Webb v. Dow

• Decision Date: 23 November 1921
• Citation: 115 A. 279
• Parties: WEBB v. DOW et al.
• Court: Maine Supreme Court

115 A. 279

WEBB

v. DOW et al.

Supreme Judicial Court of Maine.

Nov. 23, 1921.

Appeal from Supreme Judicial Court, Cumberland County, in Equity.

Suit by Gertrude G. Webb against Charles L. Dow and others. From a decree construing a will, defendants appeal. Appeal dismissed and decree affirmed.

Argued before CORNISH, C. J., and HANSON, DUNN, MORRILL, and DEASY, JJ.

Arthur Chapman, of Portland, for appellants.

Clifford E. McGlauflin, of Portland, for appellee.

HANSON, J. Bill in equity asking construction of the will of Sarah J. Penney, who died in New Gloucester, Maine, on the 7th day of February, 1921.

The will was proved and allowed on the 15th day of March, 1921, in the probate court for Cumberland county, and Charles L. Dow, one of the defendants, was appointed executor of said will. Said Charles L. Dow was also appointed guardian ad litem of the four children of Gertrude Webb, the plaintiff herein.

All the parties to the bill joined in the prayer for interpretation of the will.

The clauses under consideration by the sitting justice are as follows:

"Second: I give to my beloved daughter. Gertrude G. Webb, wife of Berton Webb of New Gloucester, Maine, my homestead farm of one hundred seven acres more or less situated in the town of New Gloucester, Maine, on the Penney road, so-called. Also all my household goods during her lifetime, if she is left a widow or becomes separated in any way from her husband, Berton Webb, I hereby give her full right to sell any or all of the goods and farm and use the proceeds as she sees fit. I also give and bequeath to my daughter, Gertrude G. Webb, all the rest, residue and remainder of my property real, personal and mixed wherever found and wherever situated.

"Third: If my son-in-law, Berton Webb, should outlive his wife, Gertrude G. Webb, he shall during his lifetime have the use of said farm and household goods during his lifetime and income of same while he shall five upon and operate said farm and only while occupied and operated by him. At his death or at such a time as he may have moved away from said farm all of said property shall be divided as follows equally between my daughter's children, Elsie Mae Webb, Bay Carleton Webb, Iva Floranee Webb, and Merle Wilfred Webb, also any of my daughter's unborn children, if none of these my grandchildren are living the property shall then go to my daughter's nearest heirs."

The sitting justice filed a final decree as follows:

"This cause came on to be heard this day and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed, as follows, viz.:

"That the plaintiff's bill be sustained, with costs to be paid out of the estate, together with $25 each to Arthur Chapman and Clifford E. McGlaufiin, counsel for Charles L. Dow and Gertrude G. Webb, on account of their fees in said cause; that the true construction of the second clause of the will mentioned is that Gertrude G. Webb takes a fee-simple estate in all the real and personal property of the estate of Sarah J. Penney, less the $500 disposed of by the first clause of said will; that the third clause of said will is null and void and of no effect."

From this decree Charles L. Dow, in his capacity as executor, and as guardian ad litem, appeals to this court.

In his answer in each capacity he denies the allegations set forth in paragraph 8 of the bill, in which it is claimed that the true construction of the will is:

"That the plaintiff is entitled to the fee of all the property left by the said Sarah J. Penney, except the legacy left to her brother Herbert D. Penney, and so much of said property as is necessary to pay outstanding bills."

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