Blouin v. Phaneuf , 81 Me. 176 ( 1889 )

Virgin, J.

In addition to some $12,000 worth of real and' personal estate exceeding the debts and charges of administration, the testator left four life policies of insurance, — one for $5,000 and three for $2,000 each, all payable to bis legal representatives.

One of the questions submitted is: Whether the money derived from the policies goes under the residuary clause to the trustees, or descends under the provisions of R. S., c. 75, § 10, to the testator’s widow and only daughter,- — -the estate being solvent.

Whether a solvent testator can bequeath insurance money to persons other than his widow and child, we have no occasion now to inquire, since we find no such well declared intention as the law requires expressed in the will before us. To be sure there are some indirect, inferential indications that the testator may have supposed that this money formed a part of the fund from which some of Ms bequests were to be paid; but that is not sufficient. “To dispose of money accuring from life insurance policies in a manner different from that which the law contemplates,” said Barrows, J., “the testator must use language directly -significant of Ms intention in this respect; classed by the legislature as this fund 'is, it is not to be appropriated to the payment of debts, or of any pecuniary legacies couched in general .terms merely, even to the widows and cMldren, unless it is expressly referred to as the fund from which such payment is to be made, and it does not pass by any residuary clause. In short, 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 Ms will the fulfillment of wlfich might require the use of such money, but must be explicitly declared.” Hathaway v. Sherman, 61 Maine, 466, 476-7.

We are of opinion, therefore, that the money wlfich accrued ■from the life policies goes in accordance with the provisions of R. S., c. 75, § 10, — -one-third to the widow and the remainder to his daughter.

Another question calls for the construction of the fourth item -of the will, the first clause of wlfich is: “I give and bequeath to my beloved wife Angie, for and during the term of her natural life, the sum of |50 per month for the support and maintenance of herself and my daughter Beatrice, to be paid monthly from the income of my estate, and on the marriage of my said daughter ■her support to cease.”

-Did the testator intend to make this annuity an absolute gift to liis wife, merely stating the motive therefor to be the support and maintenance of herself and daughter, or did he intend to create a trust and impose an obligation on his wife to appropriate it to the purposes mentioned ?

The bequest points out with reasonable certainty the property, the persons in whose behalf it is given, the object and the manner of application, — which are the elements of a trust. Malim v. Keighley, 2 Ves. Jr. 323, 529. Warren v. Bates, 98 Mass. 277; Pom. Eq. § 1009. And we think the true construction of the bequest is found in that numerous class of cases wherein property was given to a parent, or some one standing in loco parentis, with various expressions concerning the maintenance of the donee and children. In which cases the courts have generally held that a trust is implied from such and similar language though no express trust is thereby declared, unless other language in the will shall be such as to control it.

Thus, in Hill Tr. 65, it is said: “When a gift in a will is expressed to be at the disposal of the donee for herself and children, or towards her support and that of her family * * the terms employed have been hold sufficient to fasten a trust on the conscience of the donee.” To the same effect Perry Tr. § 117; Pom. Eq. § 1012.

In Jubber v. Jubber, 9 Sim. 503, the bequest was to the testator’s wife for the benefit of herself and unmarried children, that they may be comfortably provided for during his wife’s life ; and the widow and unmarried daughters were held entitled in equal shares to the income during the widow’s life. See also Cole v. Littlefield, 35 Maine, 439, 445; Chase v. Chase, 2 Allen, 101; Loring v. Loring, 100 Mass. 340, especially in point. Bristol v. Austin, 40 Conn. 438, 443; Smith v. Bowen, 35 N. Y. 83.

Not only does the language adopted, in giving the annuity and defining its object, indicate the testator’s intention of his daughter being supported out of it, but that intention is made certain by the provision in the same sentence: “and on the marriage of my said daughter, her support to cease.”

The clause that “the bequest to my said wife is to be in lieu of dower” does not impress us as affecting the construction of implied. trust, for the sum she would realize from the trust would be more advantageous to her than dower. Nor does the fact that two bequests to Ms daughter contained in the residuary clause are made expressly “subject to the bequest of $50 as hereinbefore bequeathed to my said wife” derogate from his intention as we have construed it. That only indicates the desires of a husband that his wife should be comfortably supported out of the sum given or for good cause increased; but also the anxiety of a father for the support of Ms young daughter; and hence he exjuessly subjected the bequests which she was to realize after her majority to that which he had deemed necessary during the fourteen years of her minority, unless in the meantime she should marry.

Our opinion, therefore, is that the wife and the daughter were entitled in equal shares of $25 each as tenants in common, the mother holding the same in trust. And if the widow waives her provision under the will her share would fall into the residuary fund and the daughter’s share remain for her. Tliis does not injuriously affect the daughter as she is residuary legatee.

Decree accordingly.

Peters, C. J., Walton, Daneorth, Emery and Haskell, JJ., concurred.