In re Robinson's Estate

• Decision Date: 10 October 1916
• Citation: 98 A. 826
• Parties: In re ROBINSON'S ESTATE. Appeal of HALL.
• Court: Vermont Supreme Court

98 A. 826

In re ROBINSON'S ESTATE. Appeal of HALL.

Supreme Court of Vermont. Bennington.

Oct. 10, 1916.

Exceptions from Bennington County Court; Fred M. Butler, Judge.

Proceedings for distribution in the estate of David Robinson, deceased. Judgment of the county cqurt affirming pro forma the probate court's final decree, and Sarah R. Hall excepts. Heard on an agreed statement of facts. Judgment affirmed to be certified.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Holden & Healy, of Bennington, for appellant. William H. Botsford, of Rutland, for appellees.

TAYLOR, J. This is an appeal from the order of distribution in the estate of David Robinson, late of Bennington. By his original will the testator gave his household furniture and wearing apparel to his nephew, George W. Robinson. After making certain other specific bequests not important to this inquiry, a trust was created for the benefit of the said George W. with remainder to his heirs. In a codicil, after reciting the provisions of said trust which are expressly revoked, the following provision was made as a substitute therefor:

"I David Robinson do give and devise all the rest, residue and remainder of my real and personal estate, after payment of the legacies and annuity in my original will mentioned, to my friends John S. Robinson and John F. Robinson and the survivor of them upon the special trust following, that is to say, that they the said John S. and John F. and the survivor of them shall pay and apply from time to time as in their discretion may be necessary the whole of the rents, profits, interest and income of my real and personal estate for the support and maintenance of my nephew George W. Robinson and Jane his wife, for and during the term of their natural lives and the life of the survivor of them as well, also for the support and education of the children of the said George W. Robinson. And after the decease of both the said George W. Robinson and Jane his wife, I give, devise and bequeath all the real and personal estate remaining in the hands of my said trustees, or to which I may be entitled, either in law or equity, to the children of the said George W. Robinson and Jane his wife, in fee simple, to be equally divided between them when the youngest child of the said George W. Robinson and Jane his wife shall have attained the age of twenty-five years."

Provision was made for the disposition of the income of the trust fund in case neither of the life tenants should survive until their youngest child reached the age of 25 years by a requirement that it should annually be applied for the support and education of said children until the youngest attained that age.

The parties have stipulated that the facts recited in the decree of the probate court are to be treated as agreed to. It appears therefrom that the said George W. and his wife used and occupied the real estate in question pursuant to the provisions of the will until the decease of the former, September 30, 1891; and that after the death of George W. the widow used and occupied the premises in the same manner until her death, which occurred in June, 1902. George W. and Jane Robinson had nine children, of whom the appellant was one. All of said children survived the said George W. and were above the age of 25 at the time of his death. Three of said children, viz. Agnes Robinson, Chester Robinson, and Fanuie Robinson Harrison, died intestate before the death of Jane Robinson. All of the nine children were living at the time of the testator's death, and all except the youngest, George A., at the time the will and codicil were executed. The remaining six children are still living and participate in the distribution. In 1897, shortly before her death, Fannie conveyed by quitclaim deed to her brother George A.:

"All the right, title and interest which I have and own as heir of George W. Robinson, late of Bennington deceased and his wife Jane E. Robinson in and unto the following land and premises, being the property known as the David Robinson farm * * * and being the same property left by David Robinson by will to Mrs. Jane E. Robinson wife of George W. Robinson and her children and being the homestead occupied by the said George W. Robinson in his lifetime."

In 1878, and after testator's death, Chester Robinson conveyed his interest in the real estate under the will to his brother Heman.

By the decree appealed from the probate court assigned all the personal estate remaining for distribution to the six children now living in equal shares. It divided the real estate remaining for distribution into eight shares and assigned to each of the six surviving children one-eighth part as children of the said George W. and Jane Robinson, and to Heman Robinson and George A. Robinson, each one-eighth part, as assignees of the two deceased children. Commissioners were appointed to make partition of the estate among the distributees. On appeal the county court affirmed the decree of the probate court strictly pro forma, to which the appellant excepted. Her objections to the decree of distribution will be considered in the order in which they are discussed in her brief.

It is contended that the personal estate consisting of household furniture passed under the will to George W. Robinson and should have been assigned to his representative. Some of the personal estate described in the decree as for distribution is of "the nature of household furniture; but the facts recited are silent as to whether these articles were embraced in the household furniture intended to be bequeathed to George W. Besides the decree recites:

"Whereas it has been made to appear to said court that all specific legacies of the said testator have been fully paid, and the conditions thereof fully complied with."

With the agreed facts standing thus, error in the distribution of the personal estate is not made to appear. No question is raised as to the right of the representatives of the deceased...