The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1894-06-09

be understood as opposing or deprecating
the maintenance of joint estates, created
by devise or deed, when the testator or
donor intentionally constructs such an
estate. On the contrary, it Is the actual
intention that we would ascertain if
possible and be governed by it. The
case or Anderson v. Parsons, Maine,
486, cited by counsel, is an illustration
of the extent to which the court may go
to carry the in tention of testator into
effect, in which case the theory of a joint
tenancy OF real estate prevailed as hav-
ing been actually intended by the tesla
tor. And still, we should not regard
that as SO strong a case IN its facts for
the application of the principle of sur
vivorsh1p as either of the cases cited
from the Vermont reports Colbert v.
Richards, Vt. 203; Decamp v. Hall,
40 VT. 3d., The divergence between the
learned court OF that State and ourselves
is that, whilst the principle of survivor
ship is by them apparently admitted, al
| though as appears to us, not necessary to
the results arrived at in their cases, we
do not admit that the principle, as in
terpreted by the English courts, now ex-
lists or ever did exist, in our jurisdiction.
We do not contend that the doctrine is
never applicable, but that it is not gen.
orally SO. There are special cases where
the principle has most useful adapta-
erns; but where the will is silent the law
speaks and declares the intention of the
testator. 1t declares for tenancies in
common-in equality.
True, the court says in the same opin-
ion: "The explanation of the apparent
omission to, embrace all kinds of proper
ty within the legislative Introduction is
that the lawmakers did not understand
that the principle ever applied to any
property other than real estate. Nor
were they, in our judgment, mistaken in
that superstition" The meaning is that
the law does not make joint tenancies
in chattels or Personality. Where the will
speaks, that governs; but where the
will is silent, the law speaks and declares
the intention of the tesuator. 1t declares
for tenancies in common-in equality"
"In ascertaining this intention the
court is not confined to any particular
clause, but is at liberty to consider all
parts of the will, inasmuch as one clause
is often modified or explained by an
other. The intention of the testator in
one particular paragraph, if not entirely
clear, may be ascertained when other
paragraphs or clauses are considered and
| their bearing and relation, one with
another, taken into account. The inten-
tion of the testator must be the guiding
STAR" Bray v. Pullen, "a Me. 1877.
1t must be noticed that the income is
made a special trust fund for special
! purposes to be applied annually as it &C
crues, and that, at the expiration of
this trust, the principal is devised to a
class of persons then living, share and
share alike. This remainder is not vest
ed, but contingent, for the persons to
share in it are uncertain and cannot be
named until the devise over calls for dis
tribution. So that, should part of the
income fund fail of takers named in the
will, it cannot be distributed at once
| among the remainder-men, for they are
| unknown, and6it must be held to either
accumulate or go to survivors or be con-
| s1dered intestate property that would
| have to be stributed among persons,
manifestly against the will of the testa-
| tor.
In Loring v. Coolidge, so Mass. 191, the
! testator devised income in trust to be
paid equally to my brother and to my
| sister during their natural lives, and, at
their death, the principal give to my
nephews and nieces then surviving"
| The brother died and the court held that
| the sister took the whole income during
| the continuance of the trust The court
| says: 1.-The provision that the income
| is to be paid equally to the brother and
sister does not necessarily imply separa-
| tion of their interests in the trust. Pay
ment of the income, one half to each
during their joint lives, and the whole
| to the survivor, is equal as between
them. If there were anything to indi-
cate gift over of income, the payment
would be made equal by division be-
| tween the survivor and the successors
| to the share of the deceased beneficiary
| for life. Jones ". Randall, JAG. &
| Walk, 100. Theuomission to make an
other disposition of the income, during
the life of the survivor, is quite as sig
nificant upon the one side as the omis-
| sion to provide specifically for the right of
survivorship is upon the other"
SIN the case at bar, the argument for
| the heir at law is, that gift, by will,
to individuals described by name,
| though they may constitute a class,
| shows the testator's intention to give to
them only as individuals. And this
seems to be the established general rule
| of construction. So Lord Cottenham
strongly states it in Barber " Barber,
| Myl. & Or. 697, on view of the decis-
| ions upon this point. A gift TO a class
he says, implies an intention to benefit
| those who constitute the class, and to
| exclude all others; but gift to individ-
uals described by their several names
gether constitute class, implies an in
| tention to benefit the individuals named.
| In gift to class you look to the de-
| scription, and inquire what individuals
| answer to it; and those who do answer
| to it are the legatees described. But if
tue pdfGleS I'D WnOTn Gno legacy Is given
| be not described as GLASS; but by their
| individual names and additions, though
| together constituting a class, those
who may constitute the class at any par
| ticular time may not. in any respect,
correspond with the description of the
individuals named as legatees. If a tes-
tator give legacy to be divided amongst
the children of A., at a particular time,
those who constitute the class at the time
| will take; but If the legacy be given to
B., C.and D., children of A.. as tenants
in common. and one die before the tes-
| tator, the survivors will not take the
share of the deceased child Subsequent
cases in England have been decided
on the same general rule. Balm v.
Lescher, IL Sim. 1917. Boulcott v.
Boulcott, Drewry, rs. See also Frazier
v. Frazier, 2 Leigh, 642; Mebane v.
Womack, 2 Jones Eq. 293.
"But, as this rule of construction de-
ponds on the intention of the testator, it
| is clear that his intention cannot be con-
clusively inferred from the mere fact
that he mentions, by name, the individ-
| uals who compose class. 1t is only
prima facie rule. Lord Cottenham, in the
| case just cited, says the testator may un-
dou btedly give right of survivorship