The Portland daily press., 1896-04-10
SUPREME JUDICIAL COURT
CUMBERLAND COUNTY.

| .
Eliza J. Woodman VS.. Moses G. Wood
man ct al.
Rescript by Wiswell. IA vested re-
minder is an estate to take effect after
another estate for years, life or In tail,
which is so limited that If that particular
estate were to expire or end in any way
at the present time, some certain person
who was in esse and answered the de-
scription of the remainder during
the continuance of the particular estate,
would thereupon become entitled to the
| immediate possession, irrespective OF the
| concurrence of any collateral contin-
gency. A remainder is contingent when
it is SO limited as to take effect to a per-
son not in esse, or not ascertained, or up
| on an event which may never happen or
may not happen until after the determi-
| nation Of the particular estate.
| 1t is an elementary rule of construction
| which has always been uniformly en-
| forced. that no remainder will be con-
strued to be contingent, which may, con-
sistently with the intention Of the testa
| tor, be deemed vested.
| A remainder is not made contingent by
an uncertainty as to the amount of
roperty that may remain undisposed of
a the expiration Of the particular estate,
the life tenant having the power of dis
| posal.
| A testatrix by the eighth clause in her
will, bequeathed and devised all the resi-
due OF her estate, real, personal and
mixed. to her sons, and the survivor of
them. to have and to hold the Same in
trust for the benefit and support of her
husband and her daughter during the
lives of the beneflciaries and that of the
survivor. By the same clause, the trus-
tees were authorized. "should it become
trust, to sell and convey by good and
sufficient deed the real estate, after first
using therefor the personal estate as the
necessity for said purpose may require"
BY Il codicil to her will she made the
following disposition Of the property
mentioned in the clause above referred
to: AFTER the termination of the trust
estate mentioned in the eighth article, by
the decease of both my husband and
Henrietta, give, bequeath and devise to
my son, Moses g., yen-sixteenths Of
my lot and store or Excnange street,
Portland, to him and his heirs forever.
To my daughter, Susan, fve.sixteenths
heirs forever. To my son, Charles M.
g., the remaining fourth part of the
Same lot and store. to him and his heirs
| forever. And make this distinction and
difference not from the slightest unequal
affection, but only in consideration of
the present financial differences in the
respective conditions of my children. All
|
and description, ! give, beqneath and de-
wise to my son, Charles M. g., Moses g.,
and to susan M. G. Newton, share and
share alike, to them and their heirs for
ever, and If either of my children die
previous to my decease IL is my will and
desire that my grand children shall in
| herlt as the representative or representa-
| tives of the parent thus deceased"
The Jestatrix died in 1870, her husband
in 1881, and the daughter, Henrietta. the
survivor Of the benefciaries in the trust
estate March sth, 1891. Charles M. G.
died February 9th, 1889, without issue.
leaving widow. the plaintiff. The
Exchange street property was not disposed
OF by the trustees, under the power of
disposal, during the lives Of the bene-
| fioiaries.
| Held, that it was clearly the intention
of the testatrix to create by her will
vested and not O contingent reminder IN
the Exchange street property, and that
the language used was appropriate for
| this purpose.
That the trustees took an estate for the
lives of the benefoiaries, with q power
Of disposal If it should become necessary.
That the remainder over, upon the death
OF the testatrix, vested in her sons, Moses
and Charles, and her daughter, Henrietta
of which they might have been Invested
by an execution by the trustees of their
1 PoWot VI oAopoooA auAiuS uAO lANOo VI uAo
benefciaries, according to the terms of
| the will.
Charles M. G., who took vested re-
mainder in one-fourth of the Exchange
street property, and who died February
9th, 1889, prior to the termination of the
particular estate, left will by which he
devised to his sister, "all the right, title
and interests, which I may have at the
time of my deoease," in and to the
homestead of his late mother. The second
clause of his will is as follows. "All the
rest. residue and remainder Of my estate,
real, personal and mixed, wherever
found or situated, of which 7 may
die seized or possessed, give, devise and
bequeath unto my beloved wife, Eliza
Jane Woodman (Jhs plainitff) and being
In lieu of dover, to have and to hold the
sa me to her heirs and assigns forever"
| Held, that this language clearly shows
an intention upon the part of the testator
to dispose Of all Of his property, and to
give his wife all the residue of his estate,
whether in possession or in remainder,
and that it was appropriate language to
carry out this intention. That the vested
remainder, which the testator took under
the will of.his mother, was a part of the
estate of which he was in possession at
the time Of his death and was included
| in the devise In favor of the plaintiff.
Judgment for the plaintiff for the de-
manded premises and for two hundred
| and twelve dollars and thirteen cents,
| ($212. 1877 rents and profits.