Loring v. Hayes

Wiswell, J. Bill in equity asking for the construction of a will. The only two clauses of the bill involved in the question presented, are as follows : " Second. I give, bequeath and devise to my wife, Betsey, Loring-, my house with all the buildings and the land adjoining the buildings, also all the furniture and housekeeping articles contained in my dwelling house in said Yarmouth to have and to hold the same for her use during her natural life, also my horse, carriage, sleigh, harness, farming tools, also my watch and jewelry, Pew No. 9 first Parish Church I also give and bequeath to my said wife, Betsey Loring Forty-five hundred, dollars (4500) to be paid to her in cash or in such personal securities as she may select from my estate. " Fifth And upon the decease of my said wife I give bequeath and devise all that may remain unexpended of the real and. personal or mixed estate given to my said wife in the second clause of this will, to Jacob L. Hayes and others [naming them} to be divided equally between them share and share alike, to-have and to hold to them, and each of them in severalty, their’ heirs and assigns forever.” The foregoing is an exact copy of the two clauses of the w’illl (except the names of the devisees in the fifth clause) according; to the report, including punctuation. The only question is whether the last portion of the second! clause, taken in connection with the fifth clause, gives to the-widow' the sum of forty-five hundred dollars absolutely, or only the use of that sum for her life, with or without the right to! expend the same. "1 also give and bequeath to my said wife, Betsey Loring forty-five hundred dollars (4500) to be paid to her in cash or in such personal securities as she may select from my estate.” This language is not only sufficient and appropriate to make an absolute bequest, but it is difficult to see how the testator could have used other or different words which would more clearly show his intention of making an absolute general bequest. The same language used in a devise of real estate would give the devisee an estate in fee simple. [356] But the counsel for the respondents urge that the use of the word, "also” in this paragraph, "I also give and bequeath,” shows that the intention of the testator was to limit this bequest as he had the other devises and bequests in that clause. He says that the word means, "in like manner,” and that the testator’s intention was to bequeath this sum of money in like manner with the rest of the devises and bequests in the clause, that is, "for her use during her natural life.” The word "also,” is used three times before in the same clause, once shortly before and twice after the words of limitation. Its use and connection in the two first instances after the words of limitation was undoubtedly such as to show an intention upon the part of the testator that the bequest of the specific articles of personal property, the horse, carriage and other things mentioned should be subject to the same limitation. The case of Morgan v. Morgan, 41 N. J. E. 235, relied upon by respondents’ counsel is, we think, much more applicable to the use of the word, "also,” in the instances that we have just referred to, than to its use in a separate and distinct paragraph, as this seems to be. While it is true that one meaning of the word "also ” is "in like manner,” another and quite as common a meaning is " in addition.” "besides,” and we think that this is the sense with which it was used by the testator in this last paragraph. The respondents’ counsel further urge that the fifth clause of the will, wherein the testator devises and bequeaths unto Jacob L. Hayes and others " all that may remain unexpended of the real and personal or mixed estate given to my wife in the second clause'of this will,” at the decease of his wife, should be taken into consideration as showing that the bequest of this sum of forty-five hundred dollars was for life only. Whether by this clause the testator intended to make a devise and gift over of all the property mentioned in the second clause, or only of that which was given for life can make no difference. It has long been a settled rule in this State, as well as elsewhere, that where by the terms of a devise or bequest an estate in fee simple of real estate, or an absolute gift of personal property is made, a [357] devise or gift over is void. Jones v. Bacon, 68 Maine, 34; Stuart v. Walker, 72 Maine, 146 ; Mitchell v. Morse, 77 Maine, 423. In this case, the bequest of forty-five hundred dollars to the wife in cash or securities to be selected by her is absolute ; there are no words of limitation that apply to that portion of the clause and it cannot be presumed that the testator intended a a life estate only, when the language used clearly indicates an intention to make an absolute gift. Decree accordingly.