42 Vt. 395 | Vt. | 1869
The opinion of the court was delivered by
I. The deed of March 13,-1847, from William Woodbury and Wife, conveys the “river farm” to George Worthington in trust, for the use of the said Mary during her life time, “ and at the decease of said Mary, the said land and premises to be and become the property of the five children of the said William and Mary and their legal representatives in equal shares. The said premises to be held by the said trustee and his successors until the decease of the said Mary." At the date of the deed one of the five children was already deceased. His son and legal representative, Charles E. Woodbury, was living. In this condition 'of things, the deed must be understood as referring to him as one 'of the five takers of the remainder. Had the five children and their legal representatives been named, the deed would have read, “and at'the decease of the said Mary the said land and premises to become the property of the five children of the said William and Mary and their legal representatives, namely, Jonathan A., Maryettc, Eliza, Edwina, and Charles E., only son of William S. deceased.” The deed distinctly pointing out and describing these parties has the same effect as if it had expressly stated their names, and declared them to be the beneficiaries under the trust. This proposition is not open to debate if the deed is construed as vesting the remainder immediately upon its execution and delivery.
II. The petitioner, who is the mother and sole heir and representative of Charles E. Woodbury, claims one fifth of the farm in his right. The said Charles E. died in 1862, six years before the decease of Mary Woodbury. The deed provides for a life estate in Mary, with a remainder over at her decease. If this remainder vested the estate at the date of the deed in the said Jonathan, Maryette, Edwina, Eliza, and Charles E., subject only to the charge
At what time did this remainder vest ? This is mainly a question of authority. The fact that it was a trust deed has no special significance. The trustee held for each cestui que trust just so much estate as such cestui would have held under a deed in the same terms, but providing for no trustee. The great weight of authority is to the effect that a deed conveying a use for life to one, with remainder to another, is to be construed as vesting the remainder immediately upon the date of the deed, unless the express words of the deed absolutely forbid such an interpretation. Language almost precisely like that of this deed has been repeatedly and almost uniformly held to convey a vested and not a contingeht remainder.
In Leeming v. Sherratt, 2 Hare, 14, 23, the vice-chancellor said, “If there is any case which decides, as an abstract proposition, that a gift of a residue to a testator’s children, upon an event which afterwards happens, does not confer upon those children an interest transmissible to their representatives, merely because they die before the event happens, I am satisfied that case must be at variance with other authorities.” And in that case, the fact that the estate over was given to all the testator’s children as tenants in common, was regarded as decisive in favor of an intention that the devisees should take vested interests. In Dingley v. Dingley, 5 Mass., 535, the rule is thus stated : “ For it is a rule of law that a remainder is not to be considered as contingent, where it may be construed, consistently with the testator’s intention, to be vested.” In Lane v. Groudge, 9 Ves., 225, it was held that a be
The result is that we hold the petitioner entitled to one fifth of the premises and to partition accordingly.
The judgment of the county court is affirmed and the cause remanded to be perfected.
