Hersey v. Purington

• Decision Date: 31 January 1902
• Citation: 96 Me. 166,51 A. 865
• Parties: HERSEY v. PURINGTON et al.
• Court: Maine Supreme Court

51 A. 865

96 Me. 166

HERSEY

v. PURINGTON et al.

Supreme Judicial Court of Maine.

Jan. 31, 1902.

(Official.)

Report from supreme judicial court, Cumberland county, in equity.

Bill by Oscar H. Hersey, administrator, against Selina Purington, administratrix, and others, to construe the will of Helen J. Purington. Case reported and decree rendered.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Enoch Foster and O. H. Hersey, for plaintiff.

L. T. Mason and G. N. Weymouth, for Selina Purington. William Lyons, for William W. Cutter.

J. H. & J. H. Drummond, Jr., and F. M. Ray, for others.

POWERS, J. This is a bill in equity brought to obtain a judicial construction of the will of Helen J. Purington. The first item of the will is as follows: "First. I give, bequeath, and devise to my beloved daughter, Marie J. Purington, provided she dies leaving issue, or provided, further, that she does not die before she reaches the age of twenty-one years, all the rest, residue, and remainder of my estate, real, personal, and mixed, wherever found and wherever situated; but in case she should die before she reaches the age of twenty-one years, and without leaving issue, then I dispose of my real and personal property as follows." The testatrix then proceeds, by the second item of her will, "in case, as above provided, that my daughter, Marie J., should die before she becomes twenty-one years of age, and without leaving issue," to devise her house and lot, situated at the corner of Main and Stroudwater streets in Westbrook, to Albert H. Burroughs, "unless it shall have to be disposed of as hereinafter provided." By the third item of the will, "should my daughter, Marie J., die, as above stated, under twenty-one years of age, and without is sue," the residue of the estate is bequeathed and devised to Dora Purington, sister of the testatrix's deceased husband, "should it not have to be disposed of for the purposes hereinafter provided."

"Fourth. I order and direct my executrix herein named to apply all or whatever is necessary of the rents, profits, and income of my real and personal estate to the support and education of my said daughter, Marie J. Purington, giving her a high-school, and, if she desires, a seminary or collegiate, education; and should the rents, profits, and income of my estate, real and personal, prove insufficient for that purpose, I order and direct the executrix to first sell the real estate situated on the westerly side of Spring street, in said Westbrook; and after the proceeds of the same shall have been applied to the support, clothing, and education as aforesaid of my said daughter, Marie J., and should they prove insufficient," the testatrix orders and directs her executrix to next sell the other parcels of real estate, naming the order in which they are to be sold (that devised to Albert H. Burroughs being last), and apply the proceeds as above; "and it is my wish and desire, and I so order and direct, that nothing contained in the second provision herein made shall prevent, or in any way interfere in, my executrix disposing of the whole of my estate, real, personal, and mixed, for the support, clothing, and education as aforesaid of my daughter, Marie J. Purington." She then authorizes her executrix, should she find that the rents, profits, and income of the estate are more than is necessary for the support and care as aforesaid of Marie, in her own judgment and discretion, to erect suitable gravestones, or a family monument, to her late father, mother, and herself, and concludes by appointing Dora Purington sole executrix.

The will bears date November 12, 1891, and the testatrix died June 9, 1892. Dora Purington qualified as executrix, but died November 16, 1893, and there was from that time no legal representative of the estate of Helen J. Purington until the plaintiff was appointed, July 17, 1900. Marie J. Purington died April 17, 1900, at the age of 19, and without leaving issue.

The court is asked to determine what estate the daughter, Marie, took under the will, and whether this estate could be sold by her guardian for the purposes of her maintenance and education.

If the first article of the will stood alone, there could be no question but that the daughter took a contingent estate only. The word "provided" is an apt and appropriate word to indicate an intention to give contingently; yet words literally contingent in their meaning and import must bend to the construction in favor of vesting the estate or interest, if the will, in its other parts and features, shows that such was the intention of the testator. It is the testator's intention collected from the whole will,—"from the four corners of the instrument," considered together, and not from detached portions, considered separately,—which governs. Such an intention, if consistent with the rules of law, overrides all technical rules relating to the construction of isolated words and phrases. Technical words are presumed to be used in their settled legal meaning, but,...