Gilman v. Morrill

The opinion of the court was delivered by Williams, Ch. J. — The petitioners do not claim’ any interest in the premises, by virtue of the will of Jeremiah Morrill the elder. All the interest in' his estate, which Peggy Gilman, one of the petitioners, has under that will, ceased on her intermarriage with John Gilman the other petitioner. But they claim one half of the estate, which belonged to Joseph Morrill deceased, on the ground that his estate is to descend, or be distributed to his brother' and mother equally. To decide this question, it seems only necessary to ascertain What estate Joseph and Jeremiah S. Morrill took under the will of their father. For if they took án estate as joint-tenants, then the argument which has been advanced would be unanswerable. The right of survivorship would give the whole to the petionee, as surviving joint-tenant. ’ Under thé will of Jeremiah Morrill, his two sons, Joseph and Jeremiah, took an estate in common by purchase.- There is nothing in the will which indicates or manifests any intention in the devisor, that the estate should vest in them and be held as a joint-estate. Nothing to that effect having been “said” in the devise, the estate devised is to be deemed and adjudged an estate in common and not in joint-tenancy, agreeably to the 11th section of the statute Tor the partition of real estate. If the statute, which was in force in 1815 when Jeremiah Morrill died, had remained unrepealed, Mrs. Gilman would, on the decease of Joseph Morrill, have been entitled to the whole of his share or estate as next of kin. The 29th and 30th sections of the probate law then in force, had reference only to the children of those who died intestate. But there is no doubt that’our present probate lawT, which was enacted in 1821, -must regulate the descent of Joseph Morrill’s estate. It is competent for the legislature to provide a rule of descent, as it respects real estate, and to change it from time to time, provided the law is not retrospec [78] tive. Whatever estate Joseph Morrill had, at the time of passing the present statute, or might thereafter acquire, which would descend to his heirs on his decease, must have been decreed to such persons as the existing law pointed out. His mother, being one of the persons designated by the law, must therefore take a share in his estate. The statute is not retrospective — interferes with no vested rights of Jeremiah S. Morrill; for he has none in the estate of his brother, neither was there any’ vested right of inheritance in either of the devisees of Jeremiah Morrill the elder, as has. been so strenuously contended by the counsel for the petitioners. Nor is the fact that Joseph died a minor, incapable of making a will, entitled to any consideration. His estate was no different during his minority, from what it would have been on his arriving at full age. It could have been disposed of during his life, like the estate of other minors, according to the provisions of the statute, and, on his decease, descended like other estates to the persons designated by law. - Considering that Mrs. Gilman does not claim this estate under the will of her former husband; that the two brothers, Joseph ■and Jeremiah, under the will took an estate in common, and neither had any vested or immediate interest in the share of the other; the only conclusion to which we come is, that on the decease of Joseph Morrill, his estate, in the premises in question, became the property both of his mother and brother, and liable to be divided accordingly. The judgment of the county court, which was to this effect, must be affirmed.