Gregg v. Bailey

• Decision Date: 05 May 1921
• Citation: 113 A. 397
• Parties: GREGG et al. v. BAILEY et al.
• Court: Maine Supreme Court

113 A. 397

GREGG et al.

v. BAILEY et al.

Supreme Judicial Court of Maine.

May 5, 1921.

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

Bill by Marjorie Gregg and others against Georgie J. Bailey and another. On report. Bill sustained, and decree rendered for complainants.

Argued before CORNISH, C. X, and SPEAR, HANSON, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Arteas E. Stearns, of Rumford, and Alton C. Wheeler, of So. Paris, for plaintiffs.

George A. Hutchins and Ralph T. Parker, both of Rumford, for defendants.

WILSON, J. A bill in equity, praying for the construction of the will of William Gregg, late of Andover in the county of Oxford. The clauses of which interpretation by the court is requested are as follows:

First, to my sister Georgie J. Bailey I give and bequeath four thousand dollars. At her decease same to go to my sister, Frances Ann.

Second, to my sister Frances Ann Gregg, I give and bequeath four thousand dollars, at her decease the same to go to my two daughters in equal amounts together with what I previously gave to my sister Georgie J. Bailey.

Lastly, * * * In my bequest to my sister Frances as mentioned above, I wish to make this change, that at Frances' decease, if my sister survives I wish the property to revert to her and to only become the property of my daughters when both of my sisters become deceased.

In addition to these provisions, the sisters were made his residuary legatees, while the only other provisions for his two daughters, the plaintiffs in this action, were bequests of $1,000 each.

The contention of the plaintiffs is that the respective gifts to the sisters in the first and second paragraphs above are for life, with cross-remainders to the survivor, with remainders over to his daughters in equal shares.

The defendants, however, contend that the gifts to the sisters in the first instance were absolute in terms, and not only the remainder to the daughters, but the cross-remainders to the survivors, being repugnant thereto, are void under the familiar rule that a fee or an absolute estate cannot be limited upon a fee or another absolute estate.

It is true that the bequest here is of personal estate, and no words of inheritance are required to convey an absolute gift, but the same rule applicable to real estate without words of inheritance has been so long and indiscriminately applied in the interpretation of wills to personal property, viz., that it conveys an absolute estate, unless the contrary appears to have been the intent of the testator, that the principles governing one class of property in this respect may properly be held to govern the other. Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615; Bradley v. Warren, 104 Me. 423, 72 Atl. 173; Reed v. Creamer, 118 Me. 317, 108 Atl. 82; Smith v. Walker, 118 Me. 473, 109 Atl. 10; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Ware v. Minot, 202 Mass. 512, 88 N. E. 1001 — in all of which cases the same rule was applied to both real and personal property without discrimination.

The controlling factor in the interpretation of wills always is the intent of the testator to be gathered from the entire instrument interpreted in the light of the existing circumstances. If, however, that intent cannot be carried out without conflicting with some positive rule of law, or is so expressed that it cannot be effectuated without violating some "canon of interpretation so firmly established as to have become a fixed rule of law governing the transfer of property," it must fail of execution. But these so-called canons of construction must in all cases be applied with caution, and especially so if they override the real purpose of the testator, and should never be forced. Hopkins v. Keazer, 89 Me. 347, 353, 36 Atl. 615; Bradley v. Warren, 104 Me. 425, 427, 72 Atl. 173; Barry v. Austin, 118 Me. 51, 53, 54, 105 Atl. 806. The courts will never substitute what has been termed the judicial intent for that of the testator, unless it clearly appears that his actual intent as expressed in his will, if carried into effect, would violate a substantive rule of law, or one of the established rules of construction above referred to.

It is a substantive rule of law that a fee or an absolute estate cannot be limited upon a fee or another absolute estate. The plain intent of the testator in the case at bar, however, does not violate this rule. There is nothing in the provisions of the will, unless each gift be isolated from the rest of the will, that indicates an intent on the part of the testator that his sisters should take an absolute estate in the sums specifically bequeathed to them under the first and second paragraphs—no general power of disposal, either express or implied, as in Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1, and Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781, or words of inheritance, as in Morrill v. Morrill, 116 Me. 154, 100 Atl. 756. On the contrary, it is perfectly clear, we think, that such was not his intent. It was his expressed wish that at the death of either, not what was left, but "the same," should go to the survivor; and upon the death of the survivor both bequests, not what remained of them, should then be, equally divided between his daughters. Such a disposition of the gifts at the decease of the sisters in the same paragraph "without the pen being lifted from the paper," as the court said in Hopkins v. Keazer, supra, is inconsistent with an intent to give an absolute estate to the sisters.

Has he so expressed his intent that it cannot he carried out without violating some of the "firmly fixed canons of interpretation?" We think not.

The court in the recent case of Barry v. Austin, supra, laid down four rules or canons of interpretation governing this class of cases that appear to have become "firmly fixed" from frequent applications in its previous decisions. The second, third, and fourth clearly have no application to the case at bar. Nor does the first, unless it shall be held that a devise or bequest without words of inheritance or an unqualified power of disposal in all cases, ex proprio vigore, creates an absolute estate.

From an examination of the authorities in this and other estates we do not find that such rule of construction has ever been actually applied when the facts are as in the case at bar. The burden of establishing such a rule is upon those who assert it.

That the first rule laid down in Barry v. Austin is not such a rule is clear from the illustrations under it. An intent to create an absolute estate in the first taker in each case there cited is made certain by the addition of words of inheritance or an unqualified power of disposal, either express or implied. Once it appears that an absolute estate was intended in the first taker, it is no longer a question of construction, and the attempted gift over is repugnant, and therefore void. Section 19, c. 79, R. S., does not declare that every devise without words of inheritance conveys an absolute estate. It is clearly a matter of intent and construction. Ware v. Minot, 202 Mass. 512, 88 N. E. 1091; Dorr v. Johnson, 170 Mass. 540, 49 N. E. 919. To assume, then, that a devise or gift without words of inheritance creates an absolute estate is simply begging the question. The question in all cases must be, first, what was the testator's intent? Has he in any way indicated that a lesser estate was intended?

In every ease in this state where the remainder or gift over has been held void from Ramsdell v. Ramsdell, 21 Me. 288, to Morrill v. Morrill, 116 Me. 154, 100 Atl. 756, including Shaw v. Hussey, 41 Me. 495, Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1, Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781, Wallace v. Hawes, 79 Me. 177, 8 Atl. 885, Loring v. Hayes, 86 Me. 351, 29 Atl. 1093, Taylor v. Brown, 88 Me. 56, 33 Atl. 664, Bradley v. Warren, 104 Me. 423, 72 Atl. 173, and Lord v. Pearson, 108 Me. 565, 83 Atl. 1102, there has either been words of inheritance or a general power of disposal, express or implied, added to the general devise, and the intent to create an absolute estate in the first taker has been clear. For this reason they are not controlling of the present case.

The only case which has come before this court where there was a devise or gift without either words of inheritance or a power of disposal, express or implied, and with a remainder over, is that of Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615. There the devise in question was to children, and at their death to the grandchildren of the testator. The devise to the children in that case was as bare of any words of inheritance or power of disposal, either express or implied, as the case at bar. The court, however, said:

"So far from there being * * * any 'clear intention' that the children of the testatrix are to take an absolute property, * * * it is on the contrary clearly evident that they should not have any such property, her scheme being that the fee in all her estate should finally vest to her grandchildren."

Is it not equally clear in the case at bar that it was the testator's intent that the gifts to his sisters should finally vest in his two daughters? As the present learned Chief Justice of Massachusetts said, in Ware v. Minot, supra:

"The devise over to the lineal descendants is strong evidence that she did not intend the estate of the son to possess the incident of descent to his heirs, and that therefore it was not a fee."

In such cases the same rule appears to have been followed in other states as to the effect of a gift or remainder over following a general devise without words of inheritance or other words of limitation indicating an absolute estate. In re Will of Francis Willis, 25 R. I. 332, 55 Atl. 889, there was a gift to a son, without words of inheritance or other words of limitation; at his death the devise was to go to his wife. The statute of Rhode Island as to the effect of a devise without words...