Wells' Estate v. Congregational Church, 63 Vt. 116

Wells' Estate v. Congregational Church

63 Vt. 116 | Vt. | 1890

The opinion of the court was delivered by

TAFT, J.

The question in this case is, was the widow of Oliver Wells entitled to homestead in his estate, or, was she barred therefrom by having accepted the provisions of his will. It is needless to consider the many autliorities cited in behalf of the appellant, as the rule applicable to the case is vrell settled in this State and tersely stated in Meech v. Meech, 37 Vt. 414. In re Hatch’s Estate, 62 Vt. 300. To deprive the widow of a homestead it'must clearly appear that the testator intended she should accept the provisions of the will in lieu of it; if the intent is doubtful she is given the benefit of the doubt, and takes it, in addition to the gifts named in the will. With this rule in mind, what construction shall we give the instrument in question ? The estate consisted of a dwelling house, with outbuildings and forty acres of land, valued at eighteen hundred dollars, and twelve hundred dollars in personal property. The house was occupied by the testator, at the time of his death, as his dwelling. By his will he gave a life estate in all his property, with power of disposal if required for her support, to his widow, and after its ter■mination, a life estate to his daughter, and after the decease of the latter, leaving no heirs of her body, the property was given the appellant, upon condition that the real property “ be used as a parsonage.” Considering the description, value, and use of the property, its occupancy by but one family as a residence, it is *119evident that but one dwelling place can be carved out of the premises, and if the widow is given a homestead therein, as it must be of the value of five hundred dollars, and commissioners are inclined in its segregation to be liberal, it is plain that after one is set out, but little or nothing will be left for a parsonage save the outbuildings and land. It is insisted by the appellee that the word parsonage may be applied to land alone, and so not include the dwelling house. Its ecclesiastical meaning was the “ glebe (or land) and house ” belonging to a parish, appropriated to the maintenance of the incumbent or settled pastor of a church, but its modern general signification is in the sense of its being the residence of the parson, and it inay be with land or without it. In consideration of these facts, we have no doubt that the testator intended the homestead should pass under the will, in the contingency named, to the church; in other words, he supposed he had, in case his issue failed, willed it to' them. He was evidently much attached to his church and desired that the roof which, during their lives, had sheltered himself and family, should, when the latter became extinct, and for all time, serve the same purpose for the parson of his church, and we think it inconceivable that he intended a homestead should be carved out of his little abode and pass into the possession of strangers, while the parson of his church should reside in the outbuildings, or, on the glebe. The intent of the testator that his wife should not take a homestead clearly appears.

The appellee claims that the widow died before she was called upon to elect between the provisions of the will and her rights under the law. It is agreed that she took possession of, and used and enjoyed all the real and personal property devised and bequeathed to her, and used the profits and avails thereof. This was more than she was entitled to, in case her husband had died intestate, and we think constituted an acceptance of the gifts under the will, and that after having enjoyed the benefits given her by the will, she could not waive its provisions and claim her *120right in respect of an intestate estate. When a widow receives the legacies given her by a will, she. should not be permitted afterwards to claim in opposition to it. In re Hatch’s Estate, supra. No disposition was made of the homestead by the testator and there was no intent on his part to deprive the widow of it. She was, therefore, entitled to it. In Meech v. Meech, supra, the homestead was devised to a son, and the widow was held barred by taking the legacies given her in lieu of it. Such is the construction we give the will under consideration, and the result is,

Judgment affirmed and ordered certified to the Probate Oov/rt.

Munson, J., did not sit, having expressed his opinion below.