68 Me. 318 | Me. | 1878
This is a bill in equity brought to determine the construction of the will of Isabella W. Bishop. The clauses of
“ And, lastly, I give and bequeath all the rest of my residue and remainder of my personal property, real estate, goods, bonds, bank shares, vessel property, all not before mentioned above, what kind and nature soever, to my son, Be Clare Bishop, . all the household furniture, all houses, to have and to hold. . . Should said Be Clare Bishop die without issue, all of my property is to be equally divided between my mother, brothers and sister. I appoint L. Eugene Weymouth executor of this will. I also appoint said L. Eugene guardian of my son, .Be Glare Bishop, during his minority. 1 also place in the hands of said L. Eugene Weymouth the bank shares which I have in the First National Bank of Portland, to hold in trust until said Bo Clare Bishop arrives at the age of twenty five years, when said Be Clare Bishop conics in full possession of said bank stock and all other property left by me.” The codicil thereto contains the following provisions: “Whereas by my will I gave to rny son, Be Clare Bishop, certain shares of the First National Bank, Portland, in trust to be delivered to my said son when he should attain the age of twenty-five years, now 1 hereby revoke the same so far as the time only is concerned, and instead of my said son having full possession and control of said bank stock at the age of twenty-five years, for good and sufficient reasons I now direct that the said bank stock shall be held in trust as aforesaid till my said son shall attain the age of thirty-five years. And my dwelling house, No. 27 Myrtle street, in said Portland, and now occupied by me, with the lot of land therewith connected, I give and bequeath to my sister, Annie B. Weymouth, during her natural life ; after her decease to my son, Be Clare Bishop, during his lifetime, and after his decease to his children, if any he have; otherwise, to go to my legal representatives.”
At the time of the death of the testatrix, and at the time of the execution of her will, she owned fourteen shares in the First National Bank of Portland, which passed into the hands of the trustee named in the will.
Three questions are propounded to the court: 1. “ As to the disposition of the trust fund in the hands of said trustee; to wit, said bank shares.” 2. “ As to the disposition of the residue in the hand of your orator as administrator de bonis non, with the will annexed, after the decease of the said Sarah Johnson.” 3. “ The disposition by said will of the reversion of the house, No. 27 Myrtle street, in said Portland.”
Under the first question propounded the point to be determined is whether the legacy of the bank stock to De Clare Bishop was vested or contingent. The rule applicable to the question has been stated in many elementary books and decided cases. In 3 Wooddeson, 512, the rule is stated as follows: “ If the time of payment merely be postponed, and it appears to be the intention of the testator that his bounty should immediately attach, the legacy is of the vested kind; but if the time be annexed to the substance of the gift, as a condition precedent, it is contingent and not transmissible.” In 2 Black. Com. 513, it is stated as follows : “ If a contingent legacy be left to any one, as when he attains, or, if he attains the age of twenty-one, and he dies before that time, it is a lapsed legacy. But a legacy to one, to be paid when he attains the age of twenty-one years, is a vested legacy, an interest which commences in praesenti, although it be solven-dum in futuro.” Snow v. Snow, 49 Maine, 159. Furness v. Fox, 1 Cush. 134.
Was it the intention of the testatrix as expressed in her will
But practically the same result follows if the construction claimed by the collateral kindred should be adopted. If the legacy lapsed on the death of De Clare Bishop before he arrived
As to the second question propounded, we think it clear that the remainder of the personal estate now in the hands of the administrator, vested in De Clare Bishop on the death of the testatrix, charged with the payment of the annuity to Sarah Johnson. This is admitted by the learned counsel for the respondents.
The question raised in the third interrogatory is determined by Leighton v. Leighton, 58 Maine, 63. On the birth of Harry Bell Bishop he took a vested remainder in fee simple in the house, No. 27, and on his death it descended to his mother.
The costs of this suit, including, counsel fees on both sides, are to be paid out of the assets in the hands of the administrator, as the suit was brought by the administrator for his guidance in the settlement of the estate. If not amicably adjusted they may be determined by a judge at nisiprius or in chambers.