Holcomb v. Palmer

• Decision Date: 08 September 1909
• Citation: 106 Me. 17,75 A. 324
• Parties: HOLCOMB v. PALMER et al.
• Court: Maine Supreme Court

75 A. 324

106 Me. 17

HOLCOMB

v. PALMER et al.

Supreme Judicial Court of Maine.

Sept. 8, 1909.

Exceptions from Supreme Judicial Court, Cumberland County.

Trustee process by George W. Holcomb against Clinton C. Palmer and others, alleged trustees. To a ruling charging the alleged trustees for property belonging to the principal defendant, such trustees except. Sustained, and trustees discharged.

Trustee process in an action of assumpsit against the principal defendant, who was one of the residuary legatees under the will of his mother, and the three executors of said will alleged trustees of the principal defendant.

The principal defendant did not appear, but the alleged trustees appeared and filed their disclosure, and, after hearing thereon, were charged for certain personal property in their hands as executors aforesaid as belonging to the principal defendant. To the ruling charging them as aforesaid the alleged trustees excepted.

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE, CORNISH, KING, and BIRD, JJ.

Geo. F. & Leroy Haley, for plaintiff.

James O. Bradbury, for trustees.

CORNISH, J. The contention in this case arises over a trustee disclosure, and depends upon the construction of the residuary clause in the will of Elizabeth Chase Palmer, who died testate on September 30, 1907.

No defense is made by the principal defendant, Clinton O. Palmer, to the suit, which is an action of assumpsit on two promissory notes given by him, and at the hearing before the presiding justice the alleged trustees, who are the executors of said will, were charged for certain personal property in their hands as belonging to said Clinton C. Palmer, one of the residuary legatees thereunder. The case is before this court on the trustees' exceptions to this ruling, and the decision must rest upon the determination whether under said will said Clinton C. Palmer has the absolute title to said property so that it can be reached by trustee process, or whether he has simply a beneficial interest that cannot be so reached. If the former is the true construction, the ruling was correct; if the latter, the exceptions should be sustained.

This brings us to the consideration and interpretation of the will, which is somewhat lengthy and was drawn with apparent care. It disposed of an estate valued at more than $40,000 with unusual detail. The testatrix left five children, four sons and one daughter, and she made many specific bequests to them of furniture, articles of personal property and heirlooms, beside certain pecuniary bequests to Francis, Chase, and Lillian, as an equivalent in the words of the will to various sums of money received from her in her lifetime by her other sons Bartlett and Clinton; her evident intention being to make an equal division among all her children.

Then follows the residuary clause which is under consideration here:

"I give, bequeath and devise all the rest and remainder of my estate to such of my children who may outlive me share and share alike, but I will that the portion which would fall to my son Clinton 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." The position of the plaintiff is that the first part of this clause gave an absolute estate in fee to the five children, all of whom survived the mother, and that the last clause, attempting to put the share of Clinton in the hands of Francis in trust, was an attempt to cut down this absolute fee, and therefore repugnant and void. In other words, the plaintiff invokes the rule, well established in this state and elsewhere, that where by the terms of a devise or bequest an estate in fee simple of real estate or an absolute gift of personal property is made a devise or gift over is void, as held in Joslin v. Rhoades, 150 Mass. 301, 23 N. E. 42, Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1, Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781, and in the very recent case of Bradley v. Warren, 104 Me. 423, 72 Atl. 173, where the rule and its reason are carefully considered. "The title to property once given away cannot be regained by the hand that gave it." Taylor v. Brown, 88 Me. 50, 33 Atl. 664. Notwithstanding this rule sometimes appears to operate harshly in defeating the probable intention of the testator, which is presumed to be the goal of judicial construction, its observance has been deemed safer "than one which for want of strictness would be attended in its application with all sorts and shades of doubt and uncertainty."

Its application, however, inasmuch as it may override the intention of the testator, is not to be forced, and in the case at bar it is not required. It is hardly necessary to say that the controlling rule in the construction of wills to which all others must yield is that the intention of the testator is to be ascertained if possible and that such intention when so ascertained will prevail, provided it is consistent with legal rules. Here the intention of the testator is perfectly plain, is expressed in apt language, and violates no rule of legal interpretation. After making numerous specific bequests, she gathers together all her remaining property, and gives it equally to her five children share and share alike, but at the same time and in the same sentence that she gives four their share outright she gives the fifth his share in trust, making his brother the trustee. There is no attempt on her part to make any gift or devise over, but 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. The cases cited as applying the rule are clearly distinguishable from the case at bar. In Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1, the language of the will was "as to the residue of my estate after payment of my just debts I give and bequeath the same to my beloved wife * * * and lastly I further direct if there be any of my estate left after the decease of my said wife, then the said property left be equally divided between G. & T."

In Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781, the words were: "I give and devise to my wife all the rest and residue of my real estate. But, on her decease the remainder thereof I give and devise to my said children, or their heirs respectively, to be divided in equal shares between them." In Taylor v. Brown, 88 Me. 56, 33 Atl. 664, the testator gave to his widow all his real and personal estate, and in the same clause added "and at her decease what remains I wish to be equally divided between * * * children of my wife's sister." In Bradley v. Warren, 104 Me. 423, 72 Atl. 173, the residue was disposed of as follows: "One moiety thereof to my daughter Alice Buck, * * * and if at her decease this will shall have taken effect, and she shall have entered into possession of said estate, so much thereof as may remain at her decease shall so descend and be distributed to and among my heirs at law."

In all of these and similar cases the hand that gave attempted to take away what had once been given, and the law will not permit it. That is not the situation here. There is no attempt to retake or to divert the property into other channels. This residuary clause expresses in a concise form what could be more fully stated as follows: "I give, bequeath and devise all the rest and remainder of my estate share and share alike to such of my children as may survive me, one fifth to Chase, one fifth to Ballett, one fifth to Lillian, one fifth to Francis and one fifth to Francis in trust for Clinton, to be used for his comfort and necessities according to the discretion of said son." No one could doubt the meaning of this bequest, and yet it is simply another form of expressing the same...