Buzzell v. Fogg

113 A. 50, 120 Me. 158, 1921 Me. LEXIS 29

• Court: Supreme Judicial Court of Maine
• Decided: April 6, 1921
• Status: Published

Opinion

Philbrook, J.

The plaintiffs are heirs at law of M. Angie Brown who died testate on the 19th day of January, 1920. The defendant is the duly appointed and qualified executrix of the will. The residuary clause of the will reads as follows: — ■

“All the rest, residuum and remainder of my estate I give to Caroline S. Fogg of Augusta, Maine, to be disposed of as she directs from time to time and as she thinks will be in accordance with my wishes.”

The plaintiffs pray for construction and interpretation of this residuary clause, claiming that the same is void, illegal and of no effect and that the residuum belongs to them. They further pray that the court will order the defendant to pay over the residuum to them by reason of their relationship to the deceased.

The cause was heard upon bill, answer, replication and arguments of counsel and the sitting Justice sustained the bill, with costs to be paid out of the estate, holding that the true construction of the residuary clause of the will is that the executrix holds the residuum in trust for the heirs at law of the testatrix and ordered that the residuum after paying debts of administration be divided among the heirs at law of the testatrix.

From this decree the defendant seasonably appealed and the cause is now before us for interpretation of the residuary clause hereinbefore referred to.

The legal questions involved here have been so recently and so fully discussed in Haskell v. Staples, 116 Maine, 103, and in the somewhat recent case of Fitzsimmons v. Harmon, 108 Maine, 456, that it hardly seems profitable to repeat that discussion. The case at bar is controlled by the law as expressed in those two opinions and they must govern us here.

Appeal dismissed.

Decree of sitting Justice affirmed with costs and reasonable attorneys fees for both parties to be determined by the court below and to be allowed out of the funds in the hands of the executrix.