Stuart v. Walker

• Decision Date: 09 March 1881
• Parties: RICHARD STUART, Executor of the will of DANIEL C. BERRY, and another, in equity, v. ELLIOT WALKER, Administrator on the estate of MARY STRAW, and others.
• Court: Maine Supreme Court

72 Me. 145

RICHARD STUART, Executor of the will of DANIEL C. BERRY, and another, in equity, v. ELLIOT WALKER, Administrator on the estate of MARY STRAW, and others.

Supreme Judicial Court of Maine.

March 9, 1881

DEMURRER to bill in equity.

The bill sets out that Daniel C. Berry made a will September 15 1873, containing the devises stated in the opinion. After his death, his will was duly probated and allowed, and the plaintiffs and the widow, Mary Berry, were appointed executors at the November term, 1873. In 1875, Mary Berry married Love Straw, with whom she lived until July 5, 1878 when she died intestate and childless, and Elliot Walker was duly appointed administrator on her estate. The other defendants are the surviving husband and heirs of Mary Straw.

And the bill further shows that the questions and controversies which have arisen are mainly, if not wholly, embraced in the following propositions:

First. What was the nature of the estate which Mary Berry took under the will of Daniel C. Berry?

Second. Who are entitled under the provisions of said will and acts of said Mary Straw and facts above stated, to have and hold the estate, real and personal, as above named. Whether the heirs and representatives of said Mary Straw, or the heirs of said Frances L. Sargent and devisees, under fourth clause of said will?

Third. To whom is the administrator of the estate of Mary Straw to account for personal property remaining in his hands upon settlement of his account?

Wilson and Woodward, for the plaintiffs, after commenting upon, Ramsdell v. Ramsdell, 21 Me. 288; Pickering v. Langdon, 22 Me. 413; Constantine v. Constantine, 6 Ves. 101; Jones v. Bacon, 68 Me. 34; Jones v. Leeman, 69 Maine, 489; Bacon v. Woodward, 12 Gray 376; Gifford v. Choate, 100 Mass. 343; Hale v. Marsh, Id. 468, cited: Shaw v. Hussey, 41 Me. 495; Fox v. Rumery, 68 Me. 121; Warren v. Webb, Idem, 133; Smith v. Snow, 123 Mass. 323; Burleigh v. Clough, 52 N.H. 267; Jackson v. Robins, 16 Johns. 537; Smith v. Bell, 6 Pet. 68; 4 Kent's Com. Holmes' ed. 202; Blanchard v. Blanchard, 1 Allen 223; LeMarchant v. LeMarchant, 18 L. R. Eq. Cas. 414; R. S., c. 74, § 16.

Chas. P. Stetson and E. Walker, for the defendants.

It is well settled that when an estate is devised with an absolute power of disposal, the devise over of what may remain is void. Jones v. Bacon, 68 Me. 34.

The exception to this rule is, " where a life-estate only is clearly given to the first taker, with an express power on a certain event or for a certain purpose to dispose of the property, the life-estate is not by such a power enlarged to a fee or absolute right, and the devise over will be good."

We think that a careful examination of the will, will show that Mary Berry took an estate in fee in the real property, and the personal, absolutely; that the devise over is inoperative, and that our case is like the cases of Ramsdell v. Ramsdell, 21 Me. 288; Jones v. Bacon, and the cases in the 100 Mass. there cited. Crossman v. Field, 119 Mass. 170; Gleason v. Fayerweather, 4 Gray 348.

He gives to her unlimited power to dispose of same, power without restraint, and freedom of choice and action without qualification, and makes no distinction between the real and personal estate. There could be no more complete ownership of property, than what results from undisturbed and undisputed possession united with an acknowledged and undisputed power and right of its absolute disposal. Bacon v. Woodward, 12 Gray 376.

Do the words, " during her life," restrict her estate to a life-estate?

The test usually applied in such cases is whether or not the first taker has the right and absolute power of disposal. If he has, it is construed to be an unqualified gift to him, and the devise over will be void. Parnell v. Parnell, L. R. 9 Ch. Div. 96; Breton v. Mockett, Idem, 95; 2 Washburn 670; Second Reformed Church v. Disbrow, 52 Penn. St. 219; Stevens v. Winship, 1 Pick. 318; Hale v. Marsh, 100 Mass.; Gleason v. Fayerweather, 4 Gray 348; Ramsdell v. Ramsdell, 21 Maine. See also, Fox v. Rumery, 68 Maine, page 128; and Watkins v. Watkins, 3 Mc. & G. 622; Perry v. Merritt, L. R. 18 Eq. Cases, 152; Henderson v. Cross, 29 Beas. 216.

The case of Burleigh v. Clough, 52 N.H. 267, which the complainants rely upon, differs very materially in the language of the will from our case; there " " the use and disposal", only, for life of the wife, is given.

In Smith v. Bell, 6 Peters 68, (commented on in Gifford v. Choate, 100 Mass. page 346,) and in Brant v. Virginia Coal & Iron Co. 3 Otto 326, it was held that the right of disposal only extended to the life-estate.

PETERS J.

A testator makes the following devise: " I give, devise, and bequeath unto my wife, Mary Berry, all the rest and residue of my estate, real and personal, of what kind soever and wherever situate, with the right to use, occupy, lease, exchange, sell or otherwise dispose of the same, and the increase and income thereof, according to her own will and pleasure during her lifetime. Meaning and intending hereby that the said Mary Berry during her lifetime shall have the absolute right, power, and authority to use and dispose of, by sale or otherwise, all said devised estate, real and personal, for her own support, and for any and all other purposes to which she may choose to appropriate it.

" And so much of said estate so devised to my said wife, together with the increase, income and proceeds thereof, as may remain unexpended and undisposed of by her at her decease, I give, devise, and bequeath unto the said Frances L. Sargent, her heirs and assigns forever, if she shall be then living; and if not living, then to such children or child of said Frances as may be living at that time."

Did Mary Berry take a fee simple, or only a life-estate, in the property devised?

The defendants contend that, where a life-estate is devised, whether impliedly or expressly given, with an unqualified power of disposal annexed, a gift or limitation over is of no effect. That is true where the life-estate is created by implication, but not true where it is expressly created in direct and positive terms.

A life-estate by implication usually arises, where a donor devises property generally, without any specification of the quantity of interest, and adds some power of disposition of the property, and provides a remainder. For instance: A gives an estate to B, with a power of disposal annexed, and a gift over to C. Here is an association of purposes and intentions, divisible into three parts. What does A mean by all of them combined? What is implied by them?

A first gives the estate to B in general terms. Stopping there, by our revised statutes, he gives an estate of inheritance. But an estate in fee first described, may be cut down to a lesser estate by subsequent provisions.

A power of disposal is annexed by A to his bequest to B. The effect of this depends upon whether it is a qualified or an unqualified power. If it is an absolute and unqualified power, it really neither takes from, nor adds to, the amount of the estate previously given, though there be a gift over. It would be merely equivalent to adding words of inheritance, making the gift to B and his heirs and assigns. But those words were implied before. The law presumes in such case, that a testator superadds the unlimited power of disposal, to make his intention as emphatic and unequivocal as possible. The gift over in such case, is regarded as repugnant to and controlled by prior provisions. There is nothing to go over. A man cannot give the same thing twice. Having given it once, it is not his to give again. Such a devise comes within the principle of the class of cases where a testator gives an estate of inheritance, and then undertakes to provide that the devisee shall not alien the property; or that it shall not be taken for his debts; or that he shall dispose of it in some particular way indicated; provisions which are powerless to control the prior gift.

But where the power of disposal is not an absolute power, but a qualified one, conditioned upon some certain event or purpose, and there is a remainder or devise over, then the words last used do restrict and limit the words first used, and have the force and efficacy to reduce what was apparently an estate in fee to an estate for life only. Thus: A gives an estate to B, with the right to dispose of as much of it, in his lifetime, as he may need for his support, and if anything remains unexpended at B's death, the balance to go to C. Here there may be something to go over. B is to dispose of the estate only for certain specified purposes. He can defeat the remainder, only by an execution of the power. The clear implication of such a bequest, taking all its parts together, is that B is to possess a life-estate. Here a life-estate is implied, and is not expressly created.

But A makes this devise: " I give to B, my estate to have and hold during his lifetime and no longer, with the right to dispose of all the same during his lifetime, if he pleases to do so, and any unexpended balance I give to C." Here a life-estate is expressly created, instead of arising by implication. Here, an absolute and unqualified power of disposal annexed, does not enlarge the estate to a fee. Where an estate is expressed, it need not be implied. An absolute control does not amount in such case to an absolute ownership. There is no conflict between the three parts of such a devise. Each clause in the combination may be literally executed. They are in no wise inconsistent with each other.

An examination of the cases invoked to the aid of the defendants, shows that all or nearly all of them pertain to life-estates by implication, and are mostly instances...