Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1925-12-14
Interpret Provision
Of Caswell Will in
Law Court Rescript

A rescript involving the interprsts.
tion of the will of Cyrus A. Caswe,l
late of Lewiston, has been hana.a
down by Justice Philbrook in the a..
of Flora Harris of Greene, in eduifv
VS.. Oliver D. Dustin of Wales. ars
others. The construction of the fourh
paragraph of the will having tn 4.
with the disposition of the remaina..
of the estate after specific beoues,.
have been paid Is particularly involves
in this case. The bill in equity is su.-.
tanned.
The rescript is as follows:
Bill in equity to construe the vii,
of Cyrus A. Caswell, and particulars
to construe the fourth paragraph 81
that will. which is in the followjn.
language:
II give, bequeath and devise ali IN.
remainder Of my estate, both real ana
personal, to be divided equally amony
the following: The heirs Of Ursul,
Austin, Verda Caswen. Melvin ]. Cas-.
we'll, Mrs. Eda Judd, Mrs. Ada Smith
Mrs. Flora Harris, and Mrs. Flor,
May Parker, and Frank Caswell."
Held:
One. Is ascertaining the rights \,
legatees, intention of the testator -
collected from the whole will and All
the papers which make up the tesla
| mentary act, examined in the light a.
attendant facts, which may be SIM.
posed to have been in the mind of the
testator, must govern.
Two. If the intention Of the tesla
tor can not be SO ascertained. the
court must be governed by such rules
of law as have been established "a
meet the circumstances of the case. !,
Three. Hence the intention of tina
testator is the controlling factor n
the Interpretation of wills, which in.
tention is to be gathered from the en-.
tire instrument. interpreted in the
light of existing and surrounding cir
cumstances.
Four-When such intent can not
be ascertained, or when ascertain.
/ able, can not be carried out without
conflicting with some positive rule Of
, law, or is so expressed that 1t can
not be carried into effect without vi.
| olating some rule of Interpretation
so firmly established as to have be-
| come a fixed rule of law governing
| the transfer of property, then legal
rules must prevail.
Five-A devise to heirs. whether Il
be to ones own heirs or to the heirs
of third person, designates not on
| ly the persons who are to take but
alos the manner and proportions in
| which they are to take; and when
there are no words to control the
presumption of the will of the tesla
| tor, the law presumes his intention
! to be that they shall take as heirs
would take by the rules Of descent;
or, in other words, would take per
stripes and not per capita; but such
presumption will be easily controlled
by any words in the will indicating
a different intention of the testator;
when. after a devise to heirs we
find the words Gin equal shares, or
Share and share alike. or ito them
and each of them, or equally to be
divided. or any equivalent words.
intimating an equal division, then
they will take per capita, each In his
own right.
Six-Without indicating that the
words ito be divided equally" and
similar phrases may not in some cas-
es be satisfied by a division among
certain individuals named and a class
: described as the heirs of a deceased
person. we hold in the present case
that the testator's intent was to d.
vide his estate equally between the
children of Ursula, though described
in the will as her heirs and the sew
eraI other persons named, each tax
! ing one eleventh of the residue.
| Bill sustained.
Decree to be prepared in acordancs
with this opinion.
Reasonable fee for counsel on eacn
side to be determined by the sitting
Justice and paid out Of the funds u
| the hands of the evecutrix.