Holley v. Larrabee

28 Vt. 274 | Vt. | 1856

The opinion of the court was delivered, at the circuit session in June, by

Isham, J.

The provisions in the original will are free from any ambiguity in relation to the disposition of the property for which this action is brought. The household furniture is given to the widow of the testator, during her life, and after her decease to his daughters, who are named in the will, and is not charged with the payment of the legacies. The remainder of the estate, real and personal, after the decease of the widow, is given to the defendant, and on it the payment of the legacies are charged. It would seem that the testator intended to give to the defendant all the property of the estate, from which the legacies were to be paid. The widow having deceased, the household furniture, by the original will, is vested in the daughters, and such is now their right, unless by a subsequent disposition of that property, that right is taken from them.

The defendant has taken possession of this household furniture, and he claims to be the owner of it under a codicil to this will, executed by the testator on the 8th day of October, 1847. There is no express revocation of the gift of this furniture to the widow and daughters, yet, if there was made a subsequent disposition of it, inconsistent with the former bequest, it will operate pro tanto, as an implied revocation, and the property will pass as subsequently appointed. Brant v. Wilson, 8 Cowen 56. Wigram on Wills 154. 4 Kent’s Com. -581. The codicil contains this provision: “ I hereby revoke the devise and bequest made in my will to Charles W. Larrabee of the reversion of all my estate, after the payment of legacies, and after the decease of my wife; and in lieu thereof, I give, &c, to my son Charles' W. Larrabee, and to his heirs forever, in case lie outlives my wife, all my real estate, and such part of my personal estate as may then remain, excepting the stone store, the wharf, and the store house,” which, by the will was to be sold, and its avails divided among his daughters. If the widow survived, then only an equal and undivided half 'of the real estate is given to the legal heirs of Charles W. Larrabee. The testator .continued to some, and enlarged to others, the legacies given in the original will, and made what he termed the specific legacies to certain persons named in the codicil, a charge upon all his estate, real and personal, except the stone store, wharf, and store house. The household furniture will pass to the defendant under the general language of this bequest, for it is a gift of all his real and personal estate, that shall remain ; not that which remains undisposed of in the original will, but that which remains after the decease of the widow, and after the payment of the legacies. Those legacies being paid, and the store, wharf, and store house being sold, and their avails divided among the daughters, the remainder of the estate, after the decease of the widow, is given to the defendant. That such was the intention of the testator, is gathered from the various provisions in the codicil. The testator, in the codicil, has expressed a desire to do better h}' the defendant than he had done in the original will. It is not reasonable, therefore, to suppose that he would enlarge the amount of the legacies, to be paid by the defendant, and limit his right to the real estate in case he should decease before the widow, without giving him the benefit of the personal property, on which the payment of the legacies are charged. That this furniture is charged with the payment of the legacies, is a matter of express provision, for the charge is made to rest on all the estate, real and personal, except the store, wharf, and store house. The exception of that property shows that it was the intention of the testator that it should pass, as devised in the original will, and not he affected by the codicil. If the testator had intended that the furniture should pass as bequeathed in the will, and not be affected by the codicil, he would naturally have excepted the furniture also. The same reason that led to the exception of one, would also have led to the exception of the other. The fact that the furniture was not excepted, is evidence that the testator intended that it should pass to the defendant, under the provision in the codicil. We think, therefore, that the defendant is entitled to this furniture, under the codicil, and as the property is not wanted by the plaintiff, for the payment of debts, nor for any other object but to dispose of the same as directed by the will of the testator, the plaintiff has no claim to it as against the defendant, which will enable him to sustain this action.

The judgment of the county court is affirmed.