Pierce v. Stidworthy

• Decision Date: 04 March 1887
• Parties: PIERCE, Adm'r, v. STIDWORTHY and others.
• Court: Maine Supreme Court

9 A. 617

79 Me. 234

PIERCE, Adm'r,

v. STIDWORTHY and others.¹

Supreme Judicial Court of Maine.

March 4, 1887.

On report from supreme judicial court, Cumberland county.

Bill in equity to obtain the construction of a will. The opinion states the facts.

Lewis Fierce, for complainant. Woodman & Thompson, for Katharine A. Stidworthy, widow.

Nathan & Henry B. Cleaves, for heirs at law.

LIBBEY, J. This is a bill in equity to obtain the true construction of the will of John Stidworthy, who died in April, 1875. By the second clause in his will he gave small legacies to each of his children. The third clause is as follows: "All the residue of my estate, real, personal, and mixed, of which I shall die possessed, or which I may be entitled to at my decease, 1 give, devise, and bequeath to my faithful wife, Katharine A. Stidworthy, for the term of her life, with the right and power to dispose of the income, rents, profits, and interest of the same, and with the further right to apply to her use, if needed, any part of the principal of the personal property, making her sole judge of the need of so doing; and, after her death, I give and devise the same, or what may be left unapplied and unconsumed, to my children, to be divided equally between them; the children of any deceased child to take the share of their parent. If all my children and grandchildren should die in the life-time of my said wife, then I will it shall go and belong to her absolutely, to dispose of at her pleasure; and, if she does not dispose of it by gift or otherwise during her life-time, to descend to her lawful heirs."

In 1861, Stidworthy owned one-half of the schooner Arcade, which was destroyed by the Confederate cruiser Sumter in November of that year. Under the act of congress of June 5, 1882, the complainant, as administrator with the will annexed, filed his application for the damage sustained by said Stidworthy by reason of the destruction of the schooner, before the court of commissioners of Alabama claims, re-established by said act, which awarded him, in his said capacity, thereon $2,255.21, with interest, amounting in all to $3,639.54, which was paid him September 1, 1884. After settling his account in probate, there remained in his hands $2,595.52. Said Stidworthy left a widow and two daughters, named in his will, who are parties to this bill.

Two questions are propounded to the court: "(1) Is the widow of John Stidworthy entitled to the use of the abovementioned balance of money paid by the United States for the loss of his share of the schooner Arcade, or does it belong to his heirs? (2) If the widow is entitled to the benefit and use of said balance, is she entitled to its custody?"

By the third clause in the will of Stidworthy, his intention is clearly expressed that all the residue of his estate, both real and personal, of which he should die possessed, or which he might be entitled to at his decease, should go to his wife "for the term of her life, with right and power to dispose of the income, rents, profits, and interest of the same, and with further right to apply to her use any part of the principal of the personal property, making her the sole judge of the need of so doing." Under this clause, all the residue of his property and rights, or claims to property, which he had the power to dispose of, by conveyance or assignment, passed to his widow to hold as therein specified. In support of this conclusion, authorities need not be cited, as the same question has just been decided in the court in Grant v. Bodwell, 78 Me. 460, 7 Atl. Rep. 12. The case is unlike Dunlap v. Dunlap, 74 Me. 402.

This brings us to the question whether the damage sustained by Stidworthy by the destruction of the Arcade by the Sumter was a right or claim to personal property before it was recognized by the United States by the act of 1882, which was the subject of assignment by him. It was a claim for damage to property by a wrong-doer, and partook of the nature of the thing destroyed. The claim existed, in equity and justice, against some one as soon as the damage was sustained. True, the testator had no legal claim which he could enforce against any one, because the claim had not been recognized by the government, but admitting responsibility for it and providing for its payment did not create it. It was a property right existing before. It was not a claim created by congress, but its existence was admitted by it. It was a claim which would pass to the assignee in bankruptcy before it was recognized by congress. It has long been so settled by the supreme court of the United States. Comegys v. Vasse,...