Semmig v. Mirrihew

• Decision Date: 03 December 1894
• Citation: 67 Vt. 138,30 A. 691
• Court: Vermont Supreme Court
• Parties: SEMMIG v. MIRRIHEW.

30 A. 691

67 Vt. 138

SEMMIG

v. MIRRIHEW.

Supreme Court of Vermont. Chittenden.

Dec. 3, 1894.

Exceptions from Chittenden county court.

Assumpsit by Maggie B. Semmig against Hiram Mirrihew. There was a judgment for defendant, and plaintiff excepts. Affirmed.

The material part of the will was as follows: "It is my will that all my just debts and funeral expenses be paid and discharged, as soon as conveniently may be after my decease, out of the proceeds of my real estate. I give and bequeath unto my beloved wife, Maggie B. Chittenden, and her heirs and assigns, all the personal property, together with all the household furniture. I give, devise, and bequeath to my said wife, Maggie B. Chittenden, and my daughter, Ethel Chittenden, and their heirs, forever, to be equally divided between them, all my real estate, consisting of seventy-five acres of land, more or less, situated on both sides of Dorset street, in said South Burlington; provided, if my said daughter, Ethel L., should die before attaining the age of eighteen years, then it is my will that the whole of my real estate should go to my wife, Maggie B. The above grant of real estate is subject, however, to the above provision for the payment of my debts and funeral expenses. And, furthermore, it is my will that my said wife, Maggie B., shall have entire control of the whole of my real estate until the time that my daughter, Ethel L., shall arrive at the age of eighteen years. Unless she, the said Maggie B., shall think best to sell and dispose of said real estate before that time, then said Maggie B. Is to have full power and authority to sell the same, and to divide the proceeds of such sale (after paying the debts) with the said Ethel L. equally. I do hereby nominate and appoint my esteemed friend Hiram Mirrihew, of said South Burlington, guardian of my daughter, Ethel L., until the said Ethel L. arrives at the age of eighteen years or intermarries, without bonds. I do hereby nominate and appoint my said wife, Maggie B. Chittenden, executrix of this, my last will and testament, without bonds."

Seneca Haselton and Charles T. Barney, for plaintiff.

Hard & Bliss, for defendant.

ROSS, C. J. 1. The plaintiff was the wife of Albert M. Chittenden, deceased, and the executor of his will. The principal contention is as to the plaintiff's rights under the will (which was duly probated) to the amount paid by her to the defendant, as guardian of the testator's daughter, Ethel L., who died before she attained the age of 18 years. The testator, by his will, charged his real estate with the payment of his debts and funeral expenses. He gave all his personal property and household furniture to the plaintiff. Then, subject to the payment of his debts and funeral expenses, he devised his real estate to be divided equally between the plaintiff and his daughter, Ethel L., with the proviso that if Ethel L. shall die before attaining the age of 18 years, then the whole real estate is given to the plaintiff. Prom this clause of the will, standing alone, the daughter, subject to the payment of his debts and funeral expenses, took one-half of the real estate in fee, with a conditional limitation or subject to be defeated on the happening of the condition named. On the happening of the condition, the plaintiff took the whole real estate. The daughter died before attaining the age of 18 years. If, at the time of her decease, the property had, remained real estate, the plaintiff would have been entitled to the whole of the real estate, charged with the payment of the debts and funeral expenses of the testator. The real estate was incumbered with the payment of an annuity and a small mortgage. The will gives the whole control of the real estate to the plaintiff until the daughter becomes 18 years old. Then, evidently thinking that caring for the real estate, which consisted of 75 acres of land, and the payment therefrom of the mortgage and annuity, might become burdensome to the plaintiff, the testator adds the further provision that, if the plaintiff should think best to sell the real estate before the daughter reached the age of 18 years, she should have full authority to make the sale, and, after paying the charges thereon, divide the proceeds of the sale equally with the daughter. The plaintiff exercised this authority, sold the real estate, paid the charges, and divided the remainder of the proceeds, and paid over one-half of them to the defendant, who had been appointed guardian of the daughter. The contention is, first, whether, by exercising the power and selling the real estate, the plaintiff lost the right which she would have had to the whole of the real estate on the death of the daughter, or whether, upon the death of the daughter, she had the same right to the proceeds of the sale which she would have had to the property sold. On the condition, which has happened, if the property had remained in its original state, it is the clearly-expressed purpose of the testator to give the plaintiff the whole of the real estate. This clearly-expressed devise to the plaintiff will not be defeated unless the later provision in regard to the...