Given v. Hilton

APPEAL from the Supreme Court of the District of Columbia.

The bill in this case was filed by John Emory Hilton and certain other heirs-at-law and next of kin of John P. Hilton, against John T. Given and Carberry S. Hilton, his executors and others, to obtain judicial construction of his last will and testament. It prayed for an injunction restraining the executors from selling any portion of the real estate until they should first have applied the personal estate to the payment of debts and the legacies specified in the will, and, in the event of any deficiency, then to sell no greater portion of such real estate than would be sufficient to discharge such debts and legacies.

The court decreed that the debts due by the deceased were to be first paid, then the legacies, and both from the personal estate, if that be sufficient; but if not, then that the real estate be resorted to, but only to discharge any deficiency, and that the residue of said real estate be equally divided among the heirs.

From this construction of the will the defendants appealed to this court.

This will, which was duly attested and admitted to probate, is as follows:--

'In the name of God, amen. I, John P. Hilton, of Washington City, in the District of Columbia,. . . do. . . make and publish this my last will and testament, in manner and form following, that is to say:. ..

'After my debts and funeral charges are paid, my worldly estate, with which it hath pleased God to intrust me with, I devise and bequeath as follows:--

'Item. As soon after my decease as possible, I direct that my debts and funeral expenses be paid out of any portion of my estate which may first come into the hands of my executors hereinafter named.

'Item. Secondly, I direct that all of my estate, except such as is hereinafter otherwise devised and bequeathed, be sold by my executors at as early a day as practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions as they are first herein named, written, and stated, as far as the amount realized from the sale of my said estate will allow, viz.:

'Item. I give and devise unto my king and obedient son, Carberry S. Hilton, and my grandchildren, John Perry Hilton and Harry Slicer Hilton, sons of Carberry S. Hilton, all that part of lot eight (8) of Davidson subdivision of square two hundred and fifteen (215), fronting on 14th Street west, between L and M Streets north, with the improvements; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton, in fee-simple, and the remaining half as he may choose, to him the said Carberry S. Hilton, in trust for the sole use and benefit of his said children, John Perry Hilton and Harry Slicer Hilton, in fee-simple, to be equally divided between them.

[Here follows a number of pecuniary legacies.]

'Item. I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seised or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description, and not herein otherwise disposed of, for his sole use and benefit and that of his children.

'Item. I direct that the rents accumulating from my estate, until such time as my executors shall have disposed of the same, shall be distributed as follows: After deducting all expens § for repairs, taxes, and insurance, the same shall be equally divided among my four children; namely, Carberry S. Hilton, Ann Terring Smith, John Emory Hilton, and Laura R. Morsell.

'And, lastly, I do hereby constitute and appoint my dear son, Carberry S. Hilton, and my esteemed friend, John T. Given, of Washington City, District of Columbia, to be sole executors of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament, requesting that my son, Carberry S. Hilton, the first-named executor of this my will, that he make no charge for any service he may render in the execution thereof.

'In testimony whereof, I have hereunto set my hand and affixed my seal this nineteenth day of March, in the year of our Lord eighteen hundred and seventy-three.

[SEAL.] 'JNO. P. HILTON.'

Mr. Richard T. Merrick and Mr. William F. Mattingly for the appellants.

Mr. Walter S.C.ox and Mr. John J. Johnson, contra.

MR. JUSTICE STRONG delivered the opinion of the court.