## Facts

- Lincoln Abbott owned and lived on a homestead farm in North Berwick, Maine, with his wife, Mary, who died before him.
- Lincoln and Mary had ten children; one son, James Burton Abbott, was incompetent and dependent.
- Lincoln’s will left “one dollar and nothing more” to eight named children and to three named grandchildren (the children of a deceased child), stating they were able to care for themselves.
- In the dispositive clause, Lincoln devised the farm real estate and related personal property to his son Bernard L. Abbott, who lived with him on the farm, “in consideration of and on the condition and obligation” that Bernard provide James with a home and “care, maintenance and support,” alongside obligations referenced from Mary’s will.
- The will stated that if Bernard failed to perform the support obligation, “this devise and bequest shall be null and void.”
- The will also stated that if Bernard performed the obligation during James’s lifetime, then after James’s death the property would be “absolutely vested” in Bernard, “his heirs and assigns forever.”
- Lincoln died in 1945, and the farm passed to Bernard under the will.
- Bernard died testate in 1953, before James, leaving a widow and nine children (Bernard’s heirs). Lincoln’s will did not address Bernard’s death before James.
- Alice Whicher, James’s legal guardian, brought an action for construction of Lincoln’s will and a declaration of the parties’ rights against Bernard’s heirs and other Abbott heirs.
- The trial court construed the will as creating a testamentary trust, treating the farm as security for James’s support and naming James, Bernard, and Bernard’s heirs as beneficiaries.
- Bernard’s heirs appealed, contending the will instead created a fee simple on condition subsequent (rather than a trust).

## Issues

1. Did Lincoln Abbott’s will create a testamentary trust for James’s benefit, or did it pass the farm to Bernard as a fee interest subject to a support obligation?
2. If the will imposed a support obligation rather than a trust, should the obligation be construed as a forfeiture-producing condition or as a charge on the land securing James’s support?

## Decision

- The Supreme Judicial Court of Maine vacated the Superior Court’s judgment.
- The court held the will did not create a testamentary trust.
- The court interpreted the devise as a fee simple in Bernard burdened by a charge on the land to secure James’s lifetime support.
- The case was remanded for further proceedings consistent with that construction.

## Legal Principles

- A will is construed to carry out the testator’s intent as shown by the whole instrument, read in light of the circumstances at execution.
- Trust creation requires more than a statement of desired support; the absence of trust language and an administrative scheme can indicate the testator intended a nontrust obligation.
- Words suggesting divestment (such as “null and void” or “absolutely vested”) are not conclusive; they must be read in context and reconciled with the overall plan.
- Courts generally disfavor forfeitures; when a provision can reasonably be read as either a condition divesting title or a charge burdening title, the construction avoiding forfeiture is preferred.
- A direction that a devisee support another person is commonly enforced as a charge on the devised property, preserving the devisee’s estate while providing security for the supported person.

## Conclusion

Whicher v. Abbott held that Lincoln Abbott’s will did not place the farm in a testamentary trust; instead, it devised the farm to Bernard in fee while imposing an enforceable charge on the land to secure James’s support, so the trial court’s trust-based judgment was vacated and the case remanded to implement the charge-based construction.


Whicher v. Abbott, 449 A.2d 353 (1982)