Bromley v. Gardner

Peters, C. J.

Jacob Stevens, in 1838, made his will in •which he gave to his wife the use of one undivided half of his estate, to be held during her widowhood. He then makes this provision: "I give, devise and bequeath unto my daughter, Lucy Stevens, one undivided half of all my estate, both real and personal, of every description, consisting of the farm on which I now live, stock, farming tools, money, debts due, etc. ; and I also give to her, the said Lucy, the other half of my said real and personal estate, when my said wife ceases to be my widow.”’

One question of the case is, whether Lucy Stevens received a fee or only a life-estate in the real estate.

By a statute passed in 1841 (R. S., c. 92, § 20), it was provided that a devise of land shall be construed to convey all of the estate of the deviser therein, unless it appears by the will that a less estate was intended. Prior to that time the rule was the reverse. A devise of land, without words of inheritance, conveyed a life-estate only, unless from the whole will it affirmatively appeared that a fee was intended by the testator. The will, therefore, is to be construed as the law stood before the act of 1841.

We think the meaning of Jacob Stevens, as manifested from *249 the whole will, was to give his daughter a fee, in half the farm at his own death, and in the other half upon the death or marriage of his wife. Several features of the will, taken singly, have much force, and, taken together, are of abundant authority, to warrant such a conclusion.

The testator proposes to make a disposition of his "estate,” meaning his whole estate. He fails to do so unless his daughter takes a fee. There is no general residuary clause. In many cases the word " estate ” implies a fee. McLellan v. Turner, 15 Maine, 436; Josselyn v. Hutchinson, 21 Maine, 339; Leland v. Adams, 9 Gray, 171 . It is a striking evidence of the intention of the testator to give a fee when in clauses two and three of his will he uses the phrase, " all of my estate, real and personal, of every description.” Inasmuch as the widow takes a life-interest in half the estate, the daughter might never obtain any interest in that half, unless she took a fee. She might die while the mother remained a widow.

It appears that the testator appreciated the nature of a life-estate, as he limited an estate to his wife in appropriate terms ; and he could have devised a limited estate to his daughter had he designed to do so. And he no doubt understood the nature of a residuary clause, making a particular one to the daughter, and none for the benefit of his heirs generally, although not omitting any of his heirs from some benefit under the will, naming them all. He provides for them out of the estate which he first devises to his wife and daughter, a significant fact in collecting the intention of the testator. Butler v. Little, 3 Maine, 239.

The complainant further contends that, if the devisee took a fee, she took it under an oral trust for the benefit of all the heirs, and that she has sufficiently confessed the trust by her conduct and by a writing signed by her.

If the question were between the complainants and Lucy Stevens alive, there would be much force in the complainants’ position. But as between her heirs and her father’s heirs it is doubtful if equity should interfere, since she has made equitable provision for the complainants by her own will. And, certainly, as between the complainants and the principal defendant, equity *250 cannot afford the relief asked for. She purchased the premises for a fair consideration, without notice of any trust. R. S., c. 73, § 12, protects her as an innocent purchaser. The will on its face funishes no indication of any trust. Its whole drift is the other way.

Bill dismissed.

Danforth, Virgin, Libbey, Foster and Haskell, JJ., concurred.