Hannah Townsend v. Downer

23 Vt. 225

• Court: Supreme Court of Vermont
• Decided: May 15, 1851
• Status: Published

Opinion

The opinion of the court was delivered by

Redfie&d, J.

This case does not seem to have been decided, in the court below, upon the question of the sufficiency of the proof of the identity of the grantee, Thomas Youngs, in the charter of Burlington, and Thomas Youngs, the testator. The court seem to have ruled that point in favor of the plaintiff; and upon the state of the evidence we really do not see, how they could have held otherwise. Ordinarily, in tracing title to land, the mere identity of the names is sufficient to cast the burden of proof upon the opposite party. But here the identity is very considerably confirmed by the other evidence in the case, aside from the mere declaration of the testator, which probably is not competent evidence. But any declaration, connected with any act of ownership, would no doubt be admissible; and it is by no means certain, that the mere declaration, as evincing a claim of title, is not competent evidence. It is not important to decide this point.

The court, assuming the identity of -the person of the grantee and the testator, declare the devise void for uncertainty. But this, we think, is never done, upon the mere ground of the indefiniteness of the description of the subject matter of the devise. And the same is true of a grant. That is held certain, which is capable of being rendered certain, according to the maxim, id cerium est fyc. A devise, or grant, is only declared void for uncertainty, when, after the resort to oral proof, it still remains mere matter of conjecture, what was intended by the instrument. Such cases more generally occur, where there are two or more subject matters, to which the words apply with equal propriety, or-perfectly, perhaps. That is a case of equivocation, as it is called. Other cases may occur, where the words apply but imperfectly to any subject, so as to leave it altogether uncertain what was intended.

But the present is not shown to be such a case. After it is shown, that the testator did have one right of land in Vermont, it will not be presumed that he had others, or that he might have had others, so as to require any such presumption to be rebutted by proof, until that be shown. This finding effectually casts the burden upon the defendants; and until the oral evidence, in regard to the subject matter of the devise, is received, and the case fully made up, it would be premature to go into any nice discussion of the grounds, upon which devises ought to be held void for uncertainty as to their subject matter.

Judgment reversed and case remanded.