| Me. | Jul 1, 1873
This is a bill in equity brought under R. S., c. 77, § 5, to obtain a construction of the will of Sarah K. L. Baxter.
First. I give the use and income of all my property, real and. personal, to my husband, James P. Baxter, during his natural-life.
Second. At the decease of my said husband, I give the use and income of all my real estate to my daughter, Alba, during her life, except the farm in Gorham, purchased by me of Thomas Smith, with power to sell, and invest the proceeds if thought best for the above purpose, by the judge of probate for Cumberland county.
Fourth. I give the use and income of my said farm in Gorham to my children, and the survivors of them, during their natural lives. I wish it used by them all, and kept in a flourishing state. They will themselves decide, guided by just and conscientious motives, which one of them shall occupy it, or if they shall all reside upon it. I desire it to be regarded as a place of refuge for my children and their children, if they have any, in time of poverty or trouble, and if possible, that it should never be disposed of.
The first item in the will gives the use and income of all the property, real and personal, to the husband of the testatrix. This obviously includes the Gorham farm, on which she contemplated her children should reside. As all of the children were minors, it never could have been her intention that they should live apart from their father. The devise to her daughter Alba, is to take effect at the decease of her husband. Taking the fourth item in connection with those which precede it, we think the intention of the testatrix was, that the life estate of the children was not to commence until after the death of the father; that during his life the Gorham farm was to be the residence of her husband and children, and after his decease, of the children.
II. The children, under the fourth item, take only a life estate in the Gorham farm. They can take under that clause no more than is thereby given them. Burleigh v. Clough, 52 N. H., 267.
IV. The fifth item is as follows: “Fifth. By the unanimous consent of my children (when of age) they may make said farm a Home for Little "Wanderers, and to that end may transfer the same to the Maine Association of the New Jerusalem church, to be held by said association in trust for that purpose.”
The children when of age might do as they should please with their own. The undevised remainder descending to them as heirs, they could dispose of it as they should deem most judicious. But this clause in the will gives no rights whatever to the Maine Association of the New Jerusalem church.
V. The guardians of minor children are empowered to sell the real estate of them wards in .certain cases. R> S., c. 71, § 1. The term real estate includes any and all rights thereto and interests therein. As after the decease of the father the whole estate, is in the children, a sale of the right of the children with a conveyance from the father would vest the whole estate in the purchaser.
According to the true construction of the will of Sarah K. L. Baxter, it is declared:
I. That James P. Baxter- takes a life estate in the Gorham farm.
II. That under the fourth section in the will the children of the testatrix take only a life estate in said farm.
III. That, as hems, the children take the remainder, which is undevised.
IV. That the Maine Association of the New Jerusalem church have no legal nor equitable title in and to the Gorham farm.
V. No reason appears from the papers before us, why the judge of probate of Cumberland county, upon proper proceedings had, may not, in his discretion, license the guardian of the children to sell and convey their estate and interest in said farm.