61 Vt. 587 | Vt. | 1889
The opinion of the court was delivered by
Treating the fifth article of the will, for convenience of reference, as divided into three parts, the first ending with the first punctuation period, the second with the next period, and the third with the last, it is quite plain and not disputed that the firstpart standing alone would carry a fee. In the second part, there is . clearly granted an unlimited absolute power-of disposal. That is not disputed; but it is claimed in behalf of the college and town that this part indicates an intention to limit the title in Mrs. Judevine to a life estate, and that this import is strengthened by the third part. The contention on the part of Mrs. Judevine is that as the first part makes the grant a fee, the third part must be rejected as repugnant. It -is claimed for the college and town that the intention of the testator fairly deducible from the language of the article as a whole was to gives a life estate only to the wife with power of disposal at her pleasure. Taking the several parts up in their order, the first one coneededly imports a devise of an estate in fee, without a word indicating a different intention. The second part begins, by saying the foregoing grant and devise to his wife is for her sole use, control and enjoyment during her life. This points to
Therefore until we come to the third part we find no indication of an intention to limit the grant to a life estate. But it is upon this part that counsel mainly rely to show an intention to thus limit the grant.
It is plain that the central idea in the mind of’ the testator in drawing the third part of this article was, not to make a provision for the town of Concord and the college, but to guard against any of the property granted to his wife from passing to her heirs unless she should give it to them. They had no living children. He provided for the town and college elsewhere in the will. Herein is a distinction between this will and the wills in Smith v. Bell, 6 Peters, 68, and other cases cited.
The language of the granting clause in Smith v. Bell, as in the case at bar, was adequate to carry a fee, but that was followed by a provision for a remainder, which was interpreted by the court to manifest the intention of the testator to make a future provision for his son. Therefore the court in order to carry out such intention and give effect to all parts of the will, regarded the remainder clause as indicating an intention in the granting clause to limit the grant to a life estate.
If the remainder clause, the third part of the fifth article, not being for the purpose of a gift to the town and college, but, as before stated, to keep an assufned remainder undisposed of- by deed or will by Mrs. Judevine from going to her heirs, she having no children, shows that in the Opinion of the testator the previous words had given only an estate for life, then upon •the authority of Smith v. Bell, supra, we may hold that the
Under the seventh article we consider that the executors are-to hold and appropriate the portion of the estate therein specified, for five years, for the purposes and under the same restric
All parties agree that the provision of the first codicil as to .-sale of timbered lands does not operate as a restraint of the sale •thereof until all the other real estate in Hardwick is disposed of, but was intended to be only advisory, and that the executors •may in their discretion effect a sale notwithstanding such other •real estate is undisposed of. A majority of the court are inclined 40 adopt this view, all parties agreeing thereto, and being satisfied that it would be carrying out the real intention of the testator, "that is, an administration of the estate in a way that would promote its best interests and that of all parties interested therein, •and that the beneficial purposes of the testator would thereby be better attained.
We also concur in the suggestion of the orators in the bill that the taxable costs of all parties, with reasonable counsel fees, -should be paid out of the funds of the estate before distribution, •the same to be fixed and allowed by the Court of Chancery.
The pro forma decree dismissing the hill is reversed, and &he cause remanded to he disposed of pursuant to the mandate filed.