Boomhower v. Babbitt's Adm'rs
| Decision Date | 02 March 1895 |
| Citation | 31 A. 838,67 Vt. 327 |
| Parties | SARAH B. BOOMHOWER v. JOSHUA C. BABBITT'S ADMR |
| Court | Vermont Supreme Court |
OCTOBER TERM, 1894
Appeal from an order of the probate court for the district of Franklin. Heard upon the report of a referee at the September term, 1894, Franklin county, ROWELL, J., presiding. Judgment pro forma affirming the decree of the probate court. The defendants except.
Judgment affirmed and ordered certified.
Hogan & Royce for the defendant.
The will of Joshua C. Babbitt contains certain bequests to his wife, among which is an "annuity and sum yearly" of three hundred dollars, to be paid her during life by his executors. The testator also gives to his daughter Sarah for life an "annuity and sum yearly" of three hundred and sixty dollars, to be paid her by his executors from time to time during each year as it may be needed. The will further provides, to the end that these annuities may be effectually secured and duly paid that eleven thousand dollars of the estate shall remain undivided in the hands of the executors and be kept by them on good real estate security, and that the income therefrom shall be used in the payment of said annuities. It is further provided that upon the death of either annuitant so much of the eleven thousand dollars as shall not be necessary to secure the payment of remaining annuity shall be distributed in accordance with subsequent provisions of the will. The testator also authorizes his executors, whenever in their judgment these provisions are insufficient for the comfortable support of his wife and daughter, to take from this eleven thousand dollars such sums as may be necessary to give them the required support.
The widow waived the provisions of the will, and received her dower and homestead and an assignment of personal property. After this the executors set apart a fund of six thousand dollars to provide an annual income of three hundred and sixty dollars for the daughter. About the time this appropriation was made, the executors delivered to the judge of probate an account in which the sum of six thousand dollars was charged as a "legacy to be invested for Sarah Babbitt as provided by the will." Three years later the probate court allowed, on notice to all persons interested, an account based upon the balance ascertained by such prior account.
This action of the probate court did not constitute an adjudication of the questions now raised. It was at most no more than an approval of the creation of a separate fund of six thousand dollars. The setting apart of that sum for investment was in harmony with a distinct requirement of the will, and did not involve a determination of the exact amount the beneficiary was to receive. The questions whether the entire income of the sum set apart should be paid to the beneficiary, or whether she should in all circumstances be confined to the income received, were not necessarily raised by a consideration of the accounts. No such matter was in fact brought to the attention of the court or passed upon by it. So the claims made by this petition remained open questions.
The testator gives the petitioner a yearly payment of three hundred and sixty dollars, and directs the investment of an amount which at the legal rate of interest will produce that sum, and provides that the income of this fund shall be used in the payment of such bequest. The petitioner claims that this is a gift of an annuity, and that she is entitled to the payment of three hundred and sixty dollars yearly, whatever may be the expenses or receipts of the fund separately invested. The defendants insist that it is a gift of the income of six thousand dollars to be set apart for the petitioner's benefit, and that when this sum is separated from the body of the estate she is entitled only to the income of the fund so created, less the expenses of its management, and subject to such reduction as may result from a depreciation of the securities without their fault.
While the provisions of the will are not entirely...
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