Dwight v. Eastman

• Decision Date: 30 August 1890
• Parties: HENRY H. DWIGHT v. ELIZA J. EASTMAN ET AL
• Court: Vermont Supreme Court

20 A. 594

62 Vt. 398

HENRY H. DWIGHT v. ELIZA J. EASTMAN ET AL

Supreme Court of Vermont

August 30, 1890

MAY TERM, 1890.

The judgment of the County Court is reversed, and judgment rendered for the plaintiff to recover possession of the fifty-seven acres only. If any question of apportionment of costs is made, that question is remanded to the County Court.

Wing & Fay and D. C. Hyde, for the defendants.

J K. Darling, for the plaintiff.

Present ROYCE, Ch. J., Ross, POWERS and TYLER, JJ.

OPINION

ROSS

This action is ejectment. To maintain it, there must be both a right of possession in the plaintiff, and a wrongful possession by the defendants amounting to a disseisin of the plaintiff. Campbell v Bateman, 2 Aik. 177; Chamberlin v Donahue, 41 Vt. 306. The defendants are in possession. The question is whether the plaintiff has the legal right to the possession of the premises, against the defendants, except the 57 acres conveyed by Jonathan Eastman to John J. Eastman, to which the defendants admit they have no title. To the remainder of the premises the plaintiff claims title and right of possession through the foreclosure of mortgages given by John J. Eastman. The defendants claim right of possession to this remainder under the will of their grandfather, John Eastman, and under a mortgage given by John J. Eastman to their guardian, Samuel S. Kibbling, for their benefit, prior to giving the mortgages under which the plaintiff claims title and right of possession. Both parties take whatever rights they have to the possession of the premises in dispute from John Eastman; the plaintiff, under John Eastman's will, the license of the Probate Court, and conveyances coming to John J. Eastman, and the foreclosure of mortgages given by the latter; and the defendants, under the will of John Eastman directly, and if not under that, then through the license, conveyances, and a prior mortgage from John J. Eastman to their guardian for their benefit. If the defendants have title to the premises under the will of John J. Eastman, or right of possession under the mortgage from John J. Eastman to their guardian, their right of possession antedates, and is therefore paramount to, the right of the plaintiff, subject to a life estate in a part of the premises in dispute, which has terminated. John Eastman devised the premises by a clause in his will, as follows:

"I will and devise all the rest, remainder and residue of my property * * * to my son, John J. Eastman, and my daughter Rosette C. Hill, and their heirs, to be equally divided between them * * share and share alike, subject to the following conditions and limitations so far as the said Rosette is or may be concerned, to wit: It is my will that her husband, Henry H. Hill, shall in no way or manner have the control, use or income of any part of the property I have willed to her, the said Rosette, and I do furthermore will and direct, nominate and appoint Justin S. Morrill, of said Strafford, trustee to hold, manage and control the real and personal estate that may come to or fall to the said Rosette C. Hill by virtue of this my last will and testament, so long as the said Rosette remains the wife of the said Henry H. Hill, but the trusteeship is to terminate, should death or law sever the connection between them, and after the decease of the said Rosette, I will and devise the said share of Rosette to her children in fee, if any remain her; but should none of her children remain her, then I will and devise the same to the children of John J. Eastman, forever; but should none of the children of John J. Eastman remain him, and the said Rosette have a child, or children, living at her decease, then I will and devise that part of my estate devised to John J. Eastman to the heirs of the said Rosette C. After the decease of my said wife, Martha Eastman, I will, devise and direct that the estate hereby devised to her shall descend and go to my two said children, John J. Eastman and Rosette C. Hill, subject to the same limitations and conditions mentioned in the above devise to them." The language first used in making this devise, if left unqualified, is broad enough, being to "John J. Eastman and my daughter Rosette C. Hill and their heirs," to confer a fee. But this estate is made subject to "conditions and limitations so far as the said Rosette may be concerned." Then follow conditions and limitations, not only as to her, but as to the estate conferred upon the son. Then in the closing sentence, relating to that part of the estate given for life to his widow, the testator speaks...