Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1911-12-11
ResCripts In
Cumberland And
PenObscOt Cases.

Rescripts in Cumberland and Penobscot
cases have been handed down by the
law court as follows:
Cumberland County.
James H. F'itzsimmons. ct ais VS.. lisa
belle c. Harmon. ct ais. Rescript,
Whitehouse {. J.
This is a bill in equity brought TO OBJ
tain judicial construction of will.
The statutes of this State clearly pre-
scribe the method of transmitting prop
erty by will, which the court is not at
liberty TO ignore although in particular
Instances the actual intention and desire
of person respecting the disposition of
his property may be defeated by adher-
ing to The rule prescribed. A bequest of
personal property We'll ASA devise OF
real estate In order to be effectual is re-
CURED to be made By an instrument in
writing signed by the testator and sub
scribed by three attesting witnesses.
Even letter or other document contain
ing explicit directions for the disposition
of property cannot become part of a
will by reference, unless it be shown to
have been in existence at the time the
will is executed and be so clearly and
precisely described and referred to in the
will as an existing document that it may
be readily identified as the particular
paper intended by the testator.
In the case at bar the only wishes
expressed for the guidance of the lega-
tee in the distribution of the property
had been given orally and they were
not incorporated in the will. The Ian
guage of the testatrix is: 81 give, de-
wise and bequeath my property of what
ever kind to Isabelle c. Harmon to divide
as seems to Ter best. as l have told her
my wishes in the matter"
l. The phraseology employed in max
ing this bequest utterly fails to disclose
any purpose on the part OF the testatrlN
to make an absolute gift of the property
TO the legatee for her personal benefit.
1t expressly requires her 10 divide all
the property thus bequeathed to her.
The fact of the division is not lett to her
discretion, but imposed upon her as a
duty. II gives her discretionary au-
thority only respecting the manner of
the division, having regard to the wishes
orally expressed by the testatrix.
. On the other hand IL is equally clear
that the terms of the bequest do mani
fest an intention on the part of the tes-
tatrlY 70 create a trust -.
the will is too indefinite and uncertain
to be executed Among the essentials
of a valid trust are that the precise ma
ture of the trust which the donor in
tended to create should appear, and that
Tho particular persons who are to take
as eestuis qlie trust. and the proportions
in which they are to take should be
pointed cut. If they are not, then the
trust cannot be executed, and il must
fail Where the character of trust "
impressed upon the gift. and it fails, be-
cause Intellectually declared, and thu
cestuis que trust are not clearly desig-
mated the trustee is not entitled to the
BY Lord Eldon, Though the trust is not
declared or is Intellectually declared, OF
becomes incapable of taking effect. tht
party taking shall he trustee If no
for those who were TO take by the will
for those who take under the disposition
of the law"
In the case at bar the legatee and ex
ecutrix who wrote the will at the re
quest of Mrs. Doherty. was permitted L
state in her testimony that she did no
intend TO use a dollar Of the estate TO
her own benefit, and that in writing IN
win she 'intended TO so word il that sh
in question that ia attempting to admin
lister the trust she has adhered 10 tina
intention with scrHpuluus fidelity. Bu
while the language Of the Will ciearl
manifests an Intention to create a trust
ii is the opinion Of the court. that 70
reasons above stated, under the salutar-
and time honored rules governing tn
creation and execution of trusts Tn
terms Of this benuest do not declare
~ trust sufficiently definite to he executed
that there is a resulting trust in favor o
the heirs at law, and that the estat
should be divided among them after tn
IDinisratiop.