73 Vt. 253 | Vt. | 1901
The testatrix, Anna S. Bradley, was the widow of Capt. Charles O. Bradley of the U. S. army. He died in Montana May 14, 1887. Mrs. Bradley died January 23, 1899, leaving the will in controversy which she made in December, 1891. The second clause is as follows:
“I will and bequeath to Eva Mabel Davis, Grace Leona Tuck and Laura Lillian Tuck, nieces of my late husband, Charles O. Bradley, and children of his sister, Eliza Tuck, and Frank Davis, all money on hand and all the bonds that were left to me by my said husband at the time of his decease.”
There were a few small bequests, about which there is no controversy, and the residue of the estate was given to the testatrix’s lawful heirs who are the appellants. The legatees named in the second clause are the appellees. The will was duly probated and an administrator was appointed who settled his account, and «the Probate Court in its decree of distribution ordered that the deposit of $1,302 in the White River Savings Bank in the name of the testatrix, and the Olmstead bond, then valued at $2,500, be paid to the appellees, from which order the nephews of the testatrix, who are her heirs-at-law, appealed to the County Court where the case was tried
I. The appellants contend that the two items named in the decree do not answer the description of the money and bonds bequeathed to the appellees; that the two bonds and the funds with which they were purchased were never the property of Capt. Bradley; that as the insurance policies were made payable to his wife upon his death the clause in question could not be construed to include the proceeds of the policies; that it was incompetent to • show by parol evidence of her declarations made at the time the will was executed that these were the bonds that she intended should pass under that clause, and that it was incumbent upon the appellees to show by other evidence than the testatrix’s declarations that her husband did not in fact have bonds of his own upon which this bequest could operate.
The appellees contend that there are facts in the case sufficient to establish their claim without proof of the testatrix’s declarations. It did appear that Capt. Bradley left a will bequeathing to his wife whatever property he had; that the will was proved and an administrator was appointed who
The appellees claim for the testimony of Mr. Pingree that it only tended to identify the bequest to them, -while the appellants contend that it was proof of the testatrix’s intention —a fact that should be learned only from the will itself; also that it was incompetent as showing her instructions to the scrivener. Without passing upon the competency of the oral evidence, we think the intention of the testatrix was ascertainable from the will itself, when read in the light of the facts and circumstances that were proved without objection.
II. It is contended by the appellants that there was an ademption of the Bates bond. The doctrine of ademption by acquisition applies to specific legacies only, and does not obtain in the case of general and demonstrative or pecuniary bequests. 1 Am. & Eng. Ency. 630, citing Fryer v. Morris, 9 Ves. jr. 360; Woerner on Admin. 973; Walton v. Walton, 7 Johns. Ch. 258.
The definition does not apply to this bequest. The manifest intention of the testatrix as shown by the second clause was, that her money and bonds on hand which she acquired through her husband should pass to his nieces. She evidently
Judgment affirmed and ordered certified to the Probate Court.