Bailey v. Worster

• Decision Date: 19 November 1907
• Citation: 103 Me. 170,68 A. 698
• Parties: BAILEY v. WORSTER et al.
• Court: Maine Supreme Court

68 A. 698

103 Me. 170

BAILEY

v. WORSTER et al.

Supreme Judicial Court of Maine.

Nov. 19, 1907.

Report from Supreme Judicial Court, Penobscot County, in Equity.

Bill in equity brought by "Taber D. Bailey, of Bangor, in the county of Penobscot, state of Maine, trustee under the last will and testament of Albion K. P. Leighton, late of said Bangor, deceased," and "against George H. Worster, of said Bangor, administrator with the will annexed of the estate of Mary C. Leighton, late of said Bangor, deceased, and the following named persons, being the only persons now interested as legatees and devisees, or otherwise, under the will of Albion K. P. Leighton, of said Bangor, deceased, namely, John W. Leighton, of Columbia Falls, in the county of Washington, in said state of Maine, Miss Hattie Crowell, of Stoughton, in the commonwealth of Massachusetts, Mrs. Walter B. Goodenow, of Stoughton, in the commonwealth of Massachusetts. George Crowell, of New Haven, in the state of Connecticut, Harvey Leighton, of said Columbia Falls, and Clifford Leighton, of Addison, in said county of Washington, in said state of Maine, and Abbie K. Witham, of said Bangor, and Mary P. Williams, of said Bangor, persons who assisted in furnishing necessary support, care, and maintenance of said Mary C. Leighton in her last sickness," and praying for a construction of said will of said Albion K. Leighton, and for instructions.

At the April term, "this cause came on for hearing upon bill and answers, and, it appearing that there were questions of law involved of sufficient importance to justify the same and the parties consenting thereto and requesting that the case should be reported, the case is hereby reported to the law court for that court to pass upon and decide all questions involved." Bill sustained, and decree to be entered as stated.

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, PEABODY, and SAVAGE, JJ.

Taber D. Bailey, in pro. per. George H. Worster, in pro. per. Matthew Laughlin, for Mary P. Williams and Abbie K. Witham. Martin & Cook, for Hattie Crowell, Mrs. Walter B. Goodenow, George Crowell, and Clifford Leighton. C. A. Bailey, for John W. Leighton and Harvey Leighton.

SAVAGE, J. This bill in equity is brought by the trustee under the will of Albion K. P. Leighton, praying for a construction of the will and for instructions.

By the will one undivided half of the testator's estate was given to his wife, Mary C. Leighton, absolutely. The other half was given in trust for the benefit of his wife. The terms and provisions of the trust were as follows: "Said trustee is to pay the net income of all the property held by him by virtue hereof, promptly, as soon as realized, to my wife, Mary C. Leighton, during her natural life. If my said wife shall at any time desire to sell any piece of property of which she owns half under the provisions of this will, the said trustee shall, if requested by her, join with her in the sale, conveying the half held in trust, and shall receive and hold in trust the proceeds of said half. If the necessities or comfort of my said wife require means beyond tie net income of the half of the property taken by her under this will, and beyond also the income of the property held in trust, so that it becomes necessary for her comfort to realize from the principal fund or estate, then I desire that such amount as she may require shall be taken equally from the half taken by her under this will and the half held by the trustee, said trustee making such sales or other arrangements as may be necessary to carry out the intention hereof, which is, that in the event of the income of the entire estate not sufficing for her wants, the two halves of the estate shall be diminished equally, so that, at the time of her death, the half held by the trustee which then goes to my heirs, and the half held by her, which will go at her death according to her desires, shall be equal. For the purposes mentioned in this will said trustee shall have full power to sell and convey any and all property so held in trust; and I do not desire my wife to be limited to funds merely sufficient for absolute necessities, but that she may live in comfort and ease, though this should necessitate the expenditure of the entire trust estate."

The will also provided for the distribution of what might remain of the trust estate after the death of the wife.

Albion K. P. Leighton died in 1892, and Mrs. Leighton, his widow, in 1906. It is admitted that practically all of the estate, except the homestead, both that which was given to her directly and that which was given in trust, was used by her in her lifetime, and that at her death there remained only the homestead valued at about $3,200, one half of which was her own, and the other half belonged to the trust estate.

The complainant alleges that he "is informed and believes" that the income of the estate, together with the personal estate or proceeds thereof which belonged to Mrs. Leighton's estate, and the proceeds of sales of real estate made by Mrs. Leighton and the trustee, were not sufficient comfortably to support and maintain Mrs. Leighton as provided in the will of her husband, and that, in order for her comfortably to support and maintain herself in the homestead for many years prior to her death, "it became absolutely necessary that some person or persons should either support and maintain her or furnish the means whereby she might obtain support and maintenance"; and that he "Is informed and believes * * * that during the last six or seven years, more or less, of the life of the said Mary C. Leighton she was a confirmed invalid," and had to be nursed and taken care of in the homestead, and that Abbie K. Witham, a niece, nursed and took care of her, and that Mary P. Williams, another niece, loaned and advanced money which was used for the express purpose of assisting in furnishing the necessary care, support, and maintenance for Mrs. Leighton during the last years of her life; also, that he "is informed and believes" that these nieces made these provisions "in favor of their said aunt, not gratuitously, and not as mere volunteers, but with the expectation that they would be remunerated for the same out of the entire estate which passed in any manner under the will of Mr. Leighton." The complainant then alleges directly a demand by these nieces that the trust estate be used conjointly with the proceeds of the estate of Mrs. Leighton to pay them for their said services and loans.

It is admitted that the estate of Mrs. Leighton has been represented insolvent, and the Witham and Williams claims, for these services and the loan, have been allowed in the probate court for about $3,500 in the aggregate.

The real purpose of this bill is to ascertain whether these claims can be paid in part out of the trust estate. To enforce the right of the claimants to such payment, the existence of certain material facts must be alleged in the bill, and they must either be admitted or proved.

The case comes before us on bill and answers, and we are limited to the consideration of such facts as are properly charged and are admitted. The phraseology of the bill and the tenor of some of the answers are such that it is not easy to say what has...