Pickering v. Langdon, 22 Me. 413

Pickering v. Langdon

22 Me. 413 | Me. | 1843

The opinion of the Court was drawn up by

Shepley J.

— The plaintiffs are certain of the heirs at law and of the devisees of the late Elizabeth Sewall, and they seek by this bill to obtain such a construction of her will, as may declare their rights; and to have those rights, when *427ascertained preserved and secured to them. All objections to matters of form and for want of proper parties have been waived. The will and codicils have been very unskilfully drawn. Clauses in the will and in the first codicil are so opposed to each other, that they cannot be reconciled. There would be no difficulty in deciding, which must prevail, were it not perceived, that the same general purpose and intention modified and varied in the codicil, is discoverable in both, while the language is utterly repugnant. To exhibit any satisfactory conclusion it will be necessary to endeavor to ascertain the intentions of the testatrix : and to inquire, whether it be possible to carry those intentions into effect. Some of the parties plaintiff present their claims only in the character of heirs at law. Was it the intention of the testatrix to leave any of her real or personal estate undisposed of by her will ? She gave certain legacies by the original will, and then, follows this clause. “ Sixthly, the residue of my property after paying my just debts I give and bequeath to Paul Lang-don aforesaid and Elizabeth Langdon, my neice, constituting them residuary legatees to all my property not otherwise disposed of, whether real or personal, for their use and benefit; and after the death of Elizabeth, what remains of her part to be put at interest for the benefit of Elizabeth S. Langdon and Anna Pickering.” This language exhibits her intention very fully and clearly to dispose of all her real and personal estate by her will; and it is sufficient to enable the Court to carry that intention into effect. There is nothing in the codicils to authorize the inference, that this intention was in the least degree altered. There are however such intentions disclosed in the first codicil, and such language is there used, that it may be impossible to give effect to her intention to dispose of her whole property without an entire disregard both of the language and intentions exhibited in that codicil. If such should be the result, still the intention to dispose of the whole must be admitted to be fully and clearly discoverable by an examination of the will and codicils together. The only ground therefore, upon which her heirs at law can rest their *428claim to any portion of her real or presonal estate, is, that it is impossible according to the rules of law to carry her intentions fully into effect. By the clause in the original will there can be no doubt that Paul Langdon would take an estate of inheritance in the moiety of her real estate, and a moiety of the residue of her personal estate absolutely. In the first codicil the testatrix says, “ the moiety or half of my estate, which in said will I devised to my nephew Paul Lang-don of said York, I do by this codicil devise jointly to my said nephew Paul Langdon and to his wife Abigail Sarah Langdon, as a life estate, to hold, possess and enjoy by them, or either of them who may survive the other, during his or her natural life.” Here is a very clear devise of that moiety to the husband and wife for life and to the survivor for life. And there can be no doubt, that such was the intention of the testatrix. Was it then her intention to deprive Paul of an estate pof inheritance and of the full dominion over the personal estate and thereby cut off the hopes of his children ? There is no devise over of the reversion after the death of Paul and his wife. She did not mean to leave it undevised. Her purpose doubtless was to prevent the property from being wasted by Paul by diminishing his interest in it to a life estate, and to give his wife a life estate in it. And she either did not know or it did not occur to her, or to the one who drew this codicil, that by accomplishing these purposes she had withdrawn from Paul an estate of inheritance and the absolute right to the personal estate, so that their children on their decease could take by heirship from them no part of that moiety. By comparing the will and the codicils the intention will be perceived to give Paul and his wife the enjoyment of the property during their lives, and to preserve it for their children or heirs after their decease. Can these intentions be carried into effect ? Neither in the will nor in the codicils is there any devise over of .that moiety to the children, and they cannot take the property upon the decease of their parents by virtue of any language used by the testatrix. Nor does it appear to have been her intention,' that they should take it in any other *429manner than by inheritance from their father. If she had used any language, which could be employed to carry her purpose of permitting it 10 become beneficial to the children into effect, it would be the duty of the Court to make use of it for that purpose. But the Court is not authorized to supply omissions by adding words even for such a purpose. The intention is one thing, and the execution of that intention by the testatrix another. She must execute her intentions, or by the use of some language give to the Court the power to execute them, to make them effectual. In Blamford v. Blamford, 3 Buls. 103, Mr. Justice Dodderridge is reported to have said, “ to add any thing to the words of the will, or to relinquish and leave out any of the words is maledicta glossa.” In the case of Chapman v. Oliver, 3 Burr. 1634, Lord Mansfield is reported to have said, “ a court of justice may construe a will, and from what is expressed necessarily imply an intent not particularly specified in the words ; but we cannot from arbitrary conjecture, though founded on the highest degree of probability, add to a will, or supply the omissions. Lord Hardwicke, though generally liberal in construing the intent of testators, would not supply a contingency omitted in the most favorable case, that could exist.” When the intention of the testator is incorrectly expressed, and it is apparent, that he intended to have used other words, they will be supplied; but the Court cannot supply words, that would carry that intention into effect without being satisfied, that it was his intention to have used them. Covenhoven v. Shuler, 2 Paige, 122. There being no words in the will or codicils to give to the children of Paul Langdon any beneficial interest in that moiety, and no evidence or indication, that the testatrix intended to have used any such words, they cannot be supplied. And the children can take nothing by the will. Nor can Paul Langdon take such an estate, that they can inherit it from him without an entire rejection of that clause of the codicil, which gives the property to him and his wife for life; for that clause cannot be so construed as to give it effect, without depriving Paul of an estate of inheritance. And that clause cannot *430be rejected without disregarding the intentions of the testatrix clearly expressed, and without depriving the wife of Paul of her estate for life in the property. That estate may be a valuable one to her, and no such construction can be adopted, as would wholly deprive her of it, for the purpose of carrying into effect another intention of the testatrix, not more clearly exhibited and not executed. To do so would be to defeat entirely one of the main purposes of the testatrix in making that codicil, viz. that of diminishing the interest of Paul in that moiety to a life estate and of' giving to his wife a life estate in it. Nor are the Court authorized to reject the words, by which their interests in that property were limited for life. In Sims v. Doughty, 5 Ves. 247, it is said, “I cannot reject any words, unless it be perfectly clear, that they were inserted by mistake.” The clause in the will, by which an estate of inheritance in this moiety is devised to Paul, and the clause in the first codicil, by which an estate for life is devised to him and his wife, and to the survivor for life in the same property, are entirely inconsistent, and both cannot be executed. In such case the latter clause must prevail. Constantine v. Constantine, 6 Ves. 100; Wykham v. Wykham, 18 Ves. 421; Homer v. Shelton, 2 Met. 202. It is contended, that the general intent to dispose of the whole property, should prevail in preference to any particular intent. That rule applies to cases, where there is an intention exhibited to make a certain disposition of the property, and the mode of executing that intention is erroneously, defectively, or illegally prescribed in the will; and not to cases where there is a clear intention to effect another purpose distinct and differing from the more general intent or object. The general intent to dispose of the whole of her property, cannot therefore authorize the Court to destroy or disregard the other and different purpose to give to Paul and his wife estates for life. Nor is it perceived, that any distinction can be made between the real and personal estate in this particular. For although it was anciently held, that a bequest of personal property for life passed an absolute property to the legatee, it has long been the established doc*431trine, that a life estate only in it may bo devised, and that a devise over may be good by way of executory devise. If there be no devise over, it lias been decided, that the reversionary interest in it will be considered as uudeviscd property of the testator, and be distributed to his next of kin according to the statute of distributions. In the case of Daveis v. Dewes, 3 P. Wms. 40, the testator gave to his wife all his plate for her life, five thousand ounces of it to be at her disposal, stating that he intended to dispose of the residue by a codicil. And he gave her the goods and furniture in Cheevely house for life, stating that he intended to dispose of them after her death by a codicil. But he made no such disposition of the residue of the plate, or of the furniture. The case states, that the “ Lord Chancellor was of opinion, that the goods and furniture in Cheevely house, and the surplus of the plate beyond the five thousand ounces, were undisposed of by the will, and should go to the next of kin according to the statute of distributions.” In the case of Ferson v. Dodge, 23 Pick. 287, the testator gave to his wife the use and improvement of all his estate, both real and personal, so long as she remained his widow, ordering her to pay all the legacies given to others; and gave to a nephew one half of his personal estate after the marriage of his widow. There was no devise over of the other half of the personal estate. There was a devise of the real estate, which it is not important in this case to notice. The Court say, “ the whole tenor of the will tends to show a desire to dispose of all his property.” And “ that it is not improbable, that the testator supposed, that he had included all his estate, personal as well as real, in the first clause,” and that “ it is probable, that the testator intended to give to his favorite nephew all his personal as well as his real estate, diminished only by the amount carved out for his wife.” The decision was, that one'half of the personal estate did not pass by the will; that it remained intestate property ; and that it was to be distributed among the heirs at law of the testator, according to the statute of distributions.

The Court can make no order or decree in this case respect*432ing that moiety of the real estate. The law will determine the rights of the parties. But as Paul Langdon and his wife have only life estates in this moiety of the personal property, the law will protect the interests of those entitled to it, after their decease. The executors themselves become trustees for those thus entitled, and they should retain in their hands one half of the residue or balance of the personal property remaining after payment of the debts, legacies, and charges, and invest it safely, and pay the interest accruing upon it to Paul Langdon and his wife during their lives, and then to the survivor during life; and after his or her decease, the principal sum should be distributed to the next of kin of the testatrix according to the statute of distributions.

With respect to the other moiety of the residue, it appears to have been the intention of the testatrix in her original will to give it to her neice, Elizabeth Langdon, for life, with the right to expend so much of it as should be necessary or convenient, and to give what should remain at her decease, to Elizabeth S. Langdon and Anna Pickering. In the first codicil she says, “ the moiety or half of my estate, which in said original will I devised to my niece, Elizabeth Langdon, by this codicil my will is, that after the decease of the said Elizabeth Langdon, said moiety is to descend to Elizabeth Sewall Lang-don, Anna Pickering, and William the oldest son of William Goddard, M. D. of Portsmouth, equally.” It was not the intention of the testatrix to provide for Elizabeth Langdon by this clause of the codicil. There is no devise of any thing to her unless by implication in it. She takes by the will, which, as well as this codicil, is confirmed by the third codicil, wherein the testatrix speaking of them says, “ which said instruments were made with great caution and mature deliberation.” In neither of them are there any words of limitation of this moiety to Elizabeth for life. There is no indication in this codicil of any intention to make a change with respect to her rights over this moiety. But if it be doubtful, whether the testatrix intended to continue to her the power to dispose of so much of it, as might be necessary; or if it be conceded, that *433she did not intend to continue that power, it is not perceived, that the result could be affected by it. For the legal effect of that clause in the will must be the same with or without such. a power to dispose of the property. If the words, “what remains of her part,” had been omitted, Elizabeth would have taken by that clause in the will, an estate in fee in the real estate and an absolute right to the personal estate. Grayson v. Atkinson, 1 Wil. 333; Hogan v. Jackson, Cowp. 299; S. C. 7 Bro. P. C. 467; Wall v. Langlands, 14 East. 370; Thomas v. Phelps, 4 Russ. 348; Fraser v. Hamilton, 2 Desau. 578; Jackson v. Housel, 17 Johns. R. 281. The devise over of her moiety after her decease must therefore be inoperative, as this Court has already decided in the case of Ramsdell v. Ramsdell, 8 Shepl. 293. And to this moiety neither the heirs at law, nor the devisees can have any legal rights.

The Court in this case may well adopt the language of the Master of the Rolls in the case of Constantine v. Constantine, 6 Ves. 101, and say, “I am at last under the disagreeable necessity of giving judgment upon a case, in which the judgment cannot be satisfactory to the Court, and by which I must be sure, I am not performing the intention.”