| Vt. | May 15, 1896
This case has been heretofore disposed of upon the theory that the decision of the county court involved a matter revisable in this court, and it is now before us upon a rehearing of that question. The case was tried below by the court, and the appellant contends that the decision of that court was no more than a finding of fact as to the testator’s intent, and was therefore final.
The county court received certain evidence from which it found the facts recited in the former opinion. Extrinsic evidence is ordinarily received to aid the court in arriving at the testator’s intention by a construction of the terms of his will, but it is sometimes received to prove the testator’s intention as an independent fact. This is the case when the
If the county court had been called upon to determine which of two parcels the testator intended to devise by language which applied with equal .accuracy to each, the appellant’s contention might be sustained. But we think the inquiry in this case cannot properly be treated as of that nature. The question to be determined was whether the whole or a part only of the testator’s premises on the west side of Champlain street was covered by a devise of his home place. The testator had but one home place; and the only office of the extrinsic evidence was to show of what that place consisted. The evidence received raised no question of intent independent of construction. The intent was to be derived from the language of the will construed in the light of extrinsic facts. So the court’s ascertainment of what passed under the devise was a determination of construction, and not the mere finding of a fact.
But the appellant contends that the nature of the inquiry was such that there can be no revision of the finding, even though it involved a construction of the will. This claim is based upon what is asserted to be the rule of procedure in jury trials; and we are referred to authorities which say that when the meaning of a writing is to be gathered from a consideration of both its language and the collateral facts, the whole matter is necessarily left to the jury and the entire inquiry becomes one of fact. But we do not consider it necessary to inquire what the procedure should be when a question of this nature is to be determined in a jury trial. This inquiry was had by the court, and the nature of the
It is evident that the court below had this understanding of its decision. It considered the question to be “what property is included in the terms ‘my home place where I now live,’ ” and received evidence of the situation and use of the property “to determine the construction to be given to these words.” It found and stated the facts, and “on these facts * adjudged that the appellant, by this clause of the will, took the use of the entire property.” It did not dispose of the inquiry as one of fact, but as one of construction.
Order of stay of certificate vacated.