361 A.2d 166

ESTATE of Anne M. McKEEVER. Martin W. CHRISTOPHER, Appellant, v. Doris KRAUS et al., Appellees.

No. 9571.

District of Columbia Court of Appeals.

Argued Jan. 8, 1976.

Decided July 23, 1976.

*168Martin J. McNamara, Washington, D. C, with whom Glenn D. Simpson, Rock-ville, Md., was on the brief, for appellant.

Michael L. Glaser, Washington, D. C., with whom Francis E. Fletcher, Jr., Washington, D. C., was on the brief, for appel-lee.

Before GALLAGHER, NEBEKER and MACK, Associate Judges.

MACK, Associate Judge:

This case comes to us on appeal from the Superior Court’s grant of summary judgment for the appellee, the duly-appointed administratrix of a decedent’s estate, on appellant’s .complaint (initially filed in the United States District Court for the District of Columbia1), requesting revocation of letters of administration and admission to probate of a purported testamentary document. The Superior Court found that there was no genuine issue of fact in dispute, that the document sought to be probated was invalid as a will, and that the decedent died intestate. We affirm.

The stage for this protracted litigation was set on November 7, 1970, when Anne M. McKeever, a resident of the District of Columbia, died in a local hospital to which she had been admitted two days previously. She left no surviving relatives within the fifth degree of kindred, and the hospital in accord with her instructions in case of emergency, notified her friend, the appellee Kraus. Appellee arranged for the decedent’s funeral and interment and sought legal advice which led to the supervised entry on November 17, 1970, of the Cathedral Avenue apartment where decedent had lived alone.

Found in decedent’s apartment, which had not been entered subsequent to her admission to the hospital, were several documents of a testamentary nature, including the one which is the focal point of this dis*169pute: a typed ribbon original of a June 16, 1959, “will” from which the signature had been carefully torn and on which interline-ations had been made.2 A few days after this original document was found, an unmutilated copy of the same document, fully executed at the same time and place by the same signatories as the original, was found in decedent’s safe deposit box.

On April 19, 1973, the United States District Court granted letters of administration to appellee. The letters were granted over the strong opposition of appellant3 whose petition for letters of administration cum testamento annexto, on behalf of beneficiaries (all charities) named in the testamentary document, was denied.4 The court ruled that decedent died under circumstances indicating prima facie intestacy and that appellee was qualified to administer the decedent’s estate as a “person interested” under D.C.Code 1973, § 20-331.5 Appellant sought, then successfully moved to dismiss, an appeal from this April 1973 ruling and thereafter filed the complaint for removal and probate which is the subject of this appeal.

In this court appellant argues, inter alia, that there were general issues of fact that precluded the trial court’s granting of summary judgment. He suggests that there are unanswered factual questions with regard to the mutilation of the ribbon original of the 1959 will, argues that its mutilation did not as a matter of law revoke the carbon copy, and presents the doctrine of dependent relative revocation as applying to save the will. His contentions are without merit.6

*170I.

Appellant’s recitation of existing unresolved factual issues flies in the face of established principles. Summary judgment is properly granted where there are no genuine trial issues presented by the motion, its supporting and opposing affidavits (which are to set forth such facts as would be admissible in evidence), and the record. See Rommel v. West American Insurance Co., D.C.Mun.App., 158 A.2d 683 (1960). General allegations without specification, or mere conclusions, are not sufficient to raise issues. A party in seeking or defending against summary judgment may not merely rely on his pleadings to establish issues of material fact. Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766 (1950). In the instant case, the trial court noted that even though the case had been in the process of litigation for almost four years, appellant had proffered no witnesses to testify, nor did he produce affidavits or any other substantive evidence to support the allegations in his complaint. In contrast, appellee, along with her motion for summary judgment and supporting documents, also submitted seven evidentiary affidavits.

As the trial court further noted, the question before it was whether there was in dispute any genuine issue of material fact as to whether decedent died testate or intestate for estate administration purposes. After careful analysis of the record before it, the court properly concluded that there was no such question.

This record shows that decedent, an extremely security conscious and retiring individual who lived alone, kept the 1959 document in her locked apartment where it was found after her death, subsequent to a carefully supervised search, with her signature removed. When a will is traced into the possession and custody of the testator and is there found mutilated in one of the statutory 7 modes, it will be presumed that the testator destroyed or mutilated it animo revocandi. Webb v. Lohnes, 69 App.D.C. 318, 101 F.2d 242 (1938), cert. denied, 306 U.S. 637, 59 S.Ct. 489, 83 L.Ed. 1038 (1939); In re Smith’s Estate, 77 F. Supp. 217, 218 (D.D.C.1948). This presumption was not rebutted, but rather buttressed by the pleadings. According to un-controverted affidavits, the decedent, shortly prior to death, had orally indicated to several persons that she was revoking her “old will” and had asked for and received new will forms which were found in her apartment.8 The trial court properly concluded that the 1959 will was revoked by the decedent with the requisite intent.

The existence of the carbon copy in decedent’s safety deposit box does not operate in derogation of this ruling. The carbon’s preservation (if it could be called that) would not and could not in the circumstances of this case overcome the presumption with regard to the original. See *171New York State Library School Association, Inc. v. Atwater, 227 Md. 155, 175 A. 2d 592 (1961).9 Moreover, we are not persuaded by appellant’s argument that the carbon copy, by virtue of handwritten notations and changes (some of which in minor respects differ from those on the original) has an efficacy separate and apart from the original. The carbon remains nothing more than a duplicate — a part of a set, drawn and executed at the same time and place and attested to by the same witnesses.

The precise question of whether the revocation of one will in a duplicate set of wills is in fact a revocation of all the wills in the set is a case of first impression in our jurisdiction. In such cases where our courts have not been previously confronted with a particular question of law regarding wills, we may look to jurisdictions with similar statutes for guidance. In re Smith’s Estate, supra. Illinois, when confronted with the issue in In re Holmberg’s Estate, 400 Ill. 366, 81 N.E.2d 188 (1948), chose to adopt the general law that revocation by the testator of one will in a set also operates to revoke all the others in the set. We adopt this generally accepted view as our own. We hold that the decedent’s revocation of the original will in her possession also revoked the carbon copy of the same will in her safe deposit box.10

II.

Also found in the decedent’s apartment were an original and three unexecuted and undated carbon copies of a document which was similar to the one in question except that it left out the interlined and superimposed portions of the original. Appellant argues that another genuine issue of fact existed as to whether the doctrine of dependent relative revocation should apply to bring life to the invalid June 16, 1959, document.

The doctrine of dependent relative revocation comes into play where a later will revoking its predecessor is actually executed but is ineffective or inoperative because of some defect in execution. The old will which was revoked in contemplation of the new will is then brought back to life by operation of the doctrine. The doctrine does not operate where it is clear as here that there was an intent to revoke the prior will. A mere intent to make a new will is insufficient. In re Smith’s Estate, supra. We have no way of knowing, and we need not concern ourselves with, whether the unexecuted and undated wills ante-or-post-dated the June 1959 will. The fact is there was no new will which had been executed with a defect which would trigger the doctrine of dependent relative revocation.

In light of the foregoing, we conclude that the decedent died intestate and that summary judgment was properly granted by the trial court. Accordingly, the judgment of the trial court is

Affirmed.

Christopher v. Kraus
361 A.2d 166

Case Details

Name
Christopher v. Kraus
Decision Date
Jul 23, 1976
Citations

361 A.2d 166

Jurisdiction
District of Columbia

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