Copeland v. Barron

• Decision Date: 19 April 1881
• Citation: 72 Me. 206
• Parties: SAMUEL COPELAND, executor of the will of JOHN W. BARRON, in equity, v. BETSEY P. BARRON and another.
• Court: Maine Supreme Court

72 Me. 206

SAMUEL COPELAND, executor of the will of JOHN W. BARRON, in equity, v. BETSEY P. BARRON and another.

Supreme Judicial Court of Maine.

April 19, 1881

BILL in equity brought to obtain a construction of the third item in the will of John Wilson Barron.

The item is recited in the opinion.

George W. Barron was deceased at the time of bringing the bill.

Thomas H. B. Pierce, for the executor.

V. A and M. Sprague, for Betsey P. Barron, cited: Jones v Bacon, 68 Me. 35; Gifford v. Choate, 100 Mass 343; Pickering v. Pickering, 1 Brad. 269; Hale v. Marsh, 100 Mass. 468; Breton v. Mocket, 9 Ch. Div. 95; Parnell v. Parnell, Id. 96; Perry v. Merrett, 18 Eq. Cas. Eng. Dec. 152; Bayford v. Smith, 14 Ves.; Harris v. Knapp, 21 Pick. 412; Jackson v. Bull, 10 Johns. 19; 12 Johns. 389; Pickering v. Langdon, 22 Me. 430; Kuhn v. Webster, 12 Gray 3; 2 Redf. Wills, 419; Gibbins v. Shepard, 125 Mass. 541.

D. D Stewart, for Wilson D. Barron.

In the construction of wills the intention of the testator as expressed in the will shall prevail, if consistent with law, and that intention is gathered from the whole will. Hall v. Preble, 68 Me. 101; Fox v. Rumery, Id. 127; Dawes v. Swan, 4 Mass. 215; Cotton v. Smithwick, 66 Me. 367; Norris v. Beyea, 13 N.Y. 283; Sweet v. Chase, 2 N.Y. 79; 1 Redf. Wills, 431, 445, 449-454.

The intention of the testator in this case is wholly inconsistent with the claim now set up that this one thousand dollars is to be paid over to Betsey P. Barron at once. Smith v. Bell, 6 Pet. 68.

" And if any part shall remain unexpended after their death besides paying funeral expenses and putting up grave stones, the said remainder shall go to my son, Wilson D. Barron."

Who was to pay the funeral expenses and put up the grave stones? The legatees clearly could not pay their own funeral expenses and put up their own grave stones. But the executor could, and he is to hold the one thousand dollars as quasi trustee. Field v. Hitchcock, 17 Pick. 183; Dole v. Johnson, 3 Allen 367; Dimmock v. Bixby, 20 Pick. 374; Van Vechton v. Van Veghten, 8 Paige 125; Gott v. Cook, 7 Paige 522; Evans v. Massey, 1 Young & Ves. 197; Webb v. Earl of Shaftsbury, 7 Ves. 480; Estate of Mary England, 1 Russ. & Myl. 499; Hultoke v. Gell, Id. 515; Bowers v. Smith, 10 Paige 199; Hill Trustees, 543, 548; Campart v. Campart, 3 Brown's Ch. 196; Pedrotte's Will, 27 Beavan 583; Tattersoll v. Howell, 2 Meriv. 26; Maberly v. Turton, 14 Ves. 499; 1 Smith's Ch. Pr. 653, 660; Bennett's Master in Ch. 4, 5, 17, 48, 110.

These authorities show ample power in the court to appoint a master in chancery to report the amount necessary for the support of Betsey P. Barron.

This case is unlike Jones v. Bacon, 68 Me. 34, and falls within the exception stated in Ramsdell v. Ramsdell, 21 Me. 288; see Smith v. Snow, 123 Mass. 323; Johnson v. Battelle, 125 Mass. 453; Kuhn v. Webster, 12 Gray 3; Ayer v. Ayer, 128 Mass. 575; Malcolm v. Malcolm, 3 Cush. 472; Saunderson v. Stearns, 6 Mass. 37; Slade v. Patten, 68 Me. 380.

PETERS, J.

The legacy in question is this: " 3. I give and bequeath to my father and mother, George W. Barron and Betsey P. Barron, or the survivor of the two, the sum of one thousand dollars, to be paid to them from the proceeds of my life insurance, for their use and support during the term of their lives, and if any part of said sum shall remain unexpended after their death, besides paying their funeral expenses and putting up gravestones, the said remainder shall go to my son Wilson D. Barron."

The first question is, whether the primary legatees take the property absolutely, or only for life.

It is a well settled general rule, that, if a gift be absolute and entire in its terms, any limitation over afterwards is repugnant and void. A testator cannot divide an estate into more parts than the estate contains.

It is contended, by the primary legatees, that this bequest falls within this rule, upon the ground that the life-estate first given and the power of disposition over the remainder afterwards added, combined in the same persons, constitute in such persons an estate in fee; that the two parts of the estate coalesce and merge into one, thus creating an absolute and unqualified gift.

But, upon two grounds, the bequest must be regarded as giving an estate for life only, with a power of disposal; and not an absolute property. First: Because the gift is not absolute and entire in its terms, the power of disposition annexed being qualified and conditional, and not an absolute power. Second: Because, if an estate is given for life in express terms, it is not to be extended by implication arising from an annexed power of disposal, however unqualified. Implication is admitted in the absence of, and not in contradiction to, an express limitation. Stuart v. Walker, 72 Me 145, p. 146.

It is not probable that a testator would, in the same instrument, devise to a person an estate for life in express terms, and then give him the remainder of the same estate by implication. In Popham v. Banfield, Salked, 236, one of the earliest cases upon this question, the court said, " there was a mighty difference between a devise to A. and if he die without issue then to B, and a devise to A, for life, and if he die without issue, then to B. Where a particular estate is devised, we cannot, by any subsequent clause, collect a contrary intent, inconsistent with the first, by implication." In the case at bar, any other construction would deprive the words " during their natural life" of all meaning. These are words of limitation. The estate is not only a life-estate, but is expressly limited to life. Had the power of disposal been absolute and unconditional, as it is not, even then it could not have extended the legal estate that vested in the first takers. The privilege of disposition is a collateral gift of power, and not a gift of property. The life-estate and the remainder vested in the different devisees at the same moment. Nor can the remainder be prevented from coming to the possession of the ulterior takers except by a full exercise of the power to dispose of the gift. The case of Stuart v. Walker, supra, embodies a reference to numerous authorities in support of this position; and the late case of Herring v. Barrow, L. R. 13 Ch. Div. 144, a case exactly in point, should be added to the list. See same case in L. R. 14 Ch. Div. 263.

Ramsdell v. Ramsdell,

21 Me. 288, a leading case among the authorities touching the construction of wills, is appealed to by the primary legatees in defence of their position. There seems to be some misapprehension as to the true purport and scope of the rules imposed by that case. The following propositions are there stated: " It has become a settled rule of law, that if a devisee or legatee have the absolute right to dispose of the property at pleasure, a devise over is inoperative. But where a life-estate only is clearly given to the first taker, with an express power, on a certain event or for a certain purpose, to dispose of the property, the life-estate is not by such power enlarged to a fee or absolute right; and the devise over will be good."

Where a devisee or legatee is spoken of in this language of that judgment, it has reference to cases where devises or legacies are made in general or indefinite terms, without words of limitation; as where I devise you my farm or give you my ship, describing the object given, but without stating the nature or quantum of the estate, or what its duration is to be; that being a matter of implication to be gathered from all parts of the will. And where a life-estate is spoken of, it refers to a life-estate arising by implication, and not to one expressly created or limited to life. It must be borne in mind that the discussion in that case related to a life-estate created by a rule of the common law in force in this State prior to the statutes of 1841. The revised statutes of 1841 provided, that a devise of land should be construed to convey all the estate of the devisor therein, unless it appears by the will that he intended to convey a lesser estate. Prior to 1841, as to realty, the presumption was the other way. By the common law, a devise in general terms, without words of inheritance added, was not efficacious to convey an estate in fee; unless the intention of the testator to that effect could be collected from that in connection with all other parts of the will. A general devise, the interpretation of which was unaided by any light cast upon it from other portions of the will, carried a life-estate by implication or by construction of law. An absolute power of disposal added thereto, being equivalent to the use of words of inheritance, would enlarge such life-estate to a fee; while a qualified power of disposal would not have that effect. But now the opposite rule of construction or presumption prevails. Words of inheritance are now prima facie implied by a general or naked devise. From the nature of things, any power of disposal added to such a devise cannot extend it. It now only serves to emphasize and repeat the gift. But a limited or special power of disposal annexed to a general devise, with limitation...