6 Vt. 266 | Vt. | 1834
— This case comes before us on the bill and answer. The bill sets forth, that Joshua Howe made his will, devising to his son David fifty acres of land during his life, and the remainder to the three sons of David) to wit: Jesse-, Ob.ed, and David, the defendant. The defendant, Phebe Howe, is mother of the defendant, David, and relict of David the son of Joshua. David the elder died in January, 1814. Jesse and Obed were then of age, and David a minor. These facts are admitted by the answer. The bill then charges, that soon after the death of David the elder, an actual division was made of the fifty acres into three parts. The north part was set to Jesse, the middle to Obed, and the south to David; and that Jesse went into possession of the two north parts, and David the south part. The answer denies this part of the bill, but sets forth that there was some agreement between him and his brother Jesse, in relation to the occupation of the same in severalty, and for the purpose of supporting their mother; but says that Obed was not consulted, and that he was then under age, and that Obed refused his assent thereto when he was informed of the same. It appears, however, by the bill and answer, that Jesse went into possession of two north parts, and David, the defendant, of the south part. On the twenty-third of January, 1816, Jesse conveyed by metes and bounds to the complainant the two north parts of the whole premises, and the complainant went into possession of the same, and continued in possession until the spring of 1817-. The deed was placed upon record. The bill further charges, that on the 17th of April, 1817, the defendant, David Howe, without the knowledge of the complainant procured a committee to be appointed by the probate court, to make division of the estate thus bequeathed to them by the will of Joshua Howe; and that the committee, without giving any notice to the complainant, proceeded to make a division, and assigned to the said Jesse the south part, which had before been actually divided to -the said David.; and to Obed the middle part, and to David the north part; and that David took possession, and turned the complainant out of possession of the two north parts. The answer admits the application to the court of probate, and sets forth a division made by the committee appointed by the said court, and the acceptance thereof by the court of probate. The defendant became of age on the 25th of February, 1817, and
The bill must therefore be dismissed with cost. •