Chamberlin v. Estate of Chamberlin , 16 Vt. 532 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

We can perceive no question of law, decided by the county court, which calls for a revision.

It appears that Charles Chamberlin, in the year 1833, made a will, in which he devised to Abiel Chamberlin, the appellant, twenty acres on the north side of No. 10 meadow lot, and twenty five acres on the north side of upper meadow house lot No. 41, and also the equal half of a barn; the residue of these lots was devised to John Y. Chamberlin, now deceased. After the death of John V. Chamberlin, Abiel Chamberlin made application to the court of probate for a division of the real estate of the said Charles Chamberlin, agreeably to his will; the court of probate thereupon appointed a committee, whose doings were returned to and accepted by the probate court, — from which Abiel appealed. The decision of the county court affirmed the decree of the probate court, and to that decision Abiel excepted. On these exceptions the case is now before us.

Among his other exceptions, he contends that the lands were devised to him and John V. in severalty. This exception certainly comes rather unfavorably from him, as it was upon his application that the committee was appointed. We have no doubt, however, that the appointment of the committee was both necessary and proper, unless a division had been agreed on among themselves. A committee was necessary to separate and set off to the devisees the different portions assigned to them. The eleventh section'of chapter 48, and the fourth and eighth sections of chapter 53, of the Revised Statutes, not only authorized, but required, the appointment of such committee, if the devisees did not agree.

In making this division, or severance, the committee could only follow the provisions of the will; and they have done this, precisely according to the directions therein contained. It was not necessary for them to make any mention of the barn.

It is again complained, that the committee did not follow the line agreed on by the parties. This they were not authorized, or required, to do. If the parties had made a .division, so as to be conclusive between them, there was no necessity for the appointment of a committee, and the appellant was unfortunate in making the application procuring their appointment. The committee could take no other guide but the will, without any regard to the agreement of the parties. The views of the law, on this subject, are mistaken by the appellant. A division line between two proprietors, agreed upon, is not binding between them, unless it has been acquiesced in, and possession has been conformable thereto, for fifteen years; White v. Everest, 1 Vt. 181, and Campbell v. Bateman, 2 Aik. 177.

The same remarks will apply to the other objection, as to the twenty five acres. The committee have set that off according to the will, and if it is not in a convenient shape for the appellant, the misfortune is, that the will was not different, not that the committee have mistaken its provisions.

The committee placed the true construction on the will, when they excepted the house, and the land around the same,’ out of the twenty acres devised to the appellant, as the will is express to that effect.

The judgment of the county court, affirming the decree of the probate court, is affirmed.