Executors of Judevine v. Judevine , 61 Vt. 587 ( 1889 )

The opinion of the court was delivered by

Yeazey, J.

Treating the fifth article of the will, for convenience of reference, as divided into three parts, the first ending with the first punctuation period, the second with the next period, and the third with the last, it is quite plain and not disputed that the firstpart standing alone would carry a fee. In the second part, there is . clearly granted an unlimited absolute power-of disposal. That is not disputed; but it is claimed in behalf of the college and town that this part indicates an intention to limit the title in Mrs. Judevine to a life estate, and that this import is strengthened by the third part. The contention on the part of Mrs. Judevine is that as the first part makes the grant a fee, the third part must be rejected as repugnant. It -is claimed for the college and town that the intention of the testator fairly deducible from the language of the article as a whole was to gives a life estate only to the wife with power of disposal at her pleasure. Taking the several parts up in their order, the first one coneededly imports a devise of an estate in fee, without a word indicating a different intention. The second part begins, by saying the foregoing grant and devise to his wife is for her sole use, control and enjoyment during her life. This points to a life estate; but it is followed by the expression: " Trusting and expecting that she will use and dispose of the whole thereof as she may desire,' and that she will give the residue, if any remains at her death, by her will, to such persons and for such purposes as she may desire.” Therefore the second part as a whole seems to us to negate an intention to limit the grant to a life estate. The portion quoted makes it-clear that .the intention was to give an absolute power of disposal, not of a life estate, but " of the whole, thereof ” either by deed or will. To deduce an intention of limitation upon a previous grant in terms constituting a fee from a clause providing for an absolute and unrestricted power of disposition, would indeed be a violent and unreasonable inference. The clause " during her life ” is to be interpreted in the light of the following clauses," whieh unmistakably point to unrestricted power of disposition of the fee.

Therefore until we come to the third part we find no indication of an intention to limit the grant to a life estate. But it is upon this part that counsel mainly rely to show an intention to thus limit the grant.

It is plain that the central idea in the mind of’ the testator in drawing the third part of this article was, not to make a provision for the town of Concord and the college, but to guard against any of the property granted to his wife from passing to her heirs unless she should give it to them. They had no living children. He provided for the town and college elsewhere in the will. Herein is a distinction between this will and the wills in Smith v. Bell, 6 Peters, 68, and other cases cited.

The language of the granting clause in Smith v. Bell, as in the case at bar, was adequate to carry a fee, but that was followed by a provision for a remainder, which was interpreted by the court to manifest the intention of the testator to make a future provision for his son. Therefore the court in order to carry out such intention and give effect to all parts of the will, regarded the remainder clause as indicating an intention in the granting clause to limit the grant to a life estate.

In the opinion of Redfield, J., in Richardson v. Paige, 54 Vt. 373, the learned judge, after quoting this rule: “The exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property,” says that Ch. J. Marshall disregarded it to construe the will according to the intention. We think a careful reading of the opinion of the Chief Justice does not warrant such conclusion, but that he put the decision upon the ground above stated. That has been -regarded as an extreme case and has provoked some adverse •comment, but it has been cited with approval by this court, and so far as it involves legal rules of construction it seems to be within the general line of authority, especially as adopted in this State and lately expressed in Chaplin v. Doty, 60 Vt. 712, viz: “ It is an elementary rule of construction that an absolute gift in a will will not be defeated by a subsequent repugnant clause. If the subsequent clause is plainly a qualification or condition, which was evidently intended by the testator to be read as part of the preceding clause, the rule is different. It makes little •difference in the construction whether the granting clause itself is in form conditional; or the condition is annexed to a clause in form absolute.” And again in Stowell v. Hastings, 59 Vt. 494, viz: “In determining what estate is given the first taker, the whole will should be considered, and all the clauses construed together. Even in those cases where an absolute estate is in terms given, if subsequent passages unequivocally show that the testator meant the legatee to take a life interest only, the prior gift is restricted-accordingly. Jarman on Wills, chap. 15. Such are the other cases in this State — Richardson v. Paige, 54 Vt. 373; McCloskey v. Gleason, 56 Vt. 264.”

If the remainder clause, the third part of the fifth article, not being for the purpose of a gift to the town and college, but, as before stated, to keep an assufned remainder undisposed of- by deed or will by Mrs. Judevine from going to her heirs, she having no children, shows that in the Opinion of the testator the previous words had given only an estate for life, then upon •the authority of Smith v. Bell, supra, we may hold that the grant was only of a life estate. But this remainder clause being-only for the purpose just stated, we do not think it indicates an? understanding of the testator that he had not already made a. grant in fee to his wife. In this respect this case differs from that of Smith v. Bell, supra, and others of that, class ; and it differs also from Richardson v. Paige, supra, in this: that there the bequest to Baige was in express terms made subject to the-provision for the contingent benefit of his wife. Neither does it. fall into the category of those cases, several of which are cited in the briefs, where the testator gives to the first taker an estate-for life only, by certain and express words, and annexes to it a, power of disposal, in which case the devisee for life will not -take-an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. That is, an absolute and unqualified power of disposal annexed to an -express life estate does not enlarge the quantum, of the estate. See Jackson v. Robbins, 16 John. 588, and cases there cited. We think it was the intention of the testator to make a grant and devise to his wife of an estate in fee, and that the case falls directly within the decision in Stowell v. Hastings, supra, where the will, after disposing of a part of the estate, gave to the testator’s wife the residue, “ for her benefit and support, to use and dispose of as. she may think proper,” and then provided that if any of the estate should be left in ' her possession at [her death it should be equally divided between the brothers and sisters of the testator and it was held that the wife took an absolute estate, and that the remainder over was void for repugnancy. The proposition of law upon which the court rested the decision, as enunciated by Taft, J., in the opinion, was this : “ If an estate-is given to a person generally or indefinitely with an absolute power of disposition, it carries a fee and a remainder over is-void for repugnancyand he then cites numerous authorities, in support.

Under the seventh article we consider that the executors are-to hold and appropriate the portion of the estate therein specified, for five years, for the purposes and under the same restrictions and in the same manner in all respects, as prescribed and ¡provided in the sixth article of the will as to the portion of the •estate therein granted and devised to the University of Yermont •and State Agricultural College. We think the clause “ What-ever may remain,” etc., plainly indicates that this fund is not to be kept for accumulation during the five years, but is to be used as above stated.

All parties agree that the provision of the first codicil as to .-sale of timbered lands does not operate as a restraint of the sale •thereof until all the other real estate in Hardwick is disposed of, but was intended to be only advisory, and that the executors •may in their discretion effect a sale notwithstanding such other •real estate is undisposed of. A majority of the court are inclined 40 adopt this view, all parties agreeing thereto, and being satisfied that it would be carrying out the real intention of the testator, "that is, an administration of the estate in a way that would promote its best interests and that of all parties interested therein, •and that the beneficial purposes of the testator would thereby be better attained.

We also concur in the suggestion of the orators in the bill that the taxable costs of all parties, with reasonable counsel fees, -should be paid out of the funds of the estate before distribution, •the same to be fixed and allowed by the Court of Chancery.

The pro forma decree dismissing the hill is reversed, and &he cause remanded to he disposed of pursuant to the mandate filed.