Hamlin v. Mansfield

88 Me. 131 | Me. | 1895

Strout, J.

Bill in equity for construction of the will of Edward Mansfield.

It is the duty of the executor to pay the debts of the deceased and expenses of administration promptly and within the statute period, even if to do so defeats every devise and legacy. He should first apply to this purpose that portion of the personal estate not specifically bequeathed ; and if that proves insufficient, then so much of the real estate, not specifically devised, as may be needed to accomplish the object.

The testator was a member of a copartnership, of which his son and another person were members. By the second clause of his will, he provided for the continuance of that partnership, with the use of his property therein, "so long as my said son or any of Ms children see fit or desire to carry on the business, subject to any change as to the membership which my said son or his children may see fit to make, so long as he or his children or any one of them remain members ;” and by clause four of the codicil he provides that "said partnership shall have the right to retain and enjoy the benefit of all my portion of the assets of the firm which at my death constitute a part of their working capital.” These provisions, if carried out, would make the executor a trustee of that portion of his estate which was part of the capital of the firm, and to so continue as long as his son or any of his children then living or thereafter born, should desire. This provision is clearly obnoxious to the rule against perpetuities, and is void. Slade v. Patten, 68 Maine, 382; Perry on Trusts, §§ 381, 382, 383; Kimball v. Crocker, 53 Maine, 263. The executor, therefore, is not authorized by law to continue the partnership, but its affairs should be closed, and the testator’s interest withdrawn, to be disposed of under the valid provisions of the will.

The bequest over, of the testator’s portion of the firm property, became operative immediately upon probate of the will, and is vested one-fourth in his son Edward, and three-fourths in the American Home Missionary Society, as provided in the codicil. The answer to the first, second and fourth questions in the bill, is contained in the foregoing.

To the third question, whether the executor, under Item 4 of the will, is required to pay all moneys made payable to the several donees, to the treasurer of the Bangor Theological Seminary as trustees, we answer that the leading idea in that clause referred to the disposition of the profits arising from the continuance of the partnership business, and the testator appeared to regard the payment to the treasurer of the seminary as a matter of convenience. He made the treasurer a trustee, with no duty or control over the fund, except to receive the money and immediately pay it over in the proper shares to each donee. It is harmless, if the executor pursue this course; and he will be justified in ignoring the trust, and paying directly to the beneficiaries the share of each.

By the third item of the will, the testator devised his machine and blacksmith shop, and the land on which they stand, with the water rights, to three societies in differing proportions, subject to the occupancy by the copartnership, under its continuance, as contemplated by the testator. By his codicil he revoked the devise to the three societies, and devised the whole to the American Home Missionary Society absolutely. The provision for the continuance of the firm being void, it is the opinion of the Court that the devise to the Home Missionary Society is valid, and vests the fee in it, which it is competent for the society to convey.

The residuary clause in the will gives all the remainder of the testator’s estate to the American Home Missionary Society. As the testator manifestly intended to dispose of his entire estate, it follows, that under this clause the society takes all real and personal estate, including testator’s interest in the firm, not required for the payment of debts and expenses of administration, and not otherwise bequeathed or devised. No reason is perceived why such interest is not assignable by the society.

The bequest of the income from partnership business, in article four of the will, fails and is inoperative, because the firm business cannot be continued.

The firm having been dissolved by the death of the testator, and the provisions of the will for its further continuance being-inoperative and void, it becomes the duty of the surviving partners to close up its affairs under the provisions of the statute. If they fail to do this, the like duty will devolve upon the executor.

Bill sustained. Decree in accordance with this opinion.