6 R.I. 584 | R.I. | 1861
The scheme of this will is quite apparent: to give a third of the real estate of the testator, consisting of the homestead farm and a thatch lot, to his wife during widowhood, — to divide the remainder in fee amongst his sons, — to provide for his daughters with his money in bank, — and if any of them survived their mother unmarried, to give them a home and sufficient fuel at the homestead as a charge upon his sons, or upon their estates. The will itself, in its prefatory clause, professes to dispose of the whole estate of the testator; and this, though not enough to enlarge the estates of the sons, left indefinite, to a fee, against the settled meaning of the special devise to them, affords a sufficient key to the intent of the testator.
In conformity, however, to the technical rules of law appropriate to the construction of wills, this intent can well be carried out, in consequence of the condition imposed upon Simeon to pay as a legacy seventy-five dollars, to be divided between his five sisters, and of the annual charge upon the estates of all the brothers, of a home for their unmarried sisters who might survive their mother, and of sufficient firewood for such sisters and their mother. It has been long settled, that where a devisee, whose estate, as in this case, is undefined, is directed to pay a specific sum in gross, he takes an estate in fee, on the ground, that if he took an estate for life only, he might be damnified by the determination of his interest before reimbursement of his expenditure; and that the disparity of the sum imposed, to the value of the land, does not prevent the enlargement of the estate. 2 Jarman on Wills, 171, 172, and cases cited.
Under this rule Simeon certainly took an estate in fee; and the testator plainly declares, that there was to be, after this payment, *588 entire equality between him and his brothers. But if this were doubtful, the same principle applies to annual charges, whether upon real estate, or to be paid by the devisees, like the firewood to be furnished by the sons to their mother and unmarried sisters, which enduring for the widowhood of the former, and for the lives of the latter so entitled, might endure beyond the lives of the sons, if their estates were not thereby enlarged to a fee. Ib. 173, 174, and cases cited. In this view of the will of her father, the plaintiff is not entitled to recover under the second count of her declaration.
We do not see, however, upon what pretence the plaintiff's claim under the first count of her declaration can be resisted, coupling her right in the homestead under the will of her father, with the subsequent partition by which this right was ascertained and set off to her in severalty. We might, indeed, conjecture that the intent of the testator would be fulfilled by holding that this right, which was to accrue to the plaintiff upon her surviving her mother as a single woman, was to cease upon her marriage; but, as the testator has not chosen thus to limit it, but has left it indefinite and thus for life, we do not feel at liberty to supply such words of limitation, since we cannot say that the testator intended to use them. The plaintiff must therefore have judgment upon the first count of her declaration. *589
APPENDIX.
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DECISIONS
OF THE JUDGES OF THE SUPREME COURT, ON APPEALS TO THE SCHOOL COMMISSIONER.
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