Warren v. Webb

• Decision Date: 02 April 1878
• Citation: 68 Me. 133
• Parties: THOMAS WARREN et als. administrators of the estate of Samuel Whitmore, v. SETH WEBB et al.
• Court: Maine Supreme Court

68 Me. 133

THOMAS WARREN et als. administrators of the estate of Samuel Whitmore, v. SETH WEBB et al.

Supreme Judicial Court of Maine.

April 2, 1878

ON REPORT.

ASSUMPSIT, on a promissory note of defendants for $666.66 dated February 6, 1864; also for $1,545, cash received by them of testator's widow.

The defense was that, although the note and the money were the property of the testator, yet they were given to her by will and having been applied by her in payment to the maker of the note for one-quarter of the schooner " A. H. Whitmore," built by him, the executor could not rightfully recover for the note or the money.

The plaintiff's position was that the will did not authorize such an appropriation.

The facts, sufficient to raise the legal points, are stated in the opinion.

C. J. Abbot, for the plaintiffs.

A. Wiswell & A. P. Wiswell with C. A. Spofford, for the defendants.

DICKERSON J.

This case is presented on report, and involves a construction of the will of Samuel Whitmore, late of Deer Isle, deceased. The principal questions arise under the second item in the will, which is as follows: " I give, bequeath and devise to my beloved wife, Abigail H. Whitmore, for and during her natural life, all my estate and property, real, personal and mixed, wherever found and however situated, to have and to hold the same to her and her assigns, for and during the term aforesaid, for her proper use, benefit and support and maintenance; and after her decease, said estate and property, or the residue and remainder thereof, to be legally divided to and among my children, namely," etc. The first item of the will provides for the payment of the testator's debts and funeral charges by his executors, Seth Whitmore and William Whitmore, who returned an inventory of the estate in June, 1867. One of the executors, William Whitmore, died before any account was filed by the executors in the probate court. Seth Whitmore, the surviving executor, filed the first and only account in the probate court, in June, 1870, charging himself with the personal estate, and giving credit to the estate for debts paid, including the sum of $2,747.56 paid to the widow. That account shows a balance, due the estate from the executors, of $121.27. Subsequently to filing this account, Seth Whitmore resigned his trust as executor, whereupon the present plaintiffs, Thomas Warren and Franklin Closson, were appointed administrators de bonis non; they filed an inventory in the probate court, December term, 1871, consisting of real estate appraised at $230.00, and personal property, mostly household furniture, amounting to $208.00. No question arises with regard to the payment of the debts or funeral charges of the testator, who died April 3, A. D. 1864.

The intention of the testator, as deduced from the language of the instrument, is the criterion for the interpretation of wills. When ascertained, such intention is to have effect, unless it is inconsistent with the rules of law. The disposing words of the will, " give, bequeath and devise" to the testator's wife all his property, real and personal, " during her natural life," with remainder over to his children, creates a life estate only, unless the subsequent language enlarges, limits or qualifies their meaning. But for the limitation of the habendum, " during the term aforesaid," that would seem to enlarge the estate created; but with that limitation it does not admit of that construction. It is, however, clear that the subsequent words, " for her proper use" and " benefit," are not synonymous with the phrase, " for her support and maintenance," but have a more enlarged signification, and imply that the devisee was not only to have simply " her support and maintenance" out of the estate, but, also, a right to employ it for her advantage, gain and profit. Her right of " use" and " benefit" was superadded to her right of " support" and " " maintenance; " otherwise those prior words are meaningless. Consequently the devisee had such power over and control of the estate devised as was reasonably necessary, not only to secure her " support" and " main tenance," but, also, to facilitate her " proper use" and " benefit" thereof.

The subsequent clause, providing for the division, among the testator's children, of " said estate and property, or the residue and remainder thereof," after the devisee's decease, has the same implication. This language necessarily implies the liability of the estate to be diminished while in the hands of the devisee, and as there is no provision in the will for its diminution except through her agency, her right of control and even of disposal, at least upon the happening of one or more of the contingencies contemplated in the will, is inescapable. Something more must have been intended by this phraseology than " the residue and remainder," after the ordinary wear and tear of the property, natural decay and loss by inevitable accident, else the rights of the remainder-man would have been expressly qualified by such contingencies. Besides, the law would take notice of such considerations in determining the rights of parties, whether mentioned in the will or not.

In Harris v. Knapp, 21 Pick. 412, 416, a case strongly analogous to the one at bar, the testatrix devised one-half...