90 Vt. 328 | Vt. | 1916
This is an appeal from the order of distribution in the estate of David Robinson, late of Bennington. By his original will the testator gave his household furniture and wearing apparel to his nephew, George W. Robinson. After making certain other specific bequests not important to this inquiry, a trust was created for the benefit of the said George W. with re-, mainder to his heirs. In a codicil, after reciting the provisions of said trust which are expressly revoked, the following provision was made as a substitute therefor:
The parties have stipulated that the facts recited in the decree of the probate court are to be treated as agreed to. It appears therefrom that the said George W. and his wife used and occupied the real estate in question pursuant to the provisions of the will until the decease of the former Sept. 80, 1891; and that after the death of George W. the widow used and occupied the premises in the same manner until her death, which occurred in June 1902. George W. and Jane Robinson had nine children of whom the appellant was one. All of said children survived the said George W. and were above the age of twenty-five at the time of his death. Three of said children, viz., Agnes Robinson, Chester Robinson and Fannie Robinson Harrison, died intestate before the death of Jane Robinson. All of the nine children were living at the time of the testator’s death, and all except the youngest, George A., at the time the will and codicil
By the decree appealed from the probate court assigned all the personal estate remaining for distribution to the six children now living in equal shares. It divided the real estate remaining for distribution into eight shares and assigned to each of the six surviving children one-eighth part as children of the said George W. and Jane Robinson, and to Heman Robinson and George A. Robinson, each one-eighth part, as assignees of the two deceased children. Commissioners were appointed to make partition of the estate among the distributees. On appeal the county court affirmed the decree of the probate court strictly pro forma, to which the appellant excepted. Her objections to the decree of distribution will be considered in the order in which they are discussed in her brief.
It is contended that the personal estate consisting of household furniture passed under the will to George W. Robinson and should have been assigned to his ^representative. Some of the personal estate described in the decree as for distribution is of the nature of household furniture; but the facts recited are silent as to whether these articles were embraced in the household furniture intended to be bequeathed to George W. Besides the decree recites “whereas it has been made to appear to said court that all specific legacies of the said testator have been fully paid, and the conditions thereof fully complied with.” With the agreed facts standing thus, error in the distribution of the personal estate is not made to appear. No question is raised as to the right of the representatives of the deceased children to participate in the distribution thereof and the question is not considered in our disposition of the case.
Appellant further contends that neither Chester nor Fannie had any assignable interest in the property when the deeds were executed. The argument is that title did not vest in the children until the death of their mother, so that the three who deceased prior thereto took nothing under the will. No question is made as to Agnes Robinson and we have no occasion to consider whether her representative would be entitled to a share. Presumably all parties interested are content to disregard any claim on her behalf.
The determinative question on this point is whether the gift 'over to the children- took effect in interest from the date of testator’s death, or whether their interest under the will was merely contingent and liable to be defeated by their death prior to that of either parent.
The intention of the testator, so far as it may legally be carried out, when ascertained will control. Harris et al. v. Harris’ Estate, 82 Vt. 199, 205, 72 Atl. 912. The law favors the early vesting of estate and presumes in favor of the vesting of remainders in interest on the death of the testator, if the language used is consistent with an intention to postpone the enjoyment only. This presumption is so favorably regarded that no estate
It will be observed that the will created a single trust to continue during the lives of George W. and Jane Robinson and until their youngest child reached the age of twenty-five. The income of-the fund was to be employed both for the life support of the parents and for the support and education of their children during the full term of. the trust. In case of the earlier death of George W. and Jane the division of the property was postponed until the youngest child should reach the age of twenty-five without reference to survivorship. There is nothing in the language creating the trust to indicate clearly an intention to limit the remainder to such of the children as should survive their parents. The provision “after the death of both the said George W. Robinson and Jane his wife I give, devise and bequeath all the real and personal estate remaining in the hands of my said trustees” to their children in fee simple is not enough to indicate an intention to postpone the gift itself. Similar language was held in Jones’ Admr. v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 L. R. A. 293, to create a vested interest in the remaindermen from the date of testator’s death. The language is consistent with an intention to postpone possession alone, which will be presumed to have been the testator’s intention. This presumption is strengthened by the fact that they were to share in the income of this fund while the parents were living. See 2 Underhill on Wills, §§870, 872; 2 Jarman on Wills, 1425.
If, as we held In re Irish’s Will, 89 Vt. 56, 94 Atl. 173, the language employed annexes futurity, to the substance of the gift, or, if the provisions of the will taken together clearly indicate that such was the testator’s intention, the interest is contingent and not vested from the time of the testator’s death. In the case last cited the testator created a trust for the support of his mother and provided that the fund itself, as well as the income arising therefrom, should be used as required for her support and for the expenses of her funeral and burial. So
We accordingly hold that the remaindermen took a vested interest on the testator’s death. It follows that the interests of Chester and Fannie in the real estate were assignable and passed by their deeds to Hernán and George A., respectively. Ricketson v. Merrill, 148 Mass. 76, 19 N. E. 11; Weller v. Kolb, (Md.) 97 Atl. 542; Harris v. Harris’ Est., supra; Weatherhead v. Stoddard, supra.
It is suggested that under the statute regulating entails Jane Robinson took the fee and that the property should be decreed to her heirs. This claim is unsupported by argument or citation of authority and is passed without further notice, not being sufficiently briefed.
Judgment affirmed. To be certified.