Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-11-10
Recent Rescripts.
Knox County. Rockland Savings Bank
VS.. w. G. Alden ct al. and Trustee.
PaScrinf nv WhitehOuSe T.

created by the provisions Of chapter IS
of the Revised Statues, the writ being
in the form established by law, author
ling an attachment of goods and eS-
tate of the principal defendant in his
own hands, and in the hands of the
trustee, and the summons in substance
as therein prescribed. 1t has never
been treated in this state as merely
process of execution but has been
uniformly regarded as suit in which
the person summoned as trustee is
held to.be a party adverse to the
plaintiff ard entitled to make his de-
Tense as the principal defendant may
either upon issues of law or fact
In the case at bar, the plaintiff in
this trustee process. sought to hold
certain dividends declared by the
referee in bankruptcy in favor of the
principal defendant Alden. The action
was entered at the January term 1906
and was continued until the next Sep
TENDER term, when the alleged trustee
| filed his disclosure, and the case was
| marked Law on report as to liability
of trustee" The case was duly pre-
sented to the law count and it. was held
| that funds in the hands Of a trustee in
/
estate, are in the custody Of the law
and not amenable to the process of
| foreign attachment Accordingly on
| the 29th Of November, 1907, a certifi-
cate was received from the law court
with an order to Cnter "TruStee dis
| charged"
| The principal defendants were de-
| faulted at the April term, 1906 and the
| =
| the next April term. and it is row
contcnded that inasmuch ~ the action
| was not marked &c. +. j." II any suisse
quent term, it must have gone to judg-
ment at the next term succeeding that
| at which it was so marked, viz: at the
January term, 1907, and That the
| plaintiffs attachment of the defen-
dents real estate was dissolved at the
expiration of thirty days from that
| time
| Although acquiescence for no length
of time can legaliZe a manifestly I'M
authorized practice, it must be con-
| ceded that a practical Interpretation of
a statute which has been accepted as
/, correct for more than three fourths Of
a century is entitled to great weight
in the decision of such a question.
During all of the years since the ex-
| istence of the statute. it is believed to
have been the invariable rule and
+ practice of the court to construe this
statutory provision to be self-eXecut-
| ing and to operate as a continuance OF
actions marked "law'' without special
order of court, until their determine
ton is certified as therein provided.
Such construction is a reasonable and
necessary conclusion from the
mandatory language of the statute it
self. The actions "shall be continued.''
| The continuance is made an absolute
and imperative requirement. The cour.
has no power to prevent a continuance
| under such circumstances. The action
is continued by the express command
of the statute, and no other entry on
the docket is required except to mark
the case Law That entry ipso facto
operates effectually as a continuance
of the action until it's determination
by the law court.
The fact that in the case at bar the
| action was commenced by trustee
| process does not change the rule.
Exceptions overruled.
Cumberland County. William NJ. Brad
ley, Admir-. vs.. Luman Warren ct
ais. Rescript by Whitehouse, J.
This is a bill in equity to obtain a
judicial construction of the following
paragraph in the will of Joseph 3.
Bradley, namely:
"The residue of my estate, real, per-
sonal and mixed, give. devise and be-
queath in equal shares, to wit. One
moiety thereof, to my said wife. One
moiety thereof to my daughter Alice
Buck now wife of Luman Warren, pro-
vided however that if my said daugh-
ter shall before this will take effect die
| without issue, said share shall descend
to and be distributed among my heirs
| at law, and if at her decease this will
shall have taken effect, and she shall
| have entered into possession of said
estate so much thereof as may remain
| at her decease shall so descend and be
distributed to and among my heirs at
law, meaning those who would be my
heirs at her decease according to the
laws of this State
Alice Buck Warren died intestate
| leaving a husband but no issue living
at the time of her death. The will had
taken effect, however, and she had
| taken possession of her half of the
estate before her decease. The ques-
ton presented for the determination of
the court relates to the nature and
| quantity of the estate taken by the
daughter Alice under the provisions of
this paragraph of the will.
1t IS the opinion of the court that I'M
der the rule established by a uniform
| line of decisions upon this question in
| this State that a devise absolute and
entire in it's terms presumptively con-
veyS an estate in fee without words of
inheritance and that any limitation
| over afterwards is repugnant and void,
it must be held that by the terms of
! this will Alice Buck Warren did take
an absolute estate in fee in a moiety
of the residue of the testator's estate.
| But even upon the assumption that the
| daughter Alice did not obtain q fee but
only q life estate by implication. the
same result must follow for the reason
that an unqualified power of disposal
was annexed to the gift. 1t may be
| true that this rule sometimes appears