Burton v. Provost

• Decision Date: 25 February 1903
• Citation: 75 Vt. 199,54 A. 189
• Court: Vermont Supreme Court
• Parties: BURTON v. PROVOST et al.

54 A. 189

75 Vt. 199

BURTON

v. PROVOST et al.

Supreme Court of Vermont. Bennington.

Feb. 25, 1903.

Appeal in chancery, Bennington county; Munson, Chancellor.

Bill by Mary Gerrans Burton against John M. Provost and others. From a decree for orator, defendants appeal. Affirmed.

Argued before TYLER, START, WATSON, STAFFORD, and HASELTON, JJ.

William R. Daley, for appellants.

Batchelder & Bates, for appellee.

HASELTON, J. Elias B. Burton, late of Manchester, died testate, leaving surviving him a widow and three daughters, Agnes, Ella, and Fanny; two of whom were married women with children, the third being a widow with no children. The only question in this case is as to the construction of a clause in the will of Elias B. Burton. The fifth and sixth clauses in said will read as follows: "I also will, devise and bequeath to her [his wife] the use and occupancy during her natural life, of the house, buildings and premises belonging to me and occupied by me as a homestead, situated in the village of Manchester, and in the case of the destruction by fire of any of the buildings or property any insurance that may be effected upon said property shall belong and be paid to my said wife, Mary G., for her use and benefit. I will and devise ail my money claims not hereinbefore referred to, meaning all notes, mortgages, debentures, bank stock, evidences of indebtedness of every kind and choses in action, I may have at my death, should be held by my executors in trust to keep the same secure and remunerative, and to pay the interest and income arising therefrom to my said wife, Mary Gerrans, during her natural life for her own use and benefit, and at her death the principal remaining of said trust, as well as the reversionary interest in said homestead and premises, to belong to and be divided equally among my said three daughters and their heirs." The precise question raised is whether the interest in the homestead and premises devised to the daughters is a vested or a contingent remainder. Under the authorities in this state it is clear that the remainder vested in the daughters upon the death of the testator, the enjoyment of the vested estate being postponed. In re Tucker's Will, 63 Vt. 104, 21 Atl. 272, 25 Am. St. Rep. 743; Jones v. Knappen, 63 Vt. 391, 22 Atl. 630, 14 L. R. A. 293, and cases there cited. The rule never to be lost sight of in determining whether a devised estate is vested or contingent is well stated in each of the above-named cases....