Dwight v. Eastman

The opinion of the court w'as delivered by Ross, J. This action is ejectment. To maintain i.t, there-must be both a right of possession in the plaintiff, and a wrongful possession by the defendants amounting to a disseisin of the-plaintiff. Campbell v. Bateman, 2 Aik. 177; Chamberlin v. Donahue, 41 Vt. 306. The defendants are in possession. The question is wdiether the plaintiff has the legal right to the possession of the premises, against the defendants, except the 5T acres conveyed by Jonathan Eastman to John J. Eastman,, to which the defendants admit they have no title. To the remainder of the premises the plaintiff claims title and right of possession through the foreclosure of mortgages given [401] by John J. Eastman. The defendants claim right of possession to this remainder under the will of their grandfather, John Eastman, and under a mortgage given by John -J. Eastman to their guardian, ■ Samuel S. Kibbling, for then-benefit, prior to giving the mortgages under which the plaintiff claims title and right of possession. Both parties take •whatever rights they have to the possession of the premises in dispute from John Eastman; the plaintiff, under •John Eastman’s will, the license of the Probate Court, and conveyances coming to John J. Eastman, and the foreclosure of mortgages given by the latter; and the defendants, under the •will of John Eastman directly, and if not under that, then through the license, conveyances, and a prior mortgage from John J. Eastman to their guardian for their benefit. If the -defendants have title to the premises under the will of John Eastman, or right of possession under the mortgage from John J. Eastman to their guardian, their right of possession antedates, and is therefore paramount to, the right of the plaintiff, /■subject to a life estate in a part of the premises in dispute, which has terminated. John Eastman devised the premises by ¿a clause in his will, as follows: “ I will and devise all the rest, remainder and residue of my /property * * * to my son, John J. Eastman, and my •daughter, Rosette C. Hill, and their heirs, to be equally divided between them * * share and share alike, subject to the following conditions and limitations so far as the said Rosette is •or may be concerned, to wit: It is my will that her husband, Henry H. Hill, shall in no way or manner have the control, use -or income of any part of the property I have willed to her, the said Rosette, and I do furthermore will and direct, nominate and Appoint Justin S. Morrill, of said Strafford, trustee to hold, manage and control the real and personal estate that may come to •or fall to the said Rosette C. Hill by virtue of this my last will And testament, so long as the said Rosette remains the wife of ¿the said Henry H. Hill, but the trusteeship is to terminate, ■should death or law sever the connection between them, and after the decease of the said Rosette, I will and devise the said ¿share of Rosette to her children in fee, if any remain her ; but [402] should none of her children remain her, then I will and devise? the same to the children of John J. Eastman, forever ;; but should none of the children of John J. Eastman remain him,, and the said Eosette have a child, or children, living at her decease, then I will and devise that part of my estate devised to-John J. Eastman to the heirs of the said Eosette C. After the-decease of my said wife, Martha Eastman, I will, devise and direct that the estate hereby devised to her shall descend and go to my two said children, John J. Eastman and Eosette 0. Hill, subject to-the same limitations and conditions mentioned in the above devise to them.” The language first used in making this devise,, if left unqualified, is broad enough, being to £: John J. Eastman and my daughter Eosette C. Hill and their heirs,” to confer a fee. But this estate is made subject to ££ conditions and limitatations so far as the said Eosette may bo concerned.” Then follow conditions and limitations, not only as to her, but as to the estate conferred upon the son. Then in the closing sentence, relating to that part of the estate given for life to his Avidow, the testator speaks of having given the estate, subject to conditions and limitations, to both his son and daughter. Such, we-think, was his intention. It does not appear that at the time the will was made, either the son or daughter had a child or-children who could take the reversión in the estate. They might never have any children who would survive them. In-that case the testator intended that they should take a fee, and the estate should descend to their hoirs. But in case one or both had children avIio survived them, the testator uscslanguage Avhich clearly and explicitly gives the reversion in the-estate devised to the son and daughter, to such children, and this is a condition or limitation upon the estate conferred upon-the son and daughter, and reduces the estate' conferred upon the son and daughter, in case children should be bom to either,, and survive them, to a life estate. The children took a contingent fee in the reversion as soon as born, subject to be defeated if their decease should precede the decease of their parent. Thus the apparent estate in fee, created by the language first used, is converted into an estate for life, or a contingent executory devise is limited upon it, as in McClosky v. Gleason [403] 56 Vt. 264, and Richardson v. Paige, 54 Vt. 373. Children were born to and survived both the son and daughter. The son, John J. Eastman, was the executor. He procured a guardian to be appointed over the property of the children of himself and Rosette C. Hill. Then, on the appearance of the guardian before the Probate Court, and his assent thereto, the Probate Court granted the executor license to sell all the real estate of the testator. As shown by the deeds, the executor conveyed the estate under the license to various parties, and on the same day took conveyances of most of it back to himself. It is not found that the executor was the real purchaser of the estate, at his own sale, but it is very apparent that he was. It has not been contended that the sales were void for this reason, and we have no occasion to say anything in that regard. This was all done in 1856. The defendants are children of John J. Eastman, and were born in 1871 and 1872. R. L. 2166 confers a power upon the Probate Court to grant license to sell lands, for certain purposes, and on certain conditions, but requires the assent of the devisee, in case the lands are devised. The only assent here was that given by the guardian. It is not apparent how a guardian could be chosen, or act for the defendants who were not in esse, or how if they took the reversion in the land under the will of their grandfather, the Probate Court had power to grant a license without their assent to sell, which would defeat their right in the estate. It is evident there was doubt in the minds of the guardian and of the parties concerned whether the sale under the license was valid to defeat the right of /the children, and also whether the guardian had the right to assent to such license and sale. The guardian in November, 1857, took a note from John J. Eastman and Rosette C. Hill for the amount of the appraised value of the real estate of the testator, secured by a mortgage of all the real estate of the testator. This note was payable on or before the decease of the son and daughter, and is expressed to have been “given for the security and to indemnify the said Kibbling against all loss by reason of his being appointed [404] guardian of property to the amount specified in said note, which was bequeathed to the children of the said John J. and Rosette C. by John Eastman, late deceased, in his last will and testament.” If the license was unauthorized and the sale open to impeachment, they doubtless would be validated if the defendants and the children of Rosette accepted and availed themselves of this mortgage and the note secured thereby. The law would not allow them to take both the note and the land under the Will. Without such acceptance their rights conferred by the will would not be defeated. The facts found by the referee in regard to this note and mortgage are meager. The counsel for the plaintiff contends that there is a presumption that the mortgage debt has been paid, and the mortgage legally discharged, although not upon the record. The note was payable on or before the death of John J. and Rosette 0. No presumption of its payment would arise until the decease of both. Payment could not be enforced until such time, nor could the statute of limitations begin to run. The referee has not stated the exact date when either of these persons died. But from the facts reported, it is not shown that both deceased fifteen years before this suit was brought. Payment or the statute bar being relied upon by the plaintiff to defeat this mortgage, the burden was upon him to establish one of these. Hence, in whatever light the facts reported are considered, the defendants, who are in possession for themselves and the children of Rosette 0., have the better right to the possession of the premises, except the parcel to which they make no claim. The judgment of the County Court is reversed, and judgment rendered for the plaintiff to recover possession of the fifty-seven acres only. If any question of apportionment of costs is made, that question is remanded to the County Court.