In re Hope's Estate (89 F. Supp. 150, 1950)

KEECH, District Judge.

This case is before the court on a petition by the administrator, Edward S. Hope, for instructions as to administration of the estate of his mother, Lugenia B. Hope.

The pertinent facts disclosed by the petition, exhibits appended thereto, and answer of John Hope II (which it was stipulated shall be treated as sworn to by him) are, briefly: The testatrix made her home with her son Edward for some months prior to February, 1947, first in Honolulu and subsequently at his quarters at Howard University in Washington. The latter quarters were on the second floor of a University building, and unsuited to testatrix, who, because of a heart ailment, had to be carried up and down stairs. Petitioner had been looking for a suitable home for some time. Petitioner requested and received from testatrix the sum of .$3,700 to assist him in purchase of a home. Testatrix had requested petitioner to seek a house with a room and bath on the first floor and no steps to the lawn, in consideration for which petitioner states that testatrix was to destroy the receipt for $3,700.00. This last statement is contested by testatrix’ other son, John Hope II.

The receipt executed by petitioner is dated February 10, 1947, and reads:' “Received of Mrs. Lugenia B. Hope $3,700.00 for use in purchase of a home. This is to be considered as a part the proportion of the legacy to be left to me.”

On May 31, 1947, the testatrix executed a will, which, after certain bequests of personal property, provided: “All the rest and residue of my estate, real personal and mixed, I give devise and bequeath to my two sons, John Hope II and Edward Hope, share and share alike, provided however, that in the event either or both of them should predecease me, there (sic) the share or shares of such deceased son or sons shall stand given, devised and bequeath to his children alive at the time of his death.” No mention of the loan to Edward was made in the will.

Some time in May, 1947, a proposed “Agreement” between Edward and his wife and the testatrix was drawn, providing that Edward and his wife would provide and maintain a home for testatrix as a member of their household “for a period determinable by and with the consent or at the desire and wish” of testatrix, and providing further that, if for any reason the agreement became impossible, testatrix was to have one-third of certain real property, the description of which was not inserted, or one-third of the sale value of the property if it should be sold. This agreement was never executed.

A further paper, dated June 10, 1947, was executed by Edward and his wife reading: “Because of love and affection and for valuable consideration we, the undersigned, agree to provide for our mother, Mrs. John Hope Sr. a home with us for life.”

On or about June 10, 1947, petitioner purchased a house, which answered the requirements of testatrix, and after completion of necessary repairs, testatrix made her home with petitioner. In July, 1947, she went to visit her son John in Nashville, Tennessee, and died there on August Id, 1947.

It appears that testatrix was at no time a financial burden to either of her sons. ■

Subsequent to testatrix’ death her two sons opened a metal lock box containing her more important papers and found, among other papers, her will dated May 31, 1947, the receipt of Edward S. Hope dated February 10, 1947, and the paper signed by Edward and his wife under date of June 10, 1947. The receipt, together with an inventory of testatrix’ money holdings as of June 1, 1947, was in a sealed envelope, marked to be opened at the time pf her death.

The question for determination is whether or not the loan of $3,700, evidenced by Edward’s receipt, should be considered an advancement deductible from his share of the estate under the will.

The general principle has been well stated in Old Colony Trust Co. v. Underwood, 297 Mass. 320, 8 N.E.2d 792, 793, as follows: “It is held with great unanimity that the doctrine of advancements, in the accurate use of that word, applies only in the event of intestacy, and that where the person making the advancement later makes a will containing provisions in behalf of the person to whom the advancement has been made, but not in any form of words preserving to the estate the benefit of the advancement, the will must be presumed to have been' made with full knowledge of what had gone before