47 Me. 495 | Me. | 1860
The opinion of the Court was drawn up by
On the thirteenth day of November, 1833, Isaac Marston made and • executed his last will and testament, of which the following is a copy:—
“First, — I give and bequeath unto my beloved wife, Polly Márston,. the income of all my property so long as she remains my widow.
“Second, — I give and bequeath unto my son George Mars-ton, fifty dollars, to be paid in three years.
“ Third, — I give and bequeath unto my son Oliver B. Mars-ton, all my property after his mother shall cease to be my widow, providing he shall live on the place and carry it on till that time in a workmanlike manner; and if the income of the farm should be more than is necessary to support the family, to be divided equally between the above named Oliver B. and his mother; otherwise to have one dollar.
“Fourthly, — I give and bequeath unto Nancy B. Marston, my daughter, on the day of her marriage, if she shall marry, one hundred and fifty dollars, in household furniture, and a privilege in the house and boarding, so long as she sees fit,
There are no clauses in the will repugnant to each other; nor do we think there is any difficulty in ascertaining the intention of the testator.
Beginning with, the second and fourth clauses, we find that the children were to have the privilege of living at home, where they were to be supported in health or sickness, and educated. The daughter, upon her marriage, and the sons upon arriving at a certain age, were to receive certain specified legacies. These, except the one made in the second clause, were upon condition that they should remain at home, and labor in the family. If they chose to leave home, they were to" receive nominal legacies only.
Whether, in certain possible contingencies, it would have been possible to carry out all these provisions, it is not material to inquire. No question is raised under these clauses of the will.
By the first clause, the income of all the property was given to the mother, so long as she should remain a widow. That she took it cum, onore, with the liability to pay the legacies, she has admitted, and has paid them as they became due. So that no questions are raised upon these matters. Though the alternative legacy to Oliver B. Marston, the plaintiff, was but one dollar, she paid him fifty dollars, the same that was paid to the other sons.
By the third clause, the said Oliver was to have all the property, after his mother should cease to be a widow, if he should live on the place, and carry it on, until that time. By the facts agreed it appears that neither of these contingencies has occurred. • The mother has not ceased to be a widow; and the plaintiff, instead of living on the place, and carrying
According to the agreement of the parties, the case is to stand for trial.