90 Vt. 479 | Vt. | 1916
This case involves a construction of the will of Hannah A. Stoddard, in ascertainment of the rights of Moses Morse, the principal legatee.
The first provision of the will is an appointment of a sister of the testatrix “to make the distribution” of her household effects, and “to see that there is enough left of said household goods for the use and comfort” of her brother, Moses Morse. This is followed by three several bequests of table ware and furniture to Mrs. H. C. Bennett, Mrs. E. E. Davis, and Mrs. Alfred Wilson, daughters of the testatrix.
The main controversy is concerning the fourth and fifth items of the will, which read as follows:
“Fourth. I will and bequeath my brother Moses Morse * * * all of my personal property of every kind and name that I may die seized and possessed of, be the same money, securities, mortgages or personal property of every description after the above willed are disposed of. I wish to have my funeral expenses paid out of this personal property and the balance to go to my brother Moses Morse.
“Fifth. Should there be funds left after the decease of my brother Moses Morse after paying all just debts and funeral expenses of my said brother, I will and bequeath to Mrs. Herbert C. Bennett * * * the sum of two dollars, and the balance if there is any to go to my two youngest daughters; whatever it may be, more or less; Mrs. E. E. Davis and Mrs. Alfred Wilson, each to share and share alike and they are to have the entire and absolute control of whatever that may be left to them.”
The next and concluding direction of the will is as follows: “Should my said brother, Moses Morse at any time lose his faculties or mind, so that he is not capable of doing business I do nominate and appoint Edward E. Davis * * as his guardian,
The legatee Morse claims that the fourth clause of the will gives him an absolute estate in fee in the property bequeathed to him, and that the gift over contained in the fifth clause is void. It is claimed on the other hand that the estate which woqld have been created by the language of the fourth clause standing alone, is limited by the bequest which follows it. Various supporting arguments are based upon the other provisions stated above. No question is made but that the entire instrument is to be considered in arriving at the testatrix’s intention as regards the paragraph in dispute. Hibbard v. Hurlburt, 10 Vt. 173; Randall v. Josselyn, 59 Vt. 557.
No two wills are exactly alike, and decisions in the most similar cases are to be considered aids to construction rather than direct authorities. Various provisions which have been held to create an absolute estate, notwithstanding expressions claimed to indicate a contrary intention, will be found in Hart v. White, 26 Vt. 260; Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. St. Rep. 748; Chaplin v. Doty, 60 Vt. 712, 15 Atl. 362; Judevine v. Judevine, 61 Vt. 587, 18 Atl. 778, 7 L. R. A. 517. Instances of bequests which have been held to carry only a life interest, notwithstanding the use of terms and the presence of other provisions indicative of an estate in fee, will be found in Richardson v. Paige, 54 Vt. 373; McCloskey v. Gleason, 56 Vt. 264, 48 Am. Rep. 770; Parks v. American, etc., Soc., 62 Vt. 19, 20 Atl. 107; Thrall v. Spear, 63 Vt. 266, 22 Atl. 414; Conant v. Palmer, 63 Vt. 310, 21 Atl. 1101.
The case In re Kenniston’s Will, 73 Vt. 75, 50 Atl. 558, was disposed of on a rather extended review of the decisions in this and other jurisdictions. The bequest in question there was as follows: “I give and bequeath to my husband * * the sum of two thousand dollars; also my farm * known as the Conant place.” This was followed by a clause which provided that what remained of the above mentioned property after the decease of the husband should be divided among certain charitable institutions. It was held that the husband took only a life estate.
Among the cases reviewed in the above opinion was Smith v. Bell, 6 Pet. 68, 8 L. ed. 322. The only legatees in that ease
The authority of this decision has been questioned by the Massachusetts court in Gifford v. Choate, 100 Mass. 343, and the case has been commented upon and distinguished in Potter v. Couch, 141 U. S. 296, 35 L. ed. 721, 11 Sup. Ct. 1005, in an opinion written by Justice Gray. But the case has been cited with approval in several opinions of this Court. Richardson v. Paige, 54 Vt. 373; McCloskey v. Gleason, 56 Vt. 264, 48 Am. Rep. 770; Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. St. Rep. 748; Judevine v. Judevine, 61 Vt. 587, 18 Atl. 778, 7 L. R. A. 517.
In the case last cited the court discussed somewhat the grounds of the decision in Smith v. Bell, and concluded that the decision was not made in disregard of the doctrine, held applicable in certain of our eases, that a gift of property with an absolute power of disposition carries the fee. The appellant Morse insists that the will gives him this power, and that the further provision is void. In considering this claim it must be noticed that there is a difference between a right to use up the entire property if needed for a certain purpose, and an unlimited power of disposal. This distinction is fully presented in Stowell v. Hastings, 59 Vt. 494, 8 Atl. 738, 59 Am. St. Rep. 748; Parks v. American, etc., Soc., 62 Vt. 19, 20 Atl. 107, and Thrall v. Spear, 63 Vt. 266, 22 Atl. 414.
It appears that the estate consists entirely of personal property, and that the fund in the hands of the executor is about three thousand dollars. The court below entered a decree in accordance with the claim of the appellees, and directed the appointment of a trustee to hold and apply the property. The appellant claims that this direction is error. It is said that there can be no trust where there is no intention to create one. and that there is nothing in the language of this will that indicates such an intention.
The decree gives the appellant the use of the property “both income and principal, so far as may be reasonably necessary to support ■ and maintain him * * . ” This language is not entirely accurate, for the beneficiary is entitled to receive the entire income whether needed for his support or not; and the terms of the order will be modified in this respect.
Decree modified and affirmed as modified, and ordered certified to the prolate -court.