Casey v. Casey, 55 Vt. 518

Casey v. Casey

55 Vt. 518 | Vt. | 1883

The opinion of the court was delivered by

Taft, J.

I. The right of the plaintiff to maintain this action depends upon whether he took under his father’s will the legal estate in the premises sued for. His father devised the premises to the plaintiff for life, with remainder to the plaintiff’s children, upon the express condition that the plaintiff paid to his brother Michael seven hundred dollars on or before the first day of April after the testator’s death. That sum has never been paid ; and the defendant insists that the legal title to the premises has never vested in the plaintiff. There are cases in our sister states which hold that such conditions are conditions precedent, and that no title to the lands devised vests until the conditions are performed. Such may be the rule in the construction of deeds and contracts; but great latitude has been exercised by the courts in the construction of wills. “ It has been held that that which may be a condition precedent in a deed may be a condition subsequent in a will.” Jennings v. Gower, Cro. Eliz. 219. And the rules ofconstruction are so liberal that it has been held that “ no precise form of words is necessary to create conditions in wills; but whenever it clearly appears that it was the testator’s intent to make a condition, that intent shall be carried into effect.” 2 Williams Ex. 1081. The case at bar should not turn upon any technical construction to be given the words used. The great object is to come at the intention of the testator. Nice grammatical constructions, which lead aside from this grand object, are to be disregarded. ■ The testator provided some of his children with homes, — those, it is said, who were living in this state — distributing his real property among them. He gave Michael, living-out of the state, one thousand dollars, requiring the plaintiff to pay seven hundred dollars of it, and giving the plaintiff his home *521farm on condition that he should pay it on or before the first day of April after the testator’s decease. It was the evident intent of the testator that upon hig death the plaintiff should be vested at once with the title and ownership of the farm, that the payment of the seven hundred dollars should be charged upon it, and that it should be held subject to such equitable lien. This is the construction that we think should be given to the will. It could not have been the testator’s intent that in case ho had died on the last day of March that the devisee should lose all benefit of the gift in case he did not pay the seven hundred dollars the next day. The plaintiff therefore had a sufficient title to maintain ejectment.

II. The question of variance raised by the defendant we think is controlled by the statute, R. L. ss. 1247, 1250. The plaintiff, although having but a life estate, is entitled to “ recover on the merits according to his right.” Judgment affirmed.

Royce, Oh. J., being absent, did not sit in this case, but having examined the opinion concurred therein.