Huston v. Dodge

• Decision Date: 22 November 1913
• Citation: 111 Me. 246,88 A. 888
• Parties: HUSTON et al. v. DODGE et al.
• Court: Maine Supreme Court

88 A. 888

111 Me. 246

HUSTON et al.

v. DODGE et al.

Supreme Judicial Court of Maine.

Nov. 22, 1913.

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

Bill by Joel P. Huston and others, as trustees under the will of Isaac Dodge, for instructions against Charles F. Dodge and others. On report, bill sustained, and instructions given.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, and PHILBROOK, JJ.

Arthur S. Littlefield, of Portland, for plaintiffs.

William T. Hall, of Richmond, for defendants.

SAVAGE, C. J. Bill in equity brought by the trustees of the residuary estate under the will of Isaac Dodge, late of Newcastle, praying for a construction of the will and for instructions. The heirs of Isaac Dodge, beneficiaries under the will, and the executor of the will of his widow, Arabella Dodge, are parties defendant. The case comes up on report. No evidence is reported, but it is stipulated that "the facts stated in the bill are true."

Some of the questions presented in the prayer of the bill do not concern the administration of the trust by the trustees, but relate to matters which are as yet contingent, in regard to which the trustees may never be called to act; or, if they are, possibly not until after the lapse of many years; or they relate to matters which concern only the heirs among themselves. Such questions are now moot questions.

This court has jurisdiction under R. S. c. 79, § 6, par. 8, upon a bill by testamentary trustees, to instruct them as to the proper mode of executing their trust, and to construe a will so far as necessary for that purpose. A trustee has no interest in the construction of the will under which he is acting except as it affects his powers and duties in the administration of his trust. Burgess v. Sheperd, 97 Me. 522, 55 Atl. 415. And we do not think it wise, nor within the intent of the statute, to assume jurisdiction to advise trustees, and to construe wills for their guidance until the time comes when they heed instructions. The fact that the question may arise some time in the future is ordinarily not enough. Such a question should not be decided until the anticipated contingency arises, or at least until it is about to arise, until it is imminent. Then if the trustee needs present advice to know how to meet the contingency, it will be given to him. Then the parties interested in the issue can be heard under the conditions and circumstances as they may exist at that time. They should not be prejudged. Nor should there be any judgment until there is occasion for it.

Isaac Dodge died January 28, 1895, leaving a large estate. In his will he made many bequests and devises, some to his wife, some to his brothers and sisters, and some to his nephews and nieces. Some of the bequests were absolute, some for life only, and some were in trust By item 29 he disposed of his residuary estate in these words: "All the rest, residue and remainder of my estate both real, personal and mixed, including all rights of reversion and remainders, I give, devise and bequeath to Thomas C. Kennedy, Arabella Dodge, both of Newcastle, Me., and William A. McKenney of Boston, Mass., but in trust nevertheless for the uses and purposes hereinafter named, viz.: If the necessity arises that either of my brothers or sisters, nephews or nieces, who may survive me, may require a larger amount of money than I have by this will given and bequeathed to them, in order to insure in sickness or old age their proper care, victualing, clothing, nursing and medical attendance, it is my will that my said trustees, Thomas C. Kennedy, Arabella Dodge and William A. McKenney, at once fully provide for their necessities, from this amount so willed and held in trust for them."

Thomas C. Kennedy named as trustee declined to act. Ezekiel Ross was appointed in his stead. Ross resigned, and the plaintiff Huston was appointed. Arabella Dodge has deceased, and no successor has been appointed in her place.

At the argument the heirs and beneficiaries expressed a strong desire to have the trust terminated, and the trust fund distributed, and the trustees professed themselves not averse to it. But whether this can be done we have no occasion to consider, since this question is not raised by the bill.

We will now consider the questions asked seriatim.

1. By his will, item 2, the testator gave to his wife, Arabella, "ten thousand dollars, to have and to hold the same, and the income thereof, only during her natural life." This bequest was paid to Mrs. Dodge wholly or largely by the assignment and transfer of western mortgage loans, selected by her. These loans were collected by her, and the proceeds so mingled with her own absolute property that at the time of her death it was impossible to identify the property received, or the proceeds thereof. Nor was it possible to determine what disposition she had made of the same. The question is whether this sum of $10,000 should be collected from the estate of Mrs. Dodge, and be accounted for by the trustees as a part of the residuary estate in their hands. Ordinarily such a question as this should not be answered, except in some appropriate proceeding for collection, between the parties interested. But since one of the trustees here is himself the executor of Mrs. Dodge's will, a fact which may prove embarrassing so far as this question is concerned, we will answer the question.

This clause in the will apparently does not give a clear expression of the testator's intention. He gave both principal and income to his wife, but for life only. There being no specific provision for the remainder over, it would fall into the residuum. Torrey v. Peabody, 97 Me. 104, 53 Atl. 988. But the testator did not in terms prescribe the purpose of the gift, the uses to which it might be put, nor any limitation on the uses. Still we think that he had an intention, and that it is not difficult to discover it. Though be made no distinction in terms, and though his wife was "to have and to hold" both the principal and the income during life, yet we think the difference in the nature and incidents of principal and of income suggests, and in this case requires, a difference in interpretation. In the gift of a mere life estate with remainder over there is no implication of a right to spend and diminish the principal. The right to do so must rest upon more than a mere implication from the gift. But a gift of income from a life estate is absolute, unless the use be limited. If the testator had given his wife merely the income of a fund for life, without limiting the uses, the income as she received it would have been hers absolutely, and she would have had a life estate in the fund, but not the right to spend it. Sampson v. Randall, 72 Me. 109. In the clause in question, interpreted by the foregoing rules, he gave her a life estate in the fund, and gave her absolutely the income from it during her life. Did he by his will go any further? We think not. He gave her $10,000, to have and to hold during her life, in order that she might gather therefrom the income which he intended should be hers. He did not express any intention that the principal was to be hers to spend or absorb. In a previous paragraph he had given her $20,000, with other property, absolutely, and in a later clause, for life, the house and lot where they lived. We are persuaded that he meant to give her in addition only the income of $10,000, and to put in her hands the means of producing it. This $10,000 therefore belongs to the residuary estate of Isaac Dodge. It is immaterial whether Mrs. Dodge mingled this money with her own, or spent it. Though she had a life estate, she was trustee of the remainder, and her estate is accountable for it to the trust residuary estate.

2. By item 3 of the will the testator gave his wife the house and lot where they lived, "to have and to hold the same during her natural life." She having deceased, the question now is whether upon her death the reversion passed to the testator's heirs, or fell into the residuum. Undoubtedly the latter. No resort to construction is necessary. The will itself provides that all rights of reversion and remainders shall be included in the residuary estate.

3. By item 5, the testator gave $1,000 to trustees "for the use and benefit" of his sister, Rachel Reed. The trustees were to keep the fund invested, and to pay to the beneficiary, from time to time, such sums as her necessities or condition might require. Mrs. Reed died before the testator. The question is whether the trustees under this trust took title or not. They did not The trust never became operative. Harlow v. Bailey, 189 Mass. 208, 75 N. E. 259; 40 Cyc. 1818.

4. The testator by item 21 devised to his nephew, Bert E. Dodge, a certain farm for life, remainder over to Bert's son, Isaac W., in fee. But the will further provided that if Isaac should die before his father, the remainder should go to the then living children of Bert, in fee. The questions are: Where will the remainder go, in case Isaac and all the other children of Bert shall die before Bert dies? Also, in case Isaac only shall die before Bert, whether the remainder will go to Bert's children living at the time of his death, or to those living at the time of Isaac's death. These questions cannot be answered now. In the latter question the trustees have no interest whatever; in the former, no interest at present,...