The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1888-03-16
sueaEME-Jun iciaL.co

The following decisions with rescripts were re-
ceived by the el-rk of courts yesterday. The re-
scdpts are both by Chief Justice Peters:
FRANKLIN COUNTY.
Emeline Whittemore VS.. Charles b. Russell ct
ais.
BILE 10 show that an omission Of provision for some
of his children in fathers viii. was intentl0nal
and evidence Of his declarations Is admissible up
on the question.
will contains this clause: 81 give to my wife
the use OF the remainder of my property both real
and personal during her natural lifetime, and al
ter her decease II Is TO be equally divided be-
tween my children the real estate may be sold IL
thought advisable" Held: that the wife takes a
lfe-nterest in the reality, and that she may per-
sonaly possess and control the same.
Held. iurlher: That the phrase, that the rea |
estate may be sold 1t deemed advisable, is inef-
fectiye, inasmuch as no one y directed or emf
powered TO convey the title; that the wife can
sell her lifeinteres and the heirs can sell the re-
mainder.
a gift for life Of perishable articles the use of
which consists m their consumption amounts, er
7ccessitdte, to an absolute gift of the property
but If the gift be articles which may depreciate,
but not necessarily wear out, by using. fuli
title is not gwen though usually the life legatee
will be entitled TO the possession OF such articles
without giving security for their preservation.
Where the use OF money is given for life, with
out discretion given TO consume any portion of the
principal the gift is of the interest only, and usu
ally security must be given against loss, or a tIus-
tee be appointed of whom bond will be re-
quired.
lHb RtnclH Iulco vi tliC ouDJcCt may DC fdfitu
by a court of equity as circumstances shall rea-
Sonably require.
Bill sustained Court find the omitted children
to have been Intentionally omitted. Decree ac-
cordng TO opinion. Incidental questions to be
settled by single Judge.
KNOX COUNTY.
Joseph z. Moore, in equity, VS.. Georgia S. Al
den and ais.
Rescript-Iti is well settled rule of law that
where testamentary gift is made by husband
TO wife, in satisfaction of ner waiver of dover In
his estate, she having, at his decease, a dowable
interest therein the gift has preference over all
unpreferred legacies, unless contrary intention
may be clearly gathered from all the terms OF the
will
The rule holds good, although the gift. being an
annuity for life, is made payable out OF the in
come OF the testatOr'S estate. u.less lt also ap-
pears that the testator Intended that the gift
should be strictly limited to such income for il S
payment.
An intention that it is not to be so limited in the
present case, is disclosed in the following facts:
the testator was childless; The wife was much be-
loved by him. he regarded the provisions in her
behalf as necessary for her needs; believed his
estate would be sufficient to pay the several gifts
to his wife, and also those TO others, including rel
atlves and strangers; makes the payment of his
WlfeS annuity prior claim to all other requests,
payable out vi the earnings of all his individual
and partnership properties but his valuation of
his estate turns out to have been greatly over
estimated, the income falling far shot of the bur-
den imposed upon it.
Allowances, for obvious reasons to be OF moder-
ate amount may be granted out If estate for
the expense OF professional services and dis
burSements, in ascertaining the cunsil uctiOn of
WILL unless the facts disclose a frivolous and I'M
necessary case.
Bill sustained. Decree according 10 the opinion
Allowances for counsel fees and slur3ements
TO be determined in the settlement of The decree.