Jones v. Bacon

• Decision Date: 18 October 1877
• Citation: 68 Me. 34
• Parties: Loring B. JONES, administrator, v. Abiel D. BACON, administrator.
• Court: Maine Supreme Court

68 Me. 34

Loring B. JONES, administrator, v. Abiel D. BACON, administrator.

Supreme Judicial Court of Maine.

October 18, 1877

BILL IN EQUITY, to determine the construction of a will.

John Ham, October 27, 1874, made bequests by will to Emily Crowell, his niece, $50; to Mrs. Charlotte Whitcomb, $25; to his niece, Lydia Crowell, $5, and to Hattie Bacon, $50. His will then closed as follows:

" And as to the residue of my estate, whatever, after payment of my just debts, I give and bequeath the same to my beloved wife, Harriet Ham, whom I appoint sole executrix of this my last will and testament.

" And lastly, I further direct if there be any of my said estate left after the decease of my said wife, then said property left be equally divided between Jacob Gilman Caroline A. Thompson and Sally Brown, my sister, if she be living at the time; if not, her share to go to her husband John Brown, if he be living; and if neither the said Sally Brown nor her husband be living, the said property be equally divided between the said Jacob Gilman and Caroline A Thompson."

John Ham died December, 1874. Harriet Ham, named as executrix and legatee in his will, died January, 1875, before his will was approved and allowed. After her decease the plaintiff was appointed administrator of the estate of John Ham, with the will annexed, and the defendant was appointed administrator of the estate of Harriet Ham. The bill closes with a prayer that the court will direct the plaintiff what disposition to make of the residue of the estate after payment of the debts and specific legacies.

S. D. Lindsey, for the plaintiff.

S. Lancaster, for the defendant.

APPLETON C. J.

This is a bill in equity, brought by the plaintiff, as administrator with the will annexed of the estate of John Ham, against the defendant, as administrator of the estate of Harriet Ham, his wife, under the provisions of R. S., c. 77, § 5, for the purpose of obtaining the construction of his will.

The testator after making sundry specific bequests proceeds as follows: " And as to the residue of my estate, whatever, after payment of my just debts, I give and bequeath the same to my beloved wife, Harriet Ham, whom I appoint sole executrix of this my last will and testament."

The testator gives and bequeaths " the residue of his (my) estate" to his wife whom he appoints executrix. The language is the same used in the preceding specific legacies. The words embrace the entire remainder of the estate. This remainder is given to the wife. It is given in the same terms as the other legacies, which are unquestionably absolute and which vested in the legatees. No limitation is imposed as of an estate for life. The residue is subject to the payment of the just debts of the testator. The wife is given an absolute and uncontrollable power of disposal of the estate bequeathed. " If estates," observes Shepley, J., in Ramsdell v. Ramsdell, 21 Me. 288, 293, " be devised to a person with or without words of inheritance, and with an absolute right to sell and appropriate the proceeds at pleasure to his own use, it is not perceived how there can be a vested interest imparted to another in the same estate or property. Such full dominion in the devisee or legatee is inconsistent with and destructive of all other rights." In Gifford v. Choate, 100 Mass. 343, Hoar, J., says: " An absolute power of disposal in the first taker is held to render a subsequent limitation repugnant and void." In Hale v. Marsh, 100 Mass. 468, the testator gave all his property to his wife for life with power to dispose of the whole or any part thereof, real or personal, at her pleasure, and to manage and improve the same at her discretion, and if the...