Spencer v. Kimball , 98 Me. 499 ( 1904 )

Strout, J.

This bill asks a construction of the will of Harriet H. Greenlief, so far as to determine what interest in real estate was thereby given to Isadore G. Kimball, and also a decree of foreclosure of a mortgage given by Mrs. Kimball to the complainant.

By one clause in the will the testatrix gave to her daughter, Isadore G. Kimball, “the use of my house and lot of land on which it stands in said Augusta where I live, during her life, or until such time as she shall deem it best to sell the same, and I authorize her to sell and convey said real estate at any time -at her discretion.” The next clause is, “in case she shall sell said real estate, one-third of the proceeds of such sale is to be added to the trust fund,” before provided for her son, Charles H. Greenlief.

The succeeding clause is, “all the rest, residue and remainder of all my property and estate, both real and personal, I give, bequeath and devise unto my said daughter Isadore G. Kimball, if she shall survive me,” otherwise to her grandchildren.

The daughter Isadore did survive her mother. There being no intervening estate, the devise to her of a life estate, coupled with a devise of the reversion, merged the two estates and vested in her an absolute fee, and rendered the authority to sell given in the devise of the life estate inoperative as a power from the testatrix. Davis v. Callahan, 78 Maine, 313.

The provision for the son, in case of sale of the real estate, was contingent upon a sale. -The daughter was not directed to sell. It was optional with her. If she did sell, one-third of the proceeds was to go to the trust fund for the son, but if she did not sell, nothing went to him. Her mortgage before foreclosure cannot be regarded as a sale under the power. It was but a security for her debt, and upon payment of the debt, voluntarily or upon compulsion, the mortgage would be functus. The mortgagee was not obliged to rely upon the land, but might collect his note by ordinary suit. The money loaned upon the mortgage security was not proceeds of a sale to which the terms of the will applied.

The union of the life estate with the reversion in Isadore would not operate as a merger, if there was any intermediate estate. In this case the provision for the son, in the event of sale, created no charge upon the land, nor interest in it, hence no intervening estate.

Whether in the event that the mortgage debt shall be paid and the mortgage discharged, and the real estate subsequently sold by Mrs. Kimball, or whether if the mortgage is foreclosed and thereby the title passes to the mortgagee, it will be regarded as a sale, and one-third of the amount received in either event be charged with a trust for the son, it is not necessary now to decide, as in either case the title to the real estate is not affected. The trust, if any, attaches only to the proceeds of a sale, and not to the real estate.

In her personal capacity Isadore mortgaged the real estate to the complainant, to secure a loan to her. It is now outstanding and wholly unpaid. The complainant is entitled to a decree that if Isadore G. Kimball, or anyone claiming under her, shall pay to the plaintiff the amount due upon the mortgage within one year from the entry of the decree in this case, the mortgage to be discharged, otherwise the equity of redemption to be forever foreclosed.

Bill sustained against Isadore G. Kimball, in her individual capacity, and dismissed as to all other defendants. ■

Decree in accordance toith this opinion.