Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-03-21
kENNEBEc REscRIPT.
Law Courts Construction of VIII OF
Harriet m. Green!ief.

The following rescript has baen recciv-
ed from the law court:
Kennebec county. Fred W. Spencer in
equity, VS.. Isadore C. kimball ct al
Orinion by Justice Strout
This bill asks construction Of the will
OF Harriet II. Grocnlcaf. so far as 10 de-
termine what int aroSt in real estate W., :
thereby given to lsadore G. KiInbalI. and
also decree Of foreclosure OF a mort
gage given by Mrs. kimball to the com
planant.
BY one clause in the will the tcstatriy
gave 10 her daughter Isadoro G Kim
ball, the use of my house and lot of land
on which it stands; in SAID Augusta, where
live. during her life. or Until such time
as she shall deem it best to sell m, sam .
and | authorize her to sell and convey
said real estate at any time at her dis
crction." The next clause is, lin case she
shall sell said real estate, one third of tn.
proceeds Of such sale is to be added ia tht
trust fund" before provided for her son,
Charles II. Greenlitf.
The succeeding clause is. ''ali the rest.
residue and remainder of all nv proper
ty and estate. both real ana personal.
give bequcath and devise unto nv sal 4
daughter, lsadorr 9. kinball if she shall
survive me- otherwise 70 her grandchil-
drcn.
The daughter Isadore did survive he,
mother. There being 10 Intervening es-
tate, the devise 70 her of a life estate.
coupled with a devils of the rcrcrsion.
merged the two estates and vested III hrt
| an absolute fee, and rendered the author
| ity to sell given in the devise of the lift
| estate imperative as power from the
testatriX. Davis V. Callahan IS Me 3l3.
The provision for the son. in case Of
| sale of the real estate was contingent
! upon a sale. The daughter was not d.
rected to sell. 1t was optional with i!cr
| If she did sell. one-third of the proceeds
was to go to the trust fund for the son,
but if she did not sell. nothing went t.
! him.
Her mortgage before foreclosure cannot
be regarded as n sale under the power. Ii
was but Il security for her debt and upon
| payment OF the debt voluntarily or upon
compulsion. the mortgage would be func-
| tuS. The mortSaSee was not obliged t.
rely upon the land. but might collect he,
| note by ordinary suit. The money loans
| upon the mortgage security was not pro
| crcdS of a sale 10 which the terms of tho
| will applied
| The union of the life estate with the re-
version in Isad0rc would not operate as 4
| merger. if there was any intermediate ci-
tate In this ease the provision fer thc
son. in the event of sale, created nO
| charge upon the land. nor interest in il
| Hence. no Intervening estate.
| Whether in the event that the mortgage
| debt shall lie paid and the mortgage 'li--
charged, and the real estate subsequently
| sold by Mrs. Kimball, or whether il tin
mortgage is forcCloScd ana thereby tn,
| title passes to III" mortgage. il Will b.
regarded as Il sale. a1d nnc-thirI n III.
| amount received III either event DC chGrS
| cd with a trust for the son. il is not
| necessary now t. decide. as in either cas'
! the title to the real estate is not aficcte |
| The trust. if any, attaches only TO the
! proceeds of Il sale, and not to the rGa
estate.
In her personal capacity IsAGore mort
gagged the real estate TO the complainant
! to secure Il loan to her. it is now cut
standing and wholly unpaid. The com
| plainant is entitled to Il decree that il
| IsadOrc G. kimh1l. or anyone claiming
under her. shall pay to the plaintiff Tho
amount due upon the mortgage within on
year from the entry of the decree i'll thi:
case, the mortgage to be discharged 9th
crwisc the equity Of redemption to b,
| forever forcc!oScd.
! Bill sustained against ISadnre c.. Kim
ball in her individual capacity. and dis
missed as to all other defendants. Decree
| in accordance with this opinion.