67 Vt. 50 | Vt. | 1894
The plaintiff, the wife of an insolvent debtor, seeks to have allowed against her husband’s estate in insolvency, a note given by him to her grandfather’s estate, and subsequently transferred to her. Her evidence tended to show that she received the note as heir-at-law of her grandfather in the distribution of his estate, and that her husband afterwards promised payment to her.
If the note of the plaintiff’s husband held by her grandfather’s estate was received by the plaintiff as a part of her inheritance, it thereby became her sole and separate property. The claim was as good against the husband in her hands as in the hands of her assignor, but she could not have enforced it against him at law because of the technical bar arising from the coverture. It is claimed that inasmuch as the plaintiff’s only remedy against her husband was in equity, she cannot prove her claim against his estate in insolvency. It is said that the husband’s note in the hands of the wife is an equitable demand, and that the statute does not authorize the allowance of equitable demands in insolvency.
In Spaulding v. Warner's Est., 52 Vt. 29, the court considered the question whether equitable demands could be allowed by commissioners on the estates of deceased per
We do not think the difference between the language of the probate law and that of the insolvent law in regard to the allowance of claims is such as to require different holdings upon this subject. We see no reason to fear that any practical difficulty will result from following the course already adopted in the case of estates of deceased persons; and it seems desirable that the line of procedure in both classes of estates be the same. Then the right of the plaintiff to prove her claim in insolvency is to be determined by the rule above stated, and when tested by that rule her right to do so is apparent. A resort to equity is not necessary to establish her right or determine the extent of it. The debt due from her husband was not an equitable demand in its origin or nature. It was such only as regarded the manner of its enforcement. It is a demand properly recoverable at law upon the removal of the technical bar which stood in the way of a suit at law. The insolvent debtor is not the defendant in these proceedings.
We think the plaintiff was a competent witness in support of her claim. Our decisions bearing upon this question are not in perfect harmony, but upon a review of them it was held in Willey v. Hunter, 57 Vt. 479 (488) that to render the wife incompetent as a witness the husband must be an actual or real party to the suit, and that his having a col'lat
“It is necessary for a party objecting to a witness as incompetent, on account of interest in the result of the suit, to show affirmatively the disqualifying interest.”
The offer to show that the insolvent gave in this indebtedness to the listers as an offset the year before the plaintiff’s grandfather died and did not afterwards, was properly excluded. He was under no obligation to enter all his indebtedness in the list of debts for which offset was claimed, and if he owed an amount in excess of his personal property would have no interest to do so. Assuming that there was also evidence tending to show that this action was with the plaintiffs knowledge and concurrence, thé excluded testimony would have shown nothing inconsistent with the validity of her claim. '• ‘
It appears from the charlé’ thát the' evidence tended to show that the note was payable to the estate of Townshend, and that it did not disclose whether it was negotiable or not. The court received evidence offered by the plaintiff to show that her husband agreed to pay the note to her, and instructed the jury that she could recover if, after she became the owner of the note, there was a promise by the husband to pay it to her. To the admission of this testimony, and tb the giving of this instruction, the defendant excepted. If it
It is said.in Spaulding v. Warner’s Est., 52 Vt. 29, that commissioners of claims have the power and duty to,ascertain and allow all claims against the estate without regard to the legal form in which it would be necessary to prosecute them in courts of common law jurisdiction. It is said in Holdridge v. Holdridge’s Est., 53 Vt. 546, that proceedings in the probate court are not governed by common law rules as to parties or forms of action. All this may be said with equal truth of proceedings in insolvency; The proceedings in both courts are to procure an adjustment of all claims against the estate, preparatory to its settlement or division. County courts have the same powers as courts of probate and insolvency in determining appeals from those courts. It would be highly detrimental to the interests of all parties to require suits in equity to establish claims which could be as easily ascertained in the courts specially provided for the settlement of these estates. Moreover, a careful consideration of the facts in Spaulding v. Warner's Est. will show that that case is determinative of the very point under consideration. In that case the estate sought to set off against the claim of a creditor a sum which the creditor had promised other parties that he would pay on an obligation due from such parties to the intestate. The court permitted this, without determining whether the intestate could have maintained an action against the plaintiff on the facts stated in a court governed by the technical rules of the common law.
If this note was assigned to the plaintiff by the probate court in the distribution of her grandfather’s estate, she was by virtue of that .assignment the real owner of the claim,
Judgment affirmed.