Additon v. Smith

• Decision Date: 01 June 1891
• Parties: ADDITON v. SMITH et al.
• Court: Maine Supreme Court

22 A. 470

83 Me. 551

ADDITON

v. SMITH et al.

Supreme Judicial Court of Maine.

June 1, 1891.

(Official.)

Report from supreme judicial court, Penobscot county.

Bill in equity, beard on bill and answers, brought by B. C. Additon, trustee, to obtain the construction of the will and codicils of Jacob O. Smith, late of Bangor, deceased.

E. Walker, for Harriet N. Smith, defendant.

H. V. Goodenow, for Addie Hill, defendant.

WHITEHOUSE, J. By the provisions of his will and codicils Jacob C. Smith gave to his wife, Harriet N. Smith, the use of the homestead and furniture, and an annuity of $500, during her widowhood, in addition to her right of dower in his real estate; to his niece, Addie Hill, an annuity of $100; and to his adopted daughter, Emma Smith Cushing, and her heirs, the residue and remainder.

The will was dated April 27, 1876, and the last codicil, February 21, 1877. The testator died March 30, 1878, and in December following the estate was inventoried as follows: Real estate, $7,900; goods and chattels, $564.50; rights and credits, $8,483.93; total, $16 9-18.53. At the date of the complainant's bill the widow had received in the aggregate $3,600, being $300 a year for 12 years, on account of her annuity, while the niece, Addie Hill, had received but $50 in the aggregate, being two payments of $25 each in the year 1878. It now appears that by reason of devastavit on the part of a former representative of the estate, and from other causes, the entire property in the hands of this complainant as trustee under the will is as follows: Homestead, $2,500; undivided Grant store, $800; land, $450; furniture for widow, $164.50; rights and credits, estimated, $5,300. It further appears that the income from the estate, available for that purpose under the terms of the will, is not sufficient to pay the annuity to the widow irrespective of that bequeathed to Addie Hill. The trustee, therefore, seeks by his bill to obtain a judicial construction of the will and codicils, and to have the rights of the legatees determined and declared, propounding two questions, as follows:

(1) Whether, under said will and codicils, annuities therein specified, or any of them, are an absolute charge on the estate of said testate, regardless of the income.

(2) What are the respective rights of the legatees under the provisions of said will and codicils'?

It is elementary law that all codicils or "little wills," being but expositions of the testator's after-thoughts, are to be regarded as parts of the original will, and together with the will are to be construed as one instrument. They should be so interpreted as to harmonize with the leading purpose declared in the body of the will whenever this can be done without a violation of established rules; but when a clause in the will and one in the codicil are entirely inconsistent, and both cannot be executed, the latter clause must prevail. Redf. Wills, 1, *287; Pickering v. Langdon, 22 Me. 413.

In the cardinal rules of testamentary construction it is also constantly affirmed by courts and text-writers to be of fundamental importance that the obvious intention of the testator, as expressed by the words of the will itself, shall be allowed to prevail unless some principle of sound policy is thereby violated; that this intention shall be collected from the whole will taken together, all its parts being construed in relation to each other so as to form, if possible, one consistent whole, every word receiving its natural and common meaning; but where several parts are absolutely irreconcilable the latter must prevail; and that while the language of the will is thus to be deemed the primary source from which the testator's intention is to be gathered, and this is not to be controlled by mere conjectures based on considerations respecting the condition of his property or the objects of his bounty, still these extrinsic circumstances are admissible in aid of the construction of wills to the extent of explaining doubts or removing uncertainties, when with that aid the intent is clear. 2 Jarm. Wills, p. 762, and rules 7 and 10; 1 Redf. Wills, *429-432, and authorities cited; Schouler, Wills, § 466; Shaw v. Hussey, 41 Me. 495; Emery v. Batchelder, 78 Me. 233. 3 Atl. Rep. 733. But while these general principles declared by the experience of courts to be helpful in the majority of cases are not to be lightly disregarded, they are not to be blindly followed as inflexible and conclusive rules in each particular case. They are to be employed as servants, and not accepted as masters. Small v. Allen, 8 Term R. 497.

It is ably and ingeniously argued, in the first place, that the annuity to the widow should have priority over that to the niece, Addie Hill; and, secondly, it is contended that the widow should receive the full amount of her annuity each year, although it is conceded to be necessary to intrench upon the corpus of the estate to supply the deficiency.

1. It is important to observe that this annuity to the widow is not a testamentary gift founded upon a valuable consideration, such as the relinquishment of the widow's right of dower in her husband's estate. In such case it is a familiar and well-settled rule that she does not take strictly as a beneficiary, but as a purchaser for a valuable consideration, and hence her gift will have a preference over all other unpreferred legacies. 2 Redf. Wills, 452-454; Towle v. Swasey, 106 Mass. 100; Moore v. Alden, 80 Me. 301, 14 Atl. Rep. 199. But here the annuity was not given or accepted in lieu of dower. On the contrary, in the original will it is expressly declared to be in addition to her dower. The first codicil gives her the use and income of the entire homestead through her widowhood, and the second codicil, after increasing her annuity from $300 to $500, carefully provides that this additional bequest "shall not take away any of the gifts, bequests, or rights given to her under my said last will and first codicil." She is entitled to her dower as well as to the provisions made for her in the will, because in the words of the statute, (chapter 103, § 10,) "it appears by the will that the testator plainly so intended." True, by accepting the provisions of the will, she relinquished the privilege of applying to the probate court for an allowance, but she surrendered no fixed and absolute interest in the estate in exchange for the annuity, and cannot be deemed to have received it in the character of a purchaser.

An annuity given by a will is a legacy charged on the whole estate not specifically devised. 2 Williams, Ex'rs, 1051. The annuities to the widow and niece are in the nature of general legacies; neither of them amounts to a bequest of any particular portion of, or article belonging to, the personal estate of the testator. Each is a simple bequest of an annuity; an absolute gift of a definite quantity. And the general rule is that, among legacies in their nature general, there is no preference of payment, and the burden is on the party seeking priority to make out clearly and conclusively that such priority was intended. 2 Williams, Ex'rs, 1364; Miller V. Huddlestone, 3 Macn. & G. 513; 2 Redf. Wills, 454. In the absence of clear proof to the contrary, the testator must be deemed to have acted on the belief that his estate would be sufficient to answer the purposes to which he devotes it. If the chances of deficiency are anticipated and provided for by the terms of the will, then the directions of the testator must govern, (Towle v. Swasey, supra;) "but in the common case of a direction in the will of a testator to pay several pecuniary legacies out of his estate," says Chancellor Walworth, "the presumption is that the testator intended that all the legacies should be paid equally. Such presumption of intended equality will not be repelled by any ambiguous...