Park's Adm'r v. American Home Missionary Soc.
| Decision Date | 07 July 1890 |
| Citation | 20 A. 107,62 Vt. 19 |
| Parties | FREDERICK PARKS' ADMR. v. AMERICAN HOME MISSIONARY SOCIETY ET AL |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1889.
Bill by his administrator for the construction of the will of Frederick Parks, and to determine what right, if any, the defendant, Hermon W. Harlow, had acquired in two hundred and seventy shares of the capital stock of the Parks & Woolson Machine Co., by virtue of an assignment of the same from the defendant, Elvira D. Parks, the said stock having been a part of the estate of the testator. Heard at the February Term 1889, Windsor County, upon bill and answers. POWERS Chancellor, dismissed the bill pro forma. The orator appeals.
The decree of the Court of Chancery dismissing the bill is reversed and cause remanded with a mandate in accordance with the views here expressed.
L M. Reed, for defendant, Elvira D. Parks.
This is a bill brought to obtain a construction of the will of Frederick Parks, and particularly the clause of devise and bequest to the widow of the testator, Elvira D Parks.
The language of this clause is as follows: "I give, devise and bequeath the use of all my estate of every kind to my wife, Elvira D. Parks, for and during her natural life, and so much of the principal as she may see fit to use for her necessary and comfortable support, and for charitable and benevolent purposes, and contributions for worthy objects, in her own discretion, without limitation or restriction on my part, believing that she will exercise prudence and good discretion."
The first question for our consideration under this clause would seem to be as to the nature of the estate thereby created in the wife; whether full effect can be given to the manifest intent of the testator to create in her a life estate with a limited power of disposition, or whether it must be said that the power of disposition is given in such general and unrestricted terms as to create an irreconcilable repugnancy and compel the courts to enlarge the life estate into a fee and hold any remainders over void, as was the case in Stowell v. Hastings, 59 Vt. 494, 8 A. 738. But we find no such difficulty here. A double line of distinction on this point seems to run through all the cases cited by the learned counsel, and which is well recognized and expressed in the recent case of Logue v. Bateman, (N. J.), 9 Cent. R. 485, and is clearly suggested in Stowell v. Hastings, supra. The rule may be put into this form: Where an estate for life is expressly given, and the power of disposition superadded to it, however unrestricted in terms, it will not enlarge such estate into a fee; or when, though an estate for life be not expressly given, yet such language is used as, in the absence of other and qualifying provisions, would have the effect to create a life estate, then a power of disposition superadded to it will not have the effect to enlarge what otherwise would have been an estate for life merely into a fee, unless such power of disposition is unrestricted in its terms or unlimited in its legal effect. Now, applying the above rule here, we see at once that both the reasons suggested for carrying into effect the intent of the testator exist. The estate in the widow is expressed to be "for and during her natural life," and the power of disposition is limited to designated objects; and in both these particulars this will differs from the one under construction in Stowell v. Hastings
The widow is given the "use" of the estate for life, and by such expression it was evidently the intention of the testator that she should have the beneficial enjoyment, should receive the rents, profits and income of all the property, both realty and personalty; that as to the first, she should be tenant for life, with all the legal rights and duties pertaining to that tenure, and as to the second, should have the right to appropriate and enjoy its income and earnings. And that such was his intent is rendered still more clear by the provisions immediately following this, relating to the disposition of the principal. But the question is put to us, in this connection, whether such right to the income and earnings of the personal estate carries with it a right in the widow to retain and control the corpus of the property, the principal itself. Of course it would not do so, if the testator had created a trust and appointed a trustee for that purpose; but this he did not choose to do, and the executor, merely by virtue of his office, or an administrator with the will annexed, has no authority to act as such trustee. So that the question is, whether the exigencies of the case are such as to devolve upon the court the duty of doing for the testator what he did not see fit to do for himself, and to declare such trust and appoint a trustee. We do not think they are. To the point that where a legatee takes a life interest in personal property he is, in the absence of contrary provision, or threatened danger, or except in cases of extreme unfitness, entitled to its custody and control, see Howland v. Howland, 100 Mass. 222; in re Oertle, 34 Minn. 173, 24 N.W. 924; Post v. Van Horton, (N. J.), 3 Cent. R. 345; Copeland, Exr. v. Barron, 72 Me. 206; Stone v. North, 41 Me. 265; Martz v. Sedam, 67 Ind. 216; also, Pierce v. Stidworthy, 79 Me. 234, 9 A. 617, where, under circumstances very similar to those here, the court say, inter alia, "The will giving the widow the use and income of the fund during her life, with the right to apply to her use, if needed, any part of the...
To continue reading
Request your trial