Doty v. Chaplin, 54 Vt. 361

Doty v. Chaplin

54 Vt. 361 | Vt. | 1882

The opinion of the court was delivered by

Royce, Ch. J.

The testator gave a life-estate in all his property, real and personal, to his widow, Nancy McConnell, and directed that all of his estate, real and personal, that might remain at the decease of his widow should be sold by his executors and invested in bonds or sureties; and, after the payment of legacies to John Wilmerth and EthelbertO. Eddy, that the yearly interest on what might remain of the estate, and, in a certain contingency, 1100 in addition thereto out of the principal, should be paid annually to his daughter, Laura C. Eddy, for her use and support during her life ; and that if his grand-daughter, Mary Helen Eddy, should survive her mother and marry and have lawful issue living, the residue of his estate was given to her and her heirs forever. But if she should not marry, or, marrying, should have no issue living, then she was to have only the interest upon what might remain of the estate during her life. And what might remain of the estate at her decease was to go to his relations, George W. Chaplin and David A. Richardson, to be by them distributed to such heirs of each, at such times and in such manner as they shall deem fit. and proper.

Executors were named in the will, and provision was made for others to serve in that capacity, in the event of the decease of one or both of those named, and for an appointment by the Probate Court, if it should become necessary. Laura C. Eddy died before the testator, and Mary Helen, the oratrix, before the death of the *366testator, was married to the orator, John C. Doty, and has no living issue.

The oratrix claims that she is entitled to the whole estate that may remain after the payment of the debts and legacies, as heir-at-law of the first taker, Nancy McConnell.

Nancy McConnell took only a life-estate in the estate of the testator, and upon her decease it was, by the will, made the duty of the executors to convert the entire estate into money, and whatever interests were bequeathed to take effect after the decease of the said Nancy were to be realized out of the fund that would constitute the estate after it had thus been converted into money.

The intention of the testator, at the time he made the will, is to be learned, and, when ascertained, is to be carried into effect. It is evident that the testator did not intend to devise any interest in his real estate, as such, except the life-interest that was given to his widow; and her interest was subject to be defeated by its sale under the power conferred by the will. Our statute, R. L., section 1916, only refers to estates in lands, and does not apply to personal estates. Its design was, to prevent the’ entailment of lands so as to bar the right to alienate them beyond the period therein named. Under this will the estate might have been sold during the life of the first taker; and it was directed to be sold as soon as may be after her decease. The intention of the testator was, that his estate, certainly, after the life-estate of his widow should terminate, should be regarded and administered as personal estate. Hence, we do not regard the statute relied upon as controlling. While under the common law words in a will, which would create an estate tail, if used in reference to real estate, would generally give an absolute title to the first taker, when applied to personal property. A contingent interest in personalty might be created by limitation over after a preceding estate, to operate by way of executory devise.

In Brattleboro et al. v. Mead et al., 43 Vt. 556, the estate attempted to be created by limitation over was held to be too remote, and, therefore, void; upon the ground that the words used in the will, upon which the validity of the devise depended, imported an indefinite failure of lineal heirs or descendants.

*367Here, the contingency upon which the devise to Chaplin and Richardson was made to depend, must happen within a life in being at the time the will was executed; that is, the death of the oratrix without lawful issue living. While it remains uncertain as to her having lawful issue, it would manifestly defeat the expressed intention of the testator to permit her to take and hold his entire estate.

It is not necessary in giving a construction of the will to consider the character in which Chaplin and Richardson, or their successors, may receive the devise; whether as strict trustees, bound as such to designate and account to beneficiaries, or as persons having a mere power to designate, which they may exercise or not, as they may elect. In either event they take the legal title, and the question of their accountability does not affect the legality of the devise.

The decree of the Court of Chancery, dismissing the bill, is affirmed, and cause remanded.