## Facts

- Alma H. Rand held an undivided share in Maine vacation property in Southport, including a summer home.
- In her will, Alma devised her Southport share to her stepson, John Freeman Rand, “in fee simple” but added a proviso that he “shall never deny access or occupation” to certain named heirs “during their lifetime.”
- John Freeman Rand later devised his interest to his daughter, Frances Garside.
- Frances Garside conveyed her interest by deed to Muriel A. Babb.
- All of Alma Rand’s surviving heirs except Redford M. Rand II executed release deeds to Babb for any rights they might have in the property.
- Babb sought a determination that she held a fee simple absolute free of any continuing rights claimed by Redford under the will’s access/occupation proviso.

## Issues

1. Whether the devise “in fee simple with the proviso” created a fee simple absolute with an invalid (repugnant) limitation, or a fee simple subject to an enforceable condition protecting lifetime access and occupation for the named heirs.
2. Whether the will was unambiguous such that its construction had to be derived from its text, making extrinsic evidence of intent inadmissible.
3. How long the access and occupation rights created by the proviso would continue.

## Decision

- The court held that the devise did not create a fee simple absolute free of restrictions; it created a fee simple subject to a condition (treated as a condition subsequent or comparable limitation) requiring that the named heirs not be denied access or occupation during their lifetimes.
- The proviso was not void as repugnant; the “fee simple” language and the proviso had to be read together to give effect to the testatrix’s expressed intent.
- The court concluded the will’s language was clear and that resort to extrinsic evidence of intent was unnecessary and improper.
- The access/occupation rights continued through the lifetime of the last surviving heir designated in the proviso, after which the burden terminated.
- The lower court interpretation treating the devise as an unrestricted fee simple absolute was reversed.

## Legal Principles

- A will is construed to effectuate the testator’s intent as expressed in the will’s language, so long as it does not violate law.
- Language granting an estate “in fee simple” may be limited by an immediately following proviso; the instrument must be read as a whole rather than giving controlling weight to isolated technical words.
- A condition attached to a fee is not void for repugnancy where the provisions can be harmonized and the limitation is stated in the dispositive clause.
- When a will is unambiguous on its face, extrinsic evidence is inadmissible to alter, vary, or contradict its meaning.
- A lifetime-use limitation for named beneficiaries endures according to its terms, and may persist until the death of the last surviving designated beneficiary.

## Conclusion

The court enforced the will’s access-and-occupation proviso as a valid limitation on the devised fee, held the will unambiguous and not subject to modification by extrinsic evidence, and recognized Redford M. Rand II’s continuing lifetime rights despite Babb’s acquisition of the primary title interest and releases from other heirs.


Babb v. Rand, 345 A.2d 496 (Me. 1975)