Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1866-11-30


mont held It's General Term at Montpelier,
Nov, 6, and closed Nov 49, 1866.
The Docket contained twenty.one cases.
which were disposed Of as follows;-
From Chmenden County.
David A. Smalley Us. Troy aud Boston
Railroad Company-ior re-argument Heard
and with the court. Phelps for plf, l.. b.
Peck for deit's.
d. A. Smalloy Us. f. A. Orchard ct ais
for re-atgument. Continued. Phelps for
plf., Underwood 81 Prout for def.
From Grand Isle County.
Clark S. Keclcr Us. the Estate Of Abner
Keeler - for re-argument. Edmunds for
plf, Harrington for dett
This was claim made by the plf to the
estate Of Abner Keller, by virtue of a will,
which was resisted by the heirs at law.
The deceased made his will, in which he
willed his real estate in the town of South
Hero to his daughter during her life, and at
her deoease it was to 60 to his male heirs at
law, then living in the town OF South Hero
AT that time he had brother living in said
town, who died before he daughter, leaving
one son, the plaintiff, living in said town
said Keller having sisters living in other
towns, so that the plaintiff could not be said
to be his heir-at-law
Held, that the plaintiff was entitled to hold
the estate under the will, as being the nearest
person answering the description in the will.
From addison County.
John l.. Hunnewell rs. f. NJ. T. Powell It
ai-conunued. Pholps for pl'F, Upper for
defts
II. +. a $. f. Gaines, apts., u.s. Estate Of
Samuel p. Suong--ior re-argument. Stew
art, Foote n Edmunds for plfs. Wash
burn, Marsh q Phelps Tor defts.
Samuel p. Strong died, leaving no heirs
except brothers and sisters and their chill
dren, and the other grand children, the plain.
utis in this suit. Tie probate court decreed
he estate 90 the brothers and sisters living,
ami refused to give any portion to the repe-
Seniatives Of the deceased sisters. The clun-
~ court sustained the decree Of the probate
court.
Held by the supreme court that this was
error That the children Of one and the
grand children Of the other deceased sisters
should receive the share their mother would
have received if living.
From Rutland County,
John II. Bowman rs. Ferrand Parker
exceptions by defendant Heard and with
The court Prout IS Phelps for plH Edger-
/ ton " Roberts for deit
Executor Of Stukey Thornton as. jeremiah
/ Thornton ct al apl--exceptioDs by defendant
/ For re-argument Willard, Roberts a. Har-
riuaa for pft., Edgerton, Phelps, Dewey &
Joyce .or dett's.
The executors 20 prove the will called two
/ Of the subscribing witnesses, and neglected
to call the third, when the court told them
they must call the other subscribing witness,
which they did. The witness when called
testified to facts, tending to show that the
testator was Of unsound mind at the time of
making the will. The executors were then
permitted TO ask him Il be had not told a diff
ierent story abo4t Tie capacity Of the testator
at different times and places. The court also,
for the purpose Of impeaching the witness
| permitted the plaintiff to call witnesses to
show the declarations Of the witness at other
times, in relation to the capacity OF the ,esta-
tor at the time he made the will
Held, that as the law compelled the plain
tiff to call the witness he had a right to i'm
peach him, by showing his declarations at
other times, and iii ming the decision OF
the county court
From Bennington County.
Emily A. Nanduzcn apt, as. Estate of s. Is
! 1uIuou--l pi re- OF kuincNl. Iulci n W u Z
/ Ter for pH Burton g. Miner for deh.
Plaintiff claimed under will, called a sol
diet's will (see sec 9 OF chap. 30 Of the Gene
/ Ial Sthtute,.) Gordon enlisted in Worcester,
Mass, Sept , 1862 and went into camp in
Mass. He enlisted for nine months, sept.
29th. While in camp in Ma g., he made the
instrument in question, as and for soldier
will. 1t was IN writing and had only two
e.. l..
witnesses to wills.
In said will he gave his father SI20, and
at the same time he held notes against hi.
father amounting to SI2O Gordon appoint
ed one Taylor his executor in said will, and
then and there sent said will to the said Tay-
lor n4med therein. November 25,h he went
with his regiment to New burn, n. c., into
actual military service, and remained so until
about The time bis enlistment expired
While at Newburne in actual military ser
vice, said Taylor, the executor, wrote to sale
Gordon and inquired if he intended to give
his father the Sl20 in money and the two
noies he held against bin, Ut only the notes
GordonFsrlied by letter thai he thought bi,
viii would explain itself. OFFERING to the
instrument aforesaid but il it did not, he
wanted his father to have the amount Of the
two notes and nothing more. Gordon died
from disease on his return voyage from N. Y
before his term Of enlistment expired.
Held, that the instrument written in Wor
cestet, Mass, was not in and Of itself valid
soldiers will, as Gordon was not then in ac
tual military service within the meaning o.
the statute yet the letter written by him al
Newburn, while in actual military service
was recognition and adoption Of the nstru
ment aforesaid and made it valid and lega
soldiers will
Receivers Dandy Bank Us State Treasurer
Miner ~ Harmon for plf, Edmunds&Edg.
erton for def.
This was an application for mandamus
TO compel the Treasurer to pay to the receiver
the safety fund in said bank, to iquidate the
amount due from said Dandy Bank. Tbi,
was resisted by the banks owing the safety
fund.
The court ordered mandamus issued tC
compel the treasurer to pay to the receiver
the amount Of the safety fund, S8O2l.l9, af
ter deducting all counsel fees and expenses
made by the treasurer in litigating the ques
ton Of the disposition OF said fund.
From Windham County.
Vt.Valley X. Il. Co. It ais. Us. W. & Mass