84 Vt. 259 | Vt. | 1911
This is an appeal from the decree of the probate court for the district of Westminster distributing the estate of George W. Hall, deceased. Under the will of George W. Hall, certain pieces of his real estate were decreed to his widow, Martha M. Hall, for life, and in county court, on the construction of the will, judgment was rendered affirming the decree of the probate court. The only question made in county court was whether the real estate in question should have been decreed to the widow in fee simple instead of for life. That is the question brought before us by an exception taken to the judgment of the county court, and is the sole question here considered.
The parcels of real estate with which this case is concerned were devised “to said Martha M., her heirs, viz: her children and grandchildren and assigns”. The cardinal rule in the construction of wills is that effect is to be given to the intention of the testator so far as it can be gathered from the whole instrument and can be legally carried out. So true is this that according to an observation of Lord Mansfield it has often been said to be “a sort of paradox” to cite cases upon the construction of wills. But in the context Mansfield further said that the intent cannot be gathered by conjecture, and that established rules of construction are to be adhered to unless they are manifestly inconsistent with the intent of the testator. Pistole v. Richardson, 3 Dough 361.
And again, while laying down the duty of the court to construe a will according to the intent of the testator, he emphasized the truth that a court must not in that matter act upon mere conjecture. Chapman v. Brown, 3 Burr. 1626.
Thus much has been said because the will in question contains several clauses, and because both sides to this controversy refer to other parts of the will as supporting their respective claims as to the construction of the provision immediately under consideration; and because from a careful reading of the entire will we find nothing elsewhere than in the clause to be construed, to give rise to more than the merest conjectures as to the intention of the testator in drawing this clause, and because such mere conjectures are conflicting.
We have then to determine whether as is claimed Martha M. Hall took an estate in fee simple by virtue of the phrase 'to said Martha M., her heirs, viz: her children and grandchildren and assigns.” It is claimed by the appellant that the words “viz: her children and grandchildren” are void on the ground that they are repugnant to what precedes them. If they are so the appellant took an estate in fee simple. It Is claimed in behalf of the defendant estate, and the court below held, that those words are not repugnant but explanatory and restrictive, and that the result of the whole clause, so far as it concerns the appellant, is that she takes a life estate only.
The appellant claims that a note of Sergeant Williams appended to Dakins’ case, 2 Saunders, 290, 291, has been the cause of much error and that this alleged error governed the court below in this case. The note in question is this: “So a videlicet may sometimes restrain the generality of the former words, where they are not express and special, but stand indifferent, so as to be capable of being restrained without apparent Injury to them; as if lands be granted to a man and his heirs, that is to say, the heirs of his body, it is an estate tail.” Hobart,
But the passage from the note of Sergeant Williams is-not a dictum of his; but is made up of two propositions of Lord Hobart in the case of Stukely v. Butler, to which the note refers-. For there in one place Lord Hobart says that “a ‘viz.’ may work a restriction where the former words were not express and special, but so indifferent as they may receive such a restriction without apparent injury; though those former words by construction of law would have had a larger sense if the ‘viz’ had not been.”' And in another place in the opinion he says: “If I grant land to one and his heirs, viz: the heirs of his body, it is an estate tail.” It is true that the case did not require all this to be said, but it did require a construction of a videlicet as used in an instrument to be construed, and the conclusion was reached through exhaustive and luminous discussion of the office of a videlicet pertinent throughout to the point decided. If the doctrine laid down by Lord Hobart is to be treated as a dictum it was not “obiter” but judicial and of high authority. Derosia v. Ferland, 83 Vt. 372, 381, 76 Atl. 153, 28 L. R. A. (N. S.) 577.
It was indeed like !many of the “resolutions” or “rules”' to be found in Coke’s Reports, not necessary to the decision of the particular case in which they respectively are found but which, nevertheless, constitute in considerable measure the wealth of the common law.
The doctrine stated by Lord Hobart and restated by Sergeant Williams has been reiterated by many text writers and has been the basis of numerous decisions, and we entertain
Johnson v. Whiton, 159 Mass. 424, 34 N. E. 542, is a case somewhat relied on by the appellant. There a testator devised and bequeathed an estate to a granddaughter “and her heirs on her father’s side.” It was considered that the testator had attempted to create a new kind of inheritance, and the qualifying words were treated as of no force, and were rejected in accordance with what is said by Littleton: “If a man give lands or tenements to another to have and to hold to him and to his heirs males, or to his heirs females, he, to whom such a
By “the said statute” Littleton refers to the Statute of Westminister, 13 Edward I, Chap. 1, (1285).
We are also referred to Smith v. Rice, 183 Mass. 251, 66 N. E. 808. In that case an estate was devised to a son “to have and to hold the same to him, his heirs, assigns, executors and administrators, to his and their use and behoof forever.” The words quoted were apt to convey a fee simple, and the court so held, and found no foundation for the claim made that they showed an intention to convey an estate tail or that at common law they could have had that effect. The conclusion of the court was an obvious one.
Several Kentucky cases are cited by the appellant and more from that state might be referred to, for this subject has many times been forced upon the attention of the supreme court of Kentucky and the individual cases there arising have been dealt with in accordance with sound and sensible doctrines'. We note that there, when a devise is to a wife and her children, whatever the form of the expression used, it is, with that court, to use its own language, “the constant and uniform tendency * * * * to hold that the wife takes a life estate only, and that the children take in remainder. ” In the absence of anything in the instrument to indicate a different intention that court infers that where a wife and children are named such a holding is more consonant than any other with the wishes of the testator. Hood v. Dawson, 98 Ky. 295, 33 S. W. 75.
We do not go outside of the very question raised and argued, the question of what estate the widow Martha M. Hall took under the clause considered. That question was decided by the probate court, and by the county court, in accordance with the sound principles governing our own cases, those herein cited and others, and accordingly
Judgment is affirmed. Let the result be certified to the probate court.