Re Lyman H. Tucker's Will, Fogg Et. Al. Appts v. Admr. of Ezra Tucker's Estate
| Decision Date | 01 October 1890 |
| Citation | 21 A. 272,63 Vt. 104 |
| Parties | RE LYMAN H. TUCKER'S WILL, FOGG ET. AL. APPTS v. ADMR. OF EZRA TUCKER'S ESTATE, APPELLEE |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1890
This was an appeal from a decree of the Probate Court for the Randolph District decreeing the remainder in Lyman H. Tucker's estate to the administrator of Ezra Tucker. Heard upon an agreed statement of facts at the December term, Orange county, 1889, Rowell, J., presiding. The court reversed the decree of the Probate Court, pro forma. The administrator of Ezra Tucker, appellee, excepts. The facts appear in the opinion.
Judgment reversed, judgment for the appellee, and ordered certified to the Probate Court.
D. C. Dennison & Son, for the appellee.
After certain bequests, the testator gave to his sister, Diana, the use and occupancy of the residue of his estate, during her natural life, and at her decease, directed that it should then be distributed among his lawful heirs. At his death, his father, Ezra Tucker, was living and was his lawful heir. Ezra died before the decease of Diana, and the administrator of his estate claims the residue, as against the appellants, who were the lawful heirs, failing Ezra, at the time of Diana's death. The words of the will "amongst my lawful heirs" had reference to those persons who were the lawful heirs of the testator at the time of his death, not those who might be such at the time of Diana's death. No estate will be held contingent unless very decided terms are used in the will, or it is necessary to so hold in order to carry out the other provisions or implications of the will. Weatherhead v. Stoddard, 58 Vt. 623. We think the right to the residue of the estate, vested at the time of the testator's death, in his then heir, his father, Ezra Tucker, subject to the life estate of Diana, and that upon the latter's death, the administrator of the estate of Ezra is entitled to the property.
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