Decamp v. Hall

42 Vt. 483 | Vt. | 1869

The opinion of the court was delivered by

Barrett, J.

In this case we think the legacy of $500 became vested in the grandsons of the testator at his death. The father of the legatees had only a life interest. We recognize and approbate the evident disposition of the court to go as far as they warrantably can, without violating established principles of law and rules of construction, in favor of holding that persons, to whom legacies are given more or less resembling that in this case, take in severalty as tenants in common, and not jointly as joint tenants. But in order to warrant the court in thus holding, there must be some indication in the language of the gift, either by itself, or taken in connection with the other provisions of the will, that such was the intention of the testator. To this effect are the note and the cases cited,in 5 Yes., 210. So also is the elaborate opinion in 3 Yes., 628, in which the subject is thoroughly examined and considered upon the authorities. Such is the doctrine in the text books. See Redfield on Wills, pages cited in the brief by defendants’ solicitor.

The language of the legacy, either in itself or in its relation to the other provisions of the will, does not indicate an intention on the part of the testator to give in severalty to the sons of the orator. On the contrary, the language itself is that which imports a gift to the two jointly ; and it is not controlled or modified in this respect by any thing else in the will. Indeed, the provisions of the will in respect to the orator, with reference to the very fund which constitutes the legacy to his two sons, would seem to discountenance the idea that the testator intended to make such a bequest to the two sons as, in the event of the death of one of them, the father would become in his lifetime the absolute owner ■ of one half of the fund, of which it is specifically provided that he shall have only the use and interest during his life.’

Holding that the two sons of the orator took jointly under the will, the right by survivorship accrues to the living son.

The decree dismissing the bill is affirmed, with costs, and mandate accordingly.