68 Me. 34 | Me. | 1877
This is a bill in equity, brought by the plaintiff, as administrator with the will annexed of the estate of John Ham, against the defendant, as administrator of the estate of Harriet Ham, his wife, under the provisions of It. S., c. 77, § 5, for the purpose of obtaining the construction of his will.
The testator after making sundry specific bequests proceeds as follows : “ And as to the residue of my estate, whatever, after payment of my just debts, I give and bequeath the same to my beloved wife, Harriet Ham, whom I appoint sole executrix of this my last will and testament.”
The testator gives and bequeaths “the residue of his (my) estate ” to his wife whom he appoints executrix. The language is the same used in the preceding specific legacies. The words embrace the entire remainder of the estate. This remainder is given to the wife. It is given in the same terms as the other
There would not even a question be made as to the meaning of the bequest just considered, were it not for the last clause in the will, which is as follows : “ And lastly, I direct if there be any of my said estate left after the decease of my said wife, then the said property left be equally divided between Jacob Gilman, Caroline A. Thompson and Sally Brown, my sister, if she be living at the time; if not, her share to go to her husband, John Brown, if he be living; and if neither the said Sally Brown nor her husband be living, the said property bo equally divided between the said Jacob Gilman and Caroline A. Thompson.”
But the remainder, as we have seen has been already disposed of. It was the wife’s, charged with the payment of just debts. She had the uncontrolled power of disposal of it. The last clause is not to be regarded as a withdrawal of what had just been devised. When property has been devised absolutely, and with no restrictions upon the gift, the court will be slow in giving such a construction to subsequent words as will defeat the absolute estate just devised. “ A valid executory devise cannot subsist under an absolute power of disposition in the first taker.” 4 Kent Com. 270. Here was an absolute power of disposition in the wife.
The cases'cited for the defendant differ materially from the one before us. In Stevens v. Winship, 1 Pick. 318, the devise was to the wife for life with power to sell in case of need. In Field v. Hitchcock, 17 Pick. 182, a bequest of money to one for life and then over was held a gift of the interest and not of the principal. Here the bequest was absolute and not contingent upon its being needed by the wife for her support.
According to the true construction of the will of John Ham, it is declared:
That the residue of his estate after the payment of his just debts and legacies vested absolutely in Harriet Ham, his wife.
And it is ordered and decreed that the reasonable costs and charges of these proceedings be a charge upon the estate of said John Ham.