69 Vt. 388 | Vt. | 1897
On February 15, 1895, the appellant, Lucia R. Ward, preferred her petition to the Probate Court for the District of Chittenden, setting forth that she is the daughter and heir at law of Oliver Wells deceased, and legatee under his will, and that she is advised and believes that the Congregational church of Underhill has no interest in the estate under the provisions of the will; that the limitation
The appellant joined issue on the general issue, and replied prechuh non to the special pleas because she says that the property mentioned in her petition, consisting of both real and personal estate, has never been finally decreed to her, nor to the church, nor to any other person, or corporation, whatsoever, by the probate court, which' alone has jurisdiction to make such decree, and that title to the property is uncertain. The replication was traversed, and the trial was by the court. On the trial, the court found that the decree of the probate court of December 19, 1890, and the portions of the will of Oliver Wells material to the issue, are correctly set forth in the third and fourth special pleas; that by that decree the appellant was given the use of the residue of the estate during her natural life, and that the fee of the residue was not thereby decreed to any one, nor has it been since then. On these findings the county court rendered judgment dismissing the petition of the appellant against her objection and exception. The material facts set
(1) The first contention is whether it precludes the petitioner from the relief sought through her petition.
December 19, 1890, the probate court had the subject matter, the estate of Oliver Wells, and the parties interested therein before it. It had full jurisdiction to determine, and it was its duty to determine correctly, the rights of the petitioner in and to the estate, and to make a decree thereof. If the devise to the Congregational church is now void under the law against perpetuities, it was so then. If the
The petition brought before the probate court no facts which were not before it when it made the decree of' December 19, 1890. The same parties were then before the court which the petition brought before it. It has alwáys been held, that the decisions of this court, on the same facts
The terms of the devise to the petitioner create what, at common law, would be an estate in fee tail, (Giddings and wife v. Smith, 15 Vt. 344) which under Y. S. 2201, and which before the statute, gave the petitioner a life estate only in the premises. (Biddings and wife v. Smith was three times argued, carefully, and fully considered, and has ever since been followed. Village of Brattleboro v. Mead, 43 Vt. 556; Thompson v. Carl, 51 Vt. 408; Doty and wife v. Chaplin, 54 Vt. 361; In re Kelso's Est., 69 Vt. 272. Hence the decree of December 19, 1890, was correct so far as
(2) But if there is any doubt .in regard to the finality and correctness of that decree, the construction placed upon the will by the decree of December 19, 1890, gives effect to the intention of the testator. His intention is to be ascertained from a careful consideration of all the provisions of his will, read in the light of existing circumstances. By the will, the testator has provided, in very explicit terms, that, after the termination of the life estate therein given to his widow, a life estate shall be created in the property “to my only and beloved daughter” with remainder “to the heirs of her body.” He then proceeds to say, “and should my beloved daughter, Lucia R. Ward, die, leaving no heirs of her body, or should I, at any future time fail to have heirs of my body, then it is apart of my will and testament” that the property in contention shall be the propety of the Congregational church, to be'used for the purposes specified. If the words, “or should I, at any future time fail to have heirs of my body,” had been omitted, it is not seriously contended that the devise over to the Congregational church would have been void for remoteness. The language used in the first clause, “die leaving no heirs of her body,” import that the time when, if ever, the estate is to pass to the church is at the decease of the petitioner. If then she had an heir or heirs in the descending line, child or grandchild, living, such heir or heirs take the property and the church takes nothing. If, at that time, she left no such heir, the Congregational church takes the property. In such case, it is conceded that the devise over would not be defeated by reason of remoteness. But it is contended that the addition of the words, “or should I at any future time fail to have heirs of my
In that case, and generally, it is held, that the intention of the testator in regard to the remotest time when the devise over shall take effect, determines whether such remotest time is within the rule against perpetuities; and that his intention in this respect is to be ascertained from all language of his will on the subject, read and construed in the light of existing, surrounding circumstances, independently of whether it will bring that time within, or without, the time limited by the rule against perpetuities. These circumstances existed when the testator made his will. The testator and his wife were well advanced in years. He had one only child, grown to womanhood and married. He expected his wife might outlive him, for he made provision for such a condition. Under these circumstances it is hardly reasonable to construe the language, “or should I, at any future time fail to have heirs of my body,” as relating to any other such heirs than those who might thereafter exist in the line of his only married daughter. In creating the life estate to that daughter the remainder is “to the heirs of her body.” He makes no devise to the heirs of his body in any other descending line. By his will he evidently intended to die testate in respect to all his property. But he devises a life estate to the daughter, and makes it take effect ‘subsequently to the life estate which he has therein devised to his wife. It may have occurred to him, that his daughter might die leaving no heir of her body in his lifetime, or in the lifetime of her mother; or if she died leaving a child, the child might die during his life, or during the life of the grandmother; and he added these words to provide for such a contingency, but not thereby intending to defeat the conditional devise to the Congregational church, on the, to him, impossible supposition, that another line of heirs of his body than through his only married daughter might
This must be the construction to be placed upon this will. The will became operative and spoke as of the time of the testator’s death. At that time the heirs of his body were determined. His only daughter, the petitioner, was such sole heir. No other such heirs could come into existence, certainly except through her. When, therefore, the testator, in his will, speaks of the heirs of his body, he designates the petitioner, and, — if any others, — such heirs as descend through her. When, in his will, he says “Or shall I, at any future time fail to have heirs of my body,” he means his only daughter, or, at most, such, and only such, as may descend
Judgment affirmed and ordered certified,to the probate court.