Carter v. Lowell

Supreme Judicial Court of Maine

Carter v. Lowell

76 Me. 342, 1884 Me. LEXIS 64

DecidedJuly 30, 1884

StatusPublished

This text of 76 Me. 342 (Carter v. Lowell) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. Lowell, 76 Me. 342, 1884 Me. LEXIS 64 (Me. 1884).

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Opinion

Walton, J.

By her last will and testament, Betsey L. Bearce gives all her property of every name and nature (except a watch) to twenty-five of her relatives — a. sister, two brothers, and twenty-two nephews and nieces. And she first declares that it shall be divided among them equally. But by a subsequent clause she says : " It is my will that the several shares of my property to my nephews and nieces named shall be in the same proportion by right of representation as if all my brothers and sisters were living at my decease, and I had given my property to all my brothers and sisters and nephews and nieces named, each one to have the same share as the other.” It appears by the will that the testatrix had seven brothers and sisters in all — three living and four dead. If the latter were not dead, and were added to the legatees, the whole number of the legatees [344]*344would be twenty-nine; and if the estate were then divided equally among them, the share of each would be one twenty-ninth. The two provisions of the will are thus seen to be in conflict. Under the first clause each of the twenty-five legatees named -is entitled to one twenty-fifth of the estate; under the second, to only one twenty-ninth, leaving, apparently, four twenty-ninths undisposed of. And here arises the difficulty. What -shall be done with these four shares? Shall they be divided among all of the legatees equally, or shall they go to the children of the four deceased brothers and sister-s, "by right of representation ?” We can not resist the conviction that the latter was the intention of the testatrix. It seems to have occurred to her that under the first provision of the will the children whose parents were living were likely to fare better than the children whose parents were dead; that they were getting an equal share at the beginning, and might by inheritance get their parents’ share also; and that it was to avoid this apparent inequality that the second clause was added. It seems to have been her desire that to this extent the seven branches of her family should all fare alike.

It is therefore the opinion of the court that in the distribution of the estate, it should be divided into twenty-nine shares ; that each of the twenty-five legatees named should have one of these shares, and that the four remaining shares be distributed among the children of the four deceased brothers and sisters of the testatrix, per stirpes.

And as this is a suit brought by the administrator in good faith to obtain a construction of the will upon a point in relation to which doubts might well exist, we think the costs of the suit should be paid out of the estate.

Decree accordingly.

Peters, C. J., Daneorth, Virgin and Libbet, JJ.4 concurred.'

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Walton, J.

By her last will and testament, Betsey L. Bearce gives all her property of every name and nature (except a watch) to twenty-five of her relatives — a. sister, two brothers, and twenty-two nephews and nieces. And she first declares that it shall be divided among them equally. But by a subsequent clause she says : " It is my will that the several shares of my property to my nephews and nieces named shall be in the same proportion by right of representation as if all my brothers and sisters were living at my decease, and I had given my property to all my brothers and sisters and nephews and nieces named, each one to have the same share as the other.” It appears by the will that the testatrix had seven brothers and sisters in all — three living and four dead. If the latter were not dead, and were added to the legatees, the whole number of the legatees [344]*344would be twenty-nine; and if the estate were then divided equally among them, the share of each would be one twenty-ninth. The two provisions of the will are thus seen to be in conflict. Under the first clause each of the twenty-five legatees named -is entitled to one twenty-fifth of the estate; under the second, to only one twenty-ninth, leaving, apparently, four twenty-ninths undisposed of. And here arises the difficulty. What -shall be done with these four shares? Shall they be divided among all of the legatees equally, or shall they go to the children of the four deceased brothers and sister-s, "by right of representation ?” We can not resist the conviction that the latter was the intention of the testatrix. It seems to have occurred to her that under the first provision of the will the children whose parents were living were likely to fare better than the children whose parents were dead; that they were getting an equal share at the beginning, and might by inheritance get their parents’ share also; and that it was to avoid this apparent inequality that the second clause was added. It seems to have been her desire that to this extent the seven branches of her family should all fare alike.

It is therefore the opinion of the court that in the distribution of the estate, it should be divided into twenty-nine shares ; that each of the twenty-five legatees named should have one of these shares, and that the four remaining shares be distributed among the children of the four deceased brothers and sisters of the testatrix, per stirpes.

And as this is a suit brought by the administrator in good faith to obtain a construction of the will upon a point in relation to which doubts might well exist, we think the costs of the suit should be paid out of the estate.

Decree accordingly.

Peters, C. J., Daneorth, Virgin and Libbet, JJ.4 concurred.'

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Bluebook (online)

76 Me. 342, 1884 Me. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-lowell-me-1884.