Stevens v. Burgess , 61 Me. 89 ( 1872 )

WaltoN, J.

To the several inquiries propounded in the plaintiff’s bill we answer:

1. That the widow is entitled to the income of one-third of the Ring farm. The third clause of her husband’s will gives it to her, and there is nothing in any other clause of the will or codicil which nullifies the gift.

2. That the administratrix is not required nor authorized to expend the funds of the estate, which would otherwise go to the residuary legatees, for the purpose of carrying on or improving the Ring farm,-or in attempting to obtain productive income from the same.

3. That, in the present condition of the estate, the personal assets being apparently amply sufficient to meet all the calls in the will, the court declines to give the administratrix authority to sell the Ring farm, without the consent of the other residuary legatees; and the court is of opinion that she cannot sell it without such authority or consent.

4. That the bequest of $3,500 to the Rev. Alexander Burgess is payable presently, or as soon as he is qualified to receive it.

5. That the administratrix is not authorized under the third clause of the codicil, nor under any other clause of the codicil or will, to provide out of the general funds of the estate for the payment of the future taxes, repairs, and insurance, on the real estate devised in trust by the third clause of the codicil, or for any part of the same, while it is occupied by the widow for her own use and benefit, as cestui que trust or beneficiary. It is clear that the testator did not intend to charge his estate with such an incumbrance, for he expressly revoked that clause of his will in -which such a provision was made. We think the court would not be justified in inserting in the testator’s will by construction what he expressly expunged. The court, therefore, declines to authorize any sum to be set apart for these purposes.

6. That no part of such charges can be required to be borne by the trust to which the proceeds of the said real estate are eventually to be devoted. While the widow occupies as beneficiary she must pay the taxes and keep the premises in repair at her own expense ; and there seems to be no doubt that her share of her husband’s estate under the will, will- furnish her with means amply sufficient to enable her to do so without inconvenience.

7. That the Rev. Alexander Burgess will not be authorized to receive the $3,500 bequeathed to him in trust until he has given the bond required of testamentary trustees by the laws of this State. R. S., c. 68, § 1.

8. That the second clause of the codicil is void, for incompleteness and uncertainty.

9. That under the third clause of the will the widow is entitled to one-third of the gross amount of the personal property of which her husband died possessed; that she is not limited to one-third of what will remain after payment of the debts and charges of administration. She is entitled to one-third of the goods and chattels, and to one-third of what shall be realized from the rights and credits. Bardwell v. Bardwell, 10 Pick. 17.

Such, in our judgment, is the true construction of the will, and the parties are entitled to a decree accordingly.

In our judgment this is not a case where either party should recover costs. Bill sustained. Decree to be entered as stated in the opinion. JVd .costs for either party.

AppletoN, C. J.; CuttiNG, DickeRsoN, and Daneorth, JJ., concurred.