Burgess v. Shepherd

• Decision Date: 27 May 1903
• Citation: 55 A. 415,97 Me. 522
• Parties: BURGESS v. SHEPHERD et al.
• Court: Maine Supreme Court

55 A. 415

97 Me. 522

BURGESS

v. SHEPHERD et al.

Supreme Judicial Court of Maine.

May 27, 1903.

(Official.)

Report from Supreme Judicial Court, Penobscot County.

Bill by Frank E. Burgess, executor, against Alvah J. Shepherd and others. Case reported. Bill dismissed.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

F. D. Dearth, F. J. Martin, and H. M. Cook, for plaintiff.

D. D. Stewart and E. C. Ryder, for defendants.

SAVAGE, J. Bill in equity under Rev. St. c. 77, § 6, to obtain the construction of the will of Joseph M. Haseltine, deceased. The bill is brought by the executor of the will, and the widow and other devisees are made parties defendant. The clause in the will which it is sought to have construed is as follows:

"To my beloved wife, Catherine F. Haseltine, 1 give, bequeath and devise all the rest and residue of my estate, both real, personal and mixed, and all rights and credits thereunto belonging, to have and to hold to her sole use and benefit during the full term of her natural life, unless she shall marry again, in which event her rights in said property shall cease and determine the same as if she were dead. But until said death or remarriage she shall have the full power to control and dispose of said property or any part thereof, if needed for her support and benefit.

"To the children of my daughters Mary and Elizabeth before named, I give, bequeath and devise whatever may remain of said property at the decease or remarriage of my said wife, Catherine F. Haseltine, the same to be divided equally among them."

And the prayer of the bill is that the court will determine (1) "whether said Catherine F. Haseltine, the devisee named in said will, can sell and convey said real estate in fee simple in her lifetime, before remarriage," and (2) "whether the rights and interests of said Catherine F. Haseltine to the property bequeathed and devised in said paragraph of said will above quoted will terminate should she marry again."

We are met in limine by the objection that the court, under the statute named, has no jurisdiction to construe a will on a bill brought by an executor who has no interest as such in the estate, nor any duties to perform with relation to it, which may be affected by a construction of the will, and whose rights and duties will remain the same whatever may be its proper construction.

In fine, these defendants, or some of them, say that this executor can have no possible reason for needing to know in his said capacity whether the widow has the right to convey the real estate in fee, or what the effect of her remarriage might be; that his sole duty is to administer under the plain provisions of the will, to convert the personal estate, so far as necessary to pay debts, into cash, and pay the debts and expenses, and turn over the remainder to the widow as life tenant; or, if the personal estate is insufficient, to cause the real estate, or enough of it, to be sold to pay the debts; that his right to administer the personal estate, and to have enough of the real estate sold under license of probate court to pay the debts, is absolute, and does not in any way depend upon the construction of the will; that he has no other interest in or under the will; and that when he has performed his duties as his position requires, regardless of the construction of the will, his office will be functus officio. These defendants claim that, as to this executor, the questions raised are moot questions, and his interest merely a speculative curiosity, and they earnestly ask that the widow and other devisees or heirs may be left to settle their own controversies as they will, in their own way.

If the defendants' premises are sound, we think that their position is impregnable. The statute is silent as to who may bring such a bill. But it is a bill in equity, and, on general principles, such a bill cannot be maintained by one who has no interest in the subject-matter of the controversy. So it would follow that a bill for the construction of a will cannot be maintained unless the plaintiff has such interest, personal or official, legal or equitable, in the estate, or under the will, as would be served by a construction of the will. If an executor has no such interest, why should he be permitted to maintain a bill and interfere with the interests of others? He has no more rights in that respect than a neighbor would have. He is an in-termeddler. Non constat that those who are interested in the will have any controversy about it, or care to have it construed.

But the complainant says that Baldwin v. Bean, 59 Me. 481, was on all...