Clemmons v. Clemmons

| Vt. | Jan 15, 1895

MUNSON, J.

The plaintiff claimed to recover the value of her interest in the estate of her father, who died intestate, leaving a widow and two children. The widow was entitled to a homestead, and both homestead and dower had been set out. The plaintiff introduced testimony as to the value of the various portions of the farm with reference to the interests of the respective parties. She was also permitted, against the defendant’s objection, to inquire of certain witnesses what the whole farm was worth, and what the land outside of the dower and homestead was worth in connection with the rest of the farm. Both inquiries were permissible. The property to be valued consisted of an undivided interest in the fee of a portion of the farm, and an undivided interest in the reversion of the widow’s dower in another portion, with these interests affected by the fact that some of the buildings and adjacent land which naturally went with the farm had been separated from it. It is obvious that estimates of the value of the whole farm, and of the value of the land outside the homestead and dower in connection with the rest of the farm, might aid the jury in determining the value of the plaintiff’s interest.

The defendant’s offer to show that he borrowed money of Hawley at the time he paid him the amount of the plaintiff’s note was properly excluded. The testimony was offered as tending to contradict the plaintiff’s statement that Hawley was pressing her for payment at the time she conveyed to the defendant. It did not have that tendency. An unwillingness to give one person further credit is entirely consistent with a readiness to loan to some other person.

It is not necessary to consider in detail the exceptions taken to the testimony drawn from the defendant on cross-examination. None of them can be sustained without ignoring the well-settled rule which forbids the presumption •of error.

The jury were instructed to ascertain the amount due the defendant under his plea in offset, and apply it upon whatever might be found due the plaintiff on her claim. The veidict contained only the finding that the plaintiff recover a •certain sum. The defendant excepted to the reception of ihe verdict on the ground that it did not properly dispose of the claim in offset. The exception cannot be sustained. The defendant was not entitled, as a matter of right, to a return of the sums allowed the respective parties. The only finding essential to the validity of the verdict was the -sum in arrear. R. L., 923.

Judgment affirmed. Execution stayed except as to property not affected by ihe proceedings in insolvency. To .be certified, to court of insolvency.