Towle v. Doe

• Decision Date: 09 April 1903
• Citation: 97 Me. 427,54 A. 1072
• Parties: TOWLE v. DOE et al.
• Court: Maine Supreme Court

54 A. 1072

97 Me. 427

TOWLE

v. DOE et al.

Supreme Judicial Court of Maine.

April 9, 1903.

(Official.)

Report from Supreme Judicial Court, Penobscot County.

Bill by Josiah C. Towle against Alice H. Doe and others. Case reported. Decree rendered.

Bill in equity to obtain the construction of the residuary clause of the last will and testament of Josiah Towle, late of Bangor, deceased.

The will showed evidence of being holographic, and the complete residuary clause was as follows:

"To my wife Lucinda L. Towle I give & bequeath all the remainder of my property of every description both real personal & mixed to have & to hold occupy & enjoy & receive all the income rents & interest during her life time & at her decease I give & bequeath all the aforesaid property which I have devised to her during her life time & which shall remain at her decease, to my four children viz: Wm. M. Towle & his heirs one-fourth part to be invested by my executor in U. S. bonds or State bonds & the interest deducting expenses paid over to said Wm. M. Towle and his children so long as they live & then the principal divided to his or their heirs.

"Mary L. Taylor and her heirs one-fourth part said fourth part to be invested by my executor in U. S. or State bonds & the interest deducting expenses paid over to said Mary so long as she shall live & after her decease the principal divided to her heirs & invested in bonds as aforesaid for them by my executor & the accruing interest deducting expenses shall be so invested & added to the principal & as fast as they shall attain the age of twenty-five years provided they shall be of sound mind and steady habits & shall have accumulated not less than three hundred dollars of property if a male or fifty dollars if a female by their own industry then their several portions shall be paid over to them & such of them as shall not be of sound mind & good habits & have accumulated as aforesaid shall receive only the interest (deducting expenses) of their said share yearly during their life time & at their decease the principal shall be paid to their heirs.

"To my son John A. Towle & his heirs one-fourth part to be paid over to him by my executor.

"To my son Josiah C. Towle & his heirs one-fourth part to be paid over to him by my executor.

"Provided however if my estate shall not prove sufficient (after deducting the four thousand dollars herein before set aside) to leave a sufficient sum for my wife Lucinda L. Towle so that she shall receive therefrom a net income of Ten hundred dollars per annum after deducting taxes & expenses & house rent then sufficient of the interest of the aforesaid four thousand dollars shall be paid over to her yearly—instead of being paid over or reserved for said needy ones as afore herein stipulated to make up her income to the sum of $1000 per annum & if the whole of the interest of the said four thousand is not sufficient to make up the yearly net income to ten hundred dollars then a portion of the principal of said four thousand dollars may be taken each year until the whole is used up if needed to make up said sum of $1000 net yearly income instead of being reserved as before devised to my children aforesaid & whatever may remain of it shall be divided to them as above devised.

"And for the furtherance of the aforesaid object and for the safety & protection of the property & to establish a legal mode for the sale & transfer of all my property I hereby devise & bequeath to my trustee hereinafter named all my estate real personal & mixed to have & to hold the same upon the terms trust & conditions hereinafter specified herein fully authorizing and empowering said Trustee to sell & dispose of any & all said estate real personal & mixed except that my dwelling house on State Street & my store if (I shall own any at my decease) shall not be sold until after the decease of my wife but all the other property may be sold & conveyed by my said Trustee when & in such manner as to said Trustee may seem most advantageous hereby directing my said Trustee to invest the whole proceeds of sales in U. S. or State bonds & to keep the same so invested & pay over the income & interest deducting taxes & expenses to meet the aforesaid devises as herein before specified."

The only child of William M. Towle at the testator's death, at the termination of the intervening life, and also at his death, was Alice H. Doe.

There was also a codicil, which, however, had no bearing on the case.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

P. H. Appleton and H. R. Chaplin, for plaintiff.

J. R. Mason, for defendants. C. H. Bartlett, guardian ad litem, for minor defendants.

Matthew Laughlin, administrator of the estate of William M. Towle, pro se.

PEABODY, J. This cause comes before the law court on report. It is an equity suit brought for the purpose of obtaining a legal construction of certain provisions of the will of Josiah Towle, late of Bangor, Me., deceased.

The case shows that the testator made and executed his will on the 17th day of Au gust, A. D. 1800, and a codicil thereto on the 9th day of March, A. D. 1870. The provisions of the codicil are immaterial in the case. The portions of the will which the parties desire construed, being part of the residuary clause, are as follows:

"To my wife Lucinda L. Towle I give & bequeath all the remainder of my property of every description both real personal & mixed to have & to hold occupy & enjoy & receive all the income rents & profits & interest during her lifetime & at her decease I give & bequeath all the aforesaid property which I have devised to her during her life time & which shall remain at her decease, to my four children viz: Wm. M. Towle & his heirs one-fourth part to be invested by my executor in U. S. bonds or State bonds & the interest deducting expenses paid over to said Wm. M. Towle and his children so long as they live & then the principal divided to his or their heirs."

The remaining parts of the residuary clause relate to the bequests to the other three children of the testator, and do not affect the question submitted, except as indicating the intention of the testator.

The testator died January 26, 1883, and his widow, Lucinda L. Towle, died April 8, 1886. His son William M. Towle died January 23, 1896, leaving a widow, now living; and his granddaughter Alice H. Doe, the surviving child of William M. Towle, has died since the filing of the bill in equity, leaving a husband and children, who are now living.

The validity of the will and codicil is not questioned, and their terms clearly indicate that the testator thereby intended to dispose of his entire estate. The will is not arti ficially drawn, as is evident both from the words used and the structure of its testamentary provisions.

In the portion of the will quoted the words used in the first section of the clause imply an absolute bequest to his son William M. Towle, but they are followed by words showing that the testator intended that the legal estate in this fourth part of the residuum should vest in a trustee, to be disposed of in accordance with the terms of the trust.

In determining the general intent of the testator, the words defining the bequest to William M. Towle and his heirs cannot be dissociated from those which immediately follow; and the language of the whole clause shows that the bequest was not intended by the testator to be a remainder in fee to William M. Towle, but an executory bequest to be held by the executor in trust for the lives of William M. Towle and his...