Emery v. Union Society

Virgin, J. The testator, a resident in this state, executed hiss will February 3, 1883, died April 23, 1885, and his will was-probated the succeeding June. At the date of his will he had a wife and five nephews and: nieces — children of his only sister, residents in Philadelphia.. He also owned one moiety of certain real estate in Savannah;. Georgia — which was all he owned there — and his nephews-named, owned the other moiety. After giving certain specific legacies to various persons, the testator bequeathed and devised to the plaintiff as his trustee, all the residue of his estate real and personal upon certain trusts,, and authorized him to lease, exchange, sell and convey any or alb of his estate for the purpose of executing the provisions of his will. The trusts specified were: to hold, manage, care for and invests all the residue of his estate real and personal according to his-best discretion and judgment, pay the annual income thereof to, his wife so long as she shall remain his widow; should that not suffice, then the trustee should add thereto, irrespective of any other source of income possessed by her, such a sum out of the principal as would suffice — but that he should not sell the real estate in Savannah, "until a strong necessity should arise therefor,” and " to divide so much of his estate, as may be remaining [340] upon the death or re-marriage of his wife, among his residuary legatees as provided in this will.” He then bequeathed and devised upon the death or re-marriage of his wife, unto four of his Philadelphia nephews and nieces — Anna M. Wirgman, John M. Durborrow, Richard N. Durborrow and W. F. H. Durborrow — "to hold in equal shares, all his real estate in Savannah.” He then bequeathed and devised "upon the death or re-marriage of his wife, all the residue of his estate real and personal, to the Union Society of Savannah,” a society duly incorporated for charitable purposes. After the execution of the will but before the decease of the testator, his wife died. Thereafter, on July 31, 1884, the testator sold and conveyed his real estate in Savannah, for the sum of fifteen thousand dollars — five thousand dollars cash, and ¡two notes of five thousand dollars each payable in one and two years respectively with interest, secured by a mortgage on the premises. The notes were entrusted by the testator, to the husband of one of the ’devisees for collection, who after the decease of the testator collected the first note and interest on both to July 31, 1885, and remitted the same to the plaintiff as executor, and the second note still remains unpaid in the custody of him to whom it was entrusted. Not only the surviving nephews and nieces, but the Union Society claim the proceeds of the Savannah property. In their answer the former claimed them and "the interest of the testator therein, by virtue of the mortgage as belonging to them under the will.” At the argument the claim is that the trust declared was based on the contingency that his wife would survive the testator, in which event the residuum was to go to the trustee; but that in the event which actually happened of his wife’s death preceding his own, the will is silent and that such property remains undisposed of by the will and is to go according to the rules of inheritance under the law of the state of Georgia. The testator’s domicile having been in this state the construe [341] tion of his will and its effect depend upon the law here. Gilman v. Gilman, 52 Maine, 165. It is settled law that whether searching for the meaning of the whole, or of any particular clause of a will, the intention of the testator as collected from all of its provisions and its general scope is the criterion for its interpretation ; and when that intention is ascertained full latitude can be given to it provided it conforms to those settled rules of law which establish and secure the rights of property. Anderson v. Parsons, 4 Maine, 423, 425; Morton v. Barrett, 22 Maine, 257; 4 Kent’s, Com. *535. Doubtless the provisions of the will in controversy establishing the trust are based on the testator’s expectation that his wife would survive him, and that her death and re-marriage referred to a time subsequent to his own decease. It is equally certain that when he executed his will, he intended that the four children .of his only sister mentioned by name therein as devisees, should after his decease have his moiety of the Savannah real estate, or so much thereof as should not be needed for the maintenance of his widow in " that style and station to which she had been accustomed as his wife.” And if the title to that property had been in the testator at his decease probably no question would have arisen in regard to the devisees’ title. But his own sale and conveyance of it after the death of his wife, when it was no longer possibly needed for her support under the will, took it away from the provisions of the will so far as it related to the trust and the devise to his nephews and nieces, and thus revoked pro tanto those devises. Carter v. Thomas, 4 Maine, 341; Hawes v. Humphrey, 9 Pick. 350, 361; Webster v. Webster, 105 Mass. 542. In Brydges v. Duchess Chandos, 2 Ves. p. 417, the Chancellor declared this to be a principle of the common law not to be shaken in point of authority. It is the rule laid down in all of the elementary works on Wills and Devises as well as in a multitude of judicated cases. And the fact that the testator took back a mortgage which passed no title, but simply created a lien upon the property for security of a part of the purchase money, does not prevent the342 partial revocation. Adams v. Whine, 7 Paige, 97; Beck v. McGillis. 9 Barb. 35; McNaughton v. McNaughton, 35 N. Y. 201. "Conveying a part of the estate upon which the will would otherwise operate,” said Weston, J., "indicates a change of purpose in the testator as to that part; and suffering the will to remain uncanceled, evinces that his intention is unchanged with respect to other property bequeathed or devised therein.” Carter v. Thomas, supra. Kent’s Com. (12th ed.) *529. And implied revocation is recognized in R. S., c. 74, § 3. The proceeds of the sale of the Savannah property cannot go under the will to the nephews and nieces as devisees, for the will contains no such provision, as did the wills in Clark v. Packard, 9 Gray, 417; Atwood v. Weems, 99 U. S. 183; McNaughton v. McNaughton, supra. If after the decease of his -wife the testator still intended that the real estate which he had devised to his nephews and nieces, should go to them, why did he sell and convey it to a stranger — why not convey it to them and thus execute his own will in that respect; and if he intended they should have proceeds of the sale, why did he take the cash and entrust the notes to the husband of one of them for collection instead of passing them over as their property ? If the proceeds do not go by the will to the devisees of the land to whom do they go ? The nephews and nieces contend that they are not disposed of in any manner by the will, but are intestate property and hence go by descent to the next of kin; while the Union Society claims that they fall to it through the residuary clause. And this result we think is in accordance with the rules of law. Rules of law are necessarily general, and sometimes operate harshly, but still they are land-marks which must be observed. It is not to be disputed that a general legatee as distinguished from a particular legatee is entitled to everything which " turns out not to be disposed of,” 2 Wms. Ex’rs, (6Am. ed.) 1567 and notes. 2 Jar. Wills, *762; Bosley v. Bosley, 14 How. 391; Drew v. Wakefield, 54 Maine, 291; Thayer v. Wellington, 9 [343] Allen, 283, 295. "Because the testator is supposed to take the particular legacy from the residuary legatee only for the sake of the particular legatee; so that upon the failure of the particular intent, the court gives effect to the general intent.” 2 Wms. Ex’rs, 1569; 2 Jar. Wills, *762. To be sure, the testator may by the terms of the bequest narrow the title of the residuary legatee so as to exclude lapsed legacies. Dunlap v. Dunlap, 74 Maine, 402; 2 Wms. Ex’rs, (6 Am. ed.) 1571. 2 Jar. Wills. *762; Bullard v. Goffe, 20 Pick. 252; Tindall v. Tindall, 9 C. E. Gr. 512, and cases cited. In this will, however, we find no such language as would seem to bring the residuary clause — whereby "upon the death of his wife all the residue of the testator’s estate real and personal’, was to go to the Union Society — within this rule. The result is, the proceeds of the sale of the Savannah real estate falls into the general residuary clause in behalf of the Union Society. Bill sustained. Costs of both parties to be paid by the executor, including reasonable counsel fees. Peters, C. J., Walton, Libbey and Haskell, JJ., concurred.