In re Cary's Estate

Watson, J. The case is here on the motion to dismiss the petition. The grounds of the motion will be considered in their inverse order. It appears from the will that Alonzo, Elizabeth, and Lucy were brother and sisters, children of the testator’s sister [118] Asenath. By the second paragraph of the will Alonzo is given .a life estate in' certain property, remainder over,, to his children, if he have any,, in fee.^ By the third paragraph, the use of the rest of the property which the testator should have at his decease was given to be equally divided between Lucy and Elizabeth, “during their natural lives and the remainder and reversion in fee to their children as in the case of said Alonzo.” It is argued that the testator created but two parts of his estate, giving his nephew a life estate in one with gift over to his children, if any, and that a life use of the other was given to the two nieces with gift over to their children; that the words “their children” mean the children of the two, or of either if the other should die without issue. But we do not think such a construction gives force to the words “as in the ease of Alonzo.” In his case the property in which he took a life estate was given over to his children, if any he have, in fee. Ajjift over in fee of the rest of the property in the same manner to the children of the two nieces, gives to the children of each, if any she have,, the property of which their mother had a life use; and thus the bequest, in the language of the will,igives “the remainder and reversion in fee to their children as in the case of Alonzo. ’ ’ This construction is aided by the clause which follows, creating cross remainders, “and in case of the death of either of the said Alonzo, Lucy or Elizabeth then the share or shares of such deceased shall belong to the survivor or survivors of the other. ’ ’ This clause considered in connection with the provisions creating life estates with remainders over to the children of the respective life tenants, must be understood to mean the same as though the words “without having children” had been inserted immediately after the word “Elizabeth”; and thereby on the death of either of the nieces without having children, the same as on the death of the nephew, without having children, her share is given over — a provision inconsistent with the view that by the will only one division of the testator’s property is made and that one part thereof as a whole is taken by the nieces with gift over to, their children as a class. A more difficult question arises concerning the meaning of the words “survivor or survivors of the other.” The will shows that the objects .of the testator’s bounty were not only his nephew and nieces, but their children also. The cross remainders show [119] that the testator had in mind not that one of the takers for life would die while the others were yet living, but that one might die without issue; and his purpose was to make a bequest which would dispose of his estate in ease such a contingency happened. A construction of “survivor and survivors” according to their natural and literal import, as urged hy the petitionees, would give to Alonzo absolutely the jmtire share the life pse of which was had "by Luey“wEo died without issue, to the exclusion of the ^ children of their predeceased sister Elizabeth; and if Alonzo, the last of the life tenants, die without issue, there is no provision by which the share in which he has but a life tenancy goes over, —it would be undisposed of, notwithstanding, the children of Elizabeth were yet alive. Clearly the testator did not contemplate such a result, for in this respect the will makes no distinction between the share of the life tenant who dies last and that .of either of the others, — it passes over in the same manner if the taker for life die without issue. As was said in the case of Slade v. Bronson, decided this term, it may fairly be presumed that the testator did not intend partial intestacy. Prom the context of the whole will we think the intention of the testator was to include in “survivor and survivors of the other” the children of any who predeceased the one dying without issue; but this intention can be carried into effect only by giving “those words the meaning of “other and others.” True it is sometimes said that the more modern decisions lean toward the ordinary and natural meaning of the word “survivor,” yet there is no diversity of authority that where the intention of the testator, gathered from the will itself, is plain that he meant to use it in the sense of “other,” such a construction will be given. 2 Redfield on Wills, 376-378; Smith v. Osborne, 6 H. L. Cas. 375; Hawkins v.Hamerton, 16 Sim. 410; Peacock v. Stock-ford, 7 De G. M. & G. 129; In re Arnold’s Trusts, L. R. 10 Eq. 251; In re Palmer’s Settlement, L. R. 19 Eq. 320; Wake v. Varah, L. R. 2 Ch. 348; Carter v. Bloodgood’s Exrs., 3 Sand-ford’s Ch. 321. It follows that on the allegations of the petition the_petitioners have a right to participate in the remainder and reversion, of the property of which Lucy Abbott had the life, use. In view of the above holding the questions whether the probate court had jurisdiction, and if- it had whether its decree dis [120] missing the petition was final in nature, must be considered. The matters here involved arise in the settlement of the testator’s estate in due course of procedure. The petition shows that a trustee of the estate of which Lucy Abbott had the life use has been appointed by the probate court from time to time, and that the last trustee thus appointed was the petitionee Abell. The appointment of such a trustee was' within the power of that court, as is also the enforcement of the trust. V. S. 2613; Mitchell v. Blanchard, 72 Vt. 85, 47 Atl. 98. At the expiration of the life interest the trust fund was held by the trustee exclusively for the benefit of those who are entitled to the remainder over; and it was then the duty of the trustee on notice to all persons interested to render a full and final account of his trust to the probate court, and on settlement thereof to turn over the trust fund to the remaindermen as the court might order. The trustee failing this, the petitioners by their petition brought for that purpose seek to force such an accounting and distribution. The prayer of the petition to the extent that it asks relief from Alonzo is too broad. The probate court has not the power to settle controversies that arise when one has unlawfully received trust funds from the trustee, and such person cannot be cited before it to answer therefor. Bailey v. Bailey, 67 Vt. 494, 32 Atl. 470. It settles the accounts of the officials appointed by it.; and any alleged diversion of a trust estate from its proper channel by the trustee, is a matter involved in his accounting. No claim is made but that the petition is sufficient to bring the trustee before the court to terminate his trust and make distribution under the direction and decree of the court; and Alonzo was entitled to notice of the proceedings for such a purpose with an opportunity to be heard. As far as the prayer is too broad, it is mere surplusage and does no harm. The record shows that a hearing was had on the petition before the probate court, the trustee, Alonzo, and the petitioners respectively being present by their attorneys, ‘ ‘ and. that thereupon the court having listened to a statement of facts regarding which there was no dispute and to arguments of counsel dismissed said petition.” From this decree an appeal was taken by the petitioners. It is argued by the petitionees that the decree was interlocutory from which uq appeal will lie. [121] But we think it fairly inferable from the record that the petition was dismissed on its merits, in other words,- on the ground that the petitioners had no interest in the funds in question, and therefore not entitled to the relief sought; and it at once finished the proceedings. The decree was final as to the petitioners and one from which they could appeal. It may not be amiss to call attention to the fact that in the matter of Hodge’s Estate, 63 Vt. 661, 22 Atl. 725, an appeal was allowed from a decree of the probate court dismissing the petition of the administrator of the life tenant for an accounting by the executor of the estate, and that the appeal was sustained in this^Court, although it does not appear that the nature of the decree, whether final or interlocutory, was brought in question. Judgment affirmed and cause remanded to the county court tobe proceeded with.