Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1924-12-10
THREE RESCRIPTS
FROM[AW COURT
ISSUED TUESDAY

WOO10 bSts
Y Three rescripts were handed down
by the law court Tuesday. two Of
which were from kennebec county.
and the other from Cumberland
county.
Bill Sustained :
The bill Of the plaintiff was sus-
tanned in the Kennebec county case
Of the Methodist Church OF. Mon
mouth vs. John Fairbanks. ct ais.
The rescript. which was drawn by
Associate Justice Scott Wilson of
Portland. IL as follows:
when by will a testator bequeaths
all his property real personal and
mixed. to his wife and daughter to
their free use and benefit forever
and free from the interference and
control Of anyone, with a gift over
at the death OF the survivor of what
was left, IL anything. the remainder
over Is void.
The intent of q testator. however
clear, cannot be permitted to violate
ANY rule Of substantive law or firmly
established canon Of Interpretation.
It Ia awen known rule of substan-
tive law that gift over after an alb
solute estate with an unqualified
power Of disposal in the first taker
cannot take effect either as remain
der or an executory devise: and 1t Is
a firmly established canon OF inter-
probation that devise without words
OF inheritance or limitation but
coupled with an unqualified power Of
ii
conveys an absolute estate.
An unqualified power OF disposal is
implied by a devise without words
OF Limitation or Inheritance followed
by a gife over OF the residue" or
the remainder thereof" or what is
left
Only where there Is a simple de-
wise or bequest without words Of linn
itation or Inheritance OF any power
of disposal. express or implied, in the
first taker. and an absence of any
other provision showing an intent to
create an absolute estate in the first
taker. may a gift over overcome the
presumption created by Sec. 1s Of
Chap. 10 r. s.. and take effect as a
remainder or an executory devise.
Exceptions overruied
The exceptions OF the plaintiff are
overruled In the kennebec county
case of Frank l.. Weber VS.. Ernest
Wright.
The rescript. which was drawn by
Associate Justice Scott Wilson Of
Portland. Is as follows: 49,
A grant Of land described as bound
ed on a passageway andsreferring to
10 MI htak n FRI, IF To- 10
marked off corresponding to the pas
sageway described in the deed may
convey to the grantee an easement
therein Of passage, light and air.
Where an alleged nuisance has
been created or erected by a third
party, the present owner into whose
hands 1t has come by purchase since
the erection or creation Of the null
sance cannot be held liable therefor
without notice Of the existence and a
request for its abatement.
Nor will landlord be held for a
the expiration Of the term and sur
render Of the premises and then only
| after notice and request for abate-
ment. =,
Cumberland Case
The exceptions Of the defendant
are oyerruled in the Cumberland
county case Of Rose Parker VS.. Har-
old II. Kirkpatrick, an action for
Islander, and in an action for assault
and battery between the same
parties, the exceptions Of the defend
ant are overruled, IL the plaintiff re-
mits all Of the verdict in excess of
one dollar within 80 days after re-
script Is filed with the clerk of the
law court. otherwise the motion Of
the defendant Is sustained.
The rescript. which was drawn by
Chief Justice Leslie C. Cornish of
Augusta, is as follows:
These two actions at law. the one
for Islander and the other for as
sault and battery. were based on the
same set Of facts. were tried togeth-
err, and resulted in verdict OF
$1016.92 for the plaintiff in the SLAM
der suit and $S20.91 in the assault
and battery suit.
ISLANDER SUIT
This Is before the Law Court on
exceptions. The presiding justice
instructed the jury that IL the words
spoken by the defendant accusing the
plaintiff Of larceny We're made to a
peace officer either for the detection
Of crime or the protection Of his own
property, and were made in good
faith and without malace, they would
he a privileged communication: but
II, made to the plaintiff herself in the
absence of a peace officer and in the