McGuire v. Gallagher

• Decision Date: 07 December 1904
• Citation: 59 A. 445,99 Me. 334
• Parties: McGUIRE v. GALLAGHER et al.
• Court: Maine Supreme Court

59 A. 445

99 Me. 334

McGUIRE

v. GALLAGHER et al.

Supreme Judicial Court of Maine.

Dec. 7, 1904.

(Official.)

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

Bill by Martha McGuire against Mary Gallagher and others for the construction of a will. Case reported. Decree rendered.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

James A. & William A. Connellan, for plaintiff.

L. M. Webb, for defendants.

STROUT, J. In this bill the construction and effect of the following two clauses in the will of Bernard McGuire are sought:

"1st. I give, bequeath and devise to my wife, Martha McGuire, during her life, all my property, real, personal and mixed, to be used by her according to her desire.

"2nd. After the death of my wife, I order and direct that all the property remaining be divided among my brothers and sisters then alive, and the direct descendants of any deceased brothers and sisters."

The testator's estate consisted of real estate appraised at $1,200; and personal, $1,472.63.

Out of this, of course, any debts he may have owed, and funeral expenses and costs of administration, must be paid.

The testator intended to provide for the support and comfort of his wife. AH of his personalty, except $10, was in a savings bank, drawing less than 4 per cent. interest. By a liberal estimate of income from the real estate, the total annual income from the whole estate would not exceed $130— probably would be less. From this, taxes must be deducted. The net income, therefore, was insufficient for the support of the widow. With this condition of the estate in his mind, he made his will.

The controlling rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator, expressed in his will, shall prevail, provided it is consistent with the rules of law. Shaw v. Hussey, 41 Me. 497. The entire will should be considered with a view to give effect, so far as the law allows, to its every provision. The intention as to any particular item is often aided and sometimes deduced from other provisions and from the general scope and trend of the instrument.

It remains to apply these rules to this will.

By the first article he gave his wife all his property during her life. No distinction between real and personal estate is made. If he intended only a life estate, he would have stopped there. No other words were necessary or suitable. But he added, "to be used by her according to her desire." Something was intended by this language, and something more than a mere user of a life estate, as such. The language is without meaning, if only a life estate was given, as it added nothing to the bequest, nor qualified it.

The term "to use" is defined by Webster, among other definitions, as "to make use of; to convert to one's service; to avail oneself of; to put to a purpose, as to use flour for bread."

The income of the estate being manifestly insufficient for her support, it is a legitimate—almost necessary—inference that he intended her "to use" not only that income, but the corpus of the estate, for her comfort, as she desired. The language, being...