Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-12-21
KNOX COUNTY.
Exceptions OVerrulcd.
Reed Dee. 18th, 1906.

Mary G. FarnSworth ct ais, in Equity
VS.. George +. Whiting ct al. Re-
script by WiswslI. c. J.
The will Of the teStator. James r.
FarnSworth contained two clauses
reading as follows:
First. | give, devise, and bequ"ath
unto my wife, Helen a. FarnSwOrth
and hci heirs One-haif of all my estate.
both real and personal in whatever il
may consist or wherever situated at
the time of my decease.'
second ! give, devise and be-
qucath unto my wife. Helen a. Farms
worth the remaining one-haf Of ali my
said estate, both real and personal, to
be ~ hcr used and disposed of during
her natural life. precisely the same as
| | myself might do were I living; and
giving my said wife full power 10 sell,
! exchange, invest ana rcinVeSt the
| same, in the same manner | might do If
| living but if any Of the said remain
| ing onc-half of my said estate shall re
| main undisposed Of, by my said wife
| AT the TIM OF her dcccaSe. ana my
| mother. Mary G. Farnsw"rth, shall
| then be- living, then | give, devise ana
| b,uueath all such residue and re-
! mainder OF said remaining onc-half of
nav estate unto my mother, Mary c.
| F:rnsworth, but in the event that my
wife shall survive my mother then, on
the decraSr of my mother. | give. de-
wise and bcqurath all such residue and
remainder Of said one-half of my cs-
| tate, unto my wife Helen a. Farms
worth and her heirs, it being my inteu-
| ON the tptplSp 0t
mother, all my estate. real and per-
| spnal snail become the property OF my
| wife. she to have full power to dispose
of the same by Will or otherwise, az
| she may think proper
The tcstator died IN May ., 1905, his
vito, Helen \. Farnsworth one OF the
bcne.iciaries named in his will. die
May !. 1905 four days prior to the
death Of the tCStator. The teStat"l
and his wife left no issue. Mary {
FArnSWorth. the mother Of the teStator
to whom. by the will. a remainder in Z
,,nrtion Of the estate was gwen III cas-
she survived the wife. is still living.
Tho general rule is that legacy OIL
devise will lapse when the lcgatce o
devisce dies before the tcstat"r.
testator may by express provisions II
his will. or by language from when
clear implication may be drawn tina
such was mis- intention prevent q laps
| Of the devise in ease Of the death OF th'
Icyafcp or dovisre before the trStdtor
| Pint il is equally we'll settled that tn
, use Of mere words of limitation VII
, not prevent the larsinG Of the devise
and that the phrases. in different form
traounntly and commonly used in
devise. such as "and his heirs" or "an'
, his heirs and assigns" are words %
limitation merely. descriptive of IN
nature Of the estate devised. and d.
. NOT create 4 substituted devise.
This common law rule that devils
to a ,Ievisee who dies prior to the deaf
| of the tcStator. will lapse, has pc"
mo,ljfi,d under certain conditions
this state by Il. =. G. 80. see. 1t
" Wherein it is provided: When rcEi
y tive Of the testator. having devise {
= real or personal estate. dies beiof
= the trstator, leaving lineal descendant:
: they takt. such estate IS would lay
been taken nv such deceased rriatiV
if ne had survived" But this statu
tory provision in II" way changes III
rule in this cas- for two reasons. ~
deceased dcyiSee. the wife Of the tesla
tor was not = relative df the teSta''
:, within the. meaning of the Statn'
i Ana sh. did not leave any line;tl d"'
u, cenlan;S.
II is therefore held o. That III" d'
! wise Of onc-half of Tho tcstator'S rSta'
under tn. first clause 81 the WI
. lapScd by the death of tn" devise
prinr to that of the teStator, that th"I
WAS no uryiSce by substitution. ana J
other trStamcntary disposition "t IN
ouc-haIf of the tcStatOr'S estate ult
the ,leceaSc Of the trStator, therefor
this one-half Of his estate dtSctnd'd
~ int"statc property according TO u
=, statutes of descent and Distribute
i, CO As to the other half Of the test
tors estate. mentioned in the sccoi
clause, Of the will the death of the Ii
=, tenant merely accelerated TN" takli
!, Of the remainder by the mother. We
-, the death If the trStator ms m"th
-. took this onc-half of the estate III |
~, simple. under the will.
- Decree below II be III accordan
~, with opiuiun Reasonable counsel Il
for both sides to he allowed. I"
II. paid out of the estate.
u, Reed Dec 18th. 1905.