Earl v. Rowe , 35 Me. 414 ( 1853 )

Shepley, C. J.

— The first question presented for decision is, whether John Rowe by his will devised to Keziah Rowe one third part of his estate for life. It is not denied, that by the codicil an estate was devised to her during the minority of her sons, while it is insisted for the plaintiff, that her estate then terminated, and that she was to receive for her support one third part of the net profits in the nature of a legacy to be paid by her sons, who were then to become the owners of the whole estate.

The effect of a devise of the “occupation and profits” of land, when there was no devise in terms of the land, became early a subject of judicial consideration, and the decision was, that it was in substance- a devise of the land. Paramour v. Yardly, Plow. 540. And a devise of “half the issues and profits” of the land was decided to be a devise of half of the land. “ For to have the issues and profits and to have the land is all one.” Parker v. Plummer, Cro. Eliz. 190. The rule established by these cases has continued to be the settled rule of construction; and any terms equivalent to these have been regarded as a devise of the estate for such time as the issues, incomes, rents or profits were devised.

While this general rule is admitted, it is insisted, that the language used in the codicil exhibits a different intention.

The language used is “ she shall receive for her support one third part of the net profits of the aforesaid bequeathed estate so long as she shall remain such widow and no longer.”

The words “ she shall receive” having-been used to confer a right are equivalent to a declaration, that she shall be entitled to receive. The use of the word receive does not therefore authorize an inference, that she was to receive the profits from her sons and not from the estate. It is said that its use in connection with the words “net profits” exhibits an intention, that she should receive from her sons one third of the profits after all charges for repairs, taxes and expenses, had been deducted. This assumes, that it must have been his intention to subject her and them to the inconvenience, and to the constant danger of litigation, to determine yearly, what the net profits of the estate were or would be. It is more reasonable to conclude, that the word “ net” was used to guard against a claim on her part to have one third of the income without being subjected to the payment of one third of the taxes and repairs. It is quite probable, that the testator did not contemplate a division of the estate; and that he expected, that the mother and her sons would manage the estate together; and the use of the word net would then be appropriate to determine more exactly the extent of her rights; and it might be useful to make it certain, that she was to be chargeable with one third part of the taxes and repairs.

In the case of Parker v. Plummer, the devise was of half the issues and profits to the wife during life, “bearing and allowing half the charges thereof.” It was therefore in effect a devise of the net issues and profits. The words “ bearing and allowing half the charges thereof” communicate the idea, that the charges were not by the testator expected to be made upon each half separately, but upon the estate as a whole ; and yet they did not prevent the conclusion, that she took an estate for life.

But the effect in such a devise of the phrase “ net income,” has been determined by the case of Andrews v. Boyd, 5 Greenl. 199. It was in that case said “ the income of an estate means nothing more, than the profit which it will yield, after deducting the charges of management; and the devise of one third of the net income of it, was decided to be a devise of one third of the land.

By “ net profits” the testator in this case could have meant only the profits accruing to the widow after the taxes and expenditures for repairs had been paid out of what would be obtained from the estate. If she took an estate in one third part of the land there would be a charge upon it, and she would obtain no more or less from it, than the testator intended that she should.

To decide, that one third of the estate was devised to her, is to give effect, so far as it respects the amount to be taken from the owners of the other two thirds to be appropriated to her support, to the exact intentions of the testator, and to do it in the mode best suited to promote the harmony and comfort and least troublesome and expensive to all interested in the estate, and to afford the most perfect security to the devisee of the profits. This more perfect security of the profits to the devisee of them has ever been considered as one of the strongest reasons for the establishment and continuance of the rule.

The first question must be answered affirmatively.

It remains to be considered, whether the Court of Probate was authorized to cause one third part of the estate to be assigned to her.

It is provided by statute, c. 108, § 1, that the Court of Probate in which the estate of any deceased person is settled, or in course of settlement, may make partition of all his real estate lying within this State, among his heirs or devisees under the restrictions contained in this chapter. This power is sufficiently extensive to include a case like the present, if no restriction be in the subsequent sections. The exercise of the power is not limited to any particular time or number of years after the estate is settled. The provisions of the second section show, that the estate might bo expected to be divided in certain cases long after the decease of a testator and the settlement of his estate ; for a partition of a remainder or reversion is authorized after the termination of a life or particular estate created by devise.

The restrictions contained in the third section did not deprive the Court of Probate of jurisdiction in this case. The shares or proportions of the respective parties do not appear to have been in dispute. If the widow was entitled to any share, there could be no doubt, that she was entitled to one third, and that the two thirds were owned by others.

The jurisdiction is not restricted, because the share or proportion was “ uncertain, depending upon the construction or effect of any devise, unless it shall appear to the Judge to be uncertain.” If he should exercise jurisdiction in a case, in which the proportion did not appear to him to be uncertain, and his opinion should be erroneous, the aggrieved party would have a perfect remedy by an appeal from his decision or decree.

This question must also be answered affirmatively, that the proceedings are valid.

Tenney, Wells, Howard and Appleton, J. J., concurred.