Atkinson v. Staigg

• Decision Date: 22 July 1882
• Citation: 13 R.I. 725
• Parties: GEORGE ATKINSON, Executor, v. ANNIE STAIGG et als.
• Court: Rhode Island Supreme Court

13 R.I. 725

GEORGE ATKINSON, Executor, v. ANNIE STAIGG et als.

Supreme Court of Rhode Island.

July 22, 1882

By a will executed in Rhode Island, a testator devised realty in this State as follows:

" I give, devise, and bequeath unto my executors hereinafter mentioned, the survivors and survivor of them all my estate, both real and personal, and all the rents issues, and profits thereof, to have and to hold the same upon the trusts, and subject to the directions following, to wit To pay to my wife A. the sum of ten thousand dollars for and during her natural life, and the house at Newport in Pelham Street."

Held, that A. took a fee simple in the land on Pelham Street.

This land was subject to a mortgage executed by the testator in which A. joined releasing dower.

Held, that A. should have the mortgage paid off from the testator's estate not specifically devised if sufficient, any deficiency to remain a lien on the land.

The testator had other realty in Rhode Island not specifically devised. After making his will he removed his domicile to Massachusetts, where he died.

Held, that the will as affecting Rhode Island realty was to be construed according to the laws of Rhode Island.

Held, further, that A. was entitled to dower in such other realty, and was not obliged to contribute her dower to pay the mortgage on the land on Pelham Street.

BILL IN EQUITY to construe a will.

This bill in equity was brought by the executor of Richard M. Staigg against his widow and heirs at law, to obtain a judicial construction of his will, which is as follows:

" I, Richard M. Staigg, of Newport, in the State of Rhode Island, do make, publish, and declare my last will and testament in manner and form following, to wit:

I give, devise, and bequeath unto my executors hereinafter mentioned, the survivors and survivor of them, all my estate both real and personal, and all the rents, issues, and profits thereof, to have and to hold the same upon the trusts, and subject to the directions following, to wit:

I. To pay all my funeral charges and all my just debts.

II. To pay to my wife, Annie Staigg, the sum of ten thousand dollars for and during her natural life, and the house at Newport in Pelham Street.

III. To divide the rest, residue, and remainder of my estate, or the proceeds thereof, and after the death of my wife, the sum of above mentioned among the children of my brothers and Archibald D. B. Staigg, George J. Staigg, and my sisters, Elizabeth S. Atkinson, Annie Jeannette Jackson, and Mary S. Philbrick, giving to my nephews a portion one half as large as that of my nieces. The income of the portions of my sisters, E. S. Atkinson and Mary S. Philbrick, to be paid to those sisters during their lives, and the portion of each child to be held in trust until he or she come of age.

IV. I authorize and empower my executors, or the survivors or survivor of them, whenever they or the survivors or survivor of them may deem it for the best interests of my estate, to sell all or any part or portion thereof at public auction or private sale in their discretion, and to make valid conveyances thereof, and to invest the proceeds arising from such sales in bonds and mortgages or state stocks, to be held by my executors, the survivors or survivor of them, on the same trusts as above expressed.

V. I hereby declare that the legacies herein bequeathed to my sisters and nieces shall be to their sole and separate use, and be free from the control, debts, or engagements of their present or any future husband, and shall be paid to them on their separate receipt.

VI. My portrait in oil of my mother I give to my sister E. S. A. After her to my sister M. S. P. After her to my nephew R. S. A. and his heirs.

All my other pictures and my furniture I give to my wife for her disposal as she may see fit, expecting her to sell such as she may choose for the benefit of the estate.

To my brother Alfred, he having had so much of my substance, I leave one hundred dollars.

Lastly, I nominate, constitute, and appoint George Atkinson, of Boston, State of Massachusetts, Richard Greenough, Thomas C. Amory, to be the executors of this my last will and testament, hereby revoking all other wills by me at any time made.

" RICHARD M. STAIGG.

" On this 8th day of June, A. D. 1877, Richard M. Staigg signed the foregoing instrument in our presence, declaring it to be his last will, and as witnesses thereof we have in his presence and in the presence of each other hereto subscribed our names.

" T. A. LEFAVOUR,

" H. B. LINCOLN,

" THOMAS S. PARKER."

After making this will the testator removed his domicile to the State of Massachusetts, where his will was proved in the county of Suffolk, and a copy of the will as proved was filed in the Probate Court of Newport in this State.

The personality of the estate was insufficient to pay the mortgages on his realty, and to establish the fund mentioned in the second clause of the will. The realty on Pelham Street, in Newport, was subject to a mortgage made by the testator in which his wife released dower. The testator had other realty in Newport at Ochre Point, which was not mortgaged and not specifically devised.

The Public Statutes of Massachusetts, cap. 127, § 20, provide " A...