Lovejoy v. Raymond

• Citation: 2 A. 156,58 Vt. 509
• Parties: CASSANDRA, DON C., AND CORNELIUS LOVEJOY v. N. R. RAYMOND AND OTHERS. (In Chancery.)
• Decision Date: 15 January 1886
• Court: United States State Supreme Court of Vermont

2 A. 156

58 Vt. 509

CASSANDRA, DON C., AND CORNELIUS LOVEJOY v. N. R. RAYMOND AND OTHERS. (In Chancery.)

Supreme Court of Vermont, Lamoille County

January 15, 1886

Bill in chancery. Heard on bill and answers, December Term, 1883 POWERS, Chancellor. Bill dismissed. The will was, in part "I give and grant to my daughters * * * the yearly interest on the sum of $ 800 each * * * which interest is to be paid to my said daughters by my said three sons. * * * And it is my will that the heirs of each of my said two daughters, if any, when they shall arrive at full and lawful age shall receive the sum of $ 800, which shall be paid such heirs by my three sons unless my said daughters shall choose to have the said sum of $ 48 each paid to them as before, in which case the money not to be paid to my said heirs until the death of my said daughters. * * * And I herein will and grant to my three sons * * * the sum of $ 1,600 in trust for my two daughters; the principal in no case to be paid to either of them, but to share equally in the yearly interest. * * * And it is my will, at the time of the settlement of my estate, if my said daughters shall require security for the payment of such interest, yearly by my said sons, they shall give the same. And my said sons shall give security to my said wife. * * * In case said sum of $ 800 shall be paid to the heir first arriving at age, such heir shall receive said sum in trust for such heirs, sister or brothers; as it is my intention that the heirs of each of my daughters shall share equally in such sum so given in trust Should either of my said daughters have issue and die before such shall arrive at full age, the interest to be paid for the support of said heirs by my said three sons until they shall arrive at full age, at which time the principal is to be paid to said heir in trust. * * * The residue and remainder of my estate, both real and personal, I give and grant to my three sons * * * in equal proportions, without regard to age or condition, on condition that they shall provide for and support their mother, Orpha Raymond, as is hereinbefore mentioned, so long as she shall remain unmarried; and shall also, at all times do by their mother as is hereinbefore particularly mentioned and treat her with all the civilities due her as a mother; and also, on condition my said sons shall faithfully perform their duties as trustees for my daughters and their heirs as is mentioned herein."

Reversed and cause remanded, with a mandate.

P. K. Gleed, for the orators.

The words in the will, "residue and remainder," are sufficient to create a charge on the land received by the sons. 2 Jarm. Wills, 582, n.; Dunbar v. Dunbar, 3 Vt. 472; Scott v. Patchin, 54 Vt. 253; Casey v. Casey, 55 Vt. 518; Sherman v. Sherman, 4 Allen, 393; 1 Red. Wills, 279; 1 Roper Leg. 674; Taft v. Morse, 4 Met. 523; Knotts v. Bailey, 54 Miss. 235; 2 M. & C. 695; Adams Eq. 397; Gardner v. Gardner, 3 Mason, 178; 2 Perry Tr. s. 796; Andrews v. Sparhawk, 13 Pick. 393; Cole v. Turner, 4 Russ. 376; 1 Red. Wills, 279; 12 Ch. Div. 162; Gallemore v. Gill, 8 De G. M. & G. 566; Lewis v. Darling, 16 How. 1; 7 Paige, 421. The purchasers were put upon inquiry and were bound to take notice of all that is shown by the public records. Hill v. Murray, 56 Vt. 177; Scott v. Patchin, supra; 36 Vt. 210; 16 Id. 179; 49 Pa. St. 223; Gardner v. Gardner, 3 Mason, 178; 15 Pet. 93; 3 Wash. Real Prop. 292; Oliver v. Piatt, 3 How. 333.

George Wilkins, for the defendants.

It is insisted that, on a fair construction of the will, the three sons had an implied power of sale; the intention of the testator, not to embarrass his sons in the sale of the estate, by a charge thereon, is apparent from this provision in the will: "If my said daughters shall require security for the payment of such interest yearly by my said sons, they shall give the same." Thus clearly indicating the testator's expectation that, in the absence of a requirement of such security, the performance of their duty under the will would depend on their personal honor. If there had been an express provision in the will that the sons could sell, there would be no doubt but that they could convey a complete title to a bona fide purchaser, who would be under no obligation to see that the fund was properly applied. Story Eq. 1124-1135; Hill. Trust. 363; 12 E. L. & Eq. 357. An implied power to sell is as effective as an express power.

OPINION

ROYCE, Ch. J.

Asahel Raymond, by his will executed April 27, 1849, devised the yearly interest on $ 800 to each of his two daughters, Harriet R. Thomas and Elizabeth R. Lovejoy, and directed that such interest be paid to them by his three sons, as is mentioned hereafter; and further directed that when the heirs of either of his said daughters should arrive at lawful age said sum of $ 800 should be paid to them, unless his said daughters should choose to have said sum of $ 48 paid to each of them annually as before. There were further provisions as to the disposition to be made of said $ 1,600, in case of his daughters, or either of them, dying without issue, which are not necessary to be noticed. He devised to his three sons, George, Asa, and Nathan R. Raymond, the sum of $ 1,600 in trust for his two daughters aforesaid, the principal in no case to be paid to them, but they to share equally in the interest, which was to be paid to them yearly, commencing in one year from his decease, with a provision that in a certain contingency the principal might be paid to the heirs of his said daughters, as is above stated.

The residue and remainder of his estate, both real and personal, he devised to his three sons above named, upon condition that they should support and provide for their mother as required by the will, and faithfully perform their duties as trustees for his said daughters and their heirs, as is mentioned in said will.

The legacies to the testator's daughters were made upon the supposition and belief that the testator's estate, after paying debts and the expenses of settlement, would amount to $ 5,000, and if the estate should not amount to that sum, the legacies were to be proportionally diminished. Upon the final settlement of the estate, the amount passed over to the trustees under the will was $ 3,333.38.

At the time of the decease of the testator, he was the owner...