Tolman v. Tolman

• Citation: 85 Me. 317,27 A. 184
• Parties: TOLMAN v. TOLMAN et al.
• Decision Date: 22 February 1893
• Court: Supreme Judicial Court of Maine (US)

27 A. 184

85 Me. 317

TOLMAN

v. TOLMAN et al.

Supreme Judicial Court of Maine.

Feb. 22, 1893.

(Official.)

Report from supreme judicial court, Knox county.

Bill by Minott Tolman, executor, against John M. Tolman and others for the construction of the will of John Tolman, deceased. Heard on report. Report discharged.

On August 10, 1881, the testator, having conveyed his homestead farm to his son, Minott, received in payment therefor 12 promissory notes of said Minott for $100 each, secured by mortgage of the same property.

On the 29th of the same month the testator made the will now before the court, in the second clause of which it is provided: "If at my decease any portion of said notes shall remain unpaid, or any portion of the proceeds thereof shall remain unexpended, I give and bequeath such unpaid and unexpended moneys to my executor, hereinafter named, in trust, to be by him paid to my son John M. Tolman," etc.

September 9, 1890, Minott conveyed back said farm to the testator, and the testator surrendered said notes to Minott, and discharged the mortgage.

On the same day the testator conveyed the same property to Henry H. Tolman, his grandson, and son of said Minott, and received in payment six notes of said Henry H. for $100 each, also secured by mortgage of the farm.

The testator died March 28, 1891, possessed of the last-named notes, all unpaid. The question presented for decision is, do said notes of Henry H. Tolman for $600 go to the executor in trust, under the second clause of the will, or are they to be distributed as intestate property? It was agreed that the following agreed statement of the parties, so far as the same would be legally admissible in evidence, might be considered by the court in giving construction to the will:

The testator left four children, all of whom are named in the will. The real estate named in the first clause of the bill and in the several clauses of the will consisted of the testator's homestead farm.

Some years previous to the date of the will the testator conveyed said farm to his son John M. Tolman as a gift, but afterwards, and before the will was made, John M. became involved in debt, and the testator paid his debts, and took back a deed of the farm.

About the time of the conveyance of the farm by him to his said son Minott Tolman, August 10, 1881, as stated in the first clause of the bill, the testator, having previously made provision for his support during his lifetime by his daughter, Lisania E., divided about $3,000 among his three children, Minott, Lisania E., and Danson C, which was intended by him as their distributive share of his estate, which included all his estate, except the 12 notes of said Minott Tolman for $100 each, named in the first clause of the bill, and which, with the provisions in the will afterwards executed, were intended as the distributive share of John M. Tolman.

Minott Tolman had no possession of the farm while he held the title under his deed dated August 10,...