Andrews v. Boyd

• Decision Date: 01 April 1828
• Citation: 5 Me. 199
• Parties: ANDREWS v. BOYD
• Court: Maine Supreme Court

5 Me. 199

ANDREWS v. BOYD

Supreme Judicial Court of Maine, York

April, 1828

THE question in this case, which was a writ of entry, was whether the provision made by James Boyce for his widow, in his last will, was a devise of a portion of the land for her life, or a bequest of a yearly portion of the issues and income, to be paid by the executor.

He devised to his wife for her life, " The net income of one third part of my homestead farm, together with my household furniture; also two cows and six sheep, with a privilege in my barn convenient for every necessary appertaining thereto; and if the above-mentioned income shall not be sufficient to keep my said cows and sheep as they ought to be kept, it is my will that ample provision be made therefor at the expense of my son James." He also devised to her the use of certain apartments in the house with a place for a granary for her corn. His son James was made guardian to a son who was non compos, whom he was directed to support; provision was made for the daughters his estate was declared to be " held for the payment and fulfilment of every article above mentioned" ; and James was made residuary devisee.

After the death of the testator, James entered upon the farm, and supported the widow and the non compos, for about nine years when he conveyed his interest in the farm, by deed of quitclaim, to David Boyd, the tenant, who has ever since performed all that James was directed by the will to do in the support and care of his mother and brother.

The title of the demandant was under the extent of an execution on a specific part of the farm, issued on a judgment in his own favor against James Boyd the devisee, the land having been attached prior to his deed to the tenant. Another extent had been made, on another portion, by another creditor of the same devisee; and a part of the farm had been sold by the administrator cum testamento annexo, for the payment of debts; so that the residue, it was agreed, was wholly insufficient to execute the intentions of the testator.

Demandant is to become nonsuit, and the tenant allowed his costs.

W. Burleigh, for the demandant, contended, upon these facts, that the provision made in the will for the widow was in the nature of a personal legacy, for which she had a remedy by action against the executor, who might sell real estate to raise money to discharge it. Farwell v. Jacobs, 4 Mass. 634. Baker v. Dodge, 2 Pick. 619. Upon the common rules of construction, it was apparent that such was the intent of the testator; he having designated what particular part of the premises she should occupy, which, by necessary implication, is an exclusion of all other parts.

J. Holmes and E. Shepley argued for the tenant, maintaining, in effect, the following positions: --

1. By the devise of one third of the income, the widow took a freehold for her own life in an undivided third part of the land, in common with James, the devisee. Reed v Reed, 9 Mass. 372. Stevens v. Winship, 1 Pick. 318.

2. The extent of an execution, therefore, on any portion of the land, by metes and bounds, as the sole property of James, is void against all persons but himself, and especially against the widow, and the present tenant, who holds for her use. Bartlet v. Harlow, 12 Mass. 348. Baldwin v. Whiting, 13 Mass. 57. Atkins v. Bean, 14 Mass. 404.

3. Or else the whole estate passed by the will, charged with the payment of the annuities, debts, and legacies, as a trust estate, either to the executor; Beezley v. Woodhouse, 4 D. & E. 89; or to James, the devisee; Cox v. Bassett, 3 Ves. 155; in either of which cases, the execution of the trust may be enforced in chancery; Com. Dig. Chancery, 3 A. 7; 3 R. 6; 3 Ves. 209; 1 Ves. 439; 5 Ves. 248; Crague v. Lesley, 3 Wheat. 576; and at common law the devise will be construed as upon condition, to effect the same object; 2 Dall. 131; Baker v. Dodge, 2 Pick. 619; but the estate is in no case subject to extent by the creditors of the trustee. Russell v. Lewis, 2 Pick. 508.

OPINION

This argument having been had at the last April term, in this county, the opinion of the court was now delivered by WESTON, J.

The only title stated in the case, in behalf of the tenant in his own right, having emanated from James Boyd, the son of the testator, must yield to that of the demandant, in virtue of his prior attachment of the same land as his creditor. In this view of the case, the demandant would be clearly entitled to judgment, as his title is unquestionably good against his debtor, and all claiming under him, subsequent to the attachment. But if the widow of the testator, or his executor, have a title, which the levy of the demandant cannot impair or defeat, it is distinctly stated by their counsel to have been the intention of the parties, and such has been the course of the argument, to admit the tenant to defend in their right. Through him the widow has enjoyed her portion of the estate to her satisfaction, if she be a devisee of one third of the...