Cassidy v. Murray

• Decision Date: 15 September 1949
• Citation: 68 A.2d 390
• Parties: CASSIDY et al. v. MURRAY et al.
• Court: Maine Supreme Court

68 A.2d 390

CASSIDY et al.

v.MURRAY et al.

Supreme Judicial Court of Maine.

Sept. 15, 1949.

Isabel D. Cassidy, guardian of Joan Cassidy, and others sued Edward P. Murray, trustee, and others for construction of a will and for deviation from its terms to permit longer payments to beneficiaries if a certain construction were adopted.

The Superior Court, Penobscot County, in equity, dismissed the bill, and plaintiffs appealed.

The Supreme Judicial Court, Thaxter, J., dismissed the appeal, construed the will and held that deviation from the express provisions of a will would not be authorized on the ground that the beneficiaries were suffering hardships because of a change of economic conditions.

John H. Needham, Bangor, for plaintiffs.

Pilot & Collins, Bangor, Frank G. Fellows, Bangor, guardian ad litem, for defendants.

Before MURCHIE, C. J., and THAXTER, NULTY and WILLIAMSON, JJ.

THAXTER, Justice.

This is a bill in equity seeking a certain construction of the will of John Cassidy who died testate March 26, 1918. It is brought by four of his grandchildren, who are the children of his son, John F. Cassidy, who died intestate in 1939.

The point in issue is whether under the will as modified by the codicils each of said grandchildren is entitled to be paid out of the income of the trust fund established by the will an annual income of not exceeding $10,000 annually, or whether the said grandchildren must share as a class in a sum not exceeding $10,000. If the latter should be held to be the correct construction, the court is asked to order the trustees to pay certain additional amounts to the plaintiffs beyond a proportion of said $10,000 in order to compensate them for certain hardships and exigencies which are set forth in the bill. This in effect would be asking the court to authorize a deviation from the express provisions of the will.

All other parties in interest have been joined as defendants in the bill.

The essential part of the will which has been presented to us for construction reads as follows: ‘During the continuance of this Trust, the Trustees of my estate shall provide for the comfortable support and maintenance of each of my five children, James W. Cassidy, Mary A. Cassidy, Rosella Cassidy, John F. Cassidy and Lucy C. Cassidy, during the life of each of them and at the decease of each of them, then of the lineal descendants together if any, of each of them to an amount not exceeding for each child, or for all the lineal descendants, if any of each child, ten thousand dollars per year, beginning at the time of my decease. And upon the decease of each of my said five children, leaving no lineal descendants living at the time of the death of each of them, then said payment of a sum not exceeding ten thousand dollars per year, as aforesaid, for each shall immediately cease.’

It is clear that it was the intention of the testator that the children of a deceased child should take as a class only the share to which their parent was entitled. What else could the words mean which apply to his children and their descendants ‘during the life of each of them and at the decease of each of them, then of the lineal descendants together if any, of each of them to an amount not exceeding for each child, or for all the lineal descendants, if any of each child, ten thousand dollars per year * * *’?

It is the intention of the testator which must prevail in the construction of a will. But that intention must be found from the language of the will read as a whole illumined in cases of doubt by the light of the circumstances surrounding its making. Lord v. Bourne, 63 Me. 368, 18 Am.Rep. 234; Nash v. Simpson, 78 Me. 142, 3 A. 53; Davis v. Callahan, 78 Me. 313, 5 A. 73; Bryant v. Bryant et als., 129 Me. 251, 151 A. 429.

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