Tilton v. Davidson

• Decision Date: 02 July 1903
• Citation: 56 A. 215,98 Me. 55
• Parties: TILTON v. DAVIDSON.
• Court: Maine Supreme Court

56 A. 215

98 Me. 55

TILTON

v. DAVIDSON.

Supreme Judicial Court of Maine.

July 2, 1903.

(Official.)

Report from Supreme Judicial Court, Hancock County.

Bill by Alice D. Tilton against Edith B. Davidson.

Bill to obtain the construction of the will of Herman Elvas Davidson, late of Bar Harbor, deceased. The defendant, one of the two only heirs, answered, and joined with the plaintiff in requesting its construction. Case reported. Bill sustained, and cause remanded.

Argued before WIS WELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

H. E. Hamlin, for plaintiff.

J. A. Peters, Jr., for defendant.

WHITEHOUSE, J. This is a bill in equity brought to obtain a judicial construction of the will of Herman Elvas Davidson, late of Bar Harbor, in the state of Maine.

On the 11th day of June, 1890, the testator made his last will and testament, the disposing items of which were of the following tenor, viz.: "I bequeath and devise as follows: (1) To my two daughters, Alice Bowker Davidson, and Edith Bowker Davidson, share and share alike, all the property real and personal of which I may die possessed, or which may be paid to my estate after my decease. And in case either of my said daughters should die before me, leaving no issue, then I give and bequeath all the property named in this article of my will to the other of my daughters surviving me; but if she is also deceased then to her issue surviving me. (2) I hereby designate and appoint my two daughters aforesaid Executors and Administrators of this my last Will and Testament; and I desire that they be not required to give bonds."

On the 4th day of August of the same year, he executed the following codicil to his will: "By this codicil to my last Will and Testament, dated in June 1890, made this fourth day of August eighteen hundred and ninety, I hereby appoint my two daughters, Alice Bowker Davidson and Edith Bowker Davidson, trustees of my estate, which I bequeath to them. I hereby bequeath all my estate both real and personal to my aforesaid Trustees, the same to remain in their care during their lifetime, with power to keep or change any of the investments as they may deem fit and to pay over to themselves in equal portions, all the income of said principal and to dispose, by will or otherwise, their portion of said principal after their death.

"And I hereby order that the above-named Trustees shall not be required to give any bonds for their fulfillment of the within trust."

The testator died on the 10th day of the same month, and the forgoing will and codicil were duly admitted to probate in the county of Hancock. The plaintiff and defendant are the testator's daughters named in the will and codicil, and it is alleged in the plaintiff's bill and admitted in the answer that they "are the only living persons interested, or who by possibility may be interested, in the subject-matter of this bill." The plaintiff asks the court to determine what interest in the testator's estate the plaintiff and the defendant each respectively acquired by virtue of this will and codicil, and whether or not each is entitled to one-half of the estate, "absolutely in her own right, and free from any trust." The defendant admits the allegations in the bill, and joins in the prayer for the construction of the will according to the prayer of the bill. The case is thereupon reported to this court on bill and answer, the defendant submitting without argument.

It is a familiar rule of law that where the legal and equitable estates in the same land become vested in the same person, the equitable will merge in the legal estate, if the latter is equally extensive with the former, "for a man cannot be a trustee for himself, nor hold the fee, which embraces the whole estate, and at the same time hold the several parts separated from the whole." "No person can be both trustee and cestui que trust at the same time, for no person can sue a subpoena against himself." 1 Perry on Trusts, §§ 13, 347. See, also, 2 Pom. Eq. § 988; Wills v. Cooper, 25 N. J. Law, 137; Bolles v. State Trust Co., 27 N. J. Eq. 308; Mason v. Mason's Ex'rs, 2 Sandf. Ch. 433. But in equity this is not an inflexible or universal rule, and it will not be applied contrary to justice or the intention of the parties, but the two estates may be kept separate, and a trust allowed to subsist, if necessary to protect the equitable interest of the owner.

In the case at bar it has been seen, from the terms of the codicil, that the testator resorted to this legal solecism of constituting his daughters trustees for themselves, for the apparent purpose of limiting their enjoyment of the estate to the use of the income during their lifetime, and of preventing any alienation of the principal, except by "will or otherwise," to take effect at their decease. He evidently attempted to establish a trust to insure the preservation of the corpus of the estate unimpaired during their lives, but at the same time desired to give them substantially the same dominion and control over the property that they would have had if no attempt had been made to create a trust. The plaintiff's bill, as well as the testator's codicil, is silent respecting the nature and value of the estate, the situation and circumstances of the parties, what had transpired in the conduct or social relations of the legatees during the two months which intervened between the will and the codicil, and the particular consideration which in fact induced the testator to attempt to modify the terms of the original will, which in plain terms gave the daughters an absolute title to the property. There is nothing in the will or codicil indicating...