Gregg v. Bailey

Morrill, J.

I am unable to concur in the opinion by Justice Wilson.

In the first item of the will we have (1) a legacy in simple, terse language, of four thousand dollars without any limitation; (2) a legacy of the same four thousand dollars, likewise without limita *276 tion, to the other sister. I cannot conceive of two provisions more repugnant in a legal sense, than these; and if, looking at the second paragraph, we add the gift to the daughters of “what I previously gave to my sister, Georgie J. Bailey,” we have three absolute gifts of the same four thousand dollars, expressed as clearly as language can express thought.

The same result is apparent in respect to the legacy to the other sister, Frances Ann Gregg; We have (1) a direct legacy of four thousand dollars, without limitation; (2) applying the last clause of the will, a gift of the same four thousand dollars without limitation, to Georgie J. Bailey, if she survives Frances Ann; and (3) a gift of the same four thousand dollars to the daughters.

I think that these provisions are so absolutely repugnant in a legal sense that the first gifts of four thousand dollars each to the two sisters alone can stand; that the case must fall within the well settled general rule so often declared in this State, that if a gift of personal property be absolute and entire in its terms, any limitation over afterwards is repugnant and void. Copeland v. Barron, 72 Maine, 208. The same rule is applicable to devises of real estate and was laid down, as the first of four canons of interpretation, in Barry v. Austin, 118 Maine, 51, 58, in the following language: “Where an absolute gift in fee simple-is followed by an attempted gift over, the latter is void. The reason is that the gift exhausted itself in the first giving and nothing remains for the second taker. A fee cannot be limited upon a fee. The attempted gift over is repugnant to the first gift and the two cannot stand together.”

It is said that the attempted gift in remainder to the surviving sister and the attempted further gift in remainder to the daughters afford strong evidence that the testator did not intend to make absolute gifts to the sisters; but he did not use apt words to express that intent and give it effect. The will is singularly free from any words aptly limiting the gifts to the sisters. If the attempted gift over alone is to be considered sufficient evidence of the testator’s intent, to warrant the court in limiting the first gift to a life estate, the long settled rule is in effect abrogated.

Justice Wilson’s opinion is based upon the theory that while a devise or bequest to A presumptively imports a fee or an absolute estate in personality, a further limitation rebuts and overcomes *277 the presumption and is therefore not repugnant. This theory is opposed, I think, to the established law of the State, and the reasoning which attempts to reconcile the opinion with the earlier cases is unconvincing to my mind.

Judge Walton, speaking for the court in Mitchell v. Morse, 77 Maine, 423, denied any such legal conclusion from the fact of the attempted gift over; he said:

“The argument usually urged is that the devise over ought to be allowed to cut down or reduce the estate previously given, to a life estate, upon the ground that such must have been the intention of the devisor. And in a few cases this argument has prevailed. But in a large majority of the cases, both in England and in this country, it is held that a mere devise over of a remainder, will not cut down the estate given to the first taker.'---The gift is direct, positive and absolute. And but for the devise over of a remainder, no one would doubt that under our statutes B,. S., Chap. 79, Sec. 16 the terms used are sufficient to convey an estate in fee simple. The devise over is also direct and simple. It has no qualifying words or conditions whatever annexed to it. We thus have, first a devise of a fee simple estate, and then a devise over of a remainder. The two cannot co-exist. It is settled law in this State, as will be seen by the cases cited, that the latter must yield. The question is res judicata in this State, and will not be further discussed here.”

So in Loring v. Hayes, 86 Maine, 351, where the testator, having made a bequest and devise of certain real estate and personal property to his wife “for her use during her natural life,” made a further bequest to her of forty-five hundred dollars, and then devised and bequeathed to Jacob L. Hayes and others “all that may remain unexpended of the real and personal or mixed estate given to my wife in the second clause of this will,” at the decease of his wife. The counsel for the residuary legatees contended, as appears in the opinion of the court on Page 356, that the last clause “should be taken into consideration as showing that the bequest of the sum of forty-five hundred dollars was for life only.” But the court rejected the argument, saying:

“It has long been a settled rule in this State, as well as elsewhere, that where by the terms of a devise or bequest an estate in fee simple of real estate, or an absolute gift of personal property is made, *278 a devise or gift over is void. Jones v. Bacon, 68 Maine, 34; Stuart v. Walker, 72 Maine, 146; Mitchell v. Morse, 77 Maine, 423.

In this case the bequest of forty-five hundred dollars to the wife in cash or securities to be selected by her is absolute; there are no words of limitation that apply to that portion of the clause, and it cannot be presumed that the testator intended a life estate only when the language used clearly indicates an intention to make an absolute gift.”

The controlling consideration in the instant case is the fact that the legacies to the sisters are couched in language plainly importing absolute gifts, and no apt words are used reducing those absolute gifts to life interests. The testator attempted to accomplish two or more inconsistent purposes. Taylor v. Brown, 88 Maine, 57.

A distinction is attempted in the opinion between the instant case and previous cases in this State where the rule has been applied, based upon the presence of either words of inheritance or a general power of disposal expressly added or implied.

The theory of the former cases is that a devise to “A” (no words of inheritance and no power of disposal and nothing except a further limitation appearing) is absolute, that it necessarily imports a fee and that a further limitation is repugnant and void.

We may eliminate from consideration devises to “A and his heirs” and on the other hand to “A for life,” or similar words. The law governing limitations following such devises is well settled. No such words appear in the will now under consideration. It is also well settled that if the devise is to “A,” with qualified power of disposal superadded there is no fee in the first taker and therefore no repugnancy in a further hmitation.

If the power is unqualified the estate in “A” the first taker is a fee. Justice Wilson’s opinion says that it becomes a fee by reason of the power.

I think otherwise. The fee exists independently of the power. The unqualified power being consistent with a fee does not operate to cut it down to a lesser estate as does a qualified power which is inconsistent with a fee. This is the point in controversy.

We may leave out of consideration that class of cases wherein express powers of.disposal are treated or which discuss such forms of words as “if any remain” etc. from which a power may or may not be implied.

*279 In the case at bar no words of inheritance appear and no words creating a power of disposal either express or implied are found. We have here a bequest to “A,” presumptively a fee with nothing to cut it down to a lesser estate unless it is so cut down by a limitation over. Our court has repeatedly said that a further limitation alone does not have this effect and is repugnant and void.

Jones v. Bacon, 68 Maine, 37—(1877).

Devise to A without words of inheritance and without express power of disposal. “There would not even a question be made as to the meaning of the bequest just considered were it not for the last clause in the will which is as follows:” (Implied power of disposal).

Stuart v. Walker, 72 Maine, 149—(1881).

“A gives the estate to B in general terms. Stopping there, he gives an estate of inheritance. But an estate in fee first described may be cut down to a lesser estate by subsequent provisions.” (i. e. by qualified power — not by further limitation only. Such limitation is repugnant.) *

Mitchell v. Morse, supra—(1885).

“In a large majority of cases . . . . it is held that a mere devise over of a remainder will not cut down the estate given to the first taker.”

Loring v. Hayes, supra—(1894).

Bequest to A. — No words of inheritance. — No power. — Like the present case.

“It is difficult to see how the testator could have used other or different words which more clearly show his intention of making an absolute general bequest.”-“It has long been a settled rule that where an absolute gift of personal property is made, a gift over is void.”

Taylor v. Brown, 88 Maine, 56—(1895).

Devise to A. — No words of inheritance. — No express power.— Limitation over held repugnant and void.

Bradley v. Warren, 104 Maine, 427—(1908).

It is a “well settled rule that a devise absolute and entire in its terms presumptively conveys an estate in fee without words of inheritance and that any limitation over afterwards is repugnant and void.”

Morrill v. Morrill, 116 Maine, 154—(1917).

Quotes and approves the rule stated in last case.

*280 Barry v. Austin, 118 Maine, 54—(1919).

The language of the will is “I give, bequeath and devise” to A. “all the rest residue and remainder of my estate.” The court says: “Had the devise stopped there” (in the pending case it does “stop there.”) “With no accompanying words to qualify or explain it, it is undoubtedly true that the legal effect would have been to give the husband (A) a fee in the realty and an absolute estate in the personal property.” (A power of disposal, held to be impliedly qualified, cuts the devise to a life estate).

It is true that Justice Wilson’s opinion derives some support from Hopkins v. Keazer, 89 Maine, 347 decided in 1896. There are some facts in that case tending to differentiate it, and the old rule has been three times reiterated and emphasized by the court since.

It is also true that in some of the cases there are unqualified powers of disposal contained in the will under consideration and which are referred to as strengthening the presumption that- the first limitation was intended to be a fee, but I think that it has never been held in this State that such power is necessary to be superadded to a general devise (without words of inheritance) to •make a further limitation repugnant.

In other words under the long established rule a general devise (though without words of inheritance) presumptively creates a -fee. Nothing need be added for this purpose. It may be cut down to a lesser estate expressly, as by the words “for life,” or impliedly by a qualified power of disposal. If not so cut down, a further limitation is repugnant and void.

To re-state the contention of this opinion in a single sentence, —in this jurisdiction there is a firmly established canon of interpretation that a general devise or bequest of a fee or absolute estate cannot be cut down to a lesser estate merely by a further limitation.

This rule was so long ago established; it has been so frequently, so recently and so strongly stated and reiterated; it has been so implicitly relied upon by counsel with such important consequences to their clients that it seems to me unwise to abandon it and establish a different, even if a better rule.

“The rule sometimes operates harshly, no doubt, in defeating the real intention of testators; but it is a safer rule than one which for want of strictness would be attended in its application with all *281 sorts and shades of doubt and uncertainty.” Taylor v. Brown, 88 Maine, 56, 58; and the observance of it has been deemed indispensable to the required certainty and security in establishing titles to property and especially in the disposition of landed estates. Bradley v. Warren, 104 Maine, 423, 427. Morrill v. Morrill, 116 Maine, 155. The principle of stare decisis should be observed. Loomis v. Pingree, 43 Maine, 299, 314. Heaton v. Hodges, 14 Maine, 66, 69; Wentworth v. Goodwin, 21 Maine, 150, 155.