Clapp v. Clapp Others

6 R.I. 129 | R.I. | 1859

The question arises in this case on the language of a devise or provision in the will of John Clapp. The testator devises a portion of his homestead farm with the buildings and appurtenances thereof unto his son Silas Clapp, in fee, subject to the restrictions and incumbrances thereinafter pointed out and explained. He then makes certain other devises and legacies, and inserts the following provision in his will, viz: "My mind and will is, and I hereby declare the same, that provided my daughter Anna Clapp shall, at any time hereafter, choose to live in the family of my son Silas Clapp, she shall have the right so to live, and the estate herein given to my said son Silas Clapp shall be subject to that incumbrance during her life, or so long as she shall remain single or unmarried."

It seems to us to be the plain intent of the testator to provide, by this language of his will, for the subsistence of his daughter Anna, and to make that subsistence a charge upon the estate which he had devised to his son Silas. This support is expressed to be for her life, or so long as she shall remain single and unmarried, and is dependent only upon the condition of her choosing to receive it.

This appears to be the plain intent of the testator, as apparent from the language of the will when he makes the devise to his son Silas, and when he makes provision for his daughter Anna. In the devise to Silas, he makes it subject to the restriction and incumbrance hereinafter pointed out and explained. When he makes the provision for his daughter Anna, he expressly charges it upon the estate devised to Silas, thus pointing out and explaining the incumbrance to which he had subjected the devise, and which was to be thereafter explained.

Now, the provision was, that she should have the right to live in his family; and can the words, "live in his family," be construed to mean a trust for support and maintenance out of that family? Silas Clapp has deceased, and his family are scattered and separated. The testator's language does not seem liable to be defeated by the happening of such events, for the estate is made chargeable with the incumbrance during the life, or until the marriage of Anna Clapp. If it could be defeated by the separation of the family of Silas Clapp, the bounty which the testator intended for his daughter during her life, or so long as she should remain single, would be dependent upon accident or upon the choice or caprice of Silas Clapp, whereas the testator's language makes it dependent on her choice alone. The effect of the language, "right to live in his family." cannot, consistently with the apparent intent of the testator, be construed to limit the duration or extent of the testator's bounty; for independent of the consideration that this duration is fixed by the language of the testator, other considerations arise out of the nature of the incumbrance. Suppose, for instance, in the lifetime of Silas Clapp, and while his family was residing at the homestead, Anna Clapp had chosen to live in his family, and her application had been refused? Would not the right of resort to the premises charged have been clear? And is not the right to this resort equally clear when this right to live in the family is unattainable from any other circumstance, provided she chooses to enjoy the right?

It seems to us that the language of the will is sufficient to raise a trust for the subsistence of Anna Clapp. That trust is raised by the law of equity as an interest in rem. The provision of the will has both requisites to the raising of such a trust, viz: certainty as to the object of the trust, and certainty as to the subject of it. The object, was a living for Anna Clapp in the family of Silas Clapp, and the land devised to Silas, was the subject-matter out of which this living was to be furnished. Silas Clapp took the fee of the estate subject to this charge. If he satisfies the charge, the estate is discharged; if he does not, the estate remains charged, and the claim or right is to be satisfied out of it.

It seems to us that the language, "right to live in the family," is more indicative of the kind of support or quantum of benefit intended, than of the extent or duration of it. The object was to provide a living or home for the testator's daughter so long as she should live, or until she should attain a position in which that object would be otherwise answered. A living was to be provided — a living in the family of the testator's son Silas; and such support as she would have, by living in his family, is the measure or quantum of benefit intended. Nor does there seem to us any difficulty in ascertaining the amount of interest arising to Anna Clapp growing out of this charge upon the estate, with such certainty as will enable us to decree the execution of the trust. It can be easily ascertained how much the support which she would receive by living in the family would cost; and that being ascertained, the extent of her interest is made certain, and can be enforced by a sale or rental of the land charged.

A decree must be entered declaring the real estate of the defendants, devised to Silas Clapp by the will of John Clapp, to be subject in their hands to the support of the complainant during her life, so long as she shall remain unmarried; and the case be sent to a master to ascertain the annual value of such support as was contemplated by said will, and in default of payment thereof, at the times and in the amounts to be reported by the master, said estate to be sold, c. for the satisfaction of said charge.¹

¹ A similar case was decided about the same time by the court of appeals in Maryland, as appears by the following note of it furnished to me by my friend, Mr. Miller, the reporter: —

"A testatrix devised a farm to W. in fee, and then after giving some personal property to C. added: `Item. I do hereby will and direct that the said C. shall have a home during her natural life on the farm hereinbefore bequeathed to W.' Held:

"1st. That this devise of a `home' is not void foruncertainty, nor is it confined to a mere room and shelter in the house on the farm, but extends to the board andmaintenance of the devisee and is a charge upon the land therefor.

"2d. The sum to be awarded the devisee, as an annuity chargeable on the land, must bear a proper relation to the product of the latter; the standard of her right is the value of the home, as she was habituated to it in the house of the testatrix.

"3d. In estimating this sum, regard must be had to themanner and mode of life of the devisee up to the death of the testatrix, the relative situation of the parties, according to the position they maintain in society, the condition and habits of life of the testatrix and the devisee, the extent of the estate, the mode of living of the parties, so far as expensiveness or economy is concerned, and the practice and habits of the persons with whom they associate. Willett Wife v. Carroll, 13 Md. Rep. 459." — REPORTER.