Pierce v. Stidworthy , 81 Me. 50 ( 1888 )

Peters, O. J.

Jolm Stidworthy made his wife residuary legatee under liis will, in these words:

“All the residue of my estate, real, personal and mixed of which 1 shall die possessed, or which I may be entitled to at my decease, I give, devise, and bequeath to my faithful wife Catlrerine A. Stidworthy for the term of her life, with the right and power to use and dispose of the income, rents, profits and interest of the same, and with the further right to apply to her use, if needed, any part of the principal of the personal property, making her the sole judge of the need of so doing; and after her death 1 give and devise the same, or what shall then be left unapplied and unconsumed to my children to be divided equally between them, the children of any deceased child to take the share of their parent; if all my children and grandchildren should die in the lifetime of my said wife, then I will that the property shall go and belong to her absolutely to dispose of at her pleasure, and if she does not dispose of it by gift or otherwise in her lifetime to descend to her lawful heirs.”

This language expresses the strongest confidence in the competency and integrity of the wife; too strong to be disregarded without great cause. It has been the rule, subject to exception in particular cases, to allow a life legatee who is intrusted with such unlimited discretion, to have the possession and control of the property. In a very similar case to this, Copeland v. Barron, 72 Maine, 206, and that case follows other cases to the same effect, we have fully stated the rule and the reasons for it.

When the present parties were in court before, (79 Maine, 234), from the fact that the funds in question could not have been known to the testator, as he died before the claim for them was presented before the court of Alabama Commissioners, it was deemed a peculiar case, and a bond was required of the residuary legatee, upon the supposition, that she would be able to furnish one.

On the evidence submitted in support of this petition, it is evident that she cannot furnish the bond, and we think, on reconsideration of the matter in the new light afforded us, she should be discharged from the obligation to do so. It is not strange that she cannot, when we consider that sureties on a bond would have to undertake a very uncertain and indefinable liability, namely, what would be a fair discretionary use of the interest and principal of the property. If she commit waste of the jaroperty, and that would be a difficult thing to determine where the will entrusts her with such enlarged discretion, an application can be made to the court to provide a remedy.

The original decree may be amended by directing the administrator to pay over to her any balance remaining in his hands, after paying, and charging the estate therefor, the actual court disbursements on each side, on this petition, including printer’s bill, and a sum to be stated as counsel fees, to the widow, and a like sum to the heirs.

Amended decree accordingly.

Walton, Daneorth, Virgin, Emery and Haskell, JJ., concurred.