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divorce, or intended or calculated to facilitate the same is void; and that an agreement to prosecute an action for divorce and to pay witness fees in a stated sum is champertous and void: Barngrover v. Pettigrew, 128 Iowa, 533, 111 Am. St. Rep. 206.
Attorneys are not Entitled to Any Pay for Their Services, Where they have been guilty of actual fraud or bad faith toward their clients in the matter of their employment: Davis v. Swedish-American Nat. Bank, 78 Minn, 408, 79 Am. St. Rep. 400.
The Right to Recover Payments Voluntarily Made is discussed in the note to New Orleans etc. Co. v. Louisiana etc. Co., 94 Am. St. Rep. 408.
YOUNG v. HILLIER.
(103 Me. 17, 67 Atl. 571.)
C. A. Bailey and T. D. Bailey, for the plaintiff.
SAVAGE, J. This is a real action which involved a construction of the will of Nathan P. Marston. The particular clauses which are in question are these :
"Item. I give, devise and bequeath to my wife, Elizabeth A. Marston, all my estate both real and personal wherever found and however situate for her use during life.
"Item. At the death of my said wife Elizabeth, whatever may remain of said estates, I give, devise and bequeath to my daughter Elizabeth A. Young.
Elizabeth A. Marston is now deceased, and the plaintiff, who is the Elizabeth A. Young named in the second devise, claims title as remainderman. The defendant claims title under Elizabeth A. Marston, who in her lifetime mortgaged the demanded premises to Mary F. Blethen. The mortgage was foreclosed, and subsequently the premises were conveyed by the mortgagee to the defendant, Mrs. Marston joining in the deed, as a grantor.
There can be no question but that the first clause of the will, above quoted, standing alone, created a life estate in the widow, and only a life estate. It follows that the only question at issue is whether by the terms of the will, properly in
terpreted, a power of disposal was annexed to the devise for life. If so, the estate demanded now belongs to the defendant. If not, it belongs to the plaintiff.
It is contended by the defendant that from the use of the words “whatever may remain of said estates" in the devise of the remainder to the plaintiff, it is to be implied that the testator intended to give to the life tenant more than the mere use of the estate real and personal; that he intended, in fact, to give her a power of disposal both of the real and the personal estate.
To give effect to the intention of the testator, provided it is consistent with the rules of law, lies at the foundation of every judicial construction of a will. The questions always are, what was the intention of the testator, and can it be given effect without 20 violating legal principles. It is the intention as expressed that must control: Cotton v. Smithwick, 66 Me. 360. The language must be construed according to settled canons of interpretation (Ramsdell v. Ramsdell, 21 Me. 288), even though it may defeat the probable intention: Pickering v. Langdon, 22 Me. 413. But a will, if ambiguous, is to be read and construed in the light of such existing conditions as may properly be supposed to have been in the mind of the testator, such as the situation and relationship of his beneficiaries, and the situation and amount of the estate: Smith v. Bell, 6 Pet. 68, 8 L. ed. 322; Follweiler's Appeal, 102 Pa. 581.
After making provision for his wife, then sixty-seven years old, by creating a life estate in real and personal property for her use, this testator devised “whatever may remain of said estates," at the death of the wife, to his daughter. It is generally conceded that by the use of such an expression in the devise of a remainder after a life estate is expressly created, or by the use of the expression “if any remains," or by the use of any words of similar import, a power of sale is annexed to the devise of the life estate by implication. This rule has been many times affirmed in this state: Ramsdell v. Ramsdell, 21 Me. 288; Shaw v. Hussey, 41 Me. 495; Warren v. Webb, 68 Me. 133; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; McGuire v. Gallagher, 99 Me. 334, 59 Atl. 445. So in Massachusetts Harris v. Knapp, 21 Pick. 412; Johnson v. Battelle, 125 Mass. 453. Some courts have held that when a life estate in both real and personal property has been created, a devise of “whatever remains, or the use of words of similar import, annexes to the life estate, by implication, a power of sale of the personal property only. In Foote v.
Sanders, 72 Mo. 616, for instance, a case cited by the plaintiff here, such was held to be the rule. But the court in that case said that the contrary doctrine was favored by the cases in Maine and Massachusetts, and expressed the opinion that the “extreme views" held in these two states were met and answered by Smith v. Bell, 6 Pet. 68, 8 L. ed. 322, and Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. ed. 927. In this connection it is worth while to notice that our own court, speaking by Chief Justice Peters in Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311, characterized Smith v. Bell, 6 Pet. 68, 8 L. ed. 322, as “a case differing 21 somewhat from many of the authorities," and declined to follow it.
But whatever may be the rule in other states, we regard it as well settled in this state that such an implication raised from the general expression “whatever may remain" may apply to real estate as well as to personal estate, when the life estate consists of both, and will so apply, if such appears to have been the intention of the testator: Ramsdell v. Ramsdell, 21 Me. 288, and other cases cited supra. So that, if such an
appears in this will, it can be enforced. And we think it clear that such was the testator's intention. He was providing for an aged wife—surely in greater need of care than the daughter. He gave her, by implication, the power to sell some of the estate at least. Was that power intended to be limited to the personal estate? It is hardly credible that it was. The personal estate only amounted to one hundred and eighty-six dollars and twentyfive cents. The real estate from which she could receive only the income or use unless she could sell it, amounted to only eight hundred dollars. If such be the construction of the will
, but scant provision was made for the wife, and the bulk of the estate, small though it was, went to the daughter in the end. But we are not left to conjecture. The testator having created a life estate in real estate and a life estate in personal estate, in the wife, devised “whatever may remain
” both of them. It was not whatever should remain of his estate in general, but whatever should remain of the real estate and of the personal estate. The word “esstates," in the plural, naturally has this significance, and we think it expressed the real intention of the testator. By saying that only so much of the real estate as might“remain’ at the death of the wife should pass to the daughter, he expressed his purpose that the use given to the wife should extend to a sale of it, if she wished or needed. Otherwise there
of said estates,
is no practical significance in the use of the word “remain' in this connection.
Accordingly, the law implies a power of sale as annexed to the estate for life in the real estate. That power was effectually exercised by the life tenant in her lifetime, and no estate in remainder in the real estate fell to the daughter at the death of the mother. The title to the demanded premises is in the defendant.
Judgment for the defendant.
The First Taker in a Will is presumed to be the favorite of the tes.tator, and the tendency is to adopt such a construction as will give him an estate of inheritance: Platt v. Brannan, 34 Colo. 125, 114 Am. St. Rep. 147; Joplin Brewing Co. v. Payne, 197 Mo. 422, 114 Am. St. Rep. 770; Strawbridge v. Strawbridge, 220 Ill. 61, 110' Am. St. Rep. 226. Under a will by which a testator gives his property to his sister, and provides therein that if she should die without issue and leave any of the property, it shall go to another, the sister takes an absolute fee simple, with full power to sell and convey a perfect title: Galloway v. Durham, 118 Ky. 544, 111 Am. St. Rep. 300, and see cases cited in the cross-reference note thereto.
LANCASTER V. AMES.
[103 Me. 87, 68 Atl. 533.] EVIDENCE-Typewritten Letters.-A reply letter received by due course of mail is admissible in evidence without specific proof of the genuineness of the signature attached thereto, although the whole body of the letter, including the name of the one purporting to be the writer, is typewritten. (p. 288.)
EVIDENCE-Typewritten Letters.—Presumption of Genuine ness of a reply letter wholly typewritten, including the signature, received in due course of mail may be strengthened by the contents of the letter itself. (p. 289.)
GAMING.–Buying Stock on Margins is a gambling transaction, and void. (p. 289.)
GAMING—Buying Stock on Margins-Enforcement of Con. tract.—If money is advanced to another for the express purpose of buying stock on margins, the promise of the person to whom it is advanced to repay it or be accountable for it, is void for want of consideration, and cannot be enforced. (pp. 289, 290.)
C. E. Sawyer, for the plaintiff.
88 SAVAGE, J. The plaintiff in his declaration alleged, among other things, that he let the defendant have one hundred dollars to invest, and that the defendant promised to account for or return the same at the end of one year, if