Whittier v. Waterman , 75 Me. 409 ( 1883 )

Symonds, J.

The sixth clause of the will of Mary W. Whittier, plainly makes a distinction between the five thousand dollars given to Daniel F. Whittier "to be at his own disposal at once” and "the balance”, which is "to be under his control. ”

What is the distinction intended? The legacy is an absolute gift of the five thousand dollars. What is the legatee’s interest in the residue?

An examination of the whole clause shows, we think, that the testatrix intended to give the primary legatee, not the title to the remaining real and personal estate mentioned, but only the control and income of it during his life. This is implied in the fact already noticed that in the same sentence which gives him this residue, a sum is set apart, the five thousand dollars, of which he is to have the full power of immediate disposition. What is called the balance is given to him to be under his control, not to be at his disposal, and as distinguished from the absolute gift.

The later provisions manifest the same intention. Should the legatee die leaving a widow and no children, she "shall have two thousand dollars of this amount over the five thousand dollars. ” If issue are living at his death, they "shall receive all over and above said five thousand dollars ; and should he die leaving no widow or issue, all of said property over and above said five thousand dollars, shall be equally divided among my grandchildren. ”

These provisions, for the residue above the five thousand dollars to go at the death of the primary legatee, in one event in part to his widow, in another event wholly to his children, or, they failing, to all the grandchildren of the testatrix, are strongly against the construction that the will intended to give full title to the first taker.

The power given to the legatee to convey real estate, " should it be thought expedient, ” and apply the proceeds according to the will, seems to assume, so far as it relates to this residue, that the will does not give him the fee. He is to convey in pursuance of the power, not in his own right; and the proceeds are not his property, but are to be used as the will directs.

Nor is this a case in which a life estate, which might otherwise arise by implication from the terms of a will, is enlarged to a fee by an added power or right to dispose of the property unconditionally. As to the residue in question, no such power or right is given by this will.

It follows (to answer the questions proposed by the bill) that under the sixth clause Daniel F. Whittier is a legatee for life of the residue of the estate described therein as "the balance to be under his control; ” that as such legatee he has the right to the possession, control and income of it, (Sampson v. Randall, 72 Maine, 109), but that the estate is only for life and the limitations over are not repugnant or void.

Decree accordingly.

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