Stone v. North , 41 Me. 265 ( 1856 )

Goodenow, J.

The interest which Lucretia Jewett had by the will of Enoch Jewett in the residue of his estate, was not an annuity, but it was an estate for her life in all the residue of the personal estate.

We cannot come to any other conclusion without disregarding the plain, unambiguous language of the will. Such as, “In the remaining property and estate which I hereby give and devise to her, I give and devise a life estate only. I give and devise to my beloved wife the use, improvement, income and issue of my house and lot and out-houses in Pittston where I now live, to have and to hold, during her natural life and no longer. I give and bequeath to her in addition, the use, income or interest of all the personal estate of which I may die possessed, (not herein before given and bequeathed to the several legatees mentioned,) to have, possess and enjoy to her absolutely, for and during her natural life, and no longer.”

It has been decided in this State, that a devise of the net profits of land is, by legal intendment, a devise of the land itself. Earl v. Rowe, 35 Maine, 414; Andrews v. Boyd, 5 Maine, 199. If a devise of the “use and income” of land, is deemed sufficient to vest the land itself in the devisee, we can see no good reason why a bequest of the “use, income and interest” of personal estate, does not vest the estate itself in the legatee.

By the provision in the will in this ease, for the protection of those in remainder, the personal estate in which this life estate was created, was to remain in the hands of the executors, “ so that at the termination of the life, the said personal property may, undiminished as far as practicable, go over and vest in the persons to whom the same is given as second takers.” This only interposes a trustee, in whom the legal estate is vested, and does not affect the duration or magnitude of the estate.

We cannot perceive any difficulty which should prevent the income arising from bank stocks and other stocks, from being apportioned. The case finds that the widow of Enoch Jewett was paid the income to March 30, 1854, and was annually paid to the 30 th of March in each year. She deceased on the 3d of September, 1854. We are of opinion, that the defendant, as executor of Enoch Jewett’s will, is liable to pay to the plaintiffs, as executors of Lncretia Jewett’s will, the income of the life legacy, from March 30, 1854, to Sept. 3, 1854, the time of her death. And, according to the agreement of the parties, the defendant must be defaulted.

Damages two hundred and seventy-two dollars, with interest on the same from January 1, 1855, to the day of rendition of judgment.

Tenney, C. J., concurred in the result. Appleton and Rice, J. J.; concurred. Cutting, J., did not sit.