Douglas v. James

• Decision Date: 11 December 1893
• Parties: JULIUS P. DOUGLAS, ADMINISTRATOR, ETC. v. CURTIS H. JAMES
• Court: Vermont Supreme Court

28 A. 319

66 Vt. 21

JULIUS P. DOUGLAS, ADMINISTRATOR, ETC. v. CURTIS H. JAMES

Supreme Court of Vermont

December 11, 1893

GENERAL TERM, 1893

Ejectment. Plea, the general issue. Trial by court upon an agreed statement of facts, at the December term, Addison county, 1891, ROSS, C. J., presiding. Judgment, pro forma for the plaintiff. The defendant excepts.

Judgment reversed and judgment for defendant.

Stewart & Wilds for the defendant.

OPINION

ROWELL

The part of the will that we are called upon to construe reads as follows:--

"I give, devise, and bequeath all the remainder of my estate real and personal, in equal shares, to my children who may be living at the time of my decease, during their respective natural lives, and after their respective deaths, in equal shares to their respective children; and if any child shall have died previous to my decease, leaving children, the share of such child shall go to his or her children in equal shares; provided that if any of my said children shall die after my decease, without children, the share of such child shall be equally divided among my other children in the same manner as my other estate."

Polly Hurd, the defendant's grandmother, was a daughter of the testator's, and long survived him, and died without children, her daughter, Salome James, the defendant's mother, having died before the will was made. The demanded premises were set off to Mrs Hurd for life, and she possessed them till her death, and the defendant has possessed them since; and the question is, whether he is entitled to them under the will.

In the first place, the testator gives life estates to his children that survive him, remainders to their children. Had he stopped here, none of his grandchildren would take except the children of his surviving children. But he goes on to say, that "if any child shall have died previous to my decease, leaving children, the share of such child shall go to his or her children in equal shares." It is claimed that the words, "any child," as here used, relate equally to the testator's descendants of either degree named in the previous clause, and include grandchildren as well as children, and therefore include the defendant's mother; that the words, "the share of such child shall go," etc., mean, that the share such child would have taken if living, "shall go," etc.; that the words of the proviso, "if any of my said children shall die after...