Howard v. Carusi

'I further hope, trust, and desire that in the event either one of my said nieces, daughters of the said Samuel Carusi, shall not survive my said brother Samuel, that the share she might become entitled to had she survived him may be conferred and fall to the surviving niece or nieces. In no event shall any portion of my estate be subject to the control or interference of any husband either one of my said nieces may have at the time of my decease or at any time thereafter.

'I give and devise to my three nieces, daughters of my brother Nathaniel Carusi, the sum of two thousand dollars, ($2,000.)'

By the third and last item of the will the testator appointed his brother Samuel Carusi the sole executor thereof.

Afterwards, on July 18, 1872, the said Lewis Carusi, as party of the first part, executed a deed of that date, which purported to convey to his brother Samuel Carusi party of the second part, in fee-simple, all his real estate in the city of Washington, upon trusts which were thus expressed:

'In trust, nevertheless, to, for, and upon the following uses and trusts, that is to say, in trust to sell and convey the whole or any part of the said piece or parcels of ground and premises, at the discretion of the said party of the second part, and to invest the moneys arising out of such sale or sales in other property or securities, for the use and benefit of the said party of the first part; and in event of the death of the said party of the first part, so much of said pieces or parcels of ground as may remain unsold, or such other property as may be purchased, or such securities as may be acquired, in manner aforesaid, to convey to such person or persons as the said party of the first part may, by his last will and testament, or other paper writing, under his hand and seal, by two persons witnessed, designate and direct.'

The appellant averred, and the defendants denied, that this deed had been delivered by the grantor to the grantee therein named. Subsequently, on October 17, 1872, Lewis Carusi executed and delivered to his brother Samuel Carusi another deed, conveying to him absolutely in fee-simple the same lands described in said will and in the deed of July 18, reserving to himself the rents and profits thereof during his life. On October 25, 1872, Lewis Carusi died, having made no will other than that of March 18, 1872, above mentioned. After the death of Lewis, Samuel Carusi took possession of the real estate described in said will and deeds, claiming an absolute title in fee-simple thereto, by virtue of said will and the deed of October 17, 1872, and continued in possession until his death. On March 23, 1877, he duly executed his last will and testament, by which he devised to his wife, Adelaide S.C.arusi, for her natural life, all his real estate, with remainder in fee at her death to his children, John McLean Carusi, Samuel P. Carusi, Thornton Carusi, Estelle Caulfield, Genevieve Carusi, and Isolina E. Howard, share and share and share alike, and appointed his wife, the said Adelaide S., and his son, the said John McLean Carusi, the executors thereof. Afterwards, on December 22, 1877, Samuel Carusi died, and on January 8, 1878, his will was admitted to probate and record in the orphans' court of the District of Columbia.

The bill in this case was filed by Isolina E. Howard, one of the children and heirs at law of Samuel Carusi, against the defendants, who were her brothers and sisters and devisees under their said father's will. It averred the making by Lewis Carusi of his said will and of the deeds of July 18 and October 17, 1872, and specially averred the delivery by Lewis Carusi to his brother Samuel of the first-mentioned deed. It averred that the deed of October 17, 1872, was made by Lewis Carusi when he was physically so feeble as to be unable to sign his name 'and when he was mentally incompetent to execute a deed; that at the time said deed was made by him he had no legal title to the real estate therein described, having divested himself thereof by the deed of trust of July 18, 1872; and that he was procured to make said deed of October 17th by Samuel Carusi, for whose benefit it was made.' The bill further alleged that the will of Lewis Carusi was propounded for probate and record in the proper court, but a caveat having been filed against the probate thereof, no proceedings were taken or decree made in reference thereto. The bill charged that the will of Lewis Carusi fully designated the beneficiaries of the trusts created by the deed of trust of July 18, 1872, and that Samuel Carusi had no estate in the property belonging to Lewis Carusi which he could dispose of by his last will so as to divest the plaintiff and her sisters of their rights under the last will and testament of Lewis Carusi, and that Samuel Carusi was only a trustee to hold the property during the life-time of Lewis Carusi, and upon trust to convey the same upon the death of Lewis to the complainant and her sisters in mannerset forth in Lewis Carusi's last will and in said deed of trust. The bill further alleged that Samuel Carusi, with the purpose of defeating the provisions of the will and deed of trust executed by Lewis arusi, did during his own life-time suppress the deed of trust and claimed an absolute title in fee-simple to all the estate of Lewis Carusi under the will of the latter and the deed of October 17, 1872. Finally, the bill alleged that Lewis Carusi, during his life-time, repeatedly 'declared, in the most unmistakable terms, that it was his intention to leave his estate, by any testamentary disposition he should make thereof, to his nieces, to the exclusion entirely of any nephews that might survive him, and to the exclusion of the wife of the said Samuel Carusi, should she survive him; * * * and that it was the intention of Lewis Carusi to make provision at all events for his said several nieces in preference to all persons and to every person who might, by reason of affinity, have any claim upon him or his estate.' The bill prayed for a decree declaring the deed of trust dated July 18, 1872, to be in full force and effect, and that the will of Lewis Carusi was operative as designating the beneficiaries under the deed of trust, and its terms and conditions; that the will of Samuel Carusi, so far as it devises any part of the estate of which Lewis Carusi died seized, might be declared null and void; that a receiver might be appointed to take charge of and manage the estate; and that the defendants, Adelaide S.C.arusi and John McLean Carusi, named as executors of the will of Samuel Carusi, might be enjoined from interfering in any way with the estate of Samuel Carusi, and for general relief.

Separate answers were filed to the bill by each of the defendants, to which the complainant filed replications. Upon final hearing on the pleadings and evidence, in special term, the supreme court of the District of Columbia dismissed the bill. Upon appeal to the general term the decree of dismissal was affirmed. From the decree of affirmance the present appeal is taken.

''Wm. B. Webb and Robertson Howard'', for appellant.

L. G. Hine, for appellee.

WOODS, J.