86 Vt. 486 | Vt. | 1913
This is replevin for a bureau and a table. Emma Sargent died in 1901, leaving a will by which she gave to her husband, John P. Sargent, the use, interest, income, and rents of the residue of her estate, and so much of the principle thereof as he might “require to provide him with comfortable care and maintenance,” with remainder over.
Sargént was appointed executor and trustee, and sold the bureau to one of the defendants and the table to the other, neither of them knowing that he did not own the property. Sargent died in 1910, and the plaintiff was appointed trustee under the will, and brought this suit in that capacity.
The plaintiff claimed that Mrs. Sargent inherited this property from her mother, Mrs. Cobb, and that neither article belonged to Sargent; and he was allowed to show that while Mrs. Sargent had the bureau in use in the house where she lived, she called it “Mrs. Cobb’s bureau.” This was received as a declaration of one in possession and use of personal property.
To say nothing as to the admissibility in a case like this of the possessor’s declarations as aiding the presumption of ownership from possession, — a question about which the cases are not agreed, as shown by 3 Wig. Ev. §1779, — all agree that such declarations must not be’mere hearsay, but must, as Mr. Wig-more says, serve the assumed purpose, namely, give definite significance to the equivocal conduct by adding a missing link. 3 Wig. Ev. §1775. But here the declaration admitted was not a missing part of the possession and did not relate to its nature but only to the source of title, and therefore was hearsay and not admissible.
Thus, Boss v. White, 60 Vt. 558, was trover by an administrator for articles that he claimed belonged to the estate. When demanded of him, the defendant refused to give them up, saying that the intestate gave them to him in her lifetime. The question was whether that statement was competent evidence to show the gift, and it was held that it was not, as it related to a past transaction, and therefore was mere narration.
So in Sweet v. Wright, 57 Iowa 510, a declaration explanatory of possession but which also, detailed the agreement under which it was held, was excluded.
In Robke v. Andrews, 26 Wis. 311, 319, it is said that such declarations are evidence to show only to what extent the declarant claims title; that if they go beyond that, and assert any fact in regard to the title, they are not evidence of such fact. But this error was harmless, as the defendants tried the case on the ground and theory that the source of Sargent’s title was the will, and so it made no difference how Mrs. Sargent acquired title.
The defendants claimed that under the will, Sargent had a right to sell the articles in question for his own personal use, and that having sold as the evidence showed, they thereby acquired title thereto by reason of the will. In support of this claim they requested the court to charge that Sargent had a right to use so much of the principle of the estate as he required to provide him with comfortable care and maintenance, notwithstanding he had property of his own, like real estate, that was so situated that he could not use it for his immediate care and maintenance. The bill of exceptions not showing that Sargent had property thus situated, noncompliance with the request was not error. Houston v. Brush, 66 Vt. 331, 349; Needham v. Boston & Maine Railroad, 82 Vt. 518, 524.
The defendants further requested a charge that the fact that Sargent had possession and control of. the articles, and sold them to the defendants, was evidence that he owned them and had a right to sell them; and that the law presumed that, and that that presumption was a piece of evidence to be weighed in their favor. This might be so, perhaps, if nothing else appeared. But something else does appear, namely, that the source of Sargent’s title, as claimed by the defendants, was the will; and that being so, his title must be referred to the will, and possession can add nothing to it as the question is presented. Nor can
Judgment affirmed.
