Moore v. McKenzie , 112 Me. 356 ( 1914 )

Bird, J.

This is a bill in equity brought for the construction of the will of Moses W. Webber, deceased. The several answers of respondents admit all the allegations of the bill.

The first question propounded is ‘ ‘Whether the plaintiffs, trustees, are now authorized to pay to The Webber Hospital Association the sum of twenty-five thousand dollars provided for in said will, for the reason that on December 31st, A. D. 1906 a hospital had not been built as contemplated by said Moses W. Webber in his said will, but has been built since said hospital fund amounted to the sum of seventy-five thousand dollars, by the Webber Hospital Association, aforesaid, in reliance upon and in expectation of receiving said sum of twenty-five thousand dollars, and as the hospital of said association has for four years been maintained as a 'free hospital and will continue to be so maintained.”

In Webber Hospital Association v. McKenzie, 104 Maine, 320, wherein the residuary clause of the will, under which this question arises, has already been construed and the mode of administering the trust considered, it is said, see Id. pp. 324 and 329-30, “when the time arrives the association may have already built a hospital. If not, the trustees may use twenty-five thousand dollars of the principal for that purpose, if a sufficient sum is guaranteed by other parties, so that with the income from the remaining $50,000 its maintenance is assured. That decision wall call for the sound judgment of the trustees.”

The complainants, the trustees, allege in their bill of complaint that the future maintenance of said free hospital (that of respondent association) is assured and guaranteed as contemplated by Moses W. Webber and provided in his will and the allegation is admitted in the answers of all the respondents. Assuming the allegation to embody the sound judgment of the trustees, our answer is that the trustees may now make the proposed payment of twenty-five thousand dollars.

The second question is “Shall the excess of the estate in the hands of the plaintiffs, trustees, over the sum of $90,000 be paid to the Webber Hospital Association, the same representing income that should have been paid to said Association under the terms of said will. ’ ’ And the Co urt answers in the affirmative.

‘ ‘Shall the note of Stella R. McKenzie be turned over to said Association as representing income” is the third question. Stella R. McKenzie, as executrix, apparently made payments to herself as legatee and as trustee of the fund of $15,000 in excess of the correct-amounts (106 Maine, 387) aggregating at the time of her final account the sum of $10,635.12, for which she gave her note, payable by maker by the application of the income of the $15,000 trust created for her benefit. It is the opinion of the Court that this note should not be “turned over” to respondent association either as principal or income but be retained by the trustees as principal.

The fourth inquiry is “Shall Stella R. McKenzie be paid one hundred dollars annually as a gross and fixed sum; or such sum, not in excess of one hundred dollars annually as the trustees may deem necessary for the maintenance of the house at Old Orchard, Maine.”

The item of the will, under which this question arises, is as follows: — “I also give from the income of my property one hundred dollars per annum for the maintenance of said house at Old Orchard, Maine, while in the use of said Stella F. Ripley.” The house mentioned is that already devised by the will to said Ripley (now McKenzie) for use during her lifetime.

Maintenance is defined the act of .maintaining, or state of being maintained, support, sustenance, defense, livelihood, etc.: that which maintains or supports; means of sustenance; supply of necessaries and conveniences. Webster's New Int. Diet. The act of maintaining, means of support, assistance. The furnishing by one person to another, for his support, of the means of living, or food, shelter, clothing, etc. Black's Law Diet. From these definitions, the apparent expectation of the testator that the life tenant, Stella R. McKenzie, would make the house her home and the duty imposed upon the life tenant by law to keep the premises in repair, we conclude that it was the intention of the testator that the sum of one hundred dollars should be paid annually to the life tenant for the purpose of keeping up the house as a home. The sum of one hundred dollars is therefore to be paid annually by the trustees to said McKenzie.

The last question is “5th. Can the trust fund of fifteen thousand dollars for the benefit of Stella R. McKenzie and the trust fund for the benefit of The Webber Hospital Association be invested together and the net income paid to each pro rata, or shall there be two distinct funds set apart.”

We know of no authority of law for the mingling of trust funds proposed by this inquiry. Not for a moment could it be considered if the two trusts were.to be administered by distinct trustees. That the trustees were or are the same or that the corpus of each fund finally is to be paid to the same person, can make no difference. Each trust must stand alone, otherwise losses legitimately to be borne, with corresponding loss of income by one, could be imposed in part upon the other.

Decree accordingly.