Taylor v. Brown

• Decision Date: 31 May 1895
• Parties: TAYLOR et al. v. BROWN et al.
• Court: Maine Supreme Court

33 A. 664

88 Me. 56

TAYLOR et al.

v. BROWN et al.

Supreme Judicial Court of Maine.

May 31, 1895.

(Official.)

Report from supreme judicial court, Franklin county.

Bill by Randall L. Taylor and others against Jacob J. Brown and others. Heard on bill and answers, and reported to the law court, to determine the title to the property named in the first clause in the will of Josiah A. Judkins, late of Farmington, viz. a construction of the first clause in the will, as to the devise and bequest to Sila Judkins, wife of the testator. The bill was brought by the plaintiff as executor of the will, who is an heir and legatee under the will, joined by all the other heirs and legatees, against the defendants, who are named in the first clause of the will, and children of a sister of the testator's wife. Decree for complainants.

J. S. Wright, for plaintiffs.

J. C. Holman for defendants.

PETERS, C. J. Josiah A. Judkins executed his will, containing this clause: "I will, devise, and bequeath to my beloved wife, Sila Judkins, my home lot and buildings thereon, situated at West Farmington, near the depot, and known as the 'Davis Stand,' and also all my household goods, beds, and bedding, and two hundred dollars in money; and, at her decease, what remains I wish to be equally divided between Jacob J. Brown and Nellie Washburn, children of my wife's sister."

There can be no doubt that a title of an estate in fee passed to the devisee in the property named. The question is whether that fee was so far limited to the lifetime of the devisee that there was a devise over of such of the devised estate as remained in existence and unexpended at her decease.

We think it clear that this case falls in the category of a long list of cases where it has been held that if the testator intended a devise to one person for life, and then a devise over to another, he or she has failed to use appropriate terms to effectuate such an intention. The trouble in many cases is that a testator seeks to accomplish two or more inconsistent purposes in one bequest. In the present case the testator makes an absolute gift, and then expresses a wish as to how the donee may dispose of a portion of the estate before her death. The title of property once given away cannot be regained by the hand that gave it. This principle will be found supported and variously illustrated by the doctrine declared in Copeland v. Barron, 72 Me. 206, and the cases there cited and examined. Later cases in this...