McCarthy v. McCarthy

• Decision Date: 09 June 1922
• Citation: 117 A. 313
• Parties: MCCARTHY et al. v. MCCARTHY et al.
• Court: Maine Supreme Court

117 A. 313

MCCARTHY et al.

v. MCCARTHY et al.

Supreme Judicial Court of Maine.

June 9, 1922.

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

Suit by Florence J. McCarthy and others against Elizabeth G. McCarthy and others to obtain the construction of the will of Charles McCarthy, Jr. Case reported. Dismissed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.

Strout & Strout, of Portland, for complainants.

Charles L. Donahue and Paul E. Donahue, both of Portland, for defendants McCarthy and Walsh.

Cook, Hutchinson & Pierce, of Portland, for defendant Dunphy.

HANSON, J. This is a bill in equity to obtain the construction of the will of Charles McCarthy, Jr., brought by certain legatees and heirs of the testator, against the widow, the life tenant, Louis S. Walsh, conservator of the estate of Elizabeth G. McCarthy, and Elizabeth B. Dunphy, a devisee under the will. All persons interested are parties to the bill.

The clauses of which interpretation is requested are the following:

"Second. I give, devise and bequeath to my beloved wife, Elizabeth G. McCarthy, if living at my decease, the income of all my estate of every name and description, wherever and however situate, to be used and enjoyed by her during her natural life. At her death or if she be not living at my decease, said estate is to be disposed of as follows, viz."

Then follows certain legacies which are not involved in the questions presented to the court. And the second paragraph of said will, subdivision C, viz.:

"I give and devise to Elizabeth G. Dunphy who has been reared in my family since her childhood, land and buildings at 574 Congress street in said Portland now under lease to Libby & Chipman, to have and to hold to her, her heirs and assigns forever. If, however, she shall die without leaving lawful issue then I give and devise said land and buildings to the surviving sons of my said nephew Florence J. McCarthy, in equal shares, the child or children of any deceased son to take by right of representation, to have and to hold to them and their heirs and assigns forever."

After the provisions regarding said legacies comes the following residuary clause, which is designated as subdivision 11 of paragraph 2:

"All the rest, residue and remainder of my estate, of every name and nature and wherever and however situate, including any of the foregoing legacies which may lapse or fail for any reason whatever, I direct shall be disposed of according to the laws of inheritance of the state of Maine in force at date thereof."

The plaintiffs pray:

(1) "That the court will construe and interpret the provisions of said will and particularly determine whether the said Elizabeth G. McCarthy takes a share in the residue and remainder of said estate in full ownership, in addition to enjoying the income on the...