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"Should he be very unfortunate and there beirs, his granddaughter Eliza and his son should be any pressing necessity, said trus Charles. The former had been a member of tees, upon so finding and certifying, may ad his household, and he had conveyed to her vance to him from time to time, not exceed and her mother his homestead in Augusta. ing five thousand dollars in all.

He calls her in the will his “dear grandUpon the decease of my sons, James W. daughter,” and it is evident that the ties of and Thomas W. S., I gave their half of the association had strengthened those of natural block of brick stores on Water Street (that affection. He had made advances to his son fell to me as their heir) to my surviving sons, for him to go into business. He had bought Henry and Charles, placing the latter in trust of him his one-fourth interest in the homefor him with the right to dispose of it by will. stead. The testator knew that his wife had

“As he has often complained in regard to devised property to Charles, placing it in the disposition of his mother's property, I trust, as she was bound to do by her promise wish to say here, that after the payment of to her brother, in order to receive anything specific bequests, her property was divided from him. Charles had often complained of equally between Henry and Charles, and no the disposition which was made of his mothmore of Charles' half was put in trust than er's property. The testator had himself conshe was bound by her promise to her brother, veyed property to Charles, placing it in trust, Henry R. Smith, to so place it in order to re with a right of disposition by will. He bad ceive anything from bim.”

seen his son make an unfortunate disposition The plaintiff claims that under item 11 he of the property he had had the control of, and took at once an absolute equitable fee in be feared that what he should leave him the corpus of the estate therein devised in would also be lost if left to his unrestricted trust, restricted to the enjoyment during his control, and that old age might find him in lifetime of the income only, subject to the need. He anticipated that, notwithstanding limitation over to his issue, if any, and, if the property Charles had already had from no issue, then that the trust would terminate both the testator and his wife, and the $8,000 at his death, and both the legal and equitable | bequeathed him by the will, he might in the fee would vest in his heirs, subject to any future be very unfortunate, and there might intermediate disposition of it by him.

arise a pressing necessity for his relief. It Great research and learning have been dis is evident that he did not have confidence in played and a vast array of authorities cited his son's business capacity, in his ability to by counsel in support of the successive steps successfully manage or long retain any propby which it is sought to establish the above erty, over which he had the power of alienaproposition. It would be unprofitable to here tion, and that, judging the future by the past, undertake to distinguish or analyze the cases he feared an “unfortunate disposition" of cited. Precedents and rules of testamentary such means as Charles might control. That instruction may afford valuable aid when the these facts were present in the testator's mind testator's intention is in doubt, but when that at the time he made the will cannot be quesintention is clearly expressed in the will, and tioned, for they are all recited in the will itviolates no rule of public policy, it must be self. given effect. It overrides precedents and tech The ninth item of the will directs that the nical rules of construction. This "pole star," residue of the property, after paying bequests, as it is sometimes termed, of testamentary gifts, debts, and expenses, be divided into construction, "leads into various courses, two equal parts by his executors, and transsince every will must be steered by its own ferred, one-half to the trustees for his grandluminary. Yet uniform justice is better than child, and one-half for the trustees of his son. strict consistency." Schouler's Ex'rs In item 10 he gives to the trustees for his Adm'rs, § 474. “It may well be doubted,” grandchild the one-half of the property consaid Mr. Justice Miller in Clarke v. Boorman's veyed to them by his executors, and declares Ex'rs, 18 Wall. 493, 21 L. Ed. 904, "if any the purposes of the trust, and the nature and other source of enlightenment in the construc extent of the beneficial interest of the cestui tion of a will is of much assistance than the que trust. He makes her his residuary legapplication of natural reason to the language atee, including lapsed bequests, "and the reof the instrument, under the light which may versionary or other interests in the property be thrown upon the intent of the testator by in trust for my son Charles.” In the next the extrinsic circumstances surrounding its item of the will he gives to the trustees in execution, and connecting the parties and the trust for Charles the half of the property to property devised with the testator and with be transferred to them by his executors, and the instrument itself.” No two wills are ever proceeds to declare the purposes of the trust, precisely alike. No two testators are situated and to define the nature and extent of the precisely the same, and it is both unsafe and son's beneficial interest. The trustees are diunjust to interpret the will of one man by rected to pay the net income to Charles durthe dubious light afforded by the will of ing his life, in quarterly payments, and, if another.

convenient, monthly. .Should he marry again, Coming now to the instrument before us, as he did during the testator's lifetime, and we find that the testator had two natural have issue, such issue are to have the prop

erty. Should the wife survive him without tire beneficial interest in the property. It issue, the testator states that Charles has the is hardly probable, in view of all the proviright to dispose of one-half of the block of sions and recitals in the will, and in view brick stores in Augusta, and can make provi of the advanced age of the testator when he sion for her. If Charles is unfortunate, and made it, that when he spoke of reversionary there is pressing necessity for it, the trustees or other interests he had nothing more in may advance him not exceeding $5,000 in all. his mind than the remote possibility of his

Such are the terms of the will. Reading surviving his son. it in the light of the facts which the testator When the testator explains his reasons for had present in his mind at the time he made making the disposition of his property which it, we think it clear that he intended to give he did, it is contended that the statement to his son a life interest in the income only that he would prefer to give Charles the propof the trust fund named in item 11 of his erty directly, free from the trust, is inconwill, with a right in case of misfortune and sistent with an intention that he should not pressing necessity, upon the trustees so find take the entire beneficial interest, and that ing and certifying, to receive not exceeding the same is true of the further statement in $5,000 from the principal. Indubitable evi. the same connection, that he fears what be dence is afforded that he believed he had leaves for him would be lost if left for the done this and nothing more by the state son's unrestricted control, and old age might ments that his granddaughter is his resid find him in need. That might be true if uary lega tee in the reversionary and other the words stood alone, but these words were interests in the property in trust for his son, used to express the testator's reason, as and that the son can provide for his wife, well as his regret that he felt compelled not in case he marries again, out of the prop to give Charles a larger interest than he did. erty over which he already had the power He feared that whatever the son bad the of disposition by will. It is incredible that control of would be “lost." The words must Mr. Bradbury would have incorporated this be read in connection with the other parts last statement into the same clause of a of the will, which plainly show an intention will by which he intended to give Charles to give but a life interest in the income. It the right to dispose by will of $90,000 of is not probable that the testator would give property. Mr. Bradbury was a lawyer of an unlimited power of disposition over a long experience and large practice. The mat- large estate to one whom experience bad ter of the son's right to dispose of property taught him was incapable of wise and pruby will was present in his mind, brought dent business management. sharply home to his attention at the time Lastly, the use of the word "advance" is he was writing the very item of the will said to indicate that the testator understood under which the plaintiff claims, and yet the corpus of the fund to be vested in his plainly the testator regarded the block of

The use of the word is undoubtedly brick stores as the only property from which consistent with that view, but the intention of Charles could make a future testamentary | the testator is to be gathered from the whole provision for his wife. No thought could will, and not from isolated words and phrases. have been further from his mind when The most exact of men do not always exhe penned that statement than that Charles press themselves with equal care and prehad the entire beneficial interest in and the cision. This is as true of wills as of other power of disposal by will of the $90,000 human transactions. The testator's prewhich he had just given to trustees, with dominant idea was to care for his granddirections to pay the net income to Charles daughter and his son, and that the bulk of during his life.

the estate which he left should be preserved It is strongly urged that certain parts of and applied for this purpose, and not “lost" the will manifest contrary intention. or made the subject of “unfortunate disposiStress is laid upon the direction that the ex tion." Sad experience had taught him that ecutors shall see that the certificates of stock what the son controlled he might well fear they deliver shall show for whom the trus- would be lost. His intention extended betees are holding the property. This may re yond the preservation of the income of the quire a few more words, but it can be done trust fund for the life of his son, and he proas well under one construction of the will vided that after Charles' death without issue as the other. In the residuary clause the it should vest in the “dear granddaughter." testator speaks of the reversionary or other | A will is not to be expounded by a word interests "in the property in trust for my here and another there, but by what on the son Charles." In a sense it was in trust whole was the testator's scheme for the rafor Charles, as he was to have the income tional disposition of his estate. from it for life, and possibly $5,000 of the Such being Mr. Bradbury's intention as principal. The context wherein he speaks of expressed in his will, and construing the will reversionary or other interests in this fund in the light of that intention, has he used passing to the residuary legatee is strong appropriate language, according to the rules evidence that when he used the words he did of law, to carry that intention into effect? not intend that Charles should have the en The plaintiff invokes the familiar rule of

son.

а

testamentary construction that where an es

(97 M&, 427) tate in fee simple is devised, or an absolute

TOWLE V. DOE et al. gift of personal property made, a devise or

(Supreme Judicial Court of Maine. April 9, gift over is void, and the estate first given

1903.) cannot afterwards be cut down except by

WILLS - PERPETUITIES - GIFT REMAINDER the use of clear and appropriate language. -TRUST-CHILDREN-TIME OF VESTWallace v. Hawes, 79 Me. 177, 8 Atl. 885;

ING-FUND NOT SEPARABLE. Loring v. Hayes, 86 Me. 351, 29 Atl. 1093; 1. Where by will a gift is made of a remainMitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52

der in fee, and in the same will there follows Am. Rep. 781. The answer is that that is

language showing a clear intent to charge such

remainder with a trust invalid under the rule not this case. The trust fund is not given against perpetuities, the donee takes such reto the trustees "in trust for Charles" and mainder in fee. nothing more. If it were, he would take

2. A trust attempted to be created by will for

the use of a man and his children is invalid both the legal and equitable estate in the

as contravening the rule against perpetuities, corpus of the fund. The purposes of the unless it appears from the context that only trust are declared. They are to pay the net

those children actually in esse at death of the income to Charles during his life. If he has

testator are intended to share in the benefit.

3. The mere fact that events as they finally issue they are to have the property left for transpire restrict a trust in such manner that, him "as aforesaid"; that is, left in trust for had the will in apt terms in fact so limited the the purpose of paying to him the net income.

trust, it would have been valid, does not alter

the rule that the tests of validity must be apThere is no absolute gift of this property.

plied to the language actually used by the tesIt is given in trust for Charles, to pay the tator in the will itself. net income to him during life. The words 4. That construction of a will should be which give to the trustees, and all the words adopted which does not contravene the rule

against perpetuities, whenever by so doing the which declare the purposes for which the intention of the testator will not be wholly distrust is created, are to be read and construed appointed. together. A gift of the income of personal

5. A trust fund created by a clause in a will property is a gift of a life estate. Sampson

providing for the payment of "the interest, de

ducting expenses, to W. M. T. and his chilV. Randall, 72 Me. 109. If there is nothing dren, so long as they live,” is not separable, in a will to show an intention that anything and might vest too remotely to be valid. should be paid to a legatee except the in

6. In such a clause the word "children" is

not to be construed as meaning alone those in come of a fund during life, the fund upon his

esse at the death of the testator, unless such death falls into the residue. Wynn v. Bart meaning is evident from the context. lett, 167 Mass. 292, 45 N. E. 752. Here there (Official.) is ample evidence that the testator intended

Report from Supreme Judicial Court, Peto give no more than the income, and that

nobscot County. intention must be given effect. In Re Mor

Bill by Josiah C. Towle against Alice H. gan (1893) L. R. 3 Ch. 222, Lindley, C. J.,

Doe and others. Case reported. Decree rensays: “I should bave thought that upon the dered. will the matter was reasonably plain, but we are pressed with authorities. Now, I

Bill in equity to obtain the construction do not see why, if we can tell what a man

of the residuary clause of the last will and

testament of Josiah Towle, late of Bangor, intends, and can give effect to his intention

deceased. as expressed, we should be driven out of it by other cases, or decisions in other cases.

The will showed evidence of being holoOf course there are principles of law which

graphic, and the complete residuary clause are to be applied to all wills, but if you once

was as follows: get at a man's intention, and there is no

"To my wife Lucinda L. Towle I give &

bequeath all the remainder of my property of law to prevent you giving it effect, effect ought to be given to it.”

every description both real personal & mixed

to have The plaintiff takes a life estate in the in

to hold occupy & enjoy & receive

all the income rents & interest during her come only of the trust fund named in the eleventh item of the will, with a right to have

life time & at her decease I give & bequeath paid to him not exceeding $5,000 of the prin

all the aforesaid property which I have decipal contingent upon the trustees finding and

vised to her during her life time & which certifying that there is a pressing necessity

shall remain at her decease, to my four for it. The remainder in said trust fund, by

children viz: Wm. M. Towle & his heirs

one-fourth part to be invested by my execthe tenth item of the will, vested iu Eliza Louisa Bradbury, subject to be divested by

utor in U. S. bonds or State bonds & the

interest deducting expenses paid over to said surviving issue of the plaintiff, and at his

Wm. M. Towle and his children so long as death without issue is to be paid over by the

they live & then the principal divided to his trustees to her, if living, or if deceased to

or their heirs. such person or persons as are entitled to ber estate.

"Mary L. Taylor and her heirs one-fourth

part said fourth part to be invested by my Costs and reasonable counsel fees are to be allowed out of the estate. Decree accord

executor in U. S. or State bonds & the iningly.

[ 2. See Perpetuities, vol. 39, Cent. Dig. $ 16.

terest deducting expenses paid over to said or State bonds & to keep the same so invest. Mary so long as she shall live & after her ed & pay over the income & interest deductdecease the principal divided to her heirs & ing taxes & expenses to meet the aforesaid invested in bonds as aforesaid for them by devises as herein before specified." my executor & the accruing interest deduct The only child of William M. Towle at the ing expenses shall be so invested & added to testator's death, at the termination of the inthe principal & as fast as they shall attain tervening life, and also at his death, was the age of twenty-five years provided they Alice H. Doe. shall be of sound mind and steady habits & There was also a codicil, which, however, shall have accumulated not less than three had no bearing on the case. hundred dollars of property if a male or fifty Argued before WISWELL, C. J., and EMdollars if a female by their own industry | ERY, WHITEHOUSE, POWERS, PEAthen their several portions shall be paid over BODY, and SPEAR, JJ. to them & such of them as shall not be of

F. H. Appleton and H. R. Chaplin, for sound mind & good habits & have accumulat

plaintiff. J. R. Mason, for defendants. C. ed as aforesaid shall receive only the interest

H. Bartlett, guardian ad litem, for minor (deducting expenses) of their said share year

defendants. Matthew Laughlin, administraly during their life time & at their decease

tor of the estate of William M. Towle, pro se. 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 PEABODY, J, This cause comes before executor.

the law court on report. It is an equity "To my son Josiah C. Towle & his heirs suit brought for the purpose of obtaining a one-fourth part to be paid over to him by my , legal construction of certain provisions of executor.

the will of Josiah Towle, late of Bangor, “Provided however if my estate shall not Me., deceased. prove sufficient (after deducting the four The case shows that the testator made and thousand dollars herein before set aside) to executed his will on the 17th day of Auleave a sufficient sum for my wife Lucinda gust, A. D. 1866, and a codicil thereto on the L. Towle so that she shall receive therefrom 9th day of March, A. D. 1876. The proa net income of Ten hundred dollars per an visions of the codicil are immaterial in the num after deducting taxes & expenses & case. The portions of the will which the house rent then sufficient of the interest of parties desire construed, being part of the the aforesaid four thousand dollars shall be residuary clause, are as follows: paid over to her yearly-instead of being "To my wife Lucinda L. Towle I give paid over or reserved for said needy ones as & bequeath all the remainder of my property afore herein stipulated to make up her in of every description both real personal & come to the sum of $1000 per annum & if mixed to have & to hold occupy & enjoy the whole of the interest of the said four & receive all the income rents & profits thousand is not sufficient to make up the interest during her lifetime & at her de. yearly net income to ten hundred dollars cease I give & bequeath all the aforesaid then a portion of the principal of said four property which I have devised to her during thousand dollars may be taken each year her life time & which shall remain at her until the whole is used up if needed to make decease, to my four children viz: Wm. M. up said sum of $1000 net yearly income in Towle & his heirs one-fourth part to be instead of being reserved as before devised to vested by my executor in U. S. bonds or my children aforesaid & whatever may re State bonds & the interest deducting ex main of it shall be divided to them as above penses paid over to said Wm. M. Towle and devised.

his children so long as they live & then the "And for the furtherance of the aforesaid principal divided to his or their heirs." object and for the safety & protection of the The remaining parts of the residuary clause property & to establish a legal mode for the relate to the bequests to the other three sale & transfer of all my property I hereby children of the testator, and do not affect the devise & bequeath to my trustee hereinafter question submitted, except as indicating the named all my estate real personal & mixed intention of the testator. to have & to hold the same upon the terms The testator died January 26, 1883, and trust & conditions hereinafter specified herein his widow, Lucinda L. Towle, died April 8, fully authorizing and empowering said Trus. 1886. His son William M. Towle died Jantee to sell & dispose of any & all said estate uary 23, 1896, leaving a widow, now living: real personal & mixed except that my dwell and his granddaughter Alice H. Doe, the ing house on State Street & my store if (I surviving child of William M. Towle, has shall own any at my decease) shall not be died since the filing of the bill in equity, sold until after the decease of my wife but leaving a husband and children, who are all the other property may be sold & convey now living. ed by my said Trustee when & in such man The validity of the will and codicil is not ner as to said Trustee may seem most ad questioned, and their terms clearly indicate vantageous hereby directing my said Trustee that the testator thereby intended to dispose to invest the whole proceeds of sales in U. S. of his entire estate. The will is not arti.

54 A.-68

ficially drawn, as is evident both from the į give his four children and their immediate words used and the structure of its testa. families the benefit of equal shares in his mentary provisions.

estate at the death of his wife. In the portion of the will quoted the words The general terms of the provision are: used in the first section of the clause imply "At her decease I give & bequeath all the an absolute bequest to his son William M. aforesaid property which I have devised to Towle, but they are followed by words show- her during her life time & which shall reing that the testator intended that the legal main at her decease, to my four children.” estate in this fourth part of the residuum He then in specific terms defines the sevshould vest in a trustee, to be disposed of in eral bequests of one-fourth to each. To two accordance with the terms of the trust.

of his sons he gives the shares in apt words In determining the general intent of the to them and their heirs. To the daughter testator, the words defining the bequest to and her heirs he gives one-fourth part, and William M. Towle and his heirs cannot be in words immediately following modifies the dissociated from those which immediately bequest by directing its investment by his follow; and the language of the whole clause executor, and creating a trust not free from shows that the bequest was not intended by complications similar to those in the provithe testator to be a remainder in fee to Wil. sion under consideration. liam M. Towle, but an executory bequest to If a construction may be given to the will be held by the executor in trust for the lives which does not contravene the rule, and does of William M. Towle and his children, and at not wholly disappoint the intention of the the decease of the survivor of them to vest testator, it should be adopted. 3 Jar. on in their heirs. The doubt which has arisen Wills (5th Am. Ed.) 709. as to the legal effect of this bequest is 2. Another theory of construction is that whether it is in conflict with the rule against the bequest in trust is limited to beneficiaries perpetuities.

in esse at the date of the death of the testaThe common-law rule is recognized by the tor, namely, William M. Towle and his child, courts of this state, as formulated in Cadell Alice H. Doe, and vested at the death of the v. Palmer, 7 Bli, 202, quoted in 2 Woerner survivor, Alice H. Doe, in her heirs. on American Law of Adm. $ 427:

This construction is claimed on the ground “The utmost period in which an executory that the word "children" used by the testabequest can take effect is a life or lives in tor in his will may mean children living at being and twenty-one years thereafter, to the time of his decease, but we tiink that gether with the period of gestation already this can only apply to cases where this existing.”

meaning is evident from the context. It canThe same rule applies to trusts as is ap not be forced against the plain language of plied to legal estates. 1 Perry on Trusts, 8 the will so as to apply only to those of the 382.

same class who might legally take the equitaThe actual events now show that the will ble estate. Gray on Per. c. 10; Barnum v. in effect limited the trust to William M. Barnum, 26 Md. 119, 90 Am. Dec. 88; Leake Towle and his daughter Alice H. Doe as v. Robinson. 2 Mer. 363, 388; Dorr v. Loverbeneficiaries for life, and had it done so in ing, 147 Mass. 530, 18 N. E. 412. terms the bequest would not have been void 3. Another construction sought is that the for remoteness, because this daughter was his bequest was in trust during the life of Wilonly child at the death of the testator, at liam M. Towle, and that only the limitation the termination of the intervening life, and over to his children for life and to his or at his own death. But the test of the va. their heirs in fee was void for remoteness. lidity of the gift must be applied to the This construction can only rest upon the aslanguage of the will itself. And the possi- sumption that the beneficiaries mentioned in bility that the executory limitation might be the trust would take the interest in succesvoid for remoteness is clear from the fact sion. But the legal estate is not given to that a child or children of the testator's son them for life, but to a trustee. The trust is William M. Towle might be born after the an entirety, for the benefit of a parent and death of the testator, the continuance of his children, and is prima facie concurrent. whose lives might postpone the vesting of It would seem that the equitable interest bethe estate beyond the time limited by law. longed to William M. Towle and his children 1 Jar. on Wills, 266; 2 Woerner, Am. Law as a class, and consequently to the survivor. Adm. § 427; Webber v. Jones, 94 Me. 429, This is also indicated by the words "his or 47 Atl. 903; Gray on Per. $ 214.

their heirs." Schouler on Wills, $$ 530, 557; From the facts in the case and the lan. Gray on Per. 88 322, 323. guage of the will several theories arise as to The equitable remainder could not vest the construction of the portion quoted in until the death of these beneficiaries. Spear the third clause of the bill.

v. Fogg, 87 Me. 132, 32 Atl. 791; Hunt v. 1. That the entire bequest is void because Hall, 37 Me. 363. the fatal defect of violating an inflexible 4. We think that the legal construction of rule of law applies to the whole.

the bequest in question depends upon wheth-. This construction would do great violence er it is a remainder to William M. Towle in to the manifest intention of the testator to fee, or whether the words in the first part of

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