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01/18/68 Edward Mclain, v. American Security and

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


January 18, 1968

EDWARD MCLAIN, APPELLANT

v.

AMERICAN SECURITY AND TRUST COMPANY, APPELLEE 1968.CDC.7 DATE DECIDED: JANUARY 18, 1968

Edgerton, Senior Circuit Judge, and McGowan and Leventhal, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

PER CURIAM DECISION

This appeal is from dismissal of a complaint contesting the validity of a codicil to a will. The will appointed appellant executor, made bequests to him and others, authorized the executor to give certain personal property to any person or charity he deemed "worthy of such gift," and named two charities as residuary legatees. The codicil, executed some years later, added bequests to other persons and appointed appellee executor in place of appellant.

When appellee sought to probate the will and codicil, appellant filed the complaint which the District Court dismissed. He contended that the testatrix lacked capacity to execute the codicil and was subjected to undue influence by a third party. The residuary legatees answered but did not admit or deny these contentions.

The District Court dismissed the complaint on the ground that the appellant lacked standing to contest the codicil, 265 F. Supp. 467. It cited D.C.CODE ยง 18-508 (1961 ed., Supp. V (1966)), now D.C.CODE 18-508 (1967 ed.), which provides: "If, prior to or upon the hearing of an application to admit a will to probate, a party in interest files a verified caveat in opposition, setting forth facts inconsistent with the validity of the will, the will may not be admitted to probate until the issues raised by the caveat are determined . . ." (Emphasis added.)

We think the court erred. We need not decide whether an executor may contest a codicil which replaces him but makes no other change. Cf. Helfrich v. Yockel, 143 Md. 371, 122 A. 360, 31 A.L.R. 323 (1923). In the present case the codicil reduced the shares of the residuary legatees. Also, the will gave appellant as executor a valuable power of appointment regarding certain property. In these circumstances he has the requisite "interest" to caveat the codicil. Cf. Webb v. Lohnes, 68 App.D.C. 310, 96 F.2d 582 (1938), which involved an administrator, not an executor. We said "An executor named in a will is usually permitted to oppose the admission of a later will to probate" and "may appeal from a decree setting aside probate of the will in which he is named." 68 App.D.C. at 311, 96 F.2d at 583. We reverse and direct reinstatement of the complaint.

Reversed.

CASE RESOLUTION

Reversed.

19680118

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