7 Vt. 203 | Vt. | 1835
The opinion of the court was delivered by
This case comes before us on an appeal from the court of probate. Mrs. Minot on 24th June, 1826, made her will, wherein she gave and bequeathed to her step-daughters, Elizabeth Swan, Sarah C. Thomas, and Mehitable L. Richards, a legacy which is set forth in the case agreed on by the parties.— In the life time of Mrs. Minot, Elizabeth Swan and Sarah C. Thomas, deceased. Subsequent to their decease, the testatrix made a codicil, wherein she gave to her executor, Mr. Gilbert, all lapsed legacies ; and also made him her residuary legatee. He was made executor by the original will. On presenting his account to the court of probate, the executor, Mr Gilbert, asked an allowance of the sum of $278,86, being two thirds oí the value or amount of the legacy bequeathed by Mrs. Minot to her step-daughters before mentioned, the children of Mrs. Minot claiming that it belonged to him by the will, as a lapsed legacy. This claim was disallowed, and an appeal taken by the executor. The case involves the construction to be placed on the clause of the will before mentioned. It is contended on the one side, that the whole legacy belongs to the representatives of Mrs. Richards, by virtue of the jus accres-cendi; and on the part of the executor, that the testatrix intended by the will to give to the legatees, Mrs. Swan, Thomas, and Richards, a tenancy in common, in the several articles therein bequeathed. It is an admitted principle, that in the construction of wills, it is the duty of the courts at all times, to give effect to the intention of the testator, when it can be done, consistent with the rules of law. The intention of the testator has been (not unaptly) called, the pole star, by which the courts must steer, in construing a will. Yet the intention has tobe ascertained, and is frequently controlled
I have already remarked that, from the nature of the property, it was to be inferred that a joint tenancy was intended, the property was not capable of a just and perfect division. Although the value of it might be estimated by appraisers, at so much in cash, and the value of the different articles, so appraised, might have been divided into three parts. Yet it is evident that the value, either to the testatrix or legatees, could not be estimated in cash. A piece of plate — a musical instrument — a family portrait, or picture, would derive its value in a great measure from other than pecuniary considerations. It was, therefore, altogether desirable, that these sisters should have the property as joint owners, and that it should not be subject to a division. And furthermore it is not to be believed, that at the time of the making of this codicil, when two of
The decree of the court of probate is therefore affirmed.