Boutelle v. City Sav. Bank

• Decision Date: 16 July 1893
• Citation: 24 A. 838,17 R.I. 781
• Parties: BOUTELLE v. CITY SAV. BANK.
• Court: Rhode Island Supreme Court

24 A. 838

17 R.I. 781

BOUTELLE

v. CITY SAV. BANK.

Supreme Court of Rhode Island.

July 16, 1893.

Bill in equity by George K. Boutelle, as trustee, against the City Savings Bank, for specific performance. Heard on bill, answer, and an agreed statement of facts. Decree for complainant.

Joseph C. Ely, for complainant.

George A. Jepherson, for respondent.

STINESS, J. The complainant seeks the specifie performance of a contract for the sale of land. He is trustee under the will of Jane Keeley, who took the estate in question under the will of her grandfather, Jacob Whitman, and as such trustee the complainant made the contract of sale. The respondent objects to the title proposed to be conveyed upon two grounds: First, that Jane Keeley took under said will only a life estate, and not an estate in fee simple; and, second, that the complainant, not being one of the original trustees under the will of Jane Keeley, has not the power of sale which he proposes to exercise. The will of Jacob Whitman gave to five grandchildren, among whom was Jane Whitman, afterwards Jane Keeley, "the 40-foot lot of land on which the Asa Ames house and store now stands," without words of inheritance The will was prior to our statute, (Gen. St. R. I. c. 171, § 5,) providing that such a devise should be construed to convey a fee, unless a contrary intention appears; and the question is whether under the will the interest which Jane Keeley took was for life or in fee. Upon one side it is contended that the legal effect of the words, without more, is to give only &amp life estate, which is conceded; and on the other side it is contended that the intention of the testator, to be gathered from the will, was to give a fee. We have therefore only to examine the will for the purpose of ascertaining the testator's intent, since, as stated in Waterman v. Greene, 12 R. I. 483, "it is well settled that words of inheritance are not necessary in a will to pass a fee, if an intent to pass it is otherwise evinced." The statute of England, (1 Vict. c. 26, § 28,) construing a devise like this to be a fee unless a contrary intention appears, which has been generally adopted in this country, and from which our statute is taken, rests upon the fact that, as stated in 3 Jarm. Wills, (5th Amer. Ed.) p. 21, "according to the popular notions, the gift of any subject simply comprehends all the interest therein." While in this case the statute cannot be applied, the well-recognized fact upon which the statute is founded may properly be taken account of in considering the testator's intent. The will, executed in 1801, gave the lot in question to the grandchildren of one family, as tenants in common, there being no words of joint tenancy or survivorship. See Statutes 1798, p. 272, § S. Evidently that estate was intended for that family, and it is hardly presumable that the testator intended that his heirs generally should come in as the grandchildren named should die. In preceding clauses of the will the testator gave his homestead estate to his widow "during her natural life," and the same estate to his son, Jacob Whitman, Jr., "which he is to have possession of at the death of his mother." The carving out of a life estate, totidem verbis, and giving the estate afterwards to his son, clearly indicates a remainder in fee. Plimpton v. Plimpton, 12 Gush. 458; French v. McIlhenny, 2 Bin. 13. But words of inheritance are also lacking in this devise. Having just made a devise for life, it is most natural to suppose that, if he had intended to devise only a life estate to the others named, he would have repeated the expression. The defendant cites, to the contrary of this presumption, 3 Jarm. Wills, (5th Amer. Ed.) p. 21, and 2 Bedf. Wills, (2d Ed.) p. 321. Both these writers refer for authority to Awse v. Melhuish, 1 Brown, Ch. *519, and Right v. Compton, 9 East, 207. In the first case the remainder was expressly for the joint lives of the remainder-men named, and consequently the survivor took an estate for life only, the remainder in fee going to the heir at law to whom an estate for life had already been given. In the latter case the testator had devised all his lands to his son for life, with specific remainders to grandchildren so long as they should remain single, but upon...