Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-12-17

1t Is not an unyielding rule that
remaindermen, under O testamentary
provision for a husband or wife which
has been waived, are entitled to the
gift over irrespective of the effect of
the waiver upon other requests and
legacies contained in the will. And
the courts have carefully refrained
from permitting such a waiver to af-
feet the other testamentary DISPOSE
lions made in the will, except so far
as necessarily results from the waiver,
holding that the requests to other
legatees are to have full force and eff
feet so far as any estate remains from
which they may be paid,
And the doctrine is well recognized,
that renounced testamentary pro-
vision for a husband or wife may be
sequestered for the benefit of legatees
or devisees whose portions have been
diminished as a result of the renuncia-
ton. This doctrine Is qualification
of the general rule that gift over
shall take effect upon the termination
of the particular estate or interest,
however such termination is effected,
by holding that the rule must yield to
an obvious intention to the contrary
deduced from the manifest purpose of
the testator in the disposition of his
bounty, which it is presumed he de-
sired to have carried out so far as
possible. AND hence, the we'll settled
principle that equity will interpose, if
necessity requires 1t, to preserve a
superior or preferred intent of the
testator from destruction.
Applying this doctrine to the case at
bar, it is held:
l. Constituting the will and codicil in
the light of the situation and circum-
stances of the testatrix when the codi-
ell was made, the court is of opinion
that she intended that the pecuniary
requests in her will should be paid, and
that she regarded those pecuniary be-
quests superior to the provisions that
any balance of the trust fund re-
naming unexpended at the husbands
death was to go to the persons therein
named.
2. That the intention of the testa-
trix that the pecuniary requests in her
wills should be paid, can and should be
carried out by using So much of the
trust fund as may be necessary there
for to pay the pecuniary requests made
in the will.
3. The provision in the codicil for
the remaindermen therein named
though yielding to the superior intent
of the testatriX that the specific pc
cuniary requests to other legatees
should be paid, is to be given effect so
far as practicable. And the court is
of opinion that their interest in the
trust fund takes precedence of the in
| terest of the residuary legatees in the
will
4. Ifsthe net eestate left after the
husbands share is taken out is in ex.
| cess of the $4,000 trust fund, that ex-
cess will be applied to the payment of
the peeuniary requests, and then the
trust fund must contribute enough to
satisfy the balance of the peeuniary
requests, and what then remains of
the trust fund Will belong to the re-
maindermen named in the codieil.
5. We think the remaindermen are
entitled to receive at once any bal
ance of the trust fund under the doc
trine of acceleration, for no contrary
intention on the part of the testatrix is
discoverable, and the persons who are
to receive 1t are all specified and de-
termined by the codieil.
6. The beauest to Isabel Pratt
| lapsed. She died before the death of
| the testatrix, and was not related to
her by blood.
Z. The costs of these proceedings
including a reasonable counsel fee for
compliments solicitor, may properly
be decreed charge upon the estate
Decree in accordance with opinion.
Reed December 10Th, 1913.