43 Vt. 556 | Vt. | 1871
The opinion of the court was delivered by
The question upon the merits argued by counsel is as to the validity of the devise over for the establishment and support of an industrial school. It arises upon the part of the will in which the testator, as to the property now in dispute, says: “ I give, devise and bequeail the same to my son, Frederick Zelotes Dickinson, to have and to hold the same to him the said Fredeiick Zelotes, his lineal heirs and assignees forever ; provided, however, if the said Frederick Zelotes shall die without lineal heirs, or upon the failure of his and my lineal heirs,” that it be appropri
It is insisted on the part of the defense, that the limitation upon which the devise over to the purposes of the school is by the will made to depend, is the indefinite, unlimited failure of lineal descendants, whenever that contingency may happen, whether at the deail of Frederick, or at any indefinite, unlimited time thereafter in the course of future generations, however remote; and that as the contingency may happen after the legally required period, that is, after the termination of a life or lives of a person or persons in being at the deail of the testator, and twenty-one years, and a sufficient fraction of a year more to cover the period of gestation, the limitation is too remote, and for that reason the devise over to the school void. The orators’ counsel, without denying this legal proposition if the devise is construed as depending on an indefinite failure of lineal descendants, contends that such is not the meaning of the will; but that the limitation has reference only to a definite failure of lineal descendants at the time -of the deail of Frederick; and that if at his deail he has no lineal descendants living or in being, the devise over to the school takes effect; and that if at his deail he has such lineal descendant or descendants, the devise over fails and can never take effect, however soon thereafter such lineal descendants may become extinct. If this latter construction is the true one, the limitation is not claimed by defendant’s counsel to be too remote. Upon this question of construction it is not necessary to enter into an exam-' ination of the multitude of cases on the subject, in which the question has arisen whether the words die having no issue, die without issue, die leaving no issue, die without heirs of his body, dying
Whether the state’s attorney would have been a proper party to have joined in the prosecution or not, we consider the interest of the charity sufficiently represented to warrant us in deciding the case as we do, on the merits.
The decree of the court of chancery is reversed, and cause remanded, with directions to that court to make decree dismissing the bill without costs except costs in this court.