956); Cioffi v. Queenstown Apartments, 100 U.S.App.D.C. 227, 243 F.2d 650 (1957).