Keniston v. Keniston

56 Vt. 680 | Vt. | 1883

The opinion of the court was delivered by

Bowbll, J.

The bill goes upon the ground of an express agreement between White and Lyon, the oratrix, and her husband, that she should be paid out of the goods for her services in selling the same for White and Lyon, and of a subsequent express agreement between her and her husband, made on or about March'20, 1880, to the effect that she was to have as her sole and separate property what remained of said goods after the bank debt was paid, and to carry on the business in her own naftae and right, saving her husband from all expense in relation thereto, and of an express assent by him to her buying in and holding the Hidden mortgage pursuant to her agreement with Hidden.

To show title to the goods before the master, the oratrix claimed an agreement with White and Lyon, made at the time her husband assigned the goods to them, whereby she was to have as compensation for her services in selling the same what remained of said goods after the bank note was paid, and that her husband assented to said agreement, and abandoned all claim to .any interest or property in the goods thus assigned.

. The master fails to find that any such agreement as to her services was then made, or that anything was then said as to how the oratrix was to bo paid for^her services, or that her husband then abandoned any interest or property in said goods.

The oratrix further claimed before the master that she acquired title to said goods by virtue of the agreement with her husband of about March 20, 1880, set up in the bill. 'But the master says he fails to find that any such arrangement was made, or that any arrangement was made at that or any other time whereby the oratrix was to have said goods as her sole and separate estate. By this we think the master means that ho fails to find any arrangement, express or implied. This construction of the report is conclusive against the oratrix.

But it is contended in her behalf that the master means only to say that he fails to find any express agreement, and that the report shows that Keniston in effect consented that his wife might take said goods as her own property and carry on the business in her own name and for her own benefit and that she had a right so to understand the matter from about the 20th of said March. But if she had a right so to understand, it is nowhere found that she did so understand, nor-how otherwise she understood the matter. It is not found what the understanding between her and her 'husband was in this behalf, nor whether there was any understanding between them.

While courts of equity give full effect as between the parties-to gifts by husband to wife, they require clear and incontrovertible" evidence to establish such gifts as a matter of intention and fact. 2.Story Eq. s. 1375 ; Schoul. Husb. & Wife, s. 385. But here the master has found neither a gift nor an intention to give. Nor was the case tried before him on the theory of an implied gift or transfer to the wife, but on the ground of an express agreement and understanding. There are no facts found of sufficient legal significancy to warrant us in saying that the oratrix has in any way become the owner of this property. It is true that many facts are reported that tend strongly to support her claim of an implied gift or other transfer, but they are largely countervailed by other facts — such, for instance, as the reassignment of the goods to Keniston by White and Lyon on May 21,. 1880, and the inventorying of them by Keniston in 1S81, in the presence of his wife, as his own for the purposes of taxation, and offsetting the store debts, as well as debts that were undispntedly his, and also the Hidden mortgage. All this was evidence from which the master might have found what the understanding and expectation of the parties were, and whether or not they regarded the goods as the property of the oratrix ; but there is no finding upon the subject.

The result is we hold that there are not sufficient findings to warrant a decree in favor of the oratrix but we think she ought not to be made to pay costs, and as the decree is strictly pr'oforma, the case will be remanded with directions that the decree be so far modified as to dismiss the bill without costs.

Ordered accordingly.