80 Vt. 228 | Vt. | 1907
This is an appeal from the disallowance by commissioners on the estate of Whitcomb H. Church of a claim presented in favor of the estate of Serena K. Church, based on three promissory notes dated May 1, 1879, signed by Whitcomb H. Church and payable to the order of Daniel Knight, on demand with interest annually, — one for $750, one for $250, and
Whitcomb IT. Ghurch and Serena K. Ghurch were husband and wife. They resided in West Lebanon, N. H., until the death of Serena K., May 11, 1894. Whitcomb H. continued to reside there until his death, September 24, 1903. Serena K. was the daughter and only heir at law of Daniel Knight who, surviving ■ his wife, died December 15, 1883.
That the notes were excuted by Whitcomb H. to Daniel Knight no question was made. But the indorsement, “Pay to the order of S. K. Church,” signed “Daniel Knight,” on the $750 note was admitted in evidence subject to exception. No evidence was introduced tending to prove that this indorsement was made by the payee of the note or by his authority. The admission of it was therefore error (2 Stark. Ev., 4th Am. Ed. 246), but not reversible error if the amount due on this note is recoverable under the count for money had and received. In respect to the other two notes there is no finding of a transfer and delivery by the payee to Serena K. as specially alleged. Whatever recovery is had upon any of the notes must therefore be under the common count, regarding which the only claim or objection made by the appellee is that no recovery can be had thereunder, since there is no finding that the notes were inherited by Serena K. from her father, nor as to how she became the owner of them. The record states that by her will “she gave to her husband all the income of her property, including all interest on the three notes in suit.” Included in this finding is the basal idea that these notes were a.part of her property. Her ownership being thus in effect established, it is presumed to continue, nothing to the contrary appearing. This shows the notes to be a part of her estate, and as such they were provable by her personal representative against her husband’s
No question, is made but that all the notes were kept alive during the lifetime of Serena K.' by payments thereon from time to time, the last being made April 23, 1894, eighteen days before her death. The claim of the appellee is that “the statute began to run against the notes as soon as the executor qualified, June 5, 1894. (Except as suspended for two years by the statute).” And that thereafter no payment, nor. written waiver or acknowledgment was made, which prevented the statute from becoming a bar long before the maker’s death. The provisions of the will upon which appellant relies in support of his replication are as follows: “Fourth. — I give and bequeath to my beloved husband, Whitcomb H. Church, the income of all the residue and remainder of my real and personal estate including all interest on the notes I now hold against him, with the privilege'and right to sell and convey my said real estate at any time after my decease, for life, and from and after the termination of his estate to the ‘Faith Home for Indigent Women’ at Portsmouth, New Hampshire, the sum of eight hundred dollars, and to Clara Church Howe the sum of one hundred dollars, and all the residue and remainder to the aforesaid Louisa P. Irving to be disposed of as I may direct.
Fifth. — Should my said husband, Whitcomb H. Church, refuse to accept the terms specified in this my last will and testament, I hereby direct that my said estáte shall be settled as the law directs and after he, my said husband, receives his portion, I give and bequeath all the residue,” etc.
Louisa P. Irving, the above named legatee, was called as a witness by the appellant and testified that several years before the testatrix’s death the witness received a letter from her; that the witness showed the letter to Whitcomb H. after his wife’s death, whereupon he delivered to the witness the articles named in the letter to be disposed of as therein specified. The letter contained directions, — to which reference is made in the will, — ■ from the testatrix to the witness for the latter’s disposition of said articles which were a part of the former’s estate. The appellee objected to the admission of the testimony of the witness, and the letter, as affecting the bar of the Statute of Limitations. The evidence had a tendency to show that Whitcomb
It is urged that unless the passing over of the articles as this evidence tended to show was an acceptance of the will, the transcript shows nothing done or said by Whitcomb H. having that effect. However this may be, there was no evidence to the contrary. The rule is that prima facie, every estate, whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given. And the estate so given being for his benefit, he is presumed to assent to it until the contrary appears. Townson v. Tickell, 3 Barn. & Ald. 31; Blanchard v. Sheldon, 43 Vt. 512; Pope v. Savings Bank, 56 Vt. 284. This presumption obtains on the ground of implied benefit, even though the beneficiary be ignorant of the transaction. Tarr v. Robinson, 158 Pa. St. 62.
In the fourth paragraph of the will the testatrix made a specific bequest to her husband of the interest on the notes in question for the term of his life, and by necessary implication, if he accepted the provisions of the will, the notes themselves were to be held by her executor uncollected, as they then were, for the same period, without which this specific bequest could not be carried into effect. From the words of the will the probability of such intention by the testatrix is so strong that a contrary intention cannot be supposed. In Marx v. McGlynn, 88 N. Y. 358, there was no direct or express devise of the real estate to the executor in trust, but he was to receive the income thereof. He was to pay the necessary expenses of the estate and pay over the income to the cestui que trust. It was held that it must be implied that the testatrix intended that the executor should take the title of the real estate in trust in order that he could manage and control the same, and carry out the trust intended. See also Woodward v. James, 115 N. Y. 346; Dorr v. Wainwright, 13 Pick. 328. It is extremely unfit that the legatee taking a life interest in notes of which he is the maker should have the possession and control of the notes themselves. Hence the rule laid down in Park’s Admr. v. American Home Missionary Society, 62 Vt. 19, 20 Atl. 107, does not apply.
It appears from the statute of New Hampshire, proved in the ease, that if the husband did not wish to accept the provisions of the will in his favor he was at liberty to waive them within a specified time by filing his waiver in writing in the
Since under the provisions of the will accepted by Whit-comb H. the notes were to be held uncollected during his life, it follows in law (1) that no action could be maintained by the latter for their collection within that time; and (2) that the right of action being thus suspended, the.running of the Statute of Limitations was correspondingly suspended also. Thatcher v. Lyons, 70 Vt. 438, 41 Atl. 428; Fairbanks v. Devereaux, 58 Vt. 363, 3 Atl. 500.
Judgment affirmed with interest on the amount found due since December 4, 1906, to be certified-to the probate court.
