Reed v. Creamer

• Decision Date: 18 November 1919
• Citation: 108 A. 82
• Parties: REED v. CREAMER et al.
• Court: Maine Supreme Court

108 A. 82

REED

v. CREAMER et al.

Supreme Judicial Court of Maine.

Nov. 18, 1919.

Report from Supreme Judicial Court, Penobscot County, at Law.

Bill in equity by Joseph B. Reed, executor, against Sarah E. Creamer and others. On report by agreement. Bill sustained, and decree directed in accordance with the opinion.

Argued before SPEAR, HANSON, DUNN, WILSON, and DEASY, JJ.

Joseph B. Reed, of Portland, pro se.

Mayo & Snare, of Bangor, for defendants.

CORNISH, C. J. Bill in equity asking construction of the will of George S. Bartlett, late of Orrington, dated October 6, 1874, and probated in Penobscot county at the October term, 1877.

The language is as follows:

"First. I give and bequeat to Ellen M. Bartlett, my beloved wife, the use improvment and income of all my estate both real and personal including rights and credits of every description wherever the same may be found. Together with the right to sell and to convey any part or all of my estate and to take to her use and benefit the proceeds of such sales whenever it whall be necessary for her comfort and maintainance paying my funeral charges and probate expence of this my last will and testament."

The second clause appoints his wife executrix. There is no devise over.

The widow married a man named Shell and died testate on January 28, 1916. By her will she attempted to devise the real estate which had come to her from her first husband, George B. Bartlett, under the provision before quoted.

The precise question before this court is: What was the nature of the estate devised to Ellen M. Bartlett? Was it an estate in fee, or was it an estate for life with a qualified power of disposal?

We think it was the latter, that such was the intention of the testator, and that his intention is adequately expressed.

The will was drawn apparently, not by an attorney, but by some layman whose orthography was not the best, but who nevertheless made clear the wish of the husband, namely, the comfortable maintenance of his wife from his property, from the use and Income thereof, if sufficient for that purpose, but if necessity should require, from the proceeds of such sales as she was given the power in her lifetime to make.

This was a perfectly natural disposition of his property to make under the circumstances, as apparently there were no children to be provided for, and when that object was accomplished he attempted to control its distribution no further, but was willing that it should pass to his legal heirs as intestate property.

If this devise consisted of the first sentence alone, and the wife were given the absolute use, improvement, and income of the estate, both real and personal, without modification, qualification, or explanation, it might reasonably be held that she took an estate in fee, because it is a settled rule of testamentary construction that a gift of the perpetual income of real estate is a gift of the real estate itself, and a gift of the income for life is a gift of the real estate for life, where there are no overruling words in the will establishing the contrary. Sampson v. Randall, 72 Me. 109; Hopkins v. Keazer, 89 Me. 347, 356, 36 Atl. 615. Words of inheritance are not necessary. R. S. c. 79, § 16.

Here, however, there are qualifying and...