56 Vt. 727 | Vt. | 1883
The opinion of the court was delivered by
This is a bill to redeem, and comes'up on the report of the special master. The facts appear in the report. In consideration of the conveyance of the home farm of Mrs. Bradley to Mrs. Howe, the oratrix, her husband gave his notes of $1,000 to Mrs. Bradley; .and for a like sum to each of the defendants, and secured them, by a mortgage of the premises. The note to Mrs. Bradley and the interest of the other two notes were to be paid to the orators, and constitute a fund in the orators’ hands for the support of Mrs. Bradley, who was afflicted with a fatal disease. Some time afterwards, on representation that such fund, or income, was inadequate for the continued care and support of Mrs. Bradley, the defendants, who are daughters of-Mrs. Bradley, and sisters of the oratrix, promised the orators that if they would continue to take good care of their mother, the excess of expenditure in her support, above the income provided for that purpose, should constitute a payment, in equal shares, of the principal of their notes.
I. Tt is true that the promise is not binding, as within the Statute of Frauds. “The defendants have not insisted upon the statute in their answer, or in the pleading. Wo understand this is necessary, otherwise the statute is waived.” Adams v. Patrick, 30 Vt. 519. “ When once proved, without objection to the manner of proof, it was a valid contract.” Strong v. Dedds, 47 Vt. 348; Montgomery v. Edwards, 46 Vt. 151. But this
II. It is claimed that as one of the defendants was a feme covert at the time the promise was made, it'is for that reason, without legal effect; but these services, when rendered, operated as a 'payment, of the debt which the orators owed the defendant, to the extent of the excess above the amount of Mrs. Bradley’s ngte. The defendant, though a married woman, had tire, right to receive payment upon her note in such manner and kind as she elected, whether in money, grain, fruit or in food, nursing, and care of her mother during her last sickness; and when payment is made as agreed, it is a payment pro tanto of the note. And if this were not so, we think, under the circumstances of this case, such promise would be binding in equity upon a married woman, and enforceable against her separate estate. It was in the discharge of a duty she owed her mother, and therefore a benefit to herself.
But the more important question is the quality and effect of the judgment of the Probate Court, fixing the amount and value of orators’ services for Mrs. Bradley.
The majority of the court think that the defendants are strangers to the judgment, and not concluded lay it; and at most the judgment is only prima facie evidence of the debt, and that the case stands alone upon the facts found by the special master. And my own impressions in the case are not important. But the defendants were children and heirs of Mrs. Bradley; and their promise to pay the indebtedness of their mother beyond what she had, or should have assets to pay, made them generally and specially interested in the estate ; and their promise, by natural intendment, had reference to the only forum known to the law, where debts and assets of an estate could be ascertained. Their relation to the estate was such, that if not satisfied with the judgment of the Probate Court they had the right of aypeal. They had notice of the proceedings and were present in court, as witnesses. The promise was to pay all the orators’ debt, which the assets of Mrs. Bradley’s estate did not pay. The amount of
The decree is reversed, and cause remanded.