39 Vt. 550 | Vt. | 1866
The opinion of the court was delivered by
The first question arises on the motion to dismiss the case for want of jurisdiction in the probate court.
It is claimed on the part of the plaintiff, Clark S. Keeler, that the
It is true the debts of the testator had been paid, the property of the estate, except that now in controversy, had been divided and passed over by the executor, to the persons entitled to the same under the will. The property in question had passed into the hands of Mrs. Wadsworth, who, by the terms of the will, was entitled to the same during her life. Therefore the action of the probate court, and the executor, in the premises was full and complete, and their powers were exhausted. Was such the case in respect to the property in question, after the death of Mrs. Wadsworth? We think not. The probate coift-t has, primarily, jurisdiction of all questions relative to the settlement of the estates of deceased persons, whether testate or intestate, and among its powers is that of determining who are entitled, under the provisions of any will, and to what they are entitled, also who are the heirs at law of any deceased person, and the proportion to which they are entitled respectively, and this jurisdiction it would seem must necessarily exist in the probate court' so long as there is any occasion for its exercise, and until there is a full and complete settlement and distribution of the estate.
In this case no decree of the probate court had been made, and none could be made, determining who was entitled to the property in question under the will, until after the death of Mrs. Wadsworth. The words of the will are that, “after the decease of my said daughter” (Mrs. Wadsworth,) “I do give said land to my male heirs at law who then live in South Hero, aforesaid,” of course, until after Mrs. W.’s death it could not be known who, if any, of the male relations of the deceased would then be residing in South Hero. If no male relation of the deceased had then been, residing in South Hero, then there would have been no person to take under the will, and the property would have passed to the heirs at law generally, as intestate estate ; and must have been distributed under the decree of the probate court determining who were the heirs, and the proportions' to which they were entitled. But as it is conceded that there are persons residing in South Hero who are entitled to the property, and the only question being as to which of several are so entitled,
The interest in this property subject to the life estate of Mrs. W. we think must be regarded as undistributed property of the estate in the hands of the executor to be by him disposed of after her death, .under the decree of the probate court determining who is entitled thereto, under the will of the testator.
On the death of Mrs. W. the executor took charge of the property and instituted proceedings in the probate court to have it disposed of according to the provisions of the will, and fit is by an appeal from the decree of that court, that the case is brought here, the property having never been in the possession of .any of the claimants.
The cases cited by the plaintiff in support of the motion are not at variance with the view we take of this question. . In Hubbard v. Ricart, 3 Vt. 207, the plaintiff held the title of all the heirs of Arad Hunt, who died siezed of the premises. The defendant, who was a stranger to the title, trespassed upon the premises, and the plaintiff brought his suit. The court held that, as under the circumstances of the case there was no necessity for a decree assigning the property of said Hunt to his heirs, and as no administrators interfered, the action could be maintained without having such a decree. In Stone, Executor of Fuller, v. Griffin, Fuller, the plaintiff’s testator, had devised the property in question to the methodist church in Charlotte, under whom the defendant held. The probate court decreed the property to the church according to the will, and the same was set off to the church, by a committee appointed by said court for that purpose ; the plaintiff then brought his action of ejectment to recover the property, claiming that the' decree was void ; the court held that the action of the' probate court had divested him of all right to the property, and that he could not maintain the action. The case of Abbott v. Pratt, was like Hubbard v. Ricart, and so far as this question was concerned was decided on the authority of that Case.
The motion to dismiss was properly overruled.
Upo 2 the trial of the case in the county court the defendant claimed that it was the intention of the testator, by his will, to give the property in question to such of his male relatives as should be residing in South Hero, at the decease of Mrs. Wadsworth, and for the purpose of proving thig intention, offered to show by parol “that in 1850 the testator, having a large real and personal estate in South Hero, and'baving no lineal male heirs, went to Ridgefield, Connecticut, and pursuaded Clark S. Keeler and Philip Keeler, his nephews, and his neice, Mrs. Hoyt, to remove to South Hero, upon the expectation of having a portion of his property ; that upon their removal to South Hero, in 1850, he put each of them upon a farm in said town,which he owned; that they lived respectively upon the farms on which he placed them, until he died, and that by his will he devised to each of them the farm upon which each of them so resided; that he did this with the avowed and well known intention of perpetuating his name and family blood in South Hero, as well as from affection to his relatives.” This evidence was objected to by the plaintiff, and was excluded by the court.
This evidence, we think, was properly excluded. Conceding all to be true that was offered to be proved, it has no tendency whatever to establish the position in support of which it was offered. The intention of the testator in respect to those relatives, as manifested by his acts and declarations, he seems to have. fully accomplished and perfected, and what he had done, or the intention with which he did it, can throw no light upon the question as to what his intentions were as to the disposition of the property now in question.
The question then arises what is the construction that is to be put upon that .clause in the testator’s will which is now in controversy ? In determining this, we are to look at the whole will, the situation of the testator, and all those surrounding circumstances which may
By the will the testator gives the land in question’to his daughter, Judith Wadsworth, during her natural life, and then he says, “ and after the decease of my said daughter I do give said land to my male heirs at law, who then live in South Hero.” What did he intend by those words ? In considering this question the conceded facts may be borne in mind, that the testator had through life been an active, accurate business man ; that he wrote his will himself; that he was an intelligent man, and understood the use and import of language, is apparent to any one who reads the will. At the time he made his will, and at the time of his death he had no male issue. His daughter, Mrs. Wadsworth, and a grand daughter, the child of a deceased son, were his heirs at law. After the death of Mrs. W., the granddaughter surviving her became the sole heir at law of the testator, so that at no time, when the will was made, or since, has there been any person that could properly be called the male heirs at law of the testator. What then did he mean by the words male heirs at law, who then live in South Hero? These words by their natural import exclude (1st.) all his female relatives of every degree of relationship ; (2d.) all his male relatives that live out of South Hero. It is clear then that in seeking for the persons to whom he intended this property should go, we are confined to his male relatives in South Hero. As between them, what is the meaning of the words “ heirs at law ?” Did the testator mean thereby to refer to all such male relatives? or to such of them as among themselves would occupy the position of heirs at law? We think it was the intention of the testator, and that such is the clear meaning of the words used, to limit the devise to such of his male relations living in South Hero as would be his heirs at law, supposing them to be all the relatives the testator had on earth, and that in construing the clause in controversy so as tp carry out what we think the intention of the testator
Under the will thus construed, it is conceded, that Clark S. Keeler, the plaintiff, is the person and the only person who is entitled to the property in question.
The judgment of the county court is affirmed-, and the result will be certified to the probate court.
