Sarle v. Court of Probate of Scituate

It is certainly true, that in numerous instances, a bequest of “ what shall remain ” or “ be left,” at the decease of a prior legatee, has been held to .be void for uncertainty. The expression is, however, susceptible of explanation, where, as here, the property, or part of it, consists of household furniture, farming utensils, and farm stock, by considering these words as referring to the expected diminution of the property from its perishable nature, or by the use and wear of the first taker. “ Such, it is clear,” says Mr. Jarman, “would be the construction, if the' property, whatever were its nature, were given to the first taker expressly for life; indeed, there is riot, it is believed, any case in which such expressions have been held to render the gift void, where the prior interest was expressly limited in such terms.” 1 Jarman-on Wills, 321, 322; Cooper v. Williams, Prec. Ch. 71, pl. 64; Gibbs v. Tait, 8 Sim. 132; Surman v. Surman. 5 Madd. 123.

In the case before us, there is an express limitation of the personal, as well as of the real estate, to the wife, during widowhood, and an express bequest ovrir, to his brother and sisters and their children, of “ all the personal estate that may remain after the decease or marriage of my said wife.” The intent of the testator, as to the respective estates which his wife and his heirs at law should take in his personal property, is clearly expressed; and considering the nature of a portion of this property, there is no uncertainty as to what is bequeathed over, since the description of it, as that which “ may remain after the decease and marriage of my said wife,” may reasonably be supposed to refer to such of the farm stock as survives her marriage or death, or so much of the furniture and farming utensils as is not worn out by use, when either of those contingencies may determine the estate of the wife.

The estate of the wife being expressly defined as, during widowhood, no enlargement of .her estate can be implied from the charge ■ upon her, personally, of the testator’s debts and *274 funeral expenses; such implication only arising, where the will leaves the estate of the person charged, indefinite. King v. Cole and another, 6.R. I. Rep. 584. *

Upon this construction of the will, the appellant is, in no sense, a residuary legatee of the personal estate of her husband; the residue of such estate, in the sense above explained, passing, by the will, subject to her estate therein, to the testator’s brothers and sisters, or their representatives.

The decree of the Court of Probate-below was, therefore, correct, in requiring her to give a bond, as executrix, in the ordinary form, to return an inventory, &c. Upon the proof before us, and which might, if they had inquired, have been before them, we think that they have required the bond, contrary to the custom, in more than double the value of the property, and shall order it to be diminished to the sum of four thousand dollars. Both parties, as it seems to us, give too much importance to the amount of this bond. It will be no continuing security to those entitled in remainder, for their interest in the testator’s personal property; but, upon the settlement by the executrix of her final account with the Court of Probate, in which she will credit herself with this property, as retained' by her as legatee during widowhood, (so far as not expended in paying debts, funeral charges, the erection of gravestones, and the expenses of settling the estate,) the condition of the bond will have been satisfied, and the sureties will be discharged.

We see no reason to doubt the propriety of the other 'decree of the Court of Probate, appointing a custodian of the personal property, pending an appeal, in order to the due security of all interested therein, as well as for its due care and management, and order the appeal from that decree to be dismissed, with costs.