See McGowan v. Elroy, 28 App.D.C. 188, and Morris v. Foster, 51 App.D.C. 238, 278 F. 321, cert. denied, 259 U.S. 582, 42 S.Ct. 586, 66 L.Ed. 1074. However, in Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, decided in 1945 with an opinion by Chief Justice Groner, joined by Associate Justices Justin Miller and Edgerton, this court reconsidered and departed from Morris v. Foster. Following the common law the court held that where an unmarried testator, without child by a former marriage, executed a will which contained no provision for any child of a subsequent marriage, and remarried, followed by birth of a child, the will was impliedly revoked.
The question is raised by motion to dismiss the petition for caveat, filed by the guardian ad litem for the infant, who was born subsequently to the execution of the will. The United States Court of Appeals for the District of Columbia, in Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, in a very comprehensive opinion written by Chief Justice Groner, holds that the law of wills and of probate as existing in Maryland on February 27, 1801, was and is the law of the District of Columbia, except as since altered by Congress, We are, then, relegated to the law of Maryland as it existed in the year 1801. As shown in Pascucci v. Alsop, the sixth section of the English Statute of Frauds and the common law were the law of Maryland.
By reason of laying down a general rule in McCullum vs. McKenzie, supra, the Iowa court felt compelled to hold in Negus vs. Negus, 46 Iowa 487, that if a testator leaves all his property to his wife, and subsequently children are born, the will is revoked. For other Iowa cases see Annot. Cas. 1913D, page 1327. The same question came before the United States Court of Appeals of the District of Columbia (decided under the law of Maryland — see 147 F.2d 880) in Allen vs. Heron, 81 App. Cas. (D.C.) 298, 157 F.2d 707. The decision is brief. The court after referring to the common law rule that marriage and birth of issue revokes a will stated as follows: "It does not follow that revocation of the present will would probably reflect the testator's wishes.
The United States District Court for the District of Columbia has probate court jurisdiction. D.C. Code § 11-522, 77 Stat. 482, based on the Act of February 27, 1801, ch. 15, § 12, 2 Stat. 107. The Maryland law of wills and probate, as existing on February 27, 1801, is the law of the District of Columbia, except as since altered by Congress. Campbell v. Porter, 162 U.S. 478, 482, 16 S.Ct. 871, 40 L.Ed. 1044 (1896); Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880 (1945); Clawans v. Sheetz, 67 App.D.C. 366, 368, 92 F.2d 517, 519 (1937). The general rule of law is that the intention of the testator is controlling in the interpretation of a will and that such intent is to be determined from the whole will and not from detached paragraphs.
Appellant relies on § 11-512 of the District of Columbia Code, 1961 ed., which provided "The probate court shall not, under pretext of incidental power, or constructive authority, exercise any jurisdiction whatever not expressly given by this Code * * *." Even if this language were still in effect, it would not conclude the question before us. Cf. Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, cert. denied, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987 (1945). But on December 23, 1963, when Congress enacted a revised Part II of the District of Columbia Code, it omitted § 11-512 and did not include anywhere in the Code any language similar to that on which appellant relies.
Third Nat. Bank v. Scribner, 1939, 175 Tenn. 14, 130 S.W.2d 126, 123 A.L.R. 1385; In re Miller's Will, 1951, 201 Misc. 279, 108 N.Y.S.2d 186, 188; In re Van Ingen's Estate, 1944, 183 Misc. 281, 47 N.Y.S.2d 818, 822; Syfer v. Dolby, 1943, 182 Md. 139, 32 A.2d 529, 534. The law of wills and probate here prevailing derives from that of Maryland. Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, certiorari denied 1945, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987. Shey's Appeal, 1900, 73 Conn. 122, 46 A. 832, and see, generally, 1927, 51 A.L.R. 728 note; 1939, 123 A.L.R. 1408 note; 1958, 59 A.L.R.2d 149 note; 1926, 40 Harv.L.Rev. 71, 80-81.
All parties in interest agreed there were no material issues of fact and hence that a summary judgment was proper. In support of their first contention appellants rely on Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880, certiorari denied, 1945, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987, in which this court held that marriage and birth of issue subsequent to execution of a will operated as a revocation of the will. But there the "change in circumstances" occurred before the will became operative and was, of course, known to the testator.
Brown v. United States, 1938, 69 App.D.C. 96, 99 F.2d 131, certiorari denied, 1938, 305 U.S. 562, 59 S.Ct. 97, 83 L. Ed. 354; United States v. Groen, D.C. 1947, 72 F. Supp. 713. Gertman v. Burdick, 1941, 75 U.S.App. D.C. 48, 123 F.2d 924, certiorari denied, Burdick v. Burdick, 1942, 315 U.S. 824, 62 S.Ct. 917, 86 L.Ed. 1220; Pascucci v. Alsop, 1945, 79 U.S.App.D.C. 354, 147 F.2d 880, certiorari denied, 1945, 325 U.S. 868, 65 S.Ct. 1406, 89 L.Ed. 1987; Mead v. Phillips, 1943, 77 U.S.App.D.C. 365, 135 F.2d 819; George Washington University v. Riggs Nat. Bank, 1936, 66 App. D.C. 389, 88 F.2d 771; Lisner v. Hughes, 1919, 49 App.D.C. 40, 258 F. 512. 1941, 75 U.S.App.D.C. 48, 123 F.2d 924, certiorari denied, 1942, 315 U.S. 824, 62 S.Ct. 917, 86 L.Ed. 1220.
The total value of the estate, including real estate, is somewhere between $25,000 and $30,000, and, concededly, the personal estate, not including the accumulated rents, is insufficient to pay the allowances; but the allowances being made in the exercise of discretion by the court having charge of the administration, and the litigation being necessary in the establishment of the right to title to the property, the court was correct in protecting all interests, antagonistic or otherwise, until the question of inheritance had been decided. Pascucci v. Alsop, 1945, 79 U.S.App. D.C. 354, 147 F.2d 880, certiorari denied 1945, 325 U.S. 868, 65 S.Ct. 1406, 89 L. Ed. 1987. The statute clothes the Probate Court with authority to administer real estate situated in the District of Columbia and to sell real estate, if necessary, to pay debts and legacies.
While Mrs. Lee intended the paper-writing to be her Will and the intention of a testatrix is entitled to great weight, nevertheless the intention of the testatrix is not to be considered where the writing fails to comply with the requirements of the statute. See Brengle v. Tucker, 114 Md. 602, 80 A. 224. The law of Wills and of probate as existing in Maryland on February 27, 1801, was and is the law of the District of Columbia except as altered by the Congress. Our statute on this particular matter is based on the Maryland and English statutes and the only changes are "verbal and inconsequential" so that this Court must be guided by the decisions of the Maryland Court. Cf. Pascucci v. Alsop, 79 U.S.App.D.C. 354, 147 F.2d 880. Therefore the importance of the Shane case, supra, cannot be overemphasized especially where more protection was there given the testator against fraud by reason of the witnesses having signed across the seal of the envelope. The requirements concerning subscribing witnesses certainly become less strict if it be said that these papers are sufficiently physically connected and that the envelope is a second page to the Will.