68 Me. 121 | Me. | 1878
What was the testator’s intention ? Are the terms of his will such that we can give effect to that intention consistently with the rules of law ? These are the fundamental inquiries, upon the answers to which the rights and duties of these-parties depend.
His heirs at law claim that, by reason of his widow’s refusal t© accept the provision made for her by the will, that portion of the estate given to her therein in lieu of dower remains' undis-
To reach this result it is claimed, in behalf of the heirs, that the entire interest and estate in that moiety of the property, devised in the third item to the wife of the testator, was vested in her by the terms used, and nothing remained to pass under that item to the trustee in any event, whether the wife accepted or rejected the provision in the will. In brief, the claim is, that upon a proper construction of the third item, one-half of the property, real and personal, not previously disposed of, to be selected by her, in value according to the appraisal, was given absolutely to the wife, and not being accepted by her, is left to be disposed of according to law under the statutes regulating the descent and distribution of intestate estates.
It is unquestionably true that if the devise of an estate be rejected by the devisee, and there be no other disposition of the estate in the will, it will descend to the heirs at law. Bugbee v. Sargent, 23 Maine, 269.
That this result would be contrary to the intention of the testator here is obvious, and is substantially admitted by the learned counsel for the heirs when he claims that the testator “ did not imagine that his wife would renounce the provisions of the will, and so made no provision for that contingency.”
It would indeed be difficult to imagine why she should renounce the provisions made for her in the will if the construction which the counsel seeks to give, it could prevail. Is it the true construction ?
Judge Eedfield, in his treatise on Wills, Part II, c. 13, Sect. 6, § 48, remai’ks : “ The courts have for a long time inclined very
In the interpretation of any particular clause in a will, we are to give effect to the intention of the testator as manifest from an examination of the whole will, when not inconsistent with the rules of law. The clause is to be considered in connection with all the others, and with the main design of the testator, and such a construction adopted if possible, as will give effect to the whole and to the general intent, although thereby some departure from a literal construction of the clause in question may be necessary. Morton v. Barrett, 22 Maine, 257. We observe, in the first place, that by the second item in his will the testator makes a certain provision for his heirs at law, coupled with certain conditions, limited in amount “ not to exceed in any event the sum of ten thousand dollars,” carefully divided, with elaborate directions for distribution among the survivors in case of the decease of any of the beneficiaries named in the item.
It is plain that this was the extent of the intended bounty in that quarter, except in a certain contingency to be hereafter noticed.' If the heirs at law are entitled to more, it is in opposition to the purpose of the testator expressly declared. The bulk of his fortune was to go for the use and benefit of his wife and adopted son, under certain limitations and restrictions.
And what was thus given to the wife and adopted son respectively, in case of the death of either, was to enure to the benefit of the other. Only “ in the event of the decease of my wife Naehel Ann, and adopted son Samuel, without lawful issue, and the termination of the estates herein created,” was the remainder to go to his lawful heirs.
That the courts have carefully refrained from permitting the wife’s election to affect the testamentary dispositions made by the husband, beyond what necessarily results from the wife’s exercise of her paramount right, may be seen by a reference to Perkins v. Little, 1 Maine, 148, 152, where the wife’s right under the stat
It is certain 'that her election cannot be held to affect the disposition of any actual subsisting remainder of the property devised to her, beyond what results from the exercise of the discretionary power now confided to the judge of probate to make her an allowance as if the husband had died intestate. The claim made by the heirs can prevail only by establishing the proposition that the third item of the will must be construed as passing to the wife the entire property and control of the moiety therein devised to her. Otherwise, the wife’s election of dower and allowance cannot defeat the remainder therein given to the trustee for the adopted son.
To support his construction, the counsel for the heirs calls attention to the right given her in this third item, to select the half of the estate, after an appraisal, ££ whether real, personal or mixed, which she may choose and prefer,” and the “ full power and authority to sell, transfer, assign and convey each and every part or parcel of said half part, whether real or personal, by sufficient deeds and guaranties according to her own judgment, will and pleasure ; ” and he relies upon the eases of Ramsdell v. Ramsdell, 21 Maine, 288, 293, and Pickering v. Langdon, 22 Maine, 413, as clearly establishing the doctrine that such absolute power of disposal in the first taker will render the devise over inoperative. This is true; but to reach the conclusion which he seeks, we must overlook the equally clear provisions in this item that the property is given to her “ for her use, benefit and advantage, for and during her life,” and that the power of disposal is apparently for the limited purpose of enabling her to ££ make such reinvestments of the proceeds of any such sales or transfers as she may deem expedient.”
Nor does it make any practical difference with regard to the construction that a large part of this moiety was in personal estate. While it is true, as stated by Chancellor Kent, vol. II, p. 352, Ith Ed., that formerly, at common law, the doctrine was that there could be no limitation over of 'a chattel but a gift for life carried the absolute interest, it was long ago settled that a gift of a chattel for life was a gift of the use only, and the remainder over was good as an executory devise. Kent’s Com. ubi supra, and cases there cited in notes. Field v. Hitchcock, 17 Pick. 182. Homer v. Shelton, 2 Met. 194.
It is. to be regretted that the courts ever thought it necessary to transfer the terms “remainder and executory devise” from their original application to real property to provisions respecting personal property. Owing to the different nature of the subject, the analogy will seldom if ever be perfect, and in some respects will always be absolutely defective. Yet the transmutation has encumbered the attempts of judges to give a reasonable operation
And sometimes, while they recognize a legitimate intention of the testator, their best efforts fail to extricate it from an entanglement of technicalities which have no proper application, so as to give it its just effect. It would be much simpler to recognize the essential distinction between a remainder in real estate and a remainder of personal property, and to determine where and to what- extent a bequest of an interest in futuro in the latter could be regarded as lawful and protected, if we were untrammeled by the refinements and subtleties which have grown up about the ownership and tenure of real estate.
But perhaps at this day it would be too sweeping a change to discard the terms so long used, and it may be that if we keep the cardinal object of inquiry, the legitimate intention of the testator, carefully in view, the obstacles to a satisfactory conclusion will commonly be found fewer than might be anticipated.
Suffice it, in the present case, to say that, giving their due force to all the clauses and provisions of the third item, the interest given to the wife in her moiety was for life only, with special power of alienation for the purpose of changing the investment only, and that this is consistent with a valid devise and bequest over to the trustee for the adopted son, and brings the case within the exception to the general rule, which is expressly recognized in Ramsdell v. Ramsdell, 21 Maine, 288, 295, as follows : “Where a life estate-only is clearly given to the first taker, with an express power, on a certain event or for a certain purpose, to dispose of the property, the life estate is not by such a power enlarged to a fee, or absolute right; and the devise over will be good.” See, also, McLellan v. Turner, 15 Maine, 436. Shaw v. Hussey, 41 Maine, 495. Willing v. Baine, 3 Peere Williams, 113. Walker v. Main, 1 Jac. & Walker, 1. Humphreys v. Howes, 1 Russ. & Mylne, 639. Morris v. Belyea, 13 N. Y. 273.
All the wife’s interest in it is at an end as much as if she were dead. The rule is that the extinction of the first interest carved out of the estate only accelerates the right of the second taker. Taylor v. Wendel, 4 Bradford Sur. Rep. 325. This is the only disposition of this surplus of the wife’s moiety which is consistent with the testator’s declared will. He could not control his wife’s right to prefer her dower and allowance to the life estate which he gave her, nor eould she by exercising that right abrogate the disposition which he had made of any surplus of the estate after satisfying her legal claims.
Thus, in Adams v. Gillespie, 2 Jones Eq., N. C. 244, where a testator gave personal property to his wife for her life, and after her decease to his daughter for her life, and then to the daughter’s children, and tire wife rejected the provision for her in the will, it was held that the bequest to the daughter took effect immediately.
In Firth v. Denny, 2 Allen, 468, 470, Merrick, J., speaking of the renunciation by the wife of testamentary provisions in her favor, says: “ But this renunciation annulled only those provisions in the will in which she had a personal interest. It could not revoke or invalidate the bequests to other legatees, nor in any way affect them except by causing a diminution of the remaining part of the estate out of which they were to be paid.”
In Plympton v. Plympton, 6 Allen, 178, also, the obvious propriety of giving full effect to bequests to other legatees in case of renunciation by the widow, so far as any estate remains from which such bequests can be paid, is recognized.
Holding as we do, that the waiver by the wife of the provisions of the will in her favor, and the subsequent reception of her dower and allowance, operates upon the excess of that half of the estate as her death would have done in case she had accepted what was given her by the will, and that these proceedings exactly define the existing remainder, which under the third item was to go to the trustee, we give effect to all the provisions of the will as nearly as may be under the new condition of things brought about by the wife’s election.
We accordingly answer the first question propounded in the
Decree accordingly.
Costs and, reasonable expenses of all parties, for counsel fees or otherwise, in this proceeding to be paid, out of the estate, and charged by the administrator in his account.