Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-02-04
Dally nennebec Journal
THREE REscRlPTs
Recently Handed Down in Important
Cumberland Cases.

| The following rescripts were received
| by Charles OF. Sweet, clerk of courts
for the Maine law court, Friday. all IN
| Cumberland county cases, and all
drawn by Judge Powers:
/ Cumberland case. William Wells,
aplt, from the decree of judge of pro-
bate. "a
| In order to establish will it is not
necessary that any of the subscribing
| witnesses should testify to the sanity
| of the testator. 1t frequently happens
| that the most satisfactory evidence OF
a persons state of mind is found in the
| minds own action, as shown by MS
| conversation, claims, declarations ana
acts.
| On the question of undue influence,
| the fact that the testatrix's nephew,
who drew the will, was named an ex-
ecutor, and received small legacy, IS
entitled to little weight, where the leg
acy is the same as that bequeathed to
all her other nephews and nieces, and
there is no evidence that he unjustly
used the confidence reposed in him TO
influence or morally coerce the tesla
trix, but there is an entire absence OF
those suspicious circumstances which
-
impose ones will upon another and
loverpower his mind and will. so that ne
is no longer left free to act intelligently
and Understandings.
Motion sustained, new trial granted.
Cumberland case. William w. Cut
ter, in equity, VS.. Selma Purington,
admX., etc, ct ais.
This bill is brought to prevent a null
tiplicity of suits by obtaining a judicial
| construction of the will of Helen j.
burlington. The principal question in
volved is whether certain deeds by the
plaintiff as guardian of Marie j. Pur-
| ington, conveyed an indefeasible title.
Those claiming title under such deeds
are not made parties to the bill, and
are not represented before the court.
They are necessary parties. The bill
is to be amended unless the complain
ant sees fit to amend by summoning in
the necessary parties.
Bill retained for amendment.
Cumberland case. State of Maine VS..
James A. Conwell, Jr.
A search and seizure warrant issued
under r. s.. C. q. Sec. 40. on the Lords
day. before the enactment of Public
Laws 1901 c. POI, was not thereby rem
dered invalid.
The act of the magistrate in issuing
lsuch a warrant under that section is
ministerial and not judicial.
| Exceptions overruled. Judgment for
1 the State.
4 Oscar II. Jersey, administrator, in
lequity, VS.. Selma burlington, admins
tratrix, ct ais.
| a teStatriX bequeathed and devised
her estate to her daughter, provided
that her daughter died, leaving issue,
or did not die before reaching the age
of II years. There was n devise over
upon the happening of such contin-
gency. unless the estate should have to
be disposed of under the fourth clause
of the will BY that clause the execu-
trix was ordered and directed to apply
all. or whatever was necessary Of the
rents. profits and income of the estate
to the support and education of the
daughter. and should they prove INSULT
cient, 10 sell the corpus of the estate
, and apply the proceeds to the same
purpose.
Upon a bill of interpleader to deter
mine the construction of the will:
Held, That upon the death Of the tes-
tatrix an equitable fee simple condi-
Itional passed to and vested in the
daughter subject to be devested on her
dying under q years of age, and with
out issue: which condition was itself
subject to the condition that the es-
tate had not already been disposed OF
for her maintenance and education, and
provided in the fourth clause of the
Twill.
The daughter died without leaving
issue, and before attaining the age OF
q years.
Held, That the trust created by the
| fourth clause Of the will terminated
with the death of the costue que trust
l That after the death of the daughter
her guardian could not convey the es-
tate.
That the court will not determine in
this case the validity Of such sales, il
any, made by the guardian in the life
tire of his ward. and while there was
tno one qualified to act as trustee the
persons claiming under such sales not
being made parties to the bill.
Decree to be entered in accordance
with the option.
Equity case of John 3. Kehoe VS.
James A. Hines ct ais, Friday. The
ell case came up from Portland.
A testatrix devised certain property
to n trustee to hold during the natural
life of her nephew. ]. s.. for the benefit
of the said J. s., 80 that at the discre-
Ition of the trustees the net income and
where circumstances should demand
the principal, might be applied to the
lcomfort and support of the said J. S.
and his family. and to relieve them
from suffering and Distress" She fur
Their provided in case of objection to
the trustee by j. s., or her refusal to
iact. other trustees should be appointed
"to carry out the provisions of such
\ trust for the benefit of said j. s. and
his family" witifaia devise over after
the death of J. s.. to his issue then liv-
ing. and in default of such issue to an
other nephew. BY other clauses of her
will specific and substantial devises and
requests were made to i. s., without
mention OF his family. The family OF
IT, S. at the time of the making of the
will. consisted of his wife and daughter
but before the death Of the tesla trix
tthey separated from him. and have not
= oil