Moore v. McKenzie

• Decision Date: 23 November 1914
• Citation: 92 A. 296,112 Me. 356
• Parties: MOORE et al. v. McKENZIE et al.
• Court: Maine Supreme Court

92 A. 296

112 Me. 356

MOORE et al.

v. McKENZIE et al.

Supreme Judicial Court of Maine.

Nov. 23, 1914.

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

Bill in equity by Dayton T. Moore and others, trustees of the estate of Moses W. Webber, against Stella R. McKenzie and another. Case reported. Decree in accordance with the opinion.

See, "also, 106 Me. 387, 76 Atl. 704.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

N. B. & T. B. Walker, of Biddeford, for plaintiffs.

Edwin Stone and Harris & Dwyer, both of Biddeford, for defendants.

BIRD, J. This is a bill in equity brought for the construction of the will of Moses W. Webber, deceased. The several answers of respondents admit all the allegations of the bill.

The first question propounded is:

"Whether the plaintiffs, trustees, are now authorized to pay to the Webber Hospital Association the sum of $25,000 provided for in said will, for the reason that on December 31, A. D. 1906, a hospital had not been built as contemplated by said Moses W. Webber in his said will, but has been built since said hospital fund amounted to the sum of $75,000, by the Webber Hospital Association, aforesaid, in reliance upon and in expectation of receiving said sum of $25,000, and as the hospital of said association has for four years been maintained as a free hospital and will continue to be so maintained."

In Webber Hospital Ass'n v. McKenzie, 104 Me. 320, 71 Atl. 1032, wherein the residuary clause of the will, under which this question arises, has already been construed and the mode of administering the trust considered, it is said (see Id., 104 Me. pages 324, 329 and 330, 71 Atl. 1036):

"When the time arrives the association may have already built a hospital. If not, the trustees may use $25,000 of the principal for that purpose, if a sufficient sum is guaranteed by other parties, so that with the income from the remaining $50,000 its maintenance is assured. That decision will call for the sound judgment of the trustees."

The complainants, the trustees, allege in their bill of complaint that the future maintenance of said free hospital (that of respondent association) is assured and guaranteed as contemplated by Moses W. Webber and provided in his will, and the allegation is admitted in the answers of all the respondents. Assuming the allegation to embody the sound judgment of the trustees, our answer is that the trustees may now make the proposed payment of $25,000.

The second question is:

"Shall the excess of the estate in the hands of the plaintiffs, trustees, over the sum of $90,000, be paid to the Webber Hospital Association; the same representing income that should have been paid to said association under the terms of said will?"

And the court answers in the affirmative.

"Shall the note of Stella R. McKenzie be turned over to said association as representing income" is the third question. Stella R. McKenzie, as trustee, apparently made payments to herself as legatee and as trustee of the fund of $15,000 in excess of the correct amounts (106 Me. 387, 76 Atl. 704), aggregating at the time of her final account the sum of $10,635.12, for which she gave her note, payable by maker by the application of the income of the $15,000 trust created for her benefit. It...