65 Vt. 200 | Vt. | 1892
In 1879 the intestate owned and occupied a house and garden worth $500. He was old, feeble, dissipated, without wife, without children, without near relatives that he loved, without anybody'to care for him. He had a little personal property, but-owing to his secretive habits nobody knew how much, but the master thinks it did not exceed $400. Pie lived alone, and did his own cooking and housework. Plis garden afforded much of his food, and his fuel was the flood-wood that he gathered from the stream that flowed past his door. The oratrix was a widow in poor circumstances, though she had a cooking stove and other household goods sufficient to furnish such a house as the intestate’s. In the fall of that year she, with her son, a young lad, went to live with the intestate. Sh.e claimed that the following spring they entered into an arrangement that she was to remain with and care for the intestate during his life and have his property, and that she did remain thereunder that arrangement for five years, when she left because he neglected to perfect it so she would be sure of the property. Her Services during the period are found to have been worth $3 per week. But this claimed agreement is not found.
After the oratrix went away the intestate again lived alone, and in a most miserable condition. He gradually failed in health, blindness came upon him, diabetes set in, and he continued his dissipation. In time he came greatly to desire that the oratrix should return and take care of him, and he caused a letter to be written to her to that effect, and telling her that she could have what there was if she would. She not replying to this letter, he soon caused another to be written to her, more full and explicit than the first, in which he said that he wanted her to come back and take care of him, and he would deed her the place and let her have what
Some claims have been allowed against the estate, but it does not appear when they accrued, and the funeral expenses have not been paid. It does not appear that there are any unpaid expenses of the last sickness.
It is objected that the persons who wrote the letters were not competent to show that the intestate authorized them to write and send them, for that such authority constitutes a part of the contract in issue and on trial. But if this is so, as these persons were but the agents of the intestate, they are not parties to the contract, and are, therefore, not rendered incompetent by the statute.
It is also objected that the contract found is within the statute of frauds, and so not enforceable. What the oratrix did in taking possession of the place, and in caring for and supporting the intestate, is all referable solely to the contract, and was done in performance thereof on her part; and what the intestate did by way of giving .her possession, or of letting her into possession, was done in part performance thereof on his part; and we think that such perform-
At the time the intestate died he held a note against one Jangran, on which there was ,then due the sum of $45.87. This note, or the avails thereof, if it has been paid to the defendant, belongs to the oratrix under the agreement, but it was not decreed to her below; and although the defendant appeals, it can be decreed to her now. But she must pay the funeral expenses and the expenses of the last sickness, and she says she is.willing to pay them.
The- interest of creditors cannot now avail to defeat specific performance, because they have laid by till the orátrix has more than paid for the property. Kelsey v. Kelley, 63 Vt. 41.
It is considered, therefore, that the agreement found by the master ought to be specifically performed and carried into execution, and it is so ordered.
As both parties have prevailed to some extent on appeal, neither party is allowed costs in this court.
Judgment reversed and cause remanded.