29 Vt. 172 | Vt. | 1857
The opinion of the court was delivered by
The premises described in the declaration were devised by the testator to Albert G-. Payne, Lucy Payne and Mahala Payne, his brother and sisters, on condition that they gave to their parents, Samuel Payne and wife, a comfortable support during their natural lives. On the decease of the testator the
It is quite obvious upon the facts stated in the exceptions that the defendants cannot justify their possession of the premises, as devisees under the will. The judgment recovered by the former executor against these defendants will defeat their title as such devisees. It is evidence that, as such devisees, they had neither the title nor right of possession as against the estate, for if they had either, that judgment could not have been recovered. If that judgment was obtained for the non-performance of the condition mentioned in the will, it will always conclude their rights as devisees, whatever may be their remedy in equity. The question, therefore, on whom rested the burthen of proof to show that those conditions were or were not performed, does not arise in the case,
It is contended, however, that this administrator has no right to recover these premises of those who are in possession as heirs, and who, on a distribution of the estate, are entitled to them unless the premises are wanted for the payment of debts. We have no occasion to consider that question in this case, as we perceive nothing in the exceptions which requires the application of that principle. There is nothing stated in the case showing that the defendants are in fact the heirs at law of Alfred G. Payne. We do gather from the case that the testator and the devisees were brother and sisters, but it is only in one event that they become the legal heirs of the testator. That fact is not stated in the case, and it is one that must affirmatively appear before they can be clothed with that right. But if the fact appeared in the case, the difficulty is not removed. The recovery by the former executor establishes the right of the plaintiff, as administrator, to the possession of the premises. The same matters which gave the former executor a right to recover the premises will give the same right to the present administrator, as ho attempt has been made to show a right to the premises acquired subsequent to the rendition of that judgment. If the premises were not wanted by the former executor for any other purpose but to distribute the'same to the heirs, their possession of the premises would probably have been a defense to the action. The fact that a recovery was had is evidence that the executor had to the possession of the premises, as against the defendants, for some legal purpose. The judgment is evidence of the same right in behalf of the plaintiff as the administrator on that estate. Upon the facts stated in this ease, therefore, we think the plaintiff is entitled to recover in this action.
The judgment of the county court is affirmed.