Nash v. Simpson

• Decision Date: 06 February 1886
• Citation: 3 A. 53,78 Me. 142
• Parties: NASH v. SIMPSON.
• Court: Maine Supreme Court

3 A. 53

78 Me. 142

NASH

v. SIMPSON.¹

SUPREME COURT OF MAINE.

Filed February 6, 1886.

Bill in equity to obtain the construction of a will, and for a partition and accounting. Heard on bill answer, and proof.

Davis & Bailey, for plaintiff.

F. H. Appleton, (A. L. Simpson with him,) for defendant.

VIRGIN, J. Simeon H. Nash died testate, leaving a widow and two heirs; one a daughter; and the other a daughter of a deceased daughter, —the defendant. The complainant claims that, by the will of the testator, his widow took only a life-estate in the real estate, and that, as the reversion was not disposed of by the testator, the two heirs became tenants in common, each owning an undivided half thereof. The defendant contends that the widow took a fee, and that, as the widow died intestate, the reversion descended to herself as the only surviving heir.

The first question therefore is, what estate did the widow take under the fourth item of the will? It is common knowledge that the language adopted by the testator: "all my real estate, together with any and all right, title, and interest which I have in and to any and all real estate, or any and all which I may hereafter acquire,"—would be ample in a devise, without any words of inheritance or limitation, even before any statutory provision relating thereto, to carry the fee. And the statute goes still further, by providing that a devise of land conveys all the estate of the devisor therein, unless it appears that he intended to convey a less estate. Rev. St. c. 74, § 16. The omission from the several subsequent Revisions of the word "clearly," next before "appears," in the Revision of 1841, c. 92, § 26, does not change the meaning. The inevitable conclusion must therefore be that the widow took a fee, unless it clearly appears by the will that a less estate was intended. And we are of opinion that the words "to remain hers so long as she shall be or remain unmarried after my decease" are words of limitation, which clearly show it to have been the intention of the testator to limit the duration, at longest, to the natural life of his widow. They can mean no more than "during widowhood," (Loring v. Loving, 100 Mass. 341, (and the term must be considered to be measured by the life of a person in esse. 1 Washb Real Prop. 78. Such and similar phrases have ever since the time of Lord Coke been so construed. Mansfield v. Mansfield, 75 Me 512; and eases there cited; 1 Washb. Real Prop. 103; Bac. Abs. 454; Dole v. Johnson, 3 Allen, 364. The last case cited, so far as this question is concerned, is very much like the one at bar. The language of the devise to the widow in that was:

"All my real and personal estate, together with any and all estate, right, or interest which I may acquire after the date of this will, as long as she shall remain unmarried and my widow."

And in that case, as in this, there was no devise over; and on the question of intestacy—which consideration has been urged here—the court, after remarking that the preventing of intestacy is an object generally to be sought in the construction of wills, say:

"The will does not anywhere profess to dispose of the whole estate; and as to the remainder of his real estate, after the estate for life or widowhood devised to his wife, no disposition is made of it. It is certain, therefore, that, to some extent, it was his intention to die intestate."

We may well adopt this language, although general introductory words, such as "touching all my temporal estate," and the like, may have some effect in the construction of subsequent devises, they are not of themselves sufficient to extend a devise for life to a fee. 3 Greenl. Cruise, 176, and note.

As the widow, therefore, by force of the clear, apt, and explicit words of the will, and not by implication, took a life estate only, the contingent authority, "in case of necessity to sell any part of the estate for her support and maintenance during her widowhood," does not enlarge her estate to an absolute fee. Warren v. Webb, 68 Me. 137; Stuart v. Walker, 72 Me. 146. Such authority confers only a power and not property. Ayer v. Ayer, 128 Mass. 575; Burleigh v. Clough, 52 N. H. 267; Herring v. Barrow, 13 Ch. Div. 144; Rhode Island H. T. Co. v. Commercial Nat. Bank, 1 East. Rep. 44. This construction gives full legal force to the language and intention of the testator.

It is urged that the clause, "but if she shall marry again, then, from that time, she shall be entitled to receive only one-third part of all that remains," gives her, in case of marriage, one-third in fee; which would result in giving her a larger estate in quality if she acted against the wishes of her husband than she would receive if she acted in accordance therewith, by remaining unmarried. But we do not so understand it. This clause of itself gives her nothing. It only reduces the quantity of the property, in case the contingency happens, which was given to her by the former clause, which alone contains words of devise. In other words, if she married, she was then only to have one-third of the estate devised for life, less what she might dispose of under the power,—just what would be equivalent to her dower. The widow not having married again, we have no occasion to pass upon the question of the restraint of marriage; and if we had, we think the preponderance of authority allows a husband to consider the probabilities whether or not his children would be so well cared for if his widow formed a second alliance, and became liable to be the mother of a second family, and govern the disposition of his property accordingly. 2 Jarm. Wills, (R. & T. Ed.) 564, and note 29. And it seems to be the opinion of the English chancery court that the same rule applies to widowers as to widows. Allen v. Jackson, 1 Ch. Div. 399.

Nor can the clause, "it is my desire and will that said real estate shall remain as it is now for twenty years," etc., have any influence upon the life-estate, or upon the reversion. Upon the life-estate, for the testator could not restrain the alienation even of a life-estate, (Turner v. Hallowell Sav. Inst., 76 Me. 527, 530;) nor upon the reversion, for, it being undevised, its control is not governed by the will, (Nickerson v. Bowly, 8 Mete. 424, 430.)

Much stress has been laid upon the alleged real intention of the testator. But his intention, as deduced from the language of the will, is the criterion for its interpretation; and when thus ascertained, it is only to have effect provided it is consistent with the rules of law, ( Warren v. Webb, 68 Me. 135;) and the intention contended for, however plausible it may appear, cannot have effect because the rules of law will not permit. Moreover, we think it quite as certain that the testator really intended what the law declares he said: That his widow should not only have the personal property, but a life-estate in the real estate, with power to sell any of it for her comfort during her widowhood, and, in case she married again, then what would be equivalent to dower, and the balance to descend to his and her children.

The allegation in the answer, unsupported by any evidence, that the widow did exercise the power given her, is not relied upon in the argument.

Our opinion therefore is that, by the will, the widow took a life-estate, with a contingent power to sell any part of it during her widowhood, which power she never exercised; that the reversion, being undisposed of by the testator, rested in his two heirs, daughter and granddaughter, subject to the contingency of the exercise of that power by the widow, or of a sale by his executor for the payment of debts which he did not leave or have been paid, (Rich v. Rich, 113 Mass. 197, 199;) and that the complainant, being sole devisee of the daughter, holds under the will, as tenant in common with the defendant, each share being one undivided half.

The plaintiff also seeks for partition of the premises. Between tenants in common partition is a matter of right, and not of discretion, whenever any one of them will not hold and use the property in common. Parker v. Gerard, Amb. 236; Agar v. Fairfax, 17 Ves. 533; S. C. 2 White & T. Lead. Cas. 865; Hanson v. Willard, 12 Me. 142; Wood v. little, 35 Me. 107; Allen v. Hall, 50 Me. 253, 263. And courts of equity, on account of their superior methods and procedure, not only long ago assumed and exercised, concurrently with courts of law, jurisdiction of partition of land thus held, (1 Story, Eq. § 643 et seq.,) but equitable jurisdiction was expressly conferred nearly 30 years ago. Rev. St. 1857, c. 77, § 5, cl. 6; Wilson v. European A N. A. R. Co., 62 Me.112, 114. Moreover, when one tenant has received more than his share of the rents and profits, an accounting may be directed, and reimbursement decreed.

Rev. St. c. 77, § 5, cl. 6; Leach v. Beattics, 33 Vt. 195; 3 Pom. Eq. § 1389. 1 Story, Eq. § 655. To entitle the plaintiff to a decree for partition, he must show that his legal title is clear. This expression, with very little variation, runs down through all the cases and text-books. Carlwright v. Pulltney, 2 Atk. 380; Parker v. Gerard, Amb. 236; 1 Story, Eq. § 653; 3 Pom. Eq. § 1388. The court says:

"In a suit in equity for partition, the legal title of the parties is never meddled with by the court. The individual rights of the parties to participate in the division, or to call for it, may come up, but not the simple question of conflicting title to the land. A plaintiff who comes into equity for partition must show a clear legal title." Stuart's Heirs v. Coalter, 4 Band. 74.

Some of the authorities say that where there are suspicious circumstances about the legal title, the decree will not be made. Cartwright v. Pultney, supra. The doctrine almost universally held is that if the plaintiff's legal title is involved in doubt, and is disputed and not established —as where it appears that the title depends upon a forged deed, (Cartwright...