In re Woodcock

• Decision Date: 26 November 1907
• Citation: 103 Me. 214,68 A. 821
• Parties: In re WOODCOCK.
• Court: Maine Supreme Court

68 A. 821

103 Me. 214

In re WOODCOCK.

Supreme Judicial Court of Maine.

Nov. 26, 1907.

Report from Supreme Judicial Court, Waldo County.

In the matter of the estate of Ann F. Johnson. From a decree of distribution, Ella Johnson Woodcock appeals. Case reported, and decree of probate court affirmed.

The appellant, Ella Johnson Woodcock, is the alleged daughter by adoption of Horatio H. Johnson, late of Belfast, deceased intestate. The alleged adoption was in 1882.

The mother of said Horatio H. Johnson, Ann F. Johnson, died July 21, 1891, leaving a will, dated February 6, 1890, containing, among other things, two items reading as follows:

"(2) I give, devise and bequeath unto my daughter Mary F. Johnson for and during the term of her natural life, the use and income of all the rest, residue and remainder of my estate, real, personal or mixed wherever found or however situated, after paying the taxes and insurance thereon, and other necessary incidental expenses pertaining thereto.

"(3) Upon the decease of my said daughter Mary, without a child or children, I give and devise the balance of my estate then remaining unto my following named three children, Arbella Hersey, Horatio H. Johnson and Charles E. Johnson equally, and in case either of my said three children shall die before said Mary, leaving a child or children, then it is my will and desire and I do hereby devise and bequeath that the child or children of said deceased child shall receive the same share as its or their parent would have received if living. And in case my said daughter, Mary, shall die leaving a child or children then it is my will and I do hereby devise and bequeath that the said child or children of said Mary shall receive the same share of my estate then remaining as either of my own children shall receive or would receive if living."

The said Mary F. Johnson named in said will died July 21, 1906, without issue. The said Arbella Hersey named in said will died April 21, 1895, leaving two children, Ralph W. Hersey and Edward J. Hersey. The said Charles E. Johnson named in said will is still living. The said Horatio H. Johnson named in said will died August 4, 1896, without issue.

Robert F. Dunton, of Belfast, was duly appointed "administrator de bonis non with will annexed" of the estate of said Ann F. Johnson, and on the petition of the said Charles E. Johnson, representing that there was in the hands of said administrator the sum of $9,000 for distribution among the persons legally entitled to the same the judge of probate decreed that this sum should be distributed as follows: To said Charles E. Johnson, $4,500; to said Ralph W. Hersey and Edward J. Hersey, the sum of $2,250 each. From this decree the said Ella Johnson Woodcock, who claimed the share that the said Horatio H. Johnson would have taken, had he survived his said sister Mary F. Johnson, took an appeal.

The appeal was heard at the April term, 1907, of the Supreme Judicial Court, Waldo county, and at the conclusion of the evidence it was agreed that the cause be reported to the law court for decision, with the stipulation that "upon so much of the evidence as is legally admissible the court is to enter such judgment as the legal rights of the parties require."

Certain questions in relation to the legality of the alleged adoption of the said Ella Johnson Woodcock by the said Horatio H. Johnson were raised by the defendants, but for the purposes of the case the law court assumed the adoption to be valid.

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

Wm. P. Thompson, for plaintiff. Dunton & Morse, for defendants.

EMERY, C. J. Ann F. Johnson in February, 1890, made her will, which contained, among others, the following provision, viz.:

"(3) Upon the decease of my said daughter Mary, without a child or children, I give and devise the balance of my estate then remaining unto my following named three children, Arbella Hersey, Horatio H. Johnson and Charles E. Johnson equally, and in case either of my said three children shall die before said Mary, leaving a child or children, then it is my will and desire and I do hereby...