74 Me. 402 | Me. | 1883
During the entire twenty-seven months of the testator’s last sickness, he had his home, paying his board, with his nephew, the husband of the appellee, and required and received from the latter constant care, attention and nursing.
He -was about eighty years of age, and had been sick about a year, when he executed the holographic will now before us for construction. At the date of it, the value of the specific property enumerated therein and bequeathed to the two legatees, w'ould not exceed one hundred twenty-five dollars. Of this sum he gave fifty dollars to his nephew, who had furnished him a home, "in grateful remembrance of his kindness ; and to his " beloved niece Agnes (appellee) who carefully nursed him and did all she could to alleviate his distress and contribute to his comfort,” he gave "the remainder of the little property ” which he should leave at his decease.
About eleven months after he executed his will, and four months before his own decease, his only brother, resident in Massachusetts, and ten years his junior, died of apoplexy, intestate. From his brother’s estate, he received nothing during his life-time, but his estate, some more than two years after his own decease, received twenty-four hundred and four dollars as the distributive share belonging to it. And the question before us is — Does this sum, inherited from his brother’s estate, come within the clause — "the remainder of the little property I shall leave when I depart from this earth,” and thereby pass to the appel-lee? or, is it intestate property, which, by the rules of descent, should be distributed among the testator’s three nephews and two-nieces, his only next of kin ? This is to be ascertained from the. terms of the will itself, elucidated if may be, by the light of the-
When he executed his will, the testator had, as before seen, but very little property of any and all kinds, and no expectation whatever of ever receiving any addition thereto other than what, if anything, he might save from his small annuities above what was necessarily absorbed by his board and other necessary expenses incident to his physical condition. His will expressly declares the intention to do what testators generally intend — to dispose of all the property of which he should die possessed (Lett v. Randall, 10 Sim. 112; Dole v. Johnson, 3 Allen, 364); and that it should go, for the reasons suggested in the will, to the two legatees named. ' And this disposal, which, under the •circumstances, is to a’ disinterested person, apparently so fair •on the part of the testator and so well deserved on the part of the legatees, seemed to him so palpably right, that he did not omit to express the feeling that his heirs, residing in Washington, Now York, and Massachusetts, to whom he had been no trouble and from whom he had received no care and attention during his painful and protracted sickness, could not reasonably challenge its '"justice and propriety.”
This plainly expressed intention, however, was predicated of property valued at one hundred twenty-five dollars, comprising ten shares of railroad stock and a scrip certificate, all worth only ■fifty dollars, and numerous small articles which he paraded before his mind by naming each in his will, and thereby realizing liow 'little value there was except "as keepsakes” to be divided among ■five or six heirs, all except one of whom reside out of the state. Whether he would have used language of like import had he made his will after, instead of before, the death of his brother .and the' receipt of the twenty-four hundred and four dollars, •can never be certainly known. It does appear, however, that he gave what was, at the date of his will and without expectation •of any increase thereafter, his little all, to the legatees, and because it was so little, "as a token of gratitude,” rather than as ■^payment of valuable services rendered, in discharge of which the
Looking at all the circumstances together with the whole will, and we find no clause which does not lead us to the opinion that by adopting the clause "the remainder of the little property I shall leave, ” &c. had reference only to the remainder of such property, including possible savings from his only income, as be owned when he made his will. The enumeration included all in fact. Nothing known or unknown was omitted from that schedule. If it be said that he did not change his will after his brother’s death, and therefore intended that bis will should carry the sum inherited,— the answer is — First, there is no evidence whatever in the case that information of his brother’s death ever reached him; and second, or that he ever knew of the condition of his brother’s property or even expected to receive any share of it. In fact nothing was received until more than two years after his decease. Our opinion, therefore, is that the decree of the probate court should be reversed, and that the balance of twenty-one hundred dollars and eighty-six cents, should be distributed among the heirs. Costs as by agreement.
Gase remanded to probate court.
