Golder v. Chandler , 87 Me. 63 ( 1894 )

Strout, J.

Bill in equity for construction of the will of Joseph H. Chandler. Testator had two policies of insurance upon his life, one for twenty-five hundred dollars, "payable to his legal representatives for his heirs and assigns,” the other for one thousand dollars, "payable to his executors, administrators or assigns.” Both policies have been paid in full to the executors. The testator made various legacies, all of which he provided should be paid " out of my [his] personal estate.” He also devised a lot of land to his sister, Elvira F. Golder, in fee. 'The personal estate proves insufficient for the payment of debts, legacies and expenses of administration. We are asked whether the money received from said policies, or any part of it, can be applied to the payment of debts, legacies, expense of administration, or for the purpose named in the second item of the will, relating to his cemetery lot.

The policy for twenty-five hundred dollars was made payable to his legal representatives, "for his heirs and assigns.” The terms of this policy show very clearly that the testator did not intend the proceeds therefrom to constitute a part of his estate in any event, but that his personal representatives were to take it in trust for other parties. The phrase, " for his heirs and assigns,” is obscure. Whether in using that language it was intended that the assured should retain to himself the power of assignment, if he should think fit to exercise it, and, if not exercised, the trust funds should go to his heirs, or whether the word assigns was intended to mean the assigns of the heirs, as if the policy read "his heirs and their assigns ” is uncertain. The latter construction would seem to affect the apparent intention of the assured. But as no assignment of the policy has- been attempted, it is not necessary to determine the precise legal effect of the word assigns as used in it. Freed from that complication, the policy, at the death of Chandler, made his heirs the beneficiaries. It was the duty of the executors to collect the amount of the policy, but when the money was received by them, they held it charged with a trust for the heirs of the testator. As in this case .Bosie E. Chandler is the sole heir of the testator, she is entitled to the whole fund. It did not constitute any part of the personal estate of the testator. Cables, appellant, 67 Maine, 582; Stowe v. Phinney, 78 Maine, 244.

This policy does not fall within the provisions of R. S., c. 75, § 10, which authorizes a disposition by will, under certain limitations, of money received from insurance on life. The rights of the parties are the same as if the policy was in terms payable to Rosie E. Chandler. No deduction of premiums for three years, as provided in § 10, is tobe made from the proceeds of this policy ; but the whole amount received, with the interest thereon, which the executors have received, is to be paid to the heir, Rosie E. Chandler, as her absolute property, less the expenses, if any, to the estate, in collecting the money.

The other policy for one thousand dollars was payable to the testator’s executors, administrators or assigns. The proceeds of this policy are within the provisions of the statute. The premiums paid thereon within three years prior to his death, with interest thereon, are to be retained by the executors,' and be treated as part of his personal estate, to meet the calls of the will. The balance will go to the heir, Bosie E. Chandler, there being no widow, according to the statute, unless it- is disposed of by the will of the testator.

The provisions of the will are clear and explicit. In all the legacies, the testator specifies that they sliall be paid out of his personal estate. Can the fund derived from this one thousand dollar policy be regarded as the personal estate of the testator? We think not. By its nature it could never become actual, veritable property in his hands; by its terms it was payable after his death, never to him. While he had a qualified interest in it, he never could reduce it into possession, never use or invest the money. The statute allows it to be treated as part of his estate, if there was no widow or issue. If the estate is solvent, the statute allows it to be disposed of by will. If insolvent, and there is either a widow or children, or both, the disposition by will must be among them. Hathaway v. Sherman, 61 Maine, 466; Hamilton v. McQuillan, 82 Maine, 205. If the testator intended to dispose of the proceeds of this one thousand dollar policy, by his will, he should have used apt words to effect that intention. This court has said, in Hathaway v. Sherman, supra, in order to effect this object, "the testator must use language directly significant of his intention in this respect; that, classed by the legislature as this fund is, it is not to be appropriated to the pajmient of debts or of any pecuniary legacies couched in general terms merely, even to the widows or children, unless it is expressly referred to as the fund from which such payment is to be made, and that it does not pass by any general residuary clause ; in short, that the testator’s intention to change the direction which the law gives to this very peculiar species of property, is not to be inferred from general provisions in his w'ill the fulfillment of which might require the use of such money, but must be explicitly declared.” This will makes no mention of the life insurance; and no expression in it affords any evidence that the testator intended to change the direction which the law gives to such insurance money, except the fact that it noio appears that the personal estate is insufficient to pay the debts and bequests in the will. It does not appear whether such was the case when the will was made or not. Barrows, J., in Hathaway v. Sherman, supra, says such "fact is entitled to but little weight. The records of every probate court show too many instances of wills containing liberal bequests which the testators left no means, or very inadequate means, to fulfill, to justify us in concluding from this circumstance that the testator designed to change the disposition which the law would otherwise make of this fund, which he nowhere mentions as a source from which money to pay the legacies he gives is to be derived.” Blouin v. Phaneuf, 81 Maine, 176.

But it is claimed that parol evidence is admissible to show the testator’s intention, upon the ground of a latent ambiguity in the will. While it is well-settled law, that latent ambiguities may be explained by evidence aliunde the will, it is equally well settled, that win?re the terms of the will are clear, definite and explicit, the intention of the testator must be ascertained from the will itself, and cannot be aided or explained by parol testimony. The phrase " my personal estate,” frequently repeated in this will, is not ambiguous, uncertain, but its common and legal meaning are entirely clear. A man’s "personal estate” includes all his propertj’ other than real estate, over which he has absolute dominion and control, which he may dispose of by gift or sale, at his option, which he may change from one species of property to another, and may use and expend for his personal needs, or pleasures, or which may be subjected to the payment of his debts. Most of these attributes do not attach to a policy on life. It cannot be reached by creditors during the life of the insured. But for any surplus of premiums paid for two years, in excess of one hundred and fifty dollars per year, they may have a lien upon the policy. R. S., c. 49, § 94.

If the insured dies intestate, the money received from insurance on his life, deducting three years’ premiums, does not constitute a part of his estate for the payment of debts, if he leaves a widow, or issue. R. S., c. 75, § 10. The statute authorizes a disposition of the fund by will, under certain limitations, but this authority is more in the nature of a power of appointment than a direct legacy of property, and does not extend beyond the statute authority. We perceive no latent ambiguity in the will that requires or permits oral testimony in aid of its construction. It follows that the offered testimony of testator’s conversation with the scrivener who drew the will, and at the time it was drawn, is not admissible, and cannot be received to vary, explain or control, the plain language of the will.

The result is, that the proceeds of the one thousand dollar policy, and interest thereon received by the executors, less three years’premiums and interest thereon and expenses of collection, if any, are to be paid to Rosie E. Chandler, the sole heir, as her absolute property, and cannot be treated as part of the estate for an}' purpose.

The fourth item in the will makes a devise of a lot of land to Elvira F. Golder. We are asked w'hether this devise passed title in fee to the devisee, subject only to payment of debts, funeral charges, and costs of administration, if necessary, and whether it is liable for the payment of the sum mentioned in the second item of the will; and whether, in case it shall become necessary to sell the lot for payment of debts, and a surplus of proceeds should remain after accomplishing that object, to whom such surplus belongs.

The devise by the will, is a' specific devise of a fee simple estate, and the devisee takes the absolute title, subject to be devested only, if the other estate of the testator, real and personal, prove insufficient to pay debts, funeral charges and expense of administration. If such deficiency shall arise, that deficiency must be raised from the devised lot, unless otherwise obtained. If it becomes necessary to sell the whole lot, and the proceeds of the sale are not wholly exhausted in payment of the debts and expenses, the surplus, being the proceeds of the devisee’s land, belongs to her, and cannot be used to fulfill the bequests in the will, but must be paid by the executors to her.

Decree in accordance with this opinion.