Torrey v. Peabody

• Decision Date: 10 December 1902
• Citation: 97 Me. 104,53 A. 988
• Parties: TORREY v. PEABODY.
• Court: Maine Supreme Court

53 A. 988

97 Me. 104

TORREY

v. PEABODY.

Supreme Judicial Court of Maine.

Dec. 10, 1902.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Action by Albert Torrey, administrator, against Clarence W. Peabody, executor. From a decree for defendant, plaintiff excepts. Exceptions overruled.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, and SPEAR, JJ.

L. B. Dennett, for plaintiff.

Clarence W. Peabody, for defendant.

SAVAGE, J. David Torrey died testate, leaving a widow, but no issue. His will consisted of two paragraphs. The first one was as follows: "I give the use and income of all the estate of which I shall die possessed, both real and personal, and wherever situated, to my wife, Harriet F. Torrey, during her life and if, in her own judgment, the income thereof shall not be sufficient for her comfortable support, I hereby authorize and empower her, without application to the probate court for said county, to sell so much of said estate, either real or personal, as she may deem necessary therefor."

By the second paragraph he appointed his wife executrix of the will. He made no other disposition of his estate.

Mrs. Torrey in her lifetime settled no account as executrix, but after her death her administrator presented an account of her doings as such, which was allowed by the judge of probate. The appellant appealed, and in his reasons of appeal he objected specifically to the allowance of the following item in the account: "Turned over to Harriet P. Torrey in her own right, to wit, life interest under terms of will, and remainder as widow, under statute of distribution of intestate estates, one-half residue of personal estate, $1,811.35." In the supreme court of probate the decree of the judge of probate was affirmed. The presiding justice ruled "that, notwithstanding said will, the personal estate remaining after the termination of the life estate was intestate property not controlled by said will: that the acceptance by said Harriet F. Terrey o" the provisions of said will did not affect her right to said remainder as intestate estate"; and that the allowance of the item referred to above, and the allowance "of all other items of the account based upon a partial intestacy of said estate, were correct." The appellant excepted to these rulings. The question, in short, is this: If a man die without issue, leaving his widow, by will, the use and income of all his personal estate for lifs, and make no disposition whatever of the residue or remainder of the personal estate, will she be librited to the life estate specincally created by the will, or will she be entitled in addition to one-half of his distributive personal estate under the statute of distribution? The ruling complained of assumed the latter proposition to be the correct one.

To change the form of the question, it is whether the residue or remainder of the personal estate, subject to the life estate, is to be regarded as intestate estate or testate. It must be the one or the other. If it is intestate, then it is to be distributed under the statute of distribution; the widow taking one-half absolutely. For the will in no way affects distribution of the intestate estate. It is to be distributed as if there were no will. Now, can this remainder be regarded as testate estate? If so, the will has made it so, and the legatees will take because of the will, and not as statutory distributees. What disposition has the will made of it? To whom and in what proportions has it been bequeathed? The will is...