Haley v. Palmer

• Decision Date: 09 November 1910
• Parties: HALEY v. PALMER et al.
• Court: Maine Supreme Court

78 A. 368

107 Me. 311

HALEY

v. PALMER et al.

Supreme Judicial Court of Maine.

Nov. 9, 1910.

Appeal from Supreme Judicial Court, York County.

Bill by George F. Haley against Francis Palmer and others. Decree for plaintiff, and defendants appeal. Affirmed.

Bill in equity brought by the plaintiff against "Francis Palmer of Trenton, in Mercer county, state of New Jersey, Chase Palmer of Washington, District of Columbia, and Chase Eastman of Portland, in the county of Cumberland and state of Maine, as executors of the last will and testament of Elizabeth C. Palmer, late of Kennebunkport, in said county of York, deceased, and said Francis Palmer, as trustee under the last will and testament of said Elizabeth C. Palmer, and Clinton C. Palmer of Portland, in the county of Multnomah and state of Oregon," praying that it "be ordered and decreed that the plaintiff has a lien on the share of the defendant Clinton C. Palmer in the residuary of the said estate of said Elizabeth C. Palmer, deceased, for the full amount due" on two promissory notes given to the plaintiff by the said Clinton C. Palmer, and "that it be further ordered and decreed that out of the assets of said estate, and particularly out of the property set apart by the executors of the will of said deceased as a portion of the residuary of said estate for the benefit of said defendant Clinton C. Palmer, said defendants, executors of said will, and said defendant Francis Palmer, as trustee thereunder, pay to the plaintiff the full amount of said lien." The defendants, except said Clinton C. Palmer, filed an answer with a demurrer therein inserted. The said Clinton C. Palmer filed a cross-bill, but afterwards consented that the plaintiff's bill be taken pro confesso as to himself, with decree thereon in plaintiff's favor. A hearing was had and the presiding justice sustained the plaintiff's bill and decreed that the plaintiff "has a lien on the share of the defendant Clinton C. Palmer, in the hands of defendant Francis Palmer, trustee," under the aforesaid will, and ordered payment of the plaintiff's debt from the funds in the hands of the trustee. The defendants, Francis Palmer, Chase Palmer, and Chase Eastman, executors, and Francis Palmer, trustee, then filed an appeal. The case is stated in the opinion.

Note.—See Holcomb v. Palmer, 106 Me. 17, 75 Atl. 321.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, and KING, JJ.

James O. Bradbury, Chase Eastman, and Clinton C. Palmer, for appellants.

Geo. F. & Leroy Haley, for appellee.

SPEAR, J. This is a bill in equity in which the plaintiff seeks to charge the defendant, Francis Palmer, trustee under the will of Elizabeth C. Palmer, as equitable trustee of the defendant, Clinton C. Palmer, for funds in the hands of Francis, which the plaintiff contends are attachable in equity for the payment of the debts of Clinton C. The sitting justice sustained the bill and ordered the payment of the plaintiff's debt from the funds in the hands of the trustee. From this decree, the case comes here on appeal. The facts pertinent to the issue upon which the case turns are as follows: In 1907, Elizabeth C. Palmer, mother of Francis and Clinton C, died testate. No questions arise with reference to preliminary questions relating to the probate of the will, and the appointment and qualification of the executors and trustees. The plaintiff in December, 1908, loaned the defendant, Clinton C. Palmer, the sum of $500, and, as evidence of the debt, took the defendant's promissory note for the amount of the loan. In March, 1909, he loaned him the further sum of $500, for which he also received his promissory note. To secure the payment of these notes, Clinton C. Palmer, for a legal consideration, executed and delivered to the plaintiff an assignment in writing, "whereby he conveyed all his right, title, and interest in and to the estate of said Elizabeth C. Palmer." Demand for payment of the amount due was duly made by the plaintiff upon the executors and trustee. The bill and answer raise many other questions of fact, but they are not pertinent to the determination of the legal question here involved. The case turns upon the construction placed upon the following clause of Mrs. Palmer's will, namely: "I give, bequeath and devise, all the rest and remainder of my estate to such of my children as may outlive me, share and share alike, but I will that the portion which would fall to my son Clinton C. Palmer shall be held in trust for him by my son Francis to be used for his comfort and necessities according to the discretion of said son." No other clause is found in the will which shows any purpose on the part of the testatrix to make any gift or devise over, but, as was said in Holcomb v. Palmer et al., 106 Me. 17, 75 Atl. 324: "The whole estate passes out of her absolutely, as to the four-fifths; in trust, as to the one-fifth. In every instance it passes from the mother completely and vests in the devisees or legatees completely. Her heirs can have no more interest in the one than in the other. She did not die intestate as to the one-fifth, any more than as to the four-fifths." But this clause has already been construed with reference to the quality of estate vested in Clinton C, in Holcomb v. Palmer et al., supra. The court say: "The fair and true construction of this residuary clause, therefore, is...