64 Vt. 598 | Vt. | 1892
The utmost of the case made by the bill is, that the orator, who is administrator with the will annexed, is in doubt whether the testator’s widow takes an estate for life .or in fee under the will, and he asks the court to advise him. It is not alleged that an occasion has arisen or is likely to arise that makes, or will make, it necessary for him to know how that is, assuming it to be doubtful. The widow is entitled to a life support at least. This cannot be questioned. She is, for aught that appears in the bill, to which alone we must look for the care made, content with this and claims no more. As long as this is so, that being the least right she takes, no other beneficiary is harmed. She may always be content with that, and the estate, which is small, may be wholly expended in her support, and then no one need ever know whether she took in fee or not. It is true, she says in her answer that she is entitled in fee; but this allegation is not an element in the case, as it is not in the bill.
The case, therefore, does not come within the jurisdiction of the Court of Chancery in the construction of wills as generally exercised in this country. The law of that subject is so fully discussed in Morse v. Lyman, ante, 167, that we refrain from discussing it here.
But there is another point, not much touched upon in that case, that is involved in this class of cases. In respect of the settlement of the estates of deceased persons, the jurisdiction of the Court of Chancery in this State is not original, nor concurrent with that of the Probate Court, but is special and limited, and only in aid of that of the Probate Court when its powers are inadequate. Further than that, the Court of Chancery lias nothing to do with the settlement of such estates. It follows, therefore, that if at the time a question as to the construction of a will needs to be decided the Probate Court can be resorted to, and its jurisdiction is adequate for the purpose, that court must be resorted to and chancery cannot be. It may be that this point has not always
Mrs. Johnson is the only defendant that appealed, and the decree is reversed. She is allowed costs. The other defendants seem to be at one with the orator, and they are denied costs.
Decree reversed and cause remanded, with directions that the bill be dismissed.