21 Me. 288 | Me. | 1842
The opinion of the Court was afterwards prepared by
— The rights of these parties may depend upon the construction of the will of Samuel Crumpton, deceased. He appointed his wife sole executrix, and directed her to pay all the legacies within one year after his decease. She accepted the trust, and this suit is brought against hey surety on the bond. The breach alleged is, that she did not cause to be made and returned to the probate office, a perfect inventory of the estate. It appeared from the testimony, that the executrix sold and conveyed the farm, as she was authorized to do by the will, within a year after the decease of her husband ; and soon after, all the stock upon the farm, and the principal part of the personal estate. That she had since deceased, and that administration had been granted on her estate, and also" administration de bonis non on that of the husband; and that no property belonging to either estate could be found. Upon these facts, in connexion with the will, the presiding Judge expressed an opinion, that the plaintiffs were not entitled to maintain the suit, and a nonsuit was entered by consent, subject to the opinion of the Court upon their rights.
The intention of the testator, is to have a controlling influence in the interpretation of the language used in his will. If he would have that intention, when discovered, fully carried into effect, he must be expected to conform to the reasonable
In the case of Reith v. Seymour, 4 Russ. 263, the testator made a bequest of personal estate to his wife for life, with a direction, that after her death one moiety should be at her ' entire disposal by will or otherwise. It was held, that she took only a life estate, with the power of appointment. The case cited by counsel from the 5 Madd. 123, was a bequest to the wife for life, with an express power to dispose of so much as might be necessary for the support of herself and of another person during minority. And it was held, that so much as was not disposed of under the power, passed by the
The rule to be extracted from these cases would seem to be, that where a life estate only is clearly given to the first taker, with an express power on a certain event or for a certain purpose to dispose of the property, the life estate is not by such a power enlarged to a fee or absolute right; and the devise over will be good. The case of Goodtitle v. Otway, 2 Wil. 6, may be considered as opposed 4o this position. The devise was to Agnes Pearson, “ for and during her life, to be enjoyed without molestation, and after her death to her lawful issue, and if she shall have no issue, that she shall have power to dispose thereof at her will and pleasure.” The report states, that she died without issue, and that “ the whole Court was clearly of opinion that Agnes had an estate in fee simple by the will, as the contingent remainder to the issue never' vested.” The report also states, that the case in the 3 Leon. 71, was denied to be law. That case however w'as cited as good authority by Sir Samuel Romily, and with the approbation of the Lord Chancellor, in the 10 Yes. 379. This case, however, if it be considered as good authority, would not have a tendency to make a change in the position stated, favorable to the plaintiffs.
It remains to apply these principles and rules to the case under consideration. In the second clause of the first bequest to the wife of “ all my personal property and real estate,” there are no words to limit it to an estate for life ; and it is not a bequest of the use or income only, unless it can be connected
And it cannot be reasonably supposed, nor do the decided cases admit, that it could be the intention of the testator to give only an estate for life, unless there be words clearly declaring such an intention, when he gave the unqualified and absolute right to dispose of the entire property at pleasure. A literal exposition of the words does not require, that he should be considered as intending to do it. And it is not perceived, that there would be any thing absurd or very singular in the intentions of the testator, if his language should receive such an exposition. The intention thus exhibited would seem to have been, to give to his wife the use of his plate and household goods during life, and then to leave them to his relatives as memorials of his affection; and to apply the personal and real estate, first to pay to them certain legacies, and then for the support and comfort of his wife, to be disposed of at her pleasure ; and- if any of it should remain at her decease, that it should be divided equally between his and her brothers and
Nonsuit confirmed.