"Should he be very unfortunate and there should be any pressing necessity, said trustees, upon so finding and certifying, may advance to him from time to time, not exceeding five thousand dollars in all.

"Upon the decease of my sons, James W. and Thomas W. S., I gave their half of the block of brick stores on Water Street (that fell to me as their heir) to my surviving sons, Henry and Charles, placing the latter in trust for him with the right to dispose of it by will. "As he has often complained in regard to the disposition of his mother's property, I wish to say here, that after the payment of specific bequests, her property was divided equally between Henry and Charles, and no more of Charles' half was put in trust than she was bound by her promise to her brother, Henry R. Smith, to so place it in order to receive anything from him."

The plaintiff claims that under item 11 he took at once an absolute equitable fee in the corpus of the estate therein devised in trust, restricted to the enjoyment during his lifetime of the income only, subject to the limitation over to his issue, if any, and, if no issue, then that the trust would terminate at his death, and both the legal and equitable fee would vest in his heirs, subject to any intermediate disposition of it by him.

Great research and learning have been displayed and a vast array of authorities cited by counsel in support of the successive steps by which it is sought to establish the above proposition. It would be unprofitable to here undertake to distinguish or analyze the cases cited. Precedents and rules of testamentary instruction may afford valuable aid when the testator's intention is in doubt, but when that intention is clearly expressed in the will, and violates no rule of public policy, it must be given effect. It overrides precedents and technical rules of construction. This "pole star," as it is sometimes termed, of testamentary construction, "leads into various courses, since every will must be steered by its own luminary. Yet uniform justice is better than strict consistency." Schouler's Ex'rs & Adm'rs, 474. "It may well be doubted," said Mr. Justice Miller in Clarke v. Boorman's Ex'rs, 18 Wall. 493, 21 L. Ed. 904, "if any other source of enlightenment in the construction of a will is of much assistance than the application of natural reason to the language of the instrument, under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself." No two wills are ever precisely alike. No two testators are situated precisely the same, and it is both unsafe and unjust to interpret the will of one man by the dubious light afforded by the will of another.

Coming now to the instrument before us, we find that the testator had two natural

heirs, his granddaughter Eliza and his son Charles. The former had been a member of his household, and he had conveyed to her and her mother his homestead in Augusta. He calls her in the will his "dear granddaughter," and it is evident that the ties of association had strengthened those of natural affection. He had made advances to his son for him to go into business. He had bought of him his one-fourth interest in the homestead. The testator knew that his wife had devised property to Charles, placing it in trust, as she was bound to do by her promise to her brother, in order to receive anything from him. Charles had often complained of the disposition which was made of his mother's property. The testator had himself conveyed property to Charles, placing it in trust, with a right of disposition by will. He had seen his son make an unfortunate disposition of the property he had had the control of, and he feared that what he should leave him would also be lost if left to his unrestricted control, and that old age might find him in need. He anticipated that, notwithstanding the property Charles had already had from both the testator and his wife, and the $8,000 bequeathed him by the will, he might in the future be very unfortunate, and there might arise a pressing necessity for his relief. is evident that he did not have confidence in his son's business capacity, in his ability to successfully manage or long retain any property over which he had the power of alienation, and that, judging the future by the past, he feared an "unfortunate disposition" of such means as Charles might control. That these facts were present in the testator's mind at the time he made the will cannot be questioned, for they are all recited in the will itself.

It

The ninth item of the will directs that the residue of the property, after paying bequests, gifts, debts, and expenses, be divided into two equal parts by his executors, and transferred, one-half to the trustees for his grandchild, and one-half for the trustees of his son. In item 10 he gives to the trustees for his grandchild the one-half of the property conveyed to them by his executors, and declares the purposes of the trust, and the nature and extent of the beneficial interest of the cestui que trust. He makes her his residuary legatee, including lapsed bequests, "and the reversionary or other interests in the property in trust for my son Charles." In the next item of the will he gives to the trustees in trust for Charles the half of the property to be transferred to them by his executors, and proceeds to declare the purposes of the trust, and to define the nature and extent of the son's beneficial interest. The trustees are directed to pay the net income to Charles during his life, in quarterly payments, and, if convenient, monthly. .Should he marry again, as he did during the testator's lifetime, and have issue, such issue are to have the prop

erty. Should the wife survive him without issue, the testator states that Charles has the right to dispose of one-half of the block of brick stores in Augusta, and can make provision for her. If Charles is unfortunate, and there is pressing necessity for it, the trustees may advance him not exceeding $5,000 in all. Such are the terms of the will. Reading it in the light of the facts which the testator had present in his mind at the time he made it, we think it clear that he intended to give to his son a life interest in the income only of the trust fund named in item 11 of his will, with a right in case of misfortune and pressing necessity, upon the trustees so finding and certifying, to receive not exceeding $5,000 from the principal. Indubitable evidence is afforded that he believed he had done this and nothing more by the statements that his granddaughter is his residuary legatee in the reversionary and other interests in the property in trust for his son, and that the son can provide for his wife, in case he marries again, out of the property over which he already had the power of disposition by will. It is incredible that Mr. Bradbury would have incorporated this last statement into the same clause of a will by which he intended to give Charles the right to dispose by will of $90,000 of property. Mr. Bradbury was a lawyer of long experience and large practice. The matter of the son's right to dispose of property by will was present in his mind, brought sharply home to his attention at the time he was writing the very item of the will under which the plaintiff claims, and yet plainly the testator regarded the block of brick stores as the only property from which Charles could make a future testamentary provision for his wife. No thought could have been further from his mind when he penned that statement than that Charles had the entire beneficial interest in and the power of disposal by will of the $90,000 which he had just given to trustees, with directions to pay the net income to Charles during his life.

It is strongly urged that certain parts of the will manifest a contrary intention. Stress is laid upon the direction that the executors shall see that the certificates of stock they deliver shall show for whom the trustees are holding the property. This may require a few more words, but it can be done as well under one construction of the will as the other. In the residuary clause the testator speaks of the reversionary or other interests "in the property in trust for my son Charles." In a sense it was in trust for Charles, as he was to have the income from it for life, and possibly $5,000 of the principal. The context wherein he speaks of reversionary or other interests in this fund passing to the residuary legatee is strong evidence that when he used the words he did not intend that Charles should have the en

tire beneficial interest in the property. It is hardly probable, in view of all the provisions and recitals in the will, and in view of the advanced age of the testator when he made it, that when he spoke of reversionary or other interests he had nothing more in his mind than the remote possibility of his surviving his son.

When the testator explains his reasons for making the disposition of his property which he did, it is contended that the statement that he would prefer to give Charles the property directly, free from the trust, is inconsistent with an intention that he should not take the entire beneficial interest, and that the same is true of the further statement in the same connection, that he fears what he leaves for him would be lost if left for the son's unrestricted control, and old age might find him in need. That might be true if the words stood alone, but these words were used to express the testator's reason, as well as his regret that he felt compelled not to give Charles a larger interest than he did. He feared that whatever the son had the control of would be "lost." The words must be read in connection with the other parts of the will, which plainly show an intention to give but a life interest in the income. It is not probable that the testator would give an unlimited power of disposition over a large estate to one whom experience had taught him was incapable of wise and prudent business management.

Lastly, the use of the word "advance" is said to indicate that the testator understood the corpus of the fund to be vested in his son. The use of the word is undoubtedly consistent with that view, but the intention of the testator is to be gathered from the whole will, and not from isolated words and phrases. The most exact of men do not always express themselves with equal care and precision. This is as true of wills as of other human transactions. The testator's predominant idea was to care for his granddaughter and his son, and that the bulk of the estate which he left should be preserved and applied for this purpose, and not "lost" or made the subject of "unfortunate disposition." Sad experience had taught him that what the son controlled he might well fear would be lost. His intention extended beyond the preservation of the income of the trust fund for the life of his son, and he provided that after Charles' death without issue it should vest in the "dear granddaughter." A will is not to be expounded by a word here and another there, but by what on the whole was the testator's scheme for the rational disposition of his estate.

Such being Mr. Bradbury's intention as expressed in his will, and construing the will in the light of that intention, has he used appropriate language, according to the rules of law, to carry that intention into effect? The plaintiff invokes the familiar rule of

testamentary construction that where an estate in fee simple is devised, or an absolute gift of personal property made, a devise or gift over is void, and the estate first given cannot afterwards be cut down except by the use of clear and appropriate language. Wallace v. Hawes, 79 Me. 177, 8 Atl. 885; Loring v. Hayes, 86 Me. 351, 29 Atl. 1093; Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781. The answer is that that is not this case. The trust fund is not given to the trustees "in trust for Charles" and nothing more. If it were, he would take both the legal and equitable estate in the corpus of the fund. The purposes of the trust are declared, They are to pay the net income to Charles during his life. If he has issue they are to have the property left for him "as aforesaid"; that is, left in trust for the purpose of paying to him the net income. There is no absolute gift of this property. It is given in trust for Charles, to pay the net income to him during life. The words which give to the trustees, and all the words which declare the purposes for which the trust is created, are to be read and construed together. A gift of the income of personal property is a gift of a life estate. Sampson v. Randall, 72 Me. 109. If there is nothing in a will to show an intention that anything should be paid to a legatee except the income of a fund during life, the fund upon his death falls into the residue. Wynn v. Bartlett, 167 Mass. 292, 45 N. E. 752. Here there is ample evidence that the testator intended to give no more than the income, and that intention must be given effect. In Re Morgan (1893) L. R. 3 Ch. 222, Lindley, C. J., says: "I should have thought that upon the will the matter was reasonably plain, but we are pressed with authorities. Now, I do not see why, if we can tell what a man intends, and can give effect to his intention as expressed, we should be driven out of it by other cases, or decisions in other cases. Of course there are principles of law which are to be applied to all wills, but if you once get at a man's intention, and there is no law to prevent you giving it effect, effect ought to be given to it."

The plaintiff takes a life estate in the income only of the trust fund named in the eleventh item of the will, with a right to have paid to him not exceeding $5,000 of the principal contingent upon the trustees finding and certifying that there is a pressing necessity for it. The remainder in said trust fund, by the tenth item of the will, vested in Eliza Louisa Bradbury, subject to be divested by surviving issue of the plaintiff, and at his death without issue is to be paid over by the trustees to her, if living, or if deceased to such person or persons as are entitled to her estate.

Costs and reasonable counsel fees are to be allowed out of the estate. Decree accordingly.

(97 Me. 427)

TOWLE v. DOE et al. (Supreme Judicial Court of Maine. April 9,

WILLS

1903.)

PERPETUITIES -GIFT REMAINDER
-TRUST-CHILDREN-TIME OF VEST-
ING-FUND NOT SEPARABLE.

1. Where by will a gift is made of a remainder in fee, and in the same will there follows language showing a clear intent to charge such remainder with a trust invalid under the rule against perpetuities, the donee takes such remainder in fee.

2. A trust attempted to be created by will for the use of a man and his children is invalid as contravening the rule against perpetuities, unless it appears from the context that only those children actually in esse at death of the testator are intended to share in the benefit.

3. The mere fact that events as they finally transpire restrict a trust in such manner that, had the will in apt terms in fact so limited the trust, it would have been valid, does not alter the rule that the tests of validity must be applied to the language actually used by the testator in the will itself.

4. That construction of a will should be adopted which does not contravene the rule against perpetuities, whenever by so doing the intention of the testator will not be wholly disappointed.

5. A trust fund created by a clause in a will providing for the payment of "the interest, deducting expenses, to W. M. T. and his children, so long as they live," is not separable, and might vest too remotely to be valid.

6. In such a clause the word "children" is not to be construed as meaning alone those in esse at the death of the testator, unless such meaning is evident from the context.

(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 in

2. See Perpetuities, vol. 39, Cent. Dig. § 16.

terest 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. 54 A.-68

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.

F. 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 August, A. D. 1866, and a codicil thereto on the 9th day of March, A. D. 1876. 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 ex. penses 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 show ing 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 children, and at the decease of the survivor of them to vest in their heirs. The doubt which has arisen as to the legal effect of this bequest is whether it is in conflict with the rule against perpetuities.

The common-law rule is recognized by the courts of this state, as formulated in Cadell v. Palmer, 7 Bli. 202, quoted in 2 Woerner on American Law of Adm. § 427:

"The utmost period in which an executory bequest can take effect is a life or lives in being and twenty-one years thereafter, together with the period of gestation already existing."

The same rule applies to trusts as is applied to legal estates. 1 Perry on Trusts, 382.

The actual events now show that the will in effect limited the trust to William M. Towle and his daughter Alice H. Doe as beneficiaries for life, and had it done so in terms the bequest would not have been void for remoteness, because this daughter was his only child at the death of the testator, at the termination of the intervening life, and at his own death. But the test of the validity of the gift must be applied to the language of the will itself. And the possibility that the executory limitation might be void for remoteness is clear from the fact that a child or children of the testator's son William M. Towle might be born after the death of the testator, the continuance of whose lives might postpone the vesting of the estate beyond the time limited by law. 1 Jar. on Wills, 266; 2 Woerner, Am. Law Adm. § 427; Webber v. Jones, 94 Me. 429, 47 Atl. 903; Gray on Per. § 214.

From the facts in the case and the language of the will several theories arise as to the construction of the portion quoted in the third clause of the bill.

1. That the entire bequest is void because the fatal defect of violating an inflexible rule of law applies to the whole.

This construction would do great violence to the manifest intention of the testator to

give his four children and their immediate families the benefit of equal shares in his estate at the death of his wife.

The general terms of the provision are: "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."

He then in specific terms defines the several bequests of one-fourth to each. To two of his sons he gives the shares in apt words to them and their heirs. To the daughter and her heirs he gives one-fourth part, and in words immediately following modifies the bequest by directing its investment by his executor, and creating a trust not free from complications similar to those in the provision under consideration.

If a construction may be given to the will which does not contravene the rule, and does not wholly disappoint the intention of the testator, it should be adopted. 3 Jar. on Wills (5th Am. Ed.) 709.

2. Another theory of construction is that the bequest in trust is limited to beneficiaries in esse at the date of the death of the testator, namely, William M. Towle and his child, Alice H. Doe, and vested at the death of the survivor, Alice H. Doe, in her heirs.

This construction is claimed on the ground that the word "children" used by the testator in his will may mean children living at the time of his decease, but we think that this can only apply to cases where this meaning is evident from the context. It cannot be forced against the plain language of the will so as to apply only to those of the same class who might legally take the equitable estate. Gray on Per. c. 10; Barnum v. Barnum, 26 Md. 119, 90 Am. Dec. 88; Leake v. Robinson. 2 Mer. 363, 388; Dorr v. Lovering, 147 Mass. 530, 18 N. E. 412.

3. Another construction sought is that the bequest was in trust during the life of William M. Towle, and that only the limitation over to his children for life and to his or their heirs in fee was void for remoteness. This construction can only rest upon the assumption that the beneficiaries mentioned in the trust would take the interest in succession. But the legal estate is not given to them for life, but to a trustee. The trust is an entirety, for the benefit of a parent and his children, and is prima facie concurrent. It would seem that the equitable interest belonged to William M. Towle and his children as a class, and consequently to the survivor. This is also indicated by the words "his or their heirs." Schouler on Wills, §§ 530, 557; Gray on Per. §§ 322, 323.

The equitable remainder could not vest until the death of these beneficiaries. Spear v. Fogg, 87 Me. 132, 32 Atl. 791; Hunt v. Hall, 37 Me. 363.

4. We think that the legal construction of the bequest in question depends upon whether it is a remainder to William M. Towle in fee, or whether the words in the first part of