Fogler v. Titcomb

• Citation: 92 Me. 184,42 A. 360
• Parties: FOGLER v. TITCOMB et al.
• Decision Date: 29 November 1898
• Court: Maine Supreme Court

42 A. 360

92 Me. 184

FOGLER

v. TITCOMB et al.

Supreme Judicial Court of Maine.

Nov. 29, 1898.

(Official.)

Report from supreme judicial court, Knox county.

Bill by William H. Fogler, administrator de bonis non, against Benjamin Titcomb and others, to determine who is entitled to the residuum of the estate of William H. Titcomb, deceased. Case reported, and decree rendered.

Argued before EMERY, HASKELL, WHITEHOUSE, WISWELL, STROUT, and SAVAGE, JJ.

J. E. Moore, for Benjamin Titcomb and others.

C. E. & A. S. Littlefield, for Silas W. McLoon and others.

WHITEHOUSE J. The plaintiff, in his capacity as administrator with the will annexed of the estate of William H. Titcomb, brings this bill in equity, asking that the heirs of William H. Titcomb, on the one side, and the heirs of Mary C. Titcomb, his deceased wife, on the other side, be required to interplead respecting the distribution of the residue of the estate of William H. Titcomb now in the hands of the plaintiff. He seeks thereby to obtain a judicial construction of the will of William H. Titcomb, and incidentally, also, of the will of Mary C. Titcomb; for it appears that the two instruments were executed as a part of the same transaction, and involve the element of mutuality, the sixteenth and seventeenth paragraphs of the latter being identical, excepting the special bequests, with paragraphs 3 and 4 of the former, which are here directly brought in question.

In the first and second Items of the will of William H. Titcomb, the testator disposes of his life insurance. The third and fourth paragraphs are as follows:

"Third. I give, devise, and bequeath the use, income, and control of all the residue of my estate, real and personal, to my wife Mary C. Titcomb, for and during the term of her natural life.

"Fourth. I give, devise, and bequeath the residue of my estate which may remain at the decease of my wife as follows, to wit: One thousand dollars to my brother-in-law Matthew A. Mayhew, of Boston, Mass.; one thousand dollars to my niece Mary F. Greenlief; one thousand dollars to my nephew William T. Blunt; five hundred dollars to Rev. W. M. Kimmel and his wife; one hundred dollars to Jennie F. Clark, of Rockland; two hundred dollars to my grandnephew Herman Kent; two hundred dollars to the city of Rockland, to hold in trust, the income thereof to be forever expended in the care and preservation of my family burial lot in the Jameson Point Cemetery, so called, in said Rockland, and of the gravestones and monuments therein; and the remainder of my estate remaining at the decease of my wife I give, devise, and bequeath to my wife, said Mary C. Titcomb, to be disposed of under her will as part of her estate. And I hereby authorize my wife to pay, in her lifetime, by way of advancement, any or all of the legacies provided in this fourth clause of this will."

After the decease of her husband, Mary C. Titcomb made a codicil to her will, of which the following is the first clause:

"First. I give, devise, and bequeath my homestead now occupied by me, formerly the property of my deceased husband, William H. Titcomb, situated in said Rockland, on the northerly side of Beech street, and all my furniture, household goods, and effects, household ornaments of which I shall be possessed at the time of decease, to my cousins Lucy Lancaster and Lydia Williams, both of said Rockland, upon the condition that they pay to Benjamin Titcomb, my late husband's brother, the sum of two thousand dollars, and to Sophia Titcomb, my late husband's sister, the sum of two thousand dollars, which said sums, when so paid, shall be in full for the legacies provided for said Benjamin and Sophia in the next succeeding clause of this codicil."

With respect to the third paragraph in the will of William H. Titcomb, it may be said to be a well-settled and familiar rule of law in this state that, in case of either real or personal property, a gift of the income for life is a gift of the property for life. Sampson v. Randall, 72 Me. 109; Paine v. Forsaith, 86 Me. 357, 30 Atl. 11; Fuller v. Fuller, 84 Me. 475, 24 Atl. 946; Wilson v. Curtis, 90 Me. 463, 38 Atl. 365. Indeed, it is not in controversy between the parties to this proceeding that the effect of the plain and unambiguous language of the third paragraph in this will is to give to Mary C. Titcomb a life estate in "all the residue" of William H. Titcomb's property, real and personal, after the bequests of his life insurance made in the first and second items of the will. But it is earnestly contended in behalf of the heirs of Mary C. Titcomb that by the fourth paragraph of the will she acquired an...