Blaine v. Dow

• Decision Date: 24 March 1914
• Citation: 89 A. 1126,111 Me. 480
• Parties: BLAINE et al. v. DOW et al.
• Court: Maine Supreme Court

89 A. 1126

111 Me. 480

BLAINE et al.

v. DOW et al.

Supreme Judicial Court of Maine.

March 24, 1914.

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

Bill by Marion Dow Blaine and others against Abbie R. Dow and another seeking the construction of a will. On report. Will construed.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Charles H. Bartlett, of Bangor, for plaintiffs.

Abbie R. Dow, pro se. Richard S. Dow, pro se.

BIRD, J. This bill in equity seeks the construction of the will of Mary Jenness Rawson, of Boston, in the commonwealth of Massachusetts. It bears date the 13th day of February, A. D. 1901. The death of the testatrix occurred on the 26th day of November, A. D. 1903, and, her will having been duly proved and allowed in Massachusetts, an authenticated copy was proved and allowed by the probate court of Penobscot county in this state, and letters testamentary issued to Richard S. Dow, one of the two executors named in the will, the other declining, at the May term, 1904.

The bill of complaint is brought by Marion Dow Blaine, Dorothy Dow, and Elsie Dow, the latter by Charles H. Bartlett, her next friend, who are the same persons mentioned in the fourth item of the will, against Abbie R. Dow, the life tenant therein named, and her husband, the executor.

The portions of the will material to be considered are:

"After the payment of my just debts and funeral charges, I bequeath and devise as follows:

"Third. To Marion Dow, Dorothy Dow and Elsie Dow, children of my sister, Abbie R. Dow, all my jewelry, ornaments and clothing to be divided among them.

"Fourth. All the rest and residue of my estate real, personal, and mixed, of which I may die seised and possessed, I give, devise and bequeath to my sister, Abbie R. Dow, wife of Richard S. Dow, for her life; the remainder at her death to be divided equally among her three children, Marion, Dorothy and Elsie Dow and the survivor, to them and their heirs and assigns.

"Fifth. If neither my said sister, Abbie R. Dow, nor any one of her three children named above, be living at my death, I give, devise and bequeath the property mentioned in items three and four as follows:"

Here follow sundry bequests and devises among which are:

"To Kenneth and Allen Clark, sons of my friend Bessie P. Clark, of Bangor, Maine, and the survivor, one thousand dollars in money.

"To Henry and Elsie Prentiss, children of my cousin H. M. Prentiss, of Bangor, Maine, and the survivor, the note and mortgage for five thousand dollars, which mortgage covers their present residence on Jefferson street in said Bangor."

The remaining clauses of this item of the will are:

"All the rest and residue of my estate, real and personal, of which I may die seised and possessed, and in the event of my surviving my sister and her three children as specified in item five, I give, devise and bequeath to Marion Parris and Edward L. Parris, Jr., children of my cousin Edward L. Parris, of New York City, Alice and Edward Guyer, children of my cousin, Constance K. Guyer, of Rock Island, Illinois, and Helen D. Parris, of Paris Hill, Maine, to be divided equally among the five legatees named, and the survivor or survivors.

"I nominate my brother-in-law, Richard S. Dow, of said Boston, and Charles H. Bartlett, of said Bangor, and the survivor, to be executors of this will and I request that they be exempt from giving a surety or sureties on their bonds as such executors or in any other capacity."

It is alleged in the bill of complaint that at the time of her decease testatrix had title to an interest in real estate in the state of Maine which fell into the rest and residue of her estate and passed to the persons mentioned in the fourth item of the will, "who now own it."

It is admitted that Marion Dow Blaine was born in Bangor, Me., July 17, 1888, that Dorothy Dow was born in Brookline, Mass., December 22, 1890, and that Elsie Dow was born in Boston, Mass., January 26, 1898, and were all minors and unmarried at the death of the testatrix.

The bill propounds the following questions:

"(1) Under the fourth clause in the will of Mary Jenness Rawson what kind of an estate did the plaintiffs take?

"(2) Can the plaintiffs, said minor acting by guardian, join with the said Abbie R. Dow and convey good title to real estate, so far as said fourth clause in the will is concerned?

"(3) is the defendant Richard S. Dow acting as trustee by implication under said will so far as the interests of the plaintiff are concerned under said fourth clause?"

A will is presumed, in the absence of anything to the contrary, to have been drawn in accordance with the law of the testator's domicile and will be interpreted accordingly; but its effect and validity in respect to the disposition of real property situated in another jurisdiction or the creation of any interest therein will depend upon the lex rei sitae. Jacobs v. Whitney, 205 Mass. 477, 480, 481, 91 N. E. 1009, 18 Ann. Cas. 576. See Houghton v. Hughes, 108 Me. 233, 235, 236, 79 Atl. 909, Ann. Cas. 1913A, 1287.

In considering the first question it is suggested by counsel that it may be held that an estate in joint tenancy was intended. We are not of that opinion. While it is true that the word "survivor" in the fourth item taken by itself would be apt for the creation of a joint tenancy, it cannot be considered as having that effect in view of the use of the words "to be divided equally among her three children." Provisions for a division have always been regarded as sufficient to create a tenancy in common. Stanwood v. Stanwood, 179 Mass. 223, 226, 60 N. E. 584; Whiting v. Cook, 8 Allen, 63; Shattuck v. Wall, 174 Mass. 167-169, 54 N. E. 488; Griswold v. Johnson, 5 Conn. 363, 365; Delafleld v. Shipman, 103 N. Y. 463, 468, 9 N. E. 184; Stones v. Heurtly, 1 Ves., Sr., 165, 166. Nor do we consider that the word "survivor" as used in the fourth item of the will is employed with reference to the survival of the remaindermen inter sese, but that it refers to the survival by them of the testatrix. The word is used four times subsequently in the will, and we think in no instance as meaning more or other than surviving me or if they survive me. Russell v. Lilly, 213 Mass. 529, 530, 100 N. E. 668. See Stones v. Heurtly, ubi supra. And the expression in the fifth item, regarding her sister and nieces, "be living at my death," and a similar expression in the second residuary clause, strongly support this view. Where a word is used in one sense in one part of a will, and there is nothing to indicate a different meaning when the same word is used in another part, it may be presumed that the same meaning was intended. Russell v. Lilly, supra. It is not presumed, moreover, that a testator intends a joint tenancy, but the contrary. Stetson v. Eastman, 84 Me. 366, 375, 24 Atl. 868.

The intent of the will was to avoid...