Edwards v. Packard

• Decision Date: 04 April 1930
• Parties: EDWARDS v. PACKARD et al.
• Court: Maine Supreme Court

149 A. 623

EDWARDS

v. PACKARD et al.

Supreme Judicial Court of Maine.

April 4, 1930.

Report from Supreme Judicial Court, Knox County.

Bill in equity by Corinne Howard Edwards against Amida H. Packard and others to construe and interpret the will of Liller J. Small Foudray, deceased. On report.

Decree in accordance with opinion.

Argued before PATTANGALL, C. J., and DUNN. STURGIS, BARNES, and FARRINGTON, JJ.

Frank H. Ingraham, of Rockland, for plaintiff.

Ed. K. Gould and Frank A. Tirrell, Jr., both of Rockland, and Clifford A. Kingsley, of Providence, R. I., for defendant.

STURGIS, J.

Bill in equity to construe and interpret the will of Liller J. Small Foudray, late of Rockland, deceased. The case comes forward on report to be finally decided on so much of the evidence as is legally admissible.

The provisions of the will necessary to be construed, numbered as they are paragraphed, are as follows:

(1) "First—I wish my property inherited from my dear Father Capt. Andrew Jackson Small, deposed of in such a way that it need never be sold. I wish the rents to be collected by Corine Howard, and if I or not have any children Corine Howard is to use 30.00 per month as long as she lives for them and her support and no one else. And should she die before I do one of the Tipton girls from Hillsboro Oregon is to take her place and have the same as she (Corine Howard) if she takes it. Failing thos fist two Madora Kenderson takes their place. Second—I wish Corine Howard to give Madora Kenderson $50.00 per year for 5 years and it is to be put in the Rockland Trust Co. for her or her heirs until ten years have passed then she can draw it out with interest, but should such a thing happen that she should need it before the ten years are up, she is to have it with Corine Howard's concent or—Tiptons (Whichever the case may be)"

(2) "If I die before my Uncle Capt L L. Whitten, he is to have a home in my house in the room he has always occupied and is to be bought' all he needs to eat and clothing to keep him warm, as long as he lives."

(3) "$50.00 per year is to go to Corine Howard if she servives me, as long as she shall live. No other relation has any claim on me or my property after my Uncles death. L. L. Whitten. And no one has any right to interfere."

(5) "At the end of 10 years the City is to have One hundred dollars to take care of my lot at Achorn cemetary, and at the end of 20 years they are to have 175.00 for perpetual care and a marble or granite slab is to be put on the lot to that effect, this will be paid in installments in as much as Corine Howard sees fit to spare."

(7) "* * * Corine Howard is to live in my house and use it as if it were her own and bring up my children if I have any, and should they marry she is to let them live in one part of it and she in the other as long as they shall live. And likewise * * * if Corine should die first."

(8) "But the property is always to remain in my name Taxes and repairs to be paid by Corine Howard as long as she lives and all rents that can be got out of the property that she has, above the sums named are to be used for repairs to keep the building up and well painted. * * * "

(9) "* * * And when all are dead that are mentioned in this will, the House will be used for an old man and childrens house or home and be called the Liller J. Small Foudray Home for Children and Old Men. and the property on Main street is to pay for keeping it and if any of the children of these people mentioned in this will live they are to take charge of the home if they so desire."

(10) "The land is never to be sold and always be known as mine, if the property on Main St. burns down and the land can be leased for enough to support the home it will be still called Small Foudray Land."

Codicil.

(11) "In any event event the land can never be sold if money can be hired to build a brick block on the front in memory of my Father must be put Property one owned by Capt. Andrew Jackson Small decending to his onld child;"

"Liller J. Small Foundray this property is in memory of both."

The testatrix at her decease owned two parcels of real estate, a homestead at the corner of Crescent and Pacific streets, and a store property numbered 340 and 342 on Main street, both in the city of Rockland. The homestead is the house repeatedly referred to in the will and eventually to be used as a home as provided in the ninth paragraph. The property on Main street is that referred to as inherited from the testatrix's father, Capt. Andrew Jackson Small.

The court is asked to determine what estate the plaintiff, the "Corine Howard" of the will, has in the Main street property left by the testatrix. If in trust, upon what uses and trusts? If not in trust, what estate is created?

It is needless to say that the will is unskillfully drawn and lacks the clarity and consistency of expression desirable in so important a writing. The right remains to all persons, however, to make their own wills and select their own scriveners. If doubt and ambiguity result, the discovery of intention may be more difficult, but ascertained, if no rule of law or public policy be violated, it must be given effect. Belding v. Coward, 125 Me. 305, 133 A. 689; Church v. Fairbanks. 124 Me. 187, 126 A. 823. This intention must be collected from the language of the whole instrument interpreted with reference to the avowed or manifest object of the testatrix, with each part of the will construed with relation to the language used in all others. Bodfish v. Bodfish, 105 Me. 166, 73 A. 1033; Wentworth v. Fernald, 92 Me. 282, 42 A. 550.

Looking thus to the four corners of this will, it seems clear that the predominating intention of this testatrix, underlying all her testamentary provisions, was, with an incidental charitable and benevolent purpose, to perpetuate her own memory and that of her father, eventually establishing permanent memorials in the Home for Children and Old Men at her homestead, and in her Main street property, the latter to be known as the "Small Foudray Land" if without buildings, but, if rebuilt, appropriately inscribed as provided in the eleventh paragraph.

This predominating intention, however, was not to be carried into effect immediately. The establishment of the Home was postponed. It is only "when all are dead that are mentioned in this will" that the house was to be used for a Home and "the property on Main street is to pay for keeping it."

Until then "Corine Howard," as the plaintiff in this bill is called in the will, if she survives the testatrix (which she did), is charged with the care of these properties to be dealt with for the benefit of herself and others. To Miss Howard is committed the care of the testatrix's children, if she had any, with use of...