Stetson v. Eastman

• Decision Date: 25 March 1892
• Citation: 84 Me. 366,24 A. 868
• Parties: STETSON et al. v. EASTMAN et al.
• Court: Maine Supreme Court

24 A. 868

84 Me. 366

STETSON et al.

v. EASTMAN et al.

Supreme Judicial Court of Maine.

March 25, 1892.

(Official.)

Report from supreme Judicial court, Penobscot county.

Bill by Charles P. Stetson and others, as administrators of the estate of Abigail J. Stetson, with the will annexed, against William H. H. Eastman and others, to determine the construction of the will. By agreement the case was reported to the law court, to be heard on bill and answers, under Rev. St. c. 77, § 43.

J. W. Symonds, for Bernice M. Bachelder.

S. F. Humphrey, for W. H. H. Eastman.

E. R. Chaplin and Peregrine White, for ethers.

PETERS, C. J. Abigail J. Stetson, a resident of this state, by her will made and probated here, left numerous money legacies, among which was one of $6,000 to Battle M. Bachelder, and one of $3,000 to Bernice M. Bachelder, and in addition she made those two persons her executors and residuary legatees. The residuary clause reads as follower "All the rest and residue of my estate I give to Bernice M. Bachelder and Hattie M. Bachelder, of Bangor, and I appoint them executors of this will." Her effects consisted mostly of personal property, evidently moneyed securities, there being only about $200 worth of real estate.

Hattie M. Bachelder dying in the lifetime of the testatrix, three days before the testatrix died, the inquiry is made by this bill in equity, to which all persons possibly interested are made parties, whether the legacies to Hattie M. lapsed; and, if so, what disposition is to be made of them.

Undoubtedly the legacy of $6,000 lapsed, and sinks into the general residue of the estate. It was by implication conditional upon the event that the legatee survived the testatrix. The law presumes that Just so much was taken from the general legatees for the benefit of the particular legatee, and the particular intent failing the general intent prevails. The deceased legatee leaving no lineal descendant, section 10 of chapter 74 of the Revised Statutes does not alter this result.

There can be no doubt that, by the same rule, the deceased legatee's portion of the general residue of the estate also lapses, and that this portion falls to the heirs of the testatrix under the laws of descent and distribution, no other disposition of it being either expressly or impliedly provided by the terms of the will; unless this result be prevented by construing the residuary clause as having the effect to constitute between the legatees named therein a joint tenancy with the incident of survivorship, instead of a tenancy in common. And it is contended in behalf of the surviving residuary legatee that the latter is the true construction of the clause in question.

Although it may be that the English courts would regard a clause like this as creating a legacy in joint tenancy, and thus giving the whole of the residue to the surviving tenant, we cannot believe that such would be the construction in many of the states of this country, and we are convinced that such should not be the construction in our own state. We think the presumption here is exactly the reverse of that recognized by the English courts. While in that country a devise or bequest to two or more persons implies a joint tenancy unless the contrary appears, here it implies a tenancy in common, unless a different intention is indicated by the will and the attending circumstances. Our institutions and policies are adverse to the doctrine of survivorship as applied to tenants holding in their own right, although there may be meritorious exceptions. We have as a people inherited a feeling of opposition to the principle from early legislative manifestations against it.

As early as in 1643, the general court of the Plymouth colony expressed its disfavor of the principle by an act providing as follows: "That where lands or tennements fall in joint partnership either by guift, graunt or purchase or otherwise, that if any of the partners do dye before the devision thereof shalbe made, that the heires & assignes of such as shall so decease shall not be deprived of the right title and interest into such said lands and tennements but shall have his or their proporcon as duly & equally as any of the survivors or their heires or assignes any act ordinance custome or provision made to the contrary in any wise notwithstanding as fully and amply as if devision thereof had been formally made." Plymouth Colony Laws, (Ed. 1836.) p. 75.

By force of the sixth clause of the sixth section of the constitution of the commonwealth of Massachusetts, this enactment continued to be the law of the commonwealth untilits scope was enlarged by an act, passed on March 7, 1786, which provided that all grants and devises of real estate to a plurality of persons should be construed as creating tenancies in common, unless a contrary intention be indicated by the terms of the devise or grant. Our own statute is to the same effect, first enacted in 1821, now continued in Rev. St. c. 73, § 7, and running as follows: "Conveyances not in mortgage, and devises of land to two or more persons, create estates in common, [and not joint estates,] unless otherwise expressed. Estates vested in survivors on the principle of joint tenancy shall be so held."

There would be no question in the present case, on this point, if the gifts were of real estate, and not of personal property; but the argument for the person claiming as survivor is that the statute was designed to include realty within its operation, and exclude all other property. It seems incredible to us that any such distinction could have been contemplated. There is more reason for rejecting the offensive doctrine in its application to chattels or moneyed securities than in its application to landed estates. And great incongruity and inconvenience must arise if applied to the one class of property, and not to the other. The explanation of the apparent omission to embrace all kinds of property within the legislative interdiction is that the lawmakers did not understand that the principle ever applied to any property other than real estate. Nor were they, in our judgment, mistaken in that supposition. The principle of survivorship was not extended to tenancies in chattels by the English courts until after the Massachusetts act of 1786, an act as binding on us as upon the courts in that commonwealth, until we virtually adopted its provisions by an act of our own passed in 1821. Our ancestors little dreamed that any vitality was left in the principle after the colonial law of 1643.

The acts of 1643 and 1786 were intended more as declarations of principle, or declarations against a principle, than as undertaking to repeal any acknowledged and binding law. The English cases give no reason for maintaining the doctrine of joint tenancy in chattels, excepting that of the analogy which exists between devises and bequests, and the very reason given for the adoption of the doctrine in that country forbids its adoption here. It exists there because there it is the law as applicable to real estate. It does not exist here, because here it is not the law as applicable to real estate. It gained an ascendency in the English courts in about the beginning of the present century, having before that time been repeatedly doubted or denied. It never had growth or life in most of the American courts.

Mr. Jarman (2 Jarm. Wills, p. *253) considers the doctrine of survivorship, so far as applicable to money legacies and residuary bequests, as having been questionable until settled by Lord Eldon in Crooke v. De Vandes, 9 Ves. 204, a case determined in 1803. The same author describes the instability of the general doctrine of joint tenancy thus significantly: "A devise or bequest to several persons 'equally amongst them, 'or' equally, 'or' in equal moities,' or 'share and share alike,' or 'respectively,' or with a limitation to their heirs 'as they shall severally die, 'or' to each of their respective heirs,' or 'to their executors and administrators, respectively,' or to several 'between' or 'amongst' them, or 'to each' of several persons, has been held, in contradiction of some of the very early cases, to make the objects tenants in common." And the author adds: "The preceding cases evince the anxiety of later judges to give effect to the slightest expressions affording an argument in favor of a tenancy in common; an anxiety which has been dictated by the conviction that this species of interest is better adapted to answer the exigencies of families than a joint tenancy, of which the best quality is...