Jackson v. Thompson

84 Me. 44 | Me. | 1891

Libbby, J.

This is a bill in equity for the construction of the will of Kobert Thompson, deceased. The clauses of the will involved in the contention are as follows :

"Item 1st. I give and bequeath to my daughter, Kate A. Morrell, ten thousand dollars or her heirs forever.

"Item 2nd. I give and bequeath to my daughter, Abbie C. Eich, ten thousand dollars or her heirs forever.

"Item 3rd. And as I have given my daughter, Lucy D. Jackson, my house and lot in Farmingdale, with all the buildings thereon, and also all the land in the rear of said lot, that I owned, called the Gould lot, the value of said house and land I have given her, I consider it cheap at five thousand dollars, and in order to make my daughter’s, Lucy D. Jackson’s, portion equal to my other two daughters’, I direct my executors to pay her five thousand dollars ($5,000), which will make her portion equal to my other two daughters’, viz. : ten thousand dollars to each of my three daughters or their heirs forever.

" Item 4. At my decease, I direct my executors to hold the balance of property that may remain after paying the amount named in this will to each of my three daughters, for the benefit of my son, E. H. Thompson. I direct my executors to pay my son only the income of five thousand dollars during his natural life, provided, however, there should be five thousand dollars left after paying my three daughters the amount named in this will. x\md if there should be a surplus left after paying all the above sums named in this will, I direct my executors to divide the sum, if any, among my four children, one quarter to each.

"I will here say to my executors that in case my son should become a sober and a man of good habits, and they should think it would be for his interest to let him have a part or the whole of the property I have left him they may do so. I leave them to be the judges. I will here inform my executors that my son has had in cash from me since he was twenty-one years old, upwards of five thousand dollars, the account of the same may be found in my trunk.

" I hereby appoint James A. Jackson, of Farmingdale, Eichard Eich, now of Washington, D. C., and George C. Morrell, now of Sharon, Massachusetts, my executors of this my last will and testament. It is my wish that my executoi-s give no bonds as I have full confidence they will do just as I have requested them to do.”

The following questions are submitted to the court by the complainants:

"First. Whether by the terms of said will any trust is created as to the specific five thousand dollars first named in said will to be held by said executors for the b.enefit of said Robert H. Thompson and whether your complainants are made the trustees thereof under said will, and if yes, what are the terms of said trust, and must the trustees give bond therefor; and if no trust, then what disposition shall the executors make of said five thousand dollars, and what effect, if any, have said assignments or either of them on said R. H. Thompson’s interest in the specific legacy.

" Second. Whether by the terms of said will any trust is created as to said Robert H. Thompson’s interest in the residue remaining in the hands of said executors after the payment of all the specific legacies named in said will, including the five thousand dollars named in question first, and whether your complainants are made the trustees thereof under said will, and. if yes, what are the terms of said trust, and must the trustees give bond therefor; and if no trust, then what disposition shall the executors make of said Thompson’s interest in said residue, and what effect if any have said assignments, or either of them, on said R. H. Thompson’s interest in the residue.”

As to the first clause in the first question submitted, there is no contention between the parties. The five thousand dollars named in the fourth item in the will is clearly devised in trust to be held by the executors for the benefit of Robert H. Thompson, upon the terms and conditions clearly stated. On the settlement of the estate, the executors will become trustees by operation of law. Whether they should give bond as such, is a question to be first determined by the Probate Court; and it can be brought into this court only by appeal. It is not properly before this court in a bill for the construction of the will. R. S., c. 68, § 2.

Nor is the question of the validity of the assignment to Heath and Tuell properly before us on such a bill. We may say, however, that we see nothing in the will, nor is any legal reason suggested, restricting the right of the legatee to assign his interest.

The great contention between the parties is under the second question : whether by the terms of the will any trust is created as to Robert H. Thompson’s interest in the residue of the estate, after payment of the special bequests.

We think not. Certainly no trust is created by the language of the bequest, "And if there should be a surplus left after paying all the above sums named in this will, I direct my executors to divide the sum, if any, among my four children, one quarter to each.” By this language, the share of Robert H. is devised to him as absolutely and unconditionally as the shares of the daughters are to them. But it is claimed that the intention of the testator to create a trust as to the whole share of his estate devised to Robert H., is apparent from other clauses of the will, for the reason wdiich he there expressed. The first clause of item four is relied on. But while this clause in terms devises all his estate remaining after paying the special legacies to his daughters, to his executors, for the benefit of his son Robert, this is immediately followed by the limitation of the amount to be held by them to five thousand dollars, if there should be so much, and directing them to pay him the income of that sum only during his life, afterwards giving them the discretionary power to pay over to him a part or all of the principal on the contingency named. This, in the light of the terms of the whole item, cannot be held as conveying the whole remainder of his estate after payment of the legacies to his daughters ; if so, there Avould be no surplus left to be devised to the four children. On a careful examination of all the terms of the will, Ave do not find language, clearly showing the intention to devise Robert’s share of the remainder in trust. There is nothing-declaring the duties of the executors as trustees, in regard to that sum. The testator may have had the intention to place it in trust; if so, he failed to express it.

Upon a full settlement of the estate by the executors, and a decree of distribution, it is their duty to pay to Robert H. Thompson, or his legal assignees, his share of the remainder.

Decree accordingly. Each party to recover his taxable costs, to be paid by the executors out of the estate.

Peters, C. J., Walton, Virgin, Haskell, and Whitehouse, JJ., concurred.