Fitzsimmons v. Harmon

• Decision Date: 27 November 1911
• Citation: 108 Me. 456,81 A. 667
• Parties: FITZSIMMONS et al. v. HARMON et al.
• Court: Maine Supreme Court

81 A. 667

108 Me. 456

FITZSIMMONS et al.

v. HARMON et al.

Supreme Judicial Court of Maine.

Nov. 27, 1911.

Report from Supreme Judicial Court, Cumberland County, in Equity.

Bill by James H. Fitzsimmons and others against Isabelle C. Harmon, executrix, and others, asking the court to construe and interpret the provisions of the last will and testament of the aforesaid Elizabeth Doherty. The defendant Harmon filed an answer, admitting the allegations in the bill, and joined in the prayer for a construction of the will. Heard on bill, answer, and evidence, and at the conclusion of the testimony the case was reported to the law court for determination. Decree for complainants.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, BIRD, and HALEY, JJ.

Connellan & Connellan, Joseph B. Reed, and John B. Kehoe, for plaintiffs.

Reynolds & Sanborn and Charles H. Johnston, for defendant Harmon. Michael T. O'Brien, for defendant Theresa Fitzsimmons.

WHITEHOUSE, C. J. Elizabeth Doherty, of Portland, died on the 18th day of October, 1909, leaving a will which reads as follows:

"I, Elizabeth Doherty, being in my right mind at this date (October 13th, 1909), wishing to dispose of property now in my name, give, devise and bequeath my property of whatever kind to Isabelle C. Harmon to divide as seems to her best as I have told her my wishes in the matter, mentioning ail relatives including my nephews.

"I name Isabelle C. Harmon as my executor."

In this bill in equity, brought by some of the heirs of the testatrix, the plaintiffs ask the court to construe and interpret the provisions of this will, and particularly to determine, first, whether the legatee and executrix therein named takes any beneficial interest under it; second, if the legatee named takes no beneficial interest, whether the will declares a trust sufficiently definite to be executed; and, third, if no such trust is declared, to whom shall the residue of the estate, after the payment of all debts and expenses of administration be distributed.

In her answer, Mrs. Isabelle C. Harmon, named as defendant in the bill, joins in the prayer of the plaintiffs for a judicial construction of the will.

The plaintiffs contend, first, that under the terms of the will Mrs. Harmon, the legatee and executrix therein named, takes no beneficial interest; second, that while the terms of the will clearly manifest an intention on the part of the testatrix to create a trust, the trust thereby indicated is not made sufficiently definite to be executed; and, third, that there is a resulting trust in favor of the heirs at law of the testatrix, and that the estate should be divided among them.

The privilege of making a disposition of property by will is created, and the exercise of it definitely regulated, by the statutes of this state. The leading provision is found in section 1 of chapter 70, R. S., and is as follows:

"A person of sound mind and of the age of twenty-one years may dispose of his real and personal estate by will, in writing, signed by him or by some person for him at his request, and in his presence, and subscribed in his presence by three credible attesting witnesses, not beneficially interested under said will."

The statute thus clearly prescribes the method of transmitting property by will, which the court is not at liberty to ignore, although in particular instances the actual intention and desire of a person respecting the disposition of his property may be defeated by adhering to the rule prescribed. A bequest of personal property, as well as a devise of real estate, in order to be effectual, is required to be made by an instrument in writing signed by the testator and subscribed by three attesting witnesses. Even a letter or other document containing explicit directions for the disposition of property cannot become part of a will by reference, unless it be shown to have been in existence at the time the will is executed, and be so clearly and precisely described and referred to in the will as an existing document as to be readily identified as the particular paper intended by the testator. Bryan's Appeal, 77 Conn. 240, 58 Atl. 748, 68 L. R. A. 353, 107 Am. St, Rep. 34, and cases cited.

In the case at bar it has been seen that the only wishes expressed for the guidance of the legatee in the distribution of the property had been given orally and they were not incorporated in the will. The language of the testatrix is: "I give, devise and bequeath my property of whatever kind to Isabelle C. Harmon to divide as seems to her best, as I have told her my wishes in the matter."

1. The phraseology employed in making this bequest to Mrs. Harmon utterly fails to disclose any purpose on the part of the testatrix to make an absolute gift of the property to Mrs. Harmon for her personal benefit. It is not given to her to consume, but to "divide." It expressly requires her to "divide" all the property thus bequeathed to her. The fact of the division is not left to her discretion, but imposed upon her as a duty. It gives her discretionary...