22 Me. 257 | Me. | 1843
The opinion of the Court was delivered at an adjourned term in this county, in March, 1844, by
— It appears from the bill, answers and proof, that Reuben Morton made and executed his will on July 27, 1831, having at that time a wife and seven children. Pie made provision for his wife, and gave to four of his children, Statira, Nancy, David and Christopher, one undivided seventh part of the residue of his real and personal estate. lie gave to a trustee in trust three other sevenths. All these portions were to be ascertained by charging each child with advances made or to be made. The income of one seventh, given in trust, was to be applied to the support of his son Stephen and wife and their son under certain regulations ; and two thousand dollars of the principal was on certain contingencies to be paid to that son, and the remainder, after the decease of Stephen and his wife, was to be paid to Statira, Nancy, David, and Christopher. The income of another seventh, given in trust, was to be applied to the support of his son Ebenezer, and the principal might be paid to him on certain conditions; but in case of his death within a certain time, it was also to be paid to Statira, Nancy, David and Christopher. The in
On the ninth day of December, 1836, the testator made and executed a codicil, which recites, that since his will was made his wife had died, that his sons Ebenezer and Christopher had died without leaving issue, and that his daughters Statira and Nancy had died, each leaving children. After giving certain specific legacies the remainder of the estate is divided into five instead of seven parts. Of these one fifth is given to the children of Statira, one fifth to the children of Nancy, one fifth to a trustee in trust to apply the income to the support of Charles as directed in the will, and the principal with the accumulated income “ remaining at the decease of said Charles, to be applied as is ordered and directed in my said last will and testament;” another fifth to a trustee to apply the ineome to the support of his son Stephen and wife and their son, and the whole of the principal, instead of two thousand dollars of it, was directed to be paid to their son, if he should live to be twenty-one years of age, and be in the opinion of the trustee capable of using it with discretion. And the other fifth in trust for the benefit of his son David.
The testator died on June 22, 1838, and his son Charles on February 3, 1837. The trustee named in the will declined the trust; and the defendant, Barrett, was appointed trustee by the court of probate. The disposition of that fifth of the estate, which was to be disposed of on the death of Charles, is now presented for consideration.
It is contended by the counsel for the trustee, that, as the son died before the testator, this fifth must be regarded as a lapsed devise and legacy. This cannot be admitted, for it was not devised to the son; He was not in any event to re
ft is contended by the counsel for the plaintiff, that those entitled to this portion became so on the death of Charles; that the purpose of creating the trust, having been defeated by his death, the estate never passed to the trustee, but vested in them. But this portion is not' devised to others on the death of Charles. They are to receive the proceeds only by virtue of the directions given to the trustee, and through him in the execution of his trust. He could not have performed the duties imposed upon him by the will without having a legal title in the property devised to him. And when it becomes necessary, that the title should be vested in a trustee to enable him to execute the declared purposes of the will, he will be considered as taking the legal title. Silvester v. Wilson, 2 T. R. 444; Harton v. Harton, 7 T. R. 652; Sanford v. Taby, 3 B. & A. 654; Murthwaite v. Jenkinson, 2 B. &, C. 358; Doe v. Nicholls, 1 B. & C. 336; Tenney v. Moody, 3 Bing. 3 ; Huston v. Hughes, 6 B. & C. 403; Wykham v. Wykham, 18 Ves. 414; Biscoe v. Perkins, 1 V. & B. 489. As the son died first, the testator at that time, technically speaking, had no heirs. But the rule nemo est haeres viventis does not apply, when it is apparent from the will, who were intended by the testator to be the recipients of his bounty. A devise to the
Considering the property as devised by the will, the question arises, who are the persons entitled to this fifth now in the hands of the trustee ; and in what proportions are they entitled. The word heirs could not have been used by the testator in the
The conclusion is, that the trustee, after deducting such reasonable charges and expenses, as are allowed in the Probate Court in like cases of trust, and the expenses by him necessarily incurred in defending this suit, convey and pay over the residue of this fifth part of the estate, in equal proportions, to David Morton, to Stephen Morton, and to the guardians respectively of the children of Statira, and of Nancy. A decree is to be entered accordingly, and without costs.