Hopkins v. Keazer

• Decision Date: 30 November 1896
• Citation: 36 A. 615,89 Me. 347
• Parties: HOPKINS v. KEAZER et al.
• Court: Maine Supreme Court

36 A. 615

89 Me. 347

HOPKINS

v. KEAZER et al.

Supreme Judicial Court of Maine.

Nov. 30, 1896.

(Official.)

Report from superior court, Cumberland county.

In equity. Bill of interpleader by Gertrude E. Hopkins, pro ami, against James Keazer and others. Submitted on report, Bill sustained.

The bill sets forth the will, and alleges that the estate of the testatrix is sufficient to meet all the calls of the will, and that the property embraced in the residuary clause consists of real estate and rights and credits.

The following questions were submitted for decision:

(1) Do the several specific devises of the income of real estate therein described convey a life estate in the property itself to the several devisees for life?

(2) Does the devise, in item 2, of the income of one-half the store to the children of testatrix, upon the decease of James and Elizabeth Keazer, convey to the children of testatrix who may then be alive an absolute title to the property? If not, what title does it convey?

(3) Does the devise of the income of the property embraced in the residuary clause (item 8) vest in the children of testatrix an absolute title to the property itself as joint tenants? If not, what title does it vest in them?

(4) Are the devises to the grandchildren of the store, in item 2, and the residuary property, in item 8, or either of them, invalid, for lack of any words limiting the estates immediately preceding?

(5) Does any grandchild now hold any estate or title in the residuary property which may be subject to inheritance or disposal by will or deed, and which will not be divested in case such grandchild does not survive all of the children of testatrix?

(6) If the devise to the grandchildren in item 2 is valid, will the children or heirs of a grandchild now living, but who does not survive all the children of testatrix, take any interest in the store?

(7) Is the distribution of the residuary property among the grandchildren to be per stirpes or per capita?

(8) Is there any construction of the will which will prevent the children of the testatrix from making a valid present division of the residuary property between themselves and your orator? And also of the remainder in the store?

(9) Are any trusts created by said will? If so, what? When do they terminate? What is the subsequent disposition of the estate?

H. W. Gage, C. A. Strout, and Geo. C. Hopkins, for plaintiff.

J. W. Symonds, D. W. Snow, and C. S. Cook, for defendants.

PETERS, C. J. Caroline Keazer left, at her decease, a will, some of the provisions of which are deemed to be of such doubtful meaning and effect as to render it expedient to obtain a construction of them by the court. Omitting such parts of the will as can have no bearing on the questions presented for our consideration, the instrument reads as follows:

"Second. During the lives of my son, James Keazer, and his wife, Mary Elizabeth Keazer, I give and bequeath to them one-half of the income of my store and the land connected therewith, situated on the northwesterly side of Middle street, in said Portland, and now numbered 203. Said James and his wife, so long as they or the survivor shall have and enjoy the income of said one-half of the above-described premises, shall be charged with and pay one-half part of the repairs, insurance, taxes, and other legal expenses. Upon the decease of the said James and the said Mary Elizabeth Keazer, I give and bequeath the income of said one-half of said premises to my children or child then alive, charged with the payment of said taxes, insurance, repairs, and expenses. Said balance of said income of said one-half of said premises is to be divided equally among my children, and, upon the death of all my children, I give and devise said one-half of said premises to my grandchildren then alive, said grandchildren receiving the share the parent would have received if distribution thereof had been made under the laws of Maine.

"Third. I give and bequeath to my daughter Mary Helen Yeomans the other half of the income of said premises on said Middle street during her life, charged with said half of the repairs, taxes, insurance, and other legal expenses; and, upon the death of my said daughter Mary Helen, I give and devise said one-half of said premises on Middle street to the child or children of my daughter Mary Helen Yeomans.

"Fourth. Inasmuch as my late daughter, Mrs. Caroline Hopkins, received from her father property on Gray street, in Portland, I therefore give and bequeath to my granddaughter Gertrude Emma Hopkins the sum of three hundred dollars. This amount is to be invested by my executor, for the said Gertrude, but shall not be paid to her until she shall become twenty-one (21) years of age. When of that age, this sum, with its accumulations, shall be paid to her. Should my grandchild Gertrude die before that period, I give and bequeath said sum, with its accumulations; to my children then alive.

"Fifth. I give and devise to my daughter Frances Eva Webb, now of said Portland, during her life, the use and income of the brick dwelling house, with the land connected therewith and being now numbered 81, on the northeast side of State street, and in which she now resides. My daughter is to pay all taxes, insurance, repairs, and other legal charges thereon. Upon the decease of my said daughter, Frances Eva Webb, I give and devise said premises to the children of said Frances Eva Webb, and to their survivors or the survivor. If either of said children should die leaving issue then alive, such issue shall have the parents' share, and, if there is no such issue, said share or shares shall descend to the survivors or the survivor.

"Sixth. I give and bequeath to my daughter Mrs. Emma S. McDuffie, now of Chicago, during her life, the use and income of the brick dwelling house, with the land belonging thereto, situated at the corner of Gray and State streets, in said Portland, together with the use of all the household furniture of every description in said dwelling house. My daughter Emma S. McDuffie is to pay all taxes, repairs, insurance, and other legal charges thereon. Upon the death of my daughter Emma, I give and devise said premises above mentioned, with the said household furniture, to the children or child of said Emma S. McDuffie.

"Seventh. It is my wish, and I therefore make this request of my grandchildren, that none of them who become seised and possessed of any of my estate, shall sell and convey such interest until he or she shall have owned and controlled said interest at least for ten years, unless, from sickness, accident, or some unforeseen circumstance, he or she is obliged to dispose of the same.

"Eighth. After payment of taxes, repairs, insurance, and other legal charges from the income of the rest, residue, and remainder of my estate, I give and bequeath the balance of said income to my children, and to the survivors and survivor of them; and, when all my children are deceased, I give, devise, and bequeath said rest, residue, and remainder to my grandchildren, the same to be distributed in accordance with the laws of Maine.

"Ninth. I appoint my son, James Keazer, executor of this, my last will and testament, and I request the judge of probate to grant unto him letters testamentary without requiring of him bonds or sureties."

Perhaps the most important question presented by the will is whether, under items 2 and 8, the children of the testatrix are entitled to an absolute fee in the estates described in such items,—in item 2 upon the termination of the prior estate, and in item 8, residuary clause, at the death of the testatrix,—disregarding in both instances the devise over to their children, her grandchildren. In this case it cannot be so much an inquiry as to what the testatrix desired and expected to be done as it is whether she has been able to effectuate her intention consistently with the rules of law; for surely it cannot be denied that her purpose may be visibly seen, by either lawyer or layman, throughout all the lines of her will,—a purpose to give the enjoyment of her estate to her children so long as they might live, and to give the estate itself, subject to this first charge, absolutely to her grandchildren.

Of course, we must fully recognize the familiar principle, well established in this state, that if a testator first bequeaths property by absolute and unconditional terms, he cannot afterwards, by a different provision in the same will, unless it be a...