Re Francis Mckeough's Est. v. John Mckeough, Apt

• Decision Date: 01 May 1896
• Citation: Re Francis Mckeough's Est. v. John Mckeough, Apt, 37 A. 277, 69 Vt. 41 (Vt. 1896)
• Parties: RE FRANCIS MCKEOUGH'S EST. v. JOHN MCKEOUGH, apt
• Court: Vermont Supreme Court

37 A. 277

69 Vt. 41

RE FRANCIS MCKEOUGH'S EST. v. JOHN MCKEOUGH, apt

Supreme Court of Vermont

May 1, 1896

May Term, 1896.

REARGUMENT. The foregoing decision was announced at the May Term, 1895; whereupon the appellant filed a motion for a rehearing, stating as grounds thereof that the judgment of the court below was based upon the finding of that court that the testator in fact intended the devise to include the entire property, and that such finding and judgment are conclusive, whereas the court in its opinion has wholly overlooked this question. Upon said motion the certificate was stayed and the cause continued for reargument, which was heard at the January Term, 1896.

Order of stay of certificate vacated.

R E. Brown and W. H. Bliss for the appellant.

TAFT ROWELL, TYLER, MUNSON, START and THOMPSON, JJ.

OPINION

MUNSON

This case has been heretofore disposed of upon the theory that the decision of the county court involved a matter revisable in this court, and it is now before us upon a rehearing of that question. The case was tried below by the court, and the appellant contends that the decision of that court was no more than a finding of fact as to the testator's intent, and was therefore final.

The county court received certain evidence from which it found the facts recited in the former opinion. Extrinsic evidence is ordinarily received to aid the court in arriving at the testator's intention by a construction of the terms of his will, but it is sometimes received to prove the testator's intention as an independent fact. This is the case when the words of the will "are applicable indifferently to more than one person or thing," and so present nothing to determine which person or thing was intended. But when the extrinsic facts disclose but one person or thing that adequately answers the discription given, this evidence of intention cannot be received. The disposition must then be in accordance with the intention expressed in the will, whatever the testator's actual intention may have been.

If the county court had been called upon to determine which of two parcels the testator intended to devise by language which applied with equal accuracy to each, the appellant's contention might be sustained. But we think the inquiry in this case cannot properly be treated as of that nature. The question to be determined was whether the whole or a part only of the testator's premises on the west side of Champlain street was covered by a devise of his home place. The...