Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1922-06-13
Dismiss Appeal~in
Case Whitmore VS..
Gardiner Churches

A rescript was handed down by the
/ law court Monday in the Kennebec
|. county case of Ellen ]. Whitmore, by
| James w. Fisher, her guardian, vs..
! The Church Of the Holy Cross and
/ the First Congragationalist Parish OF
/ Gardiner, disnissing the appeal and
| sustaining the decree Of the sitting
| justice in Diminishing the bill.
! The rescript, which was drawn by
Associate Justice George M. Hanson
Of Calais, is as follows:
Bill in Equity to obtain the con-
struction of the will Of Harriet z.
. Whitmore, late Of Gardiner, deceased.
/ The defendants demurred to the
bill as a whole, and to each and every
Paragraph thereof, on the ground
that the plaintiff has no interest in
the subject matter Of the bill, and
that the facts set forth in the bill
do not justify relief
The sitting justice in his final de-
cree sustained the demurrer and dis
missed the bill The case is before
the court on appeal from the de-
I cree.
| The bill alleges that Harriet Whit
: devised her homestead in Gardiner
/ to the First Congregational Parish
1 Of Gardiner, "as a parsonage" said
| devisee taking effect in 1892. Deem
| Der 9, 1919, the said parish by war
| ranty deed conveyed the same to the
| Church of the Holy Cross, and that
, the Church OF the Holy Cross has
! contracted to sell said estate to one,
| Bennett Slosberg.
/ 1t is further set out that the First
| congregational parish of Gardiner
| has now no church building, no set
! tied pastor and no occasion for any
parsonage building; that the plain
| tiff, Ellen j. Whitmore, is the exc
| cutriX named in said will, and is
also resiGuary lcgatee under the will.
The bill further recites that the
| First Congregational parish OF Gar
diner is still in existence and is a
| legally organized church qualified to
hold property. but that it does not
/! now own or occupy place of WOr-
ship or have a settled pastor, but
7 that the time may come when it will
have a pastor and will want a par
sonagc.
The controversy arises under the
4 following paragraphs of the Will:
Fourth: | give and devise to the
( First Congregational parish Of Gar
diner, Maine. having q place of wor-
ship on Brunswick avenue in said
Gardiner, the house and lot now oc-
\ cupicd by me as a homestead on
Brunswick avenue aforesaid as par
sonage.
Fifth: I give and bequeth to the
said First Congregational parish the
sum Of one thousand dollars to be
held and invested by trustees to be
selected by the parish the income
~ the same to DC used as far as
necessary in keeping said homestead
and lot given as q parsonage in re-
pair, also [ give and beQueath to
said First Congregational parish the
further sum Of two thousand dollars
70 he held and invested by trustees
selected by the parish. the income
Of the same to De used for the main
tonance of singing in the church oc-
I, cupicd by said parish"
Held: Cd The decree of the Sit
ting Justice sustaining the demurrer
and dismissing the bill must be af-
ftrmod. The plaintiff is eXecutriy of
the will and residuary lcgatce named
therein. She is under guardianship.
The petition is irregular because
signed by her attorney as principal.
but necessarily 50 perhaps in view Of
the circumstances.
Held: CD It is the opinion Of the
Court that the devise of the rarson-
age was not no condition subsequent.
The devise was absolute. There is
no clause in the will providing for
re-entry for breach of a condition,
and nothing appears in the will to
Indicate that the testator intended to
create condition subsequent The
use Of the words "as a parsonage
cannot by any rule Of construction
be said to mean that the testator in
tended to restrict the use, or aliena-
ton of the property.
Held: go The cases are almost