Morse v. Hayden

• Decision Date: 31 December 1889
• Citation: 82 Me. 227,19 A. 443
• Parties: MORSE v. HAYDEN et al.
• Court: Maine Supreme Court

19 A. 443

82 Me. 227

MORSE

v. HAYDEN et al.

Supreme Judicial Court of Maine.

Dec. 31, 1889.

(Official.)

Bill in equity by the executrix of the will of George W. Morse, of Union, deceased, to obtain the construction of the will and her duty in regard to her own share in the real and personal estate; the shares of the surviving children of the testator; and from what property the debts of the estate shall be paid. The widow did not waive the provisions of the will.

Copy of will: "Know all men by these presents that I, George W. Morse, of the town of Union, county of Knox, state of Maine, being of sound and disposing mind and memory, do make, ordain, and publish this, my last will and testament, in manner and form following, viz.:

"(1) I direct that all the lawful debts I shall owe at the time of my decease and my funeral expenses shall be paid out of my estate by my executrix hereinafter named.

"(2) I give and bequeath to my beloved wife, Lucretia A. Morse, one undivided half of my homestead, containing about ninety-six acres; also my pleasure carriage and best harness, together with my horse and best sleigh and best buffalo robe; also two best cows,—on condition that my wife, Lucretia, shall provide and maintain our son, Sydney E. Morse, until he shall attain his majority.

"(3) I direct my executrix to cause a granite monument, the cost of which shall not exceed two hundred dollars, to be placed on my lot in the cemetery.

"(4) I give and bequeath to my son Leslie M. Morse, and my daughters, Hattie E. M. Hayden, of Rockland, and Mary E. Potter, of Central City, Colorado, and my son Sydney E. Morse, one undivided half of the homestead, not before willed to my wife, Lucretia; also the meadow near Crawford's pond, so called,—to be equally divided between them.

"(5) I direct that the notes of my wife, Lucretia A. Morse, and my son Sydney E. Morse, hold against me shall be paid out of my estate by my executrix without regard to the statute of limitation.

"(6) I give to my beloved wife, Lucretia A. Morse, all the remaining personal property not willed away.

"(7) I hereby appoint my wife, Lucretia A. Morse, executrix of this, my last will and testament, and request that she shall not be sworn."

T. R. Simonton, for plaintiff. T. P. Pierce, for defendant.

VIRGIN, J. The construction of a will and the mode of executing the trust by the executrix are sought by these parties.

The testator, by the second item of his will, gave to his wife one undivided half of his homestead of 96 acres, together with his pleasure carriage, best harness, horse, best sleigh and buffalo robe, and two best cows, "on condition that she shall provide and maintain our son Sydney E. Morse until he shall attain his majority."

1. Was the land and personal property mentioned given on a condition precedent or subsequent?

We have no doubt it was on condition subsequent. Conditions have no idiom. Whether precedent or subsequent is a question purely of intention, to be gathered from the whole language adopted. Such conditions of support and maintenance in wills, without any language charging the property with the performance of the conditions, or in deeds conveying farms, would seem to be conditions subsequent because of the implication that the devisees or grantees are to have possession and control of the premises for the purpose of fulfilling the conditions. Marwick v. Andrews, 25 Me. 525; Thomas v. Record, 47 Me. 500; Bryant v. Erskine, 55 Me. 153, 156. Being a condition subsequent, and its performance rendered impossible by the act of God, which resulted in the death of Sydney in the life-time of the testator, the devisee holds the property by an absolute title, as if no condition had been attached. Cary v. Bertie, 2 Vera. 333, 339; 4 Kent, Coram. 130; Merrill v. Emery, 10 Pick. 507, 511; Parker v. Parker, 123 Mass. 584.

2. By the fourth item, the other half of the homestead, together with the meadow, was given to the testator's two daughters and two sons, one of whom was Sydney above named, "to be equally divided between [among] them." Had all the children survived the testator, they would have held severally as tenants in common. Anderson v. Parsons, 4 Me. 486, 489; Rev. St. c. 73, § 7. But, as Sydney died before the testator, what was intended for him would, under a...