The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1886-06-02

RED on IN the interest and Tor the dement, OF
the defendant. The goods were used in the
business of the defendant and sold by the
plaintiff in good faith, relying on the notice
aforesaid and what he learned in Jericho in
regard to said Gibson and the defendant
1t was claimed by the plaintiff that Gibson,
being the agent in the sole management of
the business of the defendant, had, as an in
cident to his agency, the right to purchase
goods and bind the defendant; that the pre-
sumption of persons dealing with agents is
that the agency of said agent is general,
and not limited or special agency; that as
the defendant took the benefit of the pur-
chase she ratified the act of her agent, and is
bound by her ratification; that Gibson was
Irresponsible, and plaintiff gave no credit to
him, but relied upon the credit of the de-
PENDANT, and that the plaintiff acted in good
faith. Defendant claimed that Gibson was
not general agent, but special agent,
and though in said store having the eXclu-
sive right of management of said business,
the agency created was that of the right of
selling alone, and that that agency did not
give to the said Gibson the right to purchase
goods and in his purchases bind his princi-
pal. No decision. NJ. A. Alexander for
plaintiff; L. f, Wilbur for defendant.
Heirs of j. w. Shepherd, Us. Estate of j.
w. Shepherd.-Ths was an appeal from the
probate court constituting the will OF j, W.
Shepherd. The will is dated the Goth day
of March. A. ID. 1850. Appeal by both par
debts, the will contains the following clause,
viz. 81 give and devise the residue of my
estate, both real and personal, in equal
shares to my four sisters-Catherine and Ca
lista Shepherd and Betsey Martin and Fla
villa Batchelder-to them and their children
forever with this condition, that if either of
my said sisters shall die leaving no children,
then her share, as aforesaid shall go to the
other sisters living, in equal shares" 1t
was conceded that the said j. w. Shepherd
Id. thnt hi fnttr gfGtnr
named in the will were then living; that
the first sister who deceased was Flavilla
Batchelder, who died in the year 1864. leav-
ing one child, Elizabeth Powell; that the
said j. w. Shepherd died in the year 1867;
Catherine Shepherd deceased April II, 1878,
leaving no children that the said Betsey
Martin deceased October 2, 1882, leaving
children: that the said Calista Shepherd de-
ceased October IA, 1888, leaving no children.
The children of Betsey Martin offered to
prove by parol evidence the following facts:
That j. W. Shepherd had one brother liv-
ing-namely, Prentiss Shepherd; that for
some years before the making of the will in
question there had continuously been ill
feeling between the brothers-so much so
that there was almost a deadly enmity be-
tween them-on account of the division OF
their fathers estate, and that before and
after the making of the will the said j.
w. Shepherd informed his other relatives
and friends that none of his property
should go to his brother, Prentiss M. Shop
herd, or his children; that at the time of
the making of said will Catherine and Ca
lista had no children, and they had each ar
rived at such an age that there was then no
probability that either Of them would ever
have any children (the court excluded the
evidence offered by the children of Betsey
Martin to which said children eXcepted) /;
that the said Flavila Batchelder at her
death left one child, Elizabeth Powell, who
has since died, leaving three children; that
the said Betsey Martin at her death left five
living children; that another daughter,
Laura Martin, married one Orrin Potter and
died, leaving one child After the death of
the said j. w. Shepherd the will was duly
probated and established, and one-fourth
part of said estate was decreed to the said
Elizabeth Powell, the sole daughter and
representative of the said Flavilla Batchel-
der, and was paid over to her at the time
The probate court decreed that the shares of
the said Catherine and Calista Shepherd
and Betsey Martin were subject to the con-
dition in said will, and that it was necessary
to appoint trustee to hold the property
under said will, and appointed w. S. Mar
tin as said trustee, who has ever since man
aged said fund, and has paid over to the
said heirs the interest on said fund annually,
and after the death of Catherine Shepherd
one-half of the interest on the fund of said
GATHERINGS share was paid over to Betsey
Martin and the other half was paid over to
and his account settled annually in the pro-
bate court, from all which no appeal was
ever taken; that on the settlement of said
estate there was placed in the hands of said
trustee SO ,635.5S, and the interest or in
come of the said fund has been paid over to
the said legatees as aforesaid. The pro-
bate court decided that on the death of the
said Catherine Shepherd her share de-
scended in fee in equal shares to Betsey
Martin and Calista Shepherd, and that on
the decease of the said Calista Shepherd
that portion which she so received from the
share of Catherine Shepherd descended
and became part of her estate, to be dis
tributed according to law; that the portion
of shares of the said Calista Shep-
herd originating under said will-she hav-
ing deceased leaving no children-be
divided equally among the children of the
said Betsey Martin and Flavilla Batchelder,
and that the representatives of any de-
ceased child should receive such deceased
| childs share The county court decided
that the evidence offered was immaterial
and irrelevant, and excluded the same;
that the meaning of said will was clear and
not ambiguous, and that upon the death of
the said j. w. Shepherd the said Betsey
Martin, Catherine Shepherd and Calista
Shepherd each were entitled to one
| fourth part of such estate in fee, and
that Elizabeth Powell, the child of Flavila
Batchelder, deceased, was entitled to the
other fourth part of said estate in fee; to
all which the children of the said Betsey
Martin aforesaid excepted. On the argu-
| ment in the supreme court it was claimed,
on the part of the defendant, that the
court erred in excluding the parol evidence
! offered to prove the facts in regard to the
| intention of the teStator as showing the
state of feeling existing between the testator
and his brother, the said j. w. Shepherd,
| claiming that it was admissible to show a
state of facts known to the testator that
may reasonably be supposed to have in
| fluenced him in making his will, and also
claiming that the will should be construed
according to the intention of the testator;
and claiming that the words in the will
| gave to the said four sisters an estate IN tail in
the fund for their lives, and upon the death
of the sisters it went to the children living
of the said sisters in fee, share and share
alike-namely, tive-sixths to the children OF
| Betsey Martin and one-siXth to the child
of Flavilla Batcheder On the part of the
plaintiff it was claimed that there was
was no error in the courts ruling excluding
parol evidence to prove ill-feeling with his
brother and his declarations as to his inten-
tons, claiming that parol evidence was not
admissible to alter, add to or amend a will
that the intention of the testator must be
gathered from the will itself, without the
aid of parol evidence, as there was no am.
biguity in the will, and claiming that Cath
crime and Calista Shepherd took an estate
in fee in said estate that the property vested
in them at the death of the testator and
that the remainder clause (this being per
sonal property over TO the children was
void; and claiming that the words in the
L