Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-04-10
FROM LAW COURT.
Decisions in Two Penobscot and
Cumberland Case.

| PenODScOt case. Joseph -. loWie, We
Alice H. Doe ct ais. Rescript by Pea
body, J.
Equity suit for construction of thu
will of Josiah Towle, late Of Bangor
Me-, deceased.
The testator's will is dated Aug. IL
| 1866, and a codicil thereto is dated
March 8, 1876. The provisions of the
codicil are not material in the case
The portion of the will which the par
| ties desire construed is part of the
residuary clause, as follows:
| To my wife. Lucinda l.. Towle, l give
and bequeath all the remainder of my
property of every description, both real
personal and mixed, to have and to
hold, occupy and enjoy and receive all
income, rents and profits and interest
during her life, and at her decease
give and bequeath all the aforesaid
property devised to her during her
| lifetime and which shall remain at her
| decease to my four children, viz: Will
| liam M. Towle and his heirs, one-fourth
part to be invested by my executor in
| United States bonds or state bonds, and
the interest, deducting expenses, paid
over to said William M. Towle and his
children so long as they live, and then
the principal divided to his or their
heirs
The testator died, Jan. 26, 1888, and
his widow, Lucinda l.. Towle, April 8,
1886. His son, William M. Towle, died
Jan. %, 1896, leaving a widow, now
living; and his granddaughter, Alice H.
Doe, the surviving child of William M.
Towle, has died since the filing of the
in leaving a huSh1 nd and
children, now living.
The will is not artificially drawn, but
it's terms clearly indicate that the tes-
tator thereby intended to dispose of his
entire estate.
In the portion of the will quoted the
words used in the first section of the
clause imply an absolute bequest to his
son, William M. Towle, but they are
followed by words showing that the
testator intended that the legal estate
in this fourth part of the residuum
should vest in a trustee, to be disposed
of in accordance with the terms of the
trust.
The language of the whole clause
shows that it was not the general in
tent if the testator that the bequest was
to be in fee to William, but an execu-
tory bequest, to be held by the execu
tor in trust for the life of William M.
Towle and his children, and at the de-
cease of the survivor of them to vest
in their heirs.
The doubt, which has arisen as to the
legal effect of this bequest is whether
it is in conflict with the rule against
perpetuities. The common law rule is
recognized by the courts Of this State.
The utmost period in which an execu-
tory bequest can take effect is a life or
lives in being and 81 years thereafter,
together with the period of CESSATION
already existing.
The test of the validity of the gift
must be applied to the language of the
will itsel. The possibility that the ex-
ecutory limitation might be void for
remoteness is clear from the fact that
a child or children of the testator's son
might be bore after the death of the
testator, the continuance of whose lives
might postpone the vesting of the es-
tate beyond the time limited by law.
The construction that the entire be-
quest is void would do great violence to
the manifest intention of the testator
to give his four children and their i'm
mediate families the benefit of equal
shares. and if another which does not
wholly disappoint his intention is pos
sibe, it should be adopted.
Another theory is also advanced that
the bequest is limited to beneficiaries
in case at the time of the testatOr's
death, namely, William M. Towle and
i1is child, Alice H. Doe, and vested at
the death of the survivor, Alice H. Doe,
in her heirs. But we think that this
construction cannot be forced against |
the plain language of the will so as to
apply only to those of the same class |
who might legally take the equitable |
estate. |
Another contention is that the be- |
quest was in trust during the life of |
William M. owle and that only the limi- |
tation over to his or their heirs in fee |
is void for remoteness. This assumes
that the beneficiaries mentioned in the /
trust take the interest in succession. |
But the legal estate is no given to them |
for life but to a trustee. The trust, be- |
ing an entirety for the benefit of a |
parent and his children, in prima facie |
concurrent. 1t would seem that the |
equitable interest belonged to William |
M. Towle and his children as a class |
and consequently to the survivor. This |
is indicated by the words Ibis or their |
heirs
We think that the legal construction
of the bequest depends upon whether it |
is a remainder to William NJ. Towle in
fee or whether the words in the first |
part of the provision which imply this
are so inseparably connected with the
modifying clause attempting to create
a trust as to render the whole provision
void for remotness. The trust fund is
not separable and might vest too re-
motely.
We think the legitimate effect of the
language used in the first section of the
provision under consideration DIS that
William NJ. Towle took a remainder in
fee, and that even the intent of the
testator to restrict it by trust must
yield to the rule against perpetuities.
The trust is therefore invalid.
And we answer that the proportion
Of the estate in which William M
rowle was interested and which came
1T the death bf Lucinda L. Towle into
the hands of the complainant as execu-
tor, vested absolutely in William M.
Towle and belongs to his estate.