Barry v. Austin

• Decision Date: 07 March 1919
• Citation: 118 Me. 51,105 A. 806
• Parties: BARRY et al. v. AUSTIN.
• Court: Maine Supreme Court

105 A. 806

118 Me. 51

BARRY et al.

v. AUSTIN.

Supreme Judicial Court of Maine.

March 7, 1919.

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

Bill to construe a will by Lavinia Barry and others against Isabella McCose Austin. Bill sustained. Decree in accordance with opinion.

Argued before CORNISH. C. J., and SPEAR, HANSON, PIIILBROOK, DUNN, MORRILL, and DEASY, JJ.

Hale & Hamlin, of Ellsworth, for complainants.

Fulton J. Redman, of Ellsworth, for respondent.

CORNISH, C. J. This court is asked to construe the will of Virgina D. Austin, late of Lamoine, in the county of Hancock. The will is brief. The first clause directs the payment of debts and funeral charges. Clauses numbered 2 and 4 (there is no clause 3) which give rise to the controverted questions, are as follows:

"2. I give, bequeath and devise to my beloved husband, William B. Austin, all the rest, residue and remainder of my estate, real and personal and mixed, wherever found and however situated, and to have full power to sell any or all of my estates and to convey the same for his own use"

"4. At the decease of my husband, William B. Austin, any of my estates are left, real or personal, after paying his funeral charges and erecting a suitable set of grave stones or monument at his grave, I give, bequeath and devise to my cousins Lavinia Barry, Lottie Fordney, Daisy Fordney or their heirs, the rest residue of my estate, real and personal and mixed, wherever found and however situated, and I do herein appoint my said husband William B. Austin sole executor of this my last will and testament, hereby revoking all former wills by me made, and it is my wish that said William B. Austin give no bonds."

This will was dated December 31, 1804, and Mrs. Austin died on February 25, 1910.

The precise question to be determined is the nature of the estate devised to the husband. Was it a life estate with qualified power of disposal and a valid limitation over, as claimed by the plaintiffs, the residuary devisees, who are cousins of the testatrix; or was it an absolute estate in fee simple in the husband, and was the attempted limitation over void for repugnancy, as claimed by the defendant, who is the second wife of Mr. Austin and the sole devisee and legatee under his will?

As always in this class of cases, two fundamental questions arise:

First. What was the real intention of the testatrix as gathered from the entire instrument, viewed in the light of existing circumstances?

Second. Is that real intention so expressed in the will that it can be effectuated, or is the expressed intention so far in conflict with some positive rule of law that it cannot be carried into execution?

The former might perhaps be called the actual intention; the latter the judicial intention; and the latter is not to be substituted for the former, unless the court feels itself compelled so to do by canons of interpretation so firmly established as to have become fixed rules of law governing the transfer of property. In such a case the observance of the settled legal rule, although it may defeat the actual intention of the testator, is "deemed indispensable to the required certainty and security in establishing titles to property and especially in the disposition of landed estates." Bradley v. Warren, 104 Me. 423, 427, 72 Atl. 173, 175. On the other hand, such a rule, if it clearly overrides the real purpose of the testator, is to be applied cautiously, and is not to be forced. Hopkins v. Keazer, 89 Me. 347-353, 36 Atl. 615; Holcomb v. Palmer, 106 Me. 17, 19, 75 Atl. 324.

1. Actual Intention.

Of the actual intention in the mind of the testatrix when this will was drawn and executed there can be little doubt. She desired and intended to provide for her husband's comfort in the most ample and generous manner, but not to give him an absolute title. The will itself shows this when we consider all its parts. The first clause of the gift is:

"I give, bequeath and devise to my beloved husband William B. Austin all the rest residue and remainder of my estate, real, personal and mixed, wherever found and however situated."

So far she does not say whether the gift is in fee or for life, and had the devise stopped there, with no other accompanying words to qualify or explain it, it is undoubtedly true that under our statute, R. S. c. 79, § 16, the legal effect would have been to give the husband a fee in the realty and an absolute estate in the personal property. But the testatrix did not stop there. She annexed to it as a part of the same sentence these significant words:

"To have full power to sell any or all of my estates and to convey the same for his own use."

These qualifying words essentially modify the preceding sentence, and taking all the words together as forming one sentence, it is obvious that she did not intend to give her husband an absolute estate, but an estate for his life, the limit beyond which his earthly happiness could not reach, with power during life to sell and convey the estates for his own use. While, therefore, the technical words "life estate," or "estate for life," are not expressly used, yet the limitation of the power of disposition to a sale and conveyance "for his own use" expresses the same idea in untechnical language. The words are there in another form. In essence the expressions are equivalent.

This implication is confirmed when we consider the next clause, in which she gives in fee by apt words any residuum that may be left at the decease of her husband to her three cousins or their heirs, subject to the payment of his funeral charges and the erection of a suitable monument. Had the testatrix intended to give an absolute title in fee to her husband, there was no occasion for item 4, because there would be no remainder to be disposed of, nor would there be any necessity of her imposing a charge upon the property for the payment of the husband's funeral expenses and monument. If his title to the property were absolute, those expenses would necessarily be paid out of it. But it would be his property that would pay them, and not hers. When she imposed this charge, it could be on no other theory than that it was still in a sense her estate, which was passing along to the objects of her bounty, and that, after the cessation of the life estate in the husband, the remainder should belong to the next takers, the cousins or their heirs, subject to these expenses.

It is also to be noted that in clause 2 the devise to the husband does not mention heirs, while the devise to the cousins specifies heirs. True, the omission of that word does not conclusively affect the nature of the devised estate, under R. S. c. 79, § 16, which provides that—

"A devise of land conveys all the estate of the devisor therein, unless it appears by his will that he intended to convey a less estate."

But its exclusion in the clause giving an estate to the husband and its inclusion in the clause giving the residue to the cousins are significant, and throw some light, as a matter of fact and of evidence, upon the real intention in the mind of the testatrix and the distinction which she sought to create between the quantity of the two estates devised.

When we consider the circumstances and the relations of the parties, the same result is reached. Mrs. Austin's first concern was for her husband, and she desired to provide generously for him. They had no children who might share in the estate, and she therefore desired him to receive the full personal benefit of the entire property during his lifetime. At his death, however, she naturally wished the remaining property, if any, to go to her heirs, and not to his, nor to a second wife. She therefore provided in the fourth clause that the remainder should be divided among her three cousins or their heirs, and as showing her entire confidence in her husband, although he was the sole beneficiary under clause 2, she nominated him as executor and without bond under clause 4.

The very thing happened which Mrs. Austin endeavored to guard against. Her husband married again; the precise date is not given. He died on April 30, 1914, leaving a will dated July 19, 1911, in which he devised and bequeathed all his property to his second wife, the defendant in this bill in equity. She now claims under his will, not only all the estate belonging to Mr. Austin in his own right, but also all the property owned by the first wife and passing under her will, thus setting aside the rights of the cousins and disregarding the evident intention to make them the residuary objects of Mrs. Austin's bounty. We need say no more concerning the actual intent of the testatrix.

2. The Judicial Intention.

We come now to the second fundamental Question: Was Mrs. Austin's actual intention expressed in such form that it must fail of execution, and must her property pass into other channels than those selected by herself, or can her purpose be legally effectuated?

This question may admit of more doubt, but on the whole we are of opinion that the interpretation of the instrument which fulfills the actual purpose of the testatrix violates in this case no positive rules of law and no fixed canons of interpretation.

In Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311, Justice Peters in his characteristically clear manner discussed various established rules of construction, and gave the reasons for their adoption and retention. It may be helpful to recast in brief form such of those rules as have been discussed by counsel in this case. They may be stated as follows:

First. Where an absolute gift in fee simple is followed by an attempted gift over, the latter is void. The reason is that the gift exhausted itself in the first giving, and nothing remains for the second taker. A fee cannot be limited upon a fee. The attempted gift over is repugnant to the first gift, and the two cannot stand together. The testator may seek to. but cannot, accomplish two...