Mcgee v. Marbury

CAYTON, Chief Judge. This litigation had its origin in the United States District Court for the District of Columbia. There Charles R. McGee filed against Leonard Marbury individually and as executor of the estate of Alice Lee Russell, deceased, a petition for the construction of the will of said decedent and for a money judgment for income or interest on certain shares of stock which were part of the estate and which were to become part of a life estate for the benefit of McGee. It will be helpful to relate something of the background of the case. Alice Lee Russell died in February 1946, leaving a will in which she named Charles R. McGee, the plaintiff, and Leonard Marbury, the defendant, as executors. Among other bequests she left $10,000 in trust to Leonard Marbury with directions to pay the net income therefrom to her nephew, the same Charles McGee, for his lifetime and at his death to deliver the corpus and any accumulated income thereon to her niece, Mildred M. Marbury. Testator also left the residuum of her estate to Mildred who is the wife of the defendant and the sister of plaintiff McGee. A caveat to the will was filed by the sole surviving sister of testator, a number of her brother's children joining therein. None of these caveators was to receive anything under the will. At the trial as to the validity of the will, Charles McGee, though nominally a caveatee by virtue of his designation as executor, voluntarily gave testimony opposing probate of the will. The trial of the caveat resulted in a verdict on all except two issues. Thereafter the parties in interest negotiated a settlement and entered into a formal compromise agreement, dated May 19, 1948, in which they recited that they had agreed upon a compromise and settlement of their differences. In the agreement various concessions were made, all parties consented to the probate of the will, sums of money were allotted to the surviving sister and her brother's children, and this resulted in a decrease of the residuum of the estate which was ultimately payable to Mildred M. Marbury, wife of the defendant in this action. Most pertinent to the present case is the provision in the contract whereby: 'Charles R. McGee agrees to renounce in writing his appointment as one of the Executors named in said will and waives any and all right he may have to any commission or compensation as Executor, it being agreed that Leonard Marbury will decline to serve or will resign as Trustee of the trust fund of $10,000 created by Item Fifth of said will; that Charles R. McGee will then take appropriate steps to have a substitute or successor Trustee appointed and upon such Trustee qualifying, said Leonard Marbury, as Executor, agrees to pay such Trustee the sum of $10,000 in cash out of the assets of said estate and thus establish said trust fund.' Also it was agreed that each party to the agreement was to pay the compensation of his own attorney but that $1000 would be paid out of the funds of the estate to Harold P. Ganss, attorney for Charles R. McGee, in payment for his services in the litigation. The agreement was signed by Leonard Marbury and his wife Mildred, by Charles R. McGee, Annie R. McGee, and the three attorneys in the case.