Giddings v. Gilding Ham

• Decision Date: 07 December 1911
• Citation: 108 Me. 512,81 A. 951
• Parties: GIDDINGS et al. v. GILDING HAM et al.
• Court: Maine Supreme Court

81 A. 951

108 Me. 512

GIDDINGS et al.

v. GILDING HAM et al.

Supreme Judicial Court of Maine.

Dec. 7, 1911.

Report from Supreme Judicial Court, Penobscot County.

Bill by Moses Giddings and another, trustees in equity, against Elizabeth B. Gillingham and others. On report. Decree directed.

Bill in equity, brought by Moses Giddings and Franklin A. Wilson, surviving trustees under the will of Chapin Humphrey, late of Bangor, Me., deceased testate, against Elizabeth B. Gillingham, administratrix de bonis non with the will annexed of the estate of Marcia Humphrey, David G. F. Ward. Mable T. Ward Saltus, John B. Ward, Ralph L. Ward, George F. Maxfield, James L. Gillingham, surviving executor under the will of Dana B. Humphrey, Dana B. Pratt, Elizabeth G. Gillingham, Elliott W. Crowell, administrator of the estate of Harriet Crowell, the Children's Home of Bangor, the First Baptist Church of Bangor, the Newton Theological Institution, the American Baptist Foreign Mission Society, the Maine Baptist Missionary Convention, the Maine Baptist Education Society, and Arthur H. Is-bell, to obtain a judicial construction of the will of the said Chapin Humphrey. Answers were filed by several of the defendants. The cause was heard by the justice of the first instance on bill, answers, and proofs, and at the conclusion of the evidence the case was reported to the law court for determination.

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

John Wilson, for complainants.

Charles H. Bartlett, for defendants Children's Home of Bangor.

Allen E. Rogers, for defendants Newton Theological Institution, American Baptist Foreign Mission Society, Maine Baptist Missionary Convention, Maine Baptist Education Society, and First Baptist Church of Bangor.

James L. Gillingham, for defendants Gillingham. Hugh R. Chaplin, for defendants Maxlield, Saltus, and Ward.

CORNISH, J. This is a bill in equity, brought by surviving trustees, to obtain a judicial construction of the will of Chapin Humphrey, who died in Bangor, November 30, 1874, leaving a widow, Lucy L. Humphrey, and certain collateral kindred, but no children. The will, which is voluminous and apparently drawn with great care, is dated May 21, 1870, and was duly probated in December, 1874.

Seven questions are propounded to the court, but the answer to five involves a single issue: Whether the clauses giving rise to those questions created vested or contingent remainders. In order to comprehend the situation more intelligently, it is necessary to give a brief abstract of the provisions of the entire will, because the true construction must depend upon the intention of the testator, and that must be gathered, not from single or scattered paragraphs, but from the whole instrument.

In the first paragraph, the wife was given a life estate in the homestead, with the income from an adjoining tenement, and in case she desired to move to some other place the trustees were authorized and instructed, either to purchase for her another house at a cost not exceeding $20,000, or, at her option, to lease one at a rental not exceeding $1,000 per year.

In the second paragraph, the wife was given all the household furnishings and equipment of every kind.

By the third paragraph, all the residue of the estate, both real and personal, was bequeathed and devised to Lucy L. Humphrey, Moses Giddings, and Samuel Garnsey, trustees, to have and to hold the same in trust for the following uses and purposes, stated in an abbreviated form:

First. To pay to the First Baptist Society of Bangor the sum of $100 per year during the lifetime of his wife, for the rent of the family pew.

Second. To pay to his unmarried sister, Marcia Humphrey, an annuity of $500 during the lifetime of his wife.

Third. To pay to his wife an annuity of $3,000.

Fourth. To pay at the decease of his wife, and after the probate of her will, the sum of $20,000 to such persons or institutions, if any, as she might designate in her will.

Then follows these words: "The main object of this will is to provide, first, for the maintenance and support of my wife in the same style and manner that she may be living in at the time of my decease."

This marks the end of what might be appropriately designated as the first division of the will. It relates to what is to be done by the trustees during the lifetime of the wife, and is concerned almost wholly with provisions for the comfort and maintenance of her who was, as he himself states, the immediate object of his solicitude and recipient of his bounty.

Then begins the second grand division of the will, prescribing what shall be done with his estate when the life estate is ended, and introduced by these words:

"On the decease of my wife Lucy L. Humphrey, I direct the following disposition of the residue of my estate by my executors or administrators and the trustees under this will."

Then follow 13 clauses, marked A to M, inclusive, specifying various persons and institutions to whom payments shall be made, and the amount to each.

It is the construction of certain of these clauses, which will be considered seriatim hereafter, that the court is called upon to determine. Did they create a vested or contingent estate in the several remaindermen? In other words, did these remaindermen take an interest which vested at the death of the testator, the right of enjoyment being simply postponed; or was the vesting of the title itself postponed until the termination of the prior estate subsisting in the trustees during the life of the wife?

A careful examination of the entire instrument leads to the conclusion that it was clearly the intention of the testator to create by his will contingent and not vested remainders, and the language was appropriate for this purpose, both upon principle and authority. In reaching this conclusion, we have not overlooked the familiar and oft-quoted rule that remainders shall be deemed to be vested, rather than contingent, if they can properly be so construed. Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037. But this rule, like all others evolved for the construction of wills, is plastic, and is designed to aid, rather than to hinder, in the correct determination of the one controlling factor —the intent of the testator. The general scope and purpose, as well as the particular language, of each instrument, viewed in the light of the circumstances known to the testator, are superior to all arbitrary rules. Weston v. Weston, 125 Mass. 268, 270; Heard v. Read, 169 Mass. 216, 223, 47 N. E. 778; Webber v. Jones, 94 Me. 429, 432, 47 Atl. 903.

It would be unprofitable to quote from or even to cite an ever increasing line of authorities, stating in varying language the distinction between vested and contingent remainders. It is sufficient to restate the comprehensive definition found in Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037, adopting the language in Washburn, Real Prop. vol. 2, c. 4, § 1, viz.:

"The broad distinction between vested and contingent remainders is this: In the first, there is some person in esse, known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have determined, so that the estate in remainder will never take effect."

With these definitions in mind, the reasons that have led the court to find the several bequests in the will under consideration to be contingent, rather than vested, are based both upon the general scope and purpose of the will, and also upon the particular language of the several bequests.

In considering the general scope and purpose of the instrument, it will be found:

(1) That the clear purpose of the testator was to have his estate converted into a single trust fund, and that it should continue a unit during the life of his wife. Not only does he bequeath and devise the full legal estate, both of real and personal property, into the hands of his trustees, but he specifically provides for the segregation of his varied interests in these words:

"I direct that all my real estate, excepting said homestead and tenement adjoining, shall be sold at as early a day as is consistent with the Interest of my estate, and that all my personal estate shall be sold at its market value, and all notes and other evidences of debt due me, shall be converted into money, and the proceeds thereof, together with all other receipts of money and incomes be invested in good dividend paying securities until the decease of my said wife Lucy L. Humphrey."

In his general scheme for the disposition of his property, which he had worked out carefully, the first step consisted in its reasonably prompt conversion by his trustees Into a fund composed of safe dividend-paying securities.

(2) That during the life of his wife this entire fund, with the exception of the annuity of $100 to his church and of $500 to his sister Marcia, was to be so managed as to yield an income of $3,000 per year for her support; and in another clause it is expressly provided that, in case the net income is not sufficient to pay all these annuities in full, the trustees shall sell such of his effects and property as they deem necessary to pay the same. The prime motive existing in his mind was an ample provision for his wife's comfort, and both principle and income could be devoted to that purpose. That was the second step in his general plan,...