Doolittle v. Hilton , 63 Me. 537 ( 1874 )

Dickerson, J.

By the second item in the will of the testator he bequeathed to the plaintiff the sum of twenty-five dollars, which with certain specific bequests in money to other persons, he directed “to be paid out of the proceeds of the ‘plains lot’ so called.”

The third item in the will is as follows: “As to all the rest, residue and remainder of my estate, both real and personal, I give, bequeath and devise the same to my beloved wife, Lois H. Hilton.” This bequest is made subject to certain charges and conditions which are not material in the case before us.

We think that the bequests named in the second item of the will were intended to be charges upon the “plains lot,” and that the provision for their payment is rather directory than mandatory. The testator obviously had the security of those bequests in his mind when he made that provision. There is no devise of the “plains lot” in that item of the will. It was the right, of the defendant to pay those legacies and beep the “plains lot,” or to sell that lot and pay them out of the proceeds; them payment in either mode satisfied the requirements of .the will, the defendant being the sole residuary legatee of all the estate of the testator, both real and personal, under the third item of the will.

The defendant having taken possession of the “plains lot” immediately after the probate of the will, and sold off some of the second growth, thereby accepted 'the bequest, and, after this lapse of time, is liable upon both principle and authority to pay the plaintiff’s legacy, whether she has sold the “plains lot” or not. Willis v. Roberts et als., 48 Maine, 259 ; Smith v. Lambert, 30 Maine, 137; Greenough v. Welles, 10 Cush., 576; Swasey v. Little, 7 Pick., 296. Judgment on the default.

Appleton, C. J\, Barrows, Danforth and Virgin, JJ., concurred.