56 Vt. 430 | Vt. | 1884
Ira T. Bennett by his will, which was duly probated, and recorded in the land records of Bridgewater, devised -one half of his farm in said town to his son Albert A., the use of the other half to his widow during her life, and at her decease, empowered his executor to sell the half of which the widow had the life use, and pay to the plaintiff wife, seven hundred dollars, and the excess to the son, Albert A. The executor decliued the trust, and the widow, son, and plaintiff wife paid the debts due from the testator. Albert and his mother occupied and carried on the farm, during the life of the mother, about eleven years. At her decease the half of the farm out of which the plaintiff wife was to receive seven hundred dollars, was worth only that sum. There was no executor to execute the power of sale given by the will. The son and plaintiff wife treated the farm as belonging to them jointly, share and share alike; and entered into an arrangement for carrying it on, by which each was to •own one half of the crops raised, the plaintiff wife furnishing a hired man to do her share of the work. The farm was so carried on that season, and the crops divided, and the plaintiff wife’s share set apart for her. The defendant, as an officer, attached a portion of her share thus divided and set apart, as the property of Albert, on writs against him. This suit is to recover the value of the property thus attached. It is not claimed that this arrangement between Albert and his sister was tainted with fraud in fact. On these facts, which are the material facts found by the referee, bearing upon the issue between the parties, the contention is whether the plaintiff wife had such title and possession of the property set apart for her, that she can maintain trespass, or trover for the same. It is to be observed that the will of Ira T. Bennett devises to the son only one half of the farm. The other half is not in terms devised to any one. The plaintiff wife was given an interest therein to the extent of seven hundred dollars, and the son Albert to the extent of the excess. He took no better title to this half of the farm than she did. The interest of each was created in the same way. His interest was
The defendant contends that the costs should be apportioned, because the recovery in the County Court, on the appeal, was for a less sum than was recovered before the justice of the peace. Whether the costs should be apportioned in' such a case is addressed to the discretion of the County Court, R. L. s. 1447 and is not revisable in this court.
II. The petition by the defendant for a new trial is dismissed with costs. The facts claimed to be newly discovered are immaterial. The administrator de bonis non, cum testamento annexo of Ira T. Bennett’s estate, has’no occasion to interfere with the possession of the farm, nor with the crops grown thereon, inas
Besides, if material, the title and interest of the 'various parties in the farm under the will were fully disclosed by the probate records, where the will was established, and by the land records of the town of Bridgewater, where the -will and probate thereof have been recorded for more than ten years. These records were constructive notice to everybody seeking to acquire an interest in the farm or the crops grown thereon, so far as determined by the title to the farm. Besides, the administrator on both estates, Justin S. Montague, was named executor of the will, declined the trust, and must have known its provisions. He was a witness for the defendant on the trial before the referee. To grant a new trial for evidence newly discovered under such circumstances, would offer a premium to negligence in the preparation of a cause for trial.