At the time of her death, Nellie Crossman left a last will and testament, dated March 9, 1918, the proper execution and probate of which have not been questioned, consisting exclusively of three paragraphs — omitting the formal beginnings and endings — as follows:
"First: I give, devise and bequeath to my son Julius M. Crossman all my right, title and interest which I have, or may claim to have at the time of my decease, in the following *Page 409 described property: — A house and two lots situated on Horton Street, so-called, in said City of Rutland, and known as No. 260 Horton Street and the lot adjoining, being the same property on which I hold a mortgage for Sixteen Hundred ($1,600) Dollars, executed to me by the said Julius M. Crossman, bounded on the North by property of the said Julius M. Crossman; on the East by the Rutland Fire Clay Company; on the South by land owned by Emma M. Murther, and on the West by the highway known as Horton Street.
"Second: In case that my said son, Julius M. Crossman is not living at the time of my decease, I give, devise and bequeath the above described property and interests to Evelyn P. Crossman, wife of the said Julius M. Crossman.
"Third: It is my will that the legacy to my son, Julius M. Crossman and Evelyn P. Crossman as contained and set forth in paragraphs, number first and second of this will, be given and received by the said Julius and Evelyn Crossman in full of all rights and legacies to which they might be entitled, according to the laws of descent, or otherwise, at my decease."
There was no residuary clause.
A decree of distribution of the estate was made by the probate court, which states that it appears by the records and files of the court that after the payment of the debts and funeral charges of the deceased and the expenses of administration of her estate, and after distribution of furniture, duly appraised at the value of $250.00, among her heirs, there remains in the hands of the administrator, as the residue and surplusage of said estate, the following: "Premises situated at No. 102 Gibson Avenue, in the City of Rutland, duly appraised by the appraisers of said estate at the value of $6,000.00, and the sum of $83.52 in money;"
That it further appears by the records and files of the court that there is now recorded in Book 28, page 459, of the Land Records of the city of Rutland, a certain mortgage deed given by Julius M. Crossman and Evelyn P. Crossman to the decedent, Nellie Crossman, upon premises described as follows: "Beginning in the east line of Horton St., so-called, at a point 240 feet southerly from the south line of Curtis Ave., so-called, and running thence southerly along the east line of Horton Street 120 feet; thence easterly and parallel with Curtis Ave. 150 feet; thence northerly and parallel with Horton Street 120 *Page 410 feet; thence westerly and parallel with Curtis Ave. 150 feet; to the place of beginning." Which said mortgage was given to secure the payment of a certain promissory note for the sum of $1,600.00 dated March 14, 1916, payable to the order of said Nellie Crossman in installments of at least $100.00 each year, with the right to make additional payments at any time, until said note is fully paid, together with interest at the rate of five per cent. per annum according to the tenor and effect of said note, which mortgage bears date March 14, 1916, and has never been discharged of record;
That said Nellie Crossman, deceased, left surviving her no husband; but left as heirs at law and only next of kin, three children, namely, Julius M. Crossman (appellant), Warren J. Crossman, and Nellie J. Ballard.
The Probate Court decreed to said Julius M. Crossman "all the right, title and interest which the said Nellie Crossman had, or may claim to have had, at the time of her decease, in the above described property known as 260 Horton Street and the lot adjoining. To have and to hold the same as aforesaid, to said Julius M. Crossman, his heirs, executors, administrators and assigns forever, according to the terms of said will and according to law."
The said court further decreed that the said "residue and surplusage" of the estate of said Nellie Crossman, above described, passes to and vests in said Warren J. Crossman and said Nellie J. Ballard, children of the deceased, "as intestate estate," according to the law of descent of intestate estate in force at the time of the decease of said Nellie Crossman, in the following shares and proportions: "To each an undivided one-half interest in the above described premises situated in the City of Rutland at 102 Gibson Avenue, and to each the sum of $41.76 in money. To have and to hold the same as aforesaid to said Warren J. Crossman and Nellie J. Ballard, and each of them, and each of their heirs, executors, administrators and assigns forever."
From the foregoing decree of distribution, an appeal was taken by said Julius M. Crossman, and in connection with the filing of such appeal he set forth in writing his objections and exceptions to that part of the decree distributing the residue of said estate, decreeing and directing the distribution of said residue to Warren J. Crossman and Nellie J. Ballard, children *Page 411 of the deceased, thereby denying to the appellant, and depriving him from, all participation therein; "for that the same is contrary to the statutes of this State relative to the distribution of intestate estates." On such appeal the case is now in this Court for review.
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