Mitchell v. Morse

• Decision Date: 06 August 1885
• Citation: 1 A. 141,77 Me. 423
• Parties: MITCHELL v. MORSE.
• Court: Maine Supreme Court

1 A. 141

77 Me. 423

MITCHELL

v. MORSE.

SUPREME COURT OF MAINE.

Filed August 6, 1885.

H. L. Whitcomb, for plaintiff.

S. Clifford Belcher, for defendant.

WALTON, J. This is a real action, and the only question is whether John Mitchell, by his last will and testament, gave his wife a fee-simple estate in the demanded premises, or only an estate for life. It is the opinion of the court that he gave her a fee-simple estate. A devise of real estate, without words of limitation, vests in the devisee an estate in fee-simple; and this result is not defeated by a devise over of the remainder. If a life-estate only is given, a devise over of the remainder is good. But when by the terms of the devise an estate in fee-simple is given, the addition of a devise over of the remainder is void, because, the whole estate having already been disposed of, there is nothing for it to act upon. The argument usually urged against this conclusion is that the devise over ought to be allowed to cut down or reduce the estate previously given to a life-estate, upon the ground that such must have been the intention of the devisor. And in a few cases this argument has prevailed. But in a large majority of the cases, both in England and in this country, it is held that a mere devise over of a remainder will not cut down the estate given to the first taker. Jones v. Bacon, 68 Me. 34; S. C. 28 Amer. Rep. 1; Stuart v. Walker, 72 Me. 145; S. C. 39 Amer. Rep. 311.

In this case the testator first gives a few small legacies to his children. He then gives the residue of his personal property to his wife. He then declares that if the personal property is not sufficient to pay the legacies, and the expenses of the last sickness, enough of his real estate may be sold to supply the deficiency. He then adds this clause: "I give and devise to my wife, Sarah F. T. Mitchell, all the rest and residue of my real estate; but on her decease the remainder thereof I give and devise to my said children or their heirs, respectively, to be divided in equal shares between them." It will be noticed that in this devise there are no words of limitation. The gift is direct, positive, and absolute, and but for the devise over of a remainder no one would doubt that under our statute (Rev. St. c. 74, § 16) the terms used are sufficient to convey an estate in fee-simple. The devise over is also direct and simple. It has no qualifying words or conditions whatever annexed to it. We thus have, first, a devise of a...