Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-12-30

plaintiff upon his payment of the
$1,000. with such provision as the
Court may deem proper for the pres
ervation of the family burial ground
and the monuments therein. The ques-
ton presented is as to the meaning OF
clause ) of the will Is the language
there used mandatory and imperative
or merely suggestive and advisory?
Does it impose upon the devisee in
clause a legal duty towards the
plaintiff in respect to the real estate
devised or does it only express the
testator's advice and recommendation
TO the devisee which he was not bound
/ 10 follow?
/ Held
! |. In the Interpretation of wills the
cardinal rule TO which ali other rules
must bend is that the intention of the
testator must prevail. provided II IS
consistent with the rules OF law: ana
that intention is to he found in an eX-
animation OF all parts Of the Will in the
light OF the existing circumstances.
! >. The crucial test TO determine II
trust is created by predatory words
is whether the testator actually intend
of his legatee by imposing an impera-
tive duty upon him i'll respect to the
property, or whether he intended his
words to be merely advisory. leaving Ii
TO the discretion OF the legatee Wheth-
er that advice should be followed or
/ not.
| 3. Whenever a testamentary DISPOSE
ton clearly indicates an intention to
give the donec an absolute and uncon-
trollable ownership Of the property,
any subsequent provision tending to
impose restraint upon the alienation
Of such an estate is void.
4. Predatory words in a Will should
not be accorded such force and mean
/ ing as will deprive the donee Of his
! beneficial use and full right of dis
posal Of a gift otherwise absolute. un-
less the court can gather from the rest
Of the will and the attending circum-
stances. ar intention Of the tcStator
which is reconcilablc with the idea OF
trust imposed upon the legal estate de-
vised.
. :. Independent OF the request con-
tanned in clause j, there is nothing IN
the will TO indicate any intention OF
the testator To make the sons or his
brother Lewis partakers Of his bounty.
They are not otherwise referred to by
him. And his relationship to them is
not sufficient We think to indicate
that he felt such an Interest in them.
or sense Of duty 10 provide for them,
as would make it reasonably certain
that lie intended by the request con-
tanned III clause ) 10 make an imper-
ative test3mentary provision for them.
! g. Nor do We perceive sufficient
proof that the testatOr intended the
provisions Of clause > 10 be imperative,
in order TO effectuate q purpose that
the ownership Of the real estate should
not pass out Of the Pierce family. On
the other hand the request in clause .
tends only 10 restrict the sale of the
property by the testator's grandson.
! II does not prevent its unlimited
transfer by will or descent. And it
docs not appli at all to this plaintiff
should he become the owner Of the
! property under the provisions of clause
3. He would then be at liberty to sell
the property, in whole or in part. to
! WhomsoeVer he chose. He could make
the same sale TO Warren with a profit
TO himself of about SS000
!. Ii is not TO be presumed that a
testator intended as imperative a re-
quest to his advisee which is incapable
of being effectively carried out.
Predatory words will not be held to
create trust that cannot be practi
cably executed
S. If the Gevisee Of the real estate
could not make the sale of the growth
| in question without complying with the
request in clause ), he could not sell
any part or portion of the property
however small without complying with
that request. If he could not sell the
stumpage OF the growth. then mani
/ testify he could not accomplish the
same end by cutting the growth and
selling the logs and lumber. We are
unable to discover whom the whole
will ana the existing circumstances an
intention on the part OF the testator TO
thus limit and restrict his grandson in
the use and enjoyment of the real es-
| tate devised to him.
! .. Moreover, we are constrained to
the conclusion that the testator gave
to his grandson, under clause of the
| will. an absolute and unqualified estate
in the property therein devised to him.
We attach Importance to his use of the
word absolutely" Being a lawyer. it
is highly improbable that he would
have used that word in that connection
/ in any other sense than its usual and
ordinary meaning. signifying, uncon-
trolled and without condition.
10. We must therefore read the Ian
guage of clause ) in the light of
previous absolute devise of the real es-
tate made in the same will. So read
! ing it we cannot accord to the tesla
! tors request therein expressed the
| force of a command. To do that would
be to find that the testator intended
thereby to nullify his absolute gift of
the property to his grandson as
previously made in the same will, an
attempt which the we'll settled rules of
construction forbid.
| II. Our conclusion, therefore. is that
the defendant Josiah Pierce had the
right to make the sale Of the growth
to the defendant Warren, which is
complained of. without first Offering
the property to the plaintiff at the