In re Petition of Heath

• Decision Date: 05 January 1880
• Citation: 12 R.I. 479
• Parties: PETITION OF JAMES C. HEATH et al. for an Opinion of the Court.
• Court: Rhode Island Supreme Court

12 R.I. 479

PETITION OF JAMES C. HEATH et al. for an Opinion of the Court.

Supreme Court of Rhode Island.

January 5, 1880

Devise as follows:

" I give, devise, and bequeath the use, improvement, and income of the farm in Middletown, containing about forty acres and a half, which farm I purchased of the late John Mitchell, to my four grandchildren, children of my daughter Hepsibah M. Heath, deceased, viz.: Francis M. Heath, James C Heath, Sarah M. Heath, and Annie C. Heath, during their natural lives. At their decease, I give, devise, and bequeath said farm to their children, if they, or either of them should leave any, to them, their heirs, and assigns forever. If my said grandchildren, children of my said daughter Hepsibah, deceased, should leave no children or child, then in that case, I give and devise said farm to all my grandchildren then living, in equal shares, to them, their heirs, and assigns forever."

Followed by a codicil as follows:

" Now, whereas, my granddaughter, Sarah M. Heath, that was, has since died, and left one child. Now if that child shall die without lawful issue, then, in that case, I give devise, and bequeath the share that that great-grandchild would have haired from his mother to the other three grandchildren, viz., Francis M., James C., and Annie C. Heath, their heirs and assigns forever."

On a case stated to obtain a construction of these testamentary dispositions, Francis M. Heath being dead, and his child, Norma F. Heath, being a party to the proceedings:

Held, that James C. Heath and Annie C. Heath were each entitled for life to one undivided fourth part of the farm, as tenants in common and without any right of survivorship.

Held, further, the great-grandchild being alive, that the contingency on which the codicil was to take effect has failed, and that the great-grandchild was entitled under the will to a fee simple in one undivided fourth part of the farm.

Held, further, that Norma F. Heath, daughter of Francis M., was entitled to a fee simple in one undivided fourth part of the farm.

Darius Baker, for the petitioners.

DURFEE, C. J.

This is a case stated for the opinion of the court under Pub. Laws R.I. cap. 563, § 16, of April 20, 1876. The case shows that James Chase, deceased, left a will dated May 29, 1860, and a codicil thereto, dated November 5, 1864, which were admitted to probate. The will contained the following provision, to wit: " I give, devise, and bequeath the use, improvement, and income of the farm in Middletown, containing about forty acres and a half, which farm I purchased of the late John Mitchell, to my four grandchildren, children of my daughter Hepsibah M. Heath, deceased, viz.: Francis M. Heath, James C. Heath, Sarah M. Heath, and Annie C. Heath during their natural lives. At their decease, I give, devise, and bequeath said farm to their children, if they, or either of them, should leave any, to them, their heirs, and assigns forever. If my said grandchildren, children of my said daughter Hepsibah, deceased, should leave no children or child, then, in that case, I give and devise said farm to all my grandchildren then living, in equal shares, to them, their heirs, and assigns forever."

The codicil contained the following provision, to wit:

" Now, whereas, my granddaughter, Sarah M. Heath, that was, has since died, and left one child. Now if that child shall die without lawful issue, then, in that case, I give, devise, and bequeath the share that that great-grandchild would have haired from his mother to the other three grandchildren, viz., Francis M., James C., and Annie C. Heath, their heirs and assigns forever."

The name of said great-grandchild is Ralph Gifford, who joins in the statement of his guardian. The said Francis M. Heath recently died, leaving a child, Norma F. Heath, who has been summoned in, as also have been the two children of James C. Heath.

Three questions are submitted to the court for decision, to wit:

1. Do James C. Heath and Annie C. Laraway, formerly Annie C. Heath, hold the farm mentioned as joint tenants for life, or did they take as tenants in common?

2. What interest and estate has Ralph Gifford in said farm?

3. What interest and estate has Norma F. Heath in said farm?

1. The rule...