81 Vt. 112 | Vt. | 1908
The case is here on the motion to dismiss the petition. The grounds of the motion will be considered in their inverse order.
It appears from the will that Alonzo, Elizabeth, and Lucy were brother and sisters, children of the testator’s sister
A more difficult question arises concerning the meaning of the words “survivor or survivors of the other.” The will shows that the objects .of the testator’s bounty were not only his nephew and nieces, but their children also. The cross remainders show
Prom the context of the whole will we think the intention of the testator was to include in “survivor and survivors of the other” the children of any who predeceased the one dying without issue; but this intention can be carried into effect only by giving “those words the meaning of “other and others.” True it is sometimes said that the more modern decisions lean toward the ordinary and natural meaning of the word “survivor,” yet there is no diversity of authority that where the intention of the testator, gathered from the will itself, is plain that he meant to use it in the sense of “other,” such a construction will be given. 2 Redfield on Wills, 376-378; Smith v. Osborne, 6 H. L. Cas. 375; Hawkins v.Hamerton, 16 Sim. 410; Peacock v. Stock-ford, 7 De G. M. & G. 129; In re Arnold’s Trusts, L. R. 10 Eq. 251; In re Palmer’s Settlement, L. R. 19 Eq. 320; Wake v. Varah, L. R. 2 Ch. 348; Carter v. Bloodgood’s Exrs., 3 Sand-ford’s Ch. 321. It follows that on the allegations of the petition the_petitioners have a right to participate in the remainder and reversion, of the property of which Lucy Abbott had the life, use.
In view of the above holding the questions whether the probate court had jurisdiction, and if- it had whether its decree dis
The record shows that a hearing was had on the petition before the probate court, the trustee, Alonzo, and the petitioners respectively being present by their attorneys, ‘ ‘ and. that thereupon the court having listened to a statement of facts regarding which there was no dispute and to arguments of counsel dismissed said petition.” From this decree an appeal was taken by the petitioners. It is argued by the petitionees that the decree was interlocutory from which uq appeal will lie.
It may not be amiss to call attention to the fact that in the matter of Hodge’s Estate, 63 Vt. 661, 22 Atl. 725, an appeal was allowed from a decree of the probate court dismissing the petition of the administrator of the life tenant for an accounting by the executor of the estate, and that the appeal was sustained in this^Court, although it does not appear that the nature of the decree, whether final or interlocutory, was brought in question.
Judgment affirmed and cause remanded to the county court tobe proceeded with.