*1 ESTATE. v. MERRIHEW’S this any way. Manifestly, on driver in attempt to command the relationship joint enterprise was no or the evidencedhere state of which driver the car existing plaintiff and the between any, imputable negligence, if riding, as to make she was Admr. Donnelly, supra; her. chargeable Lee Lefebvre’s charge of Co., supra. And the Railway Vermont Central was correct. the court Q. is Judgment Company J. Turnbull for defendant Harry Stannard re- judgment against J. affirmed; defendant
versed, and remanded. cause Edward S. Watkins Estate.
January Term, 1925. Butler, Watson, Powers, Slack, J., Taylor, JJ. Present: C. Opinion January filed 1926. Vesting
Tenancy Cotenant’s Interest on His Common— Specific Administrator’s Death —Extent Per- Lien — Pleading—Admiissions—Construction formance —Parties — Contract Between Cotenants'. 'Cotenant, 1. On death his interest in land vests at once in his subject by descent, heirs lien of administrator when later appointed. cotenant, acquired by lien administrator 2. On death intestate’s only is limited L. lands G. so much may required pay expenses debts administration discharged personal decedent, which cannot be estate of expenses, such debts and when discharged, authority lien is over such real estate is termi- nated, property acquit and heirs hold of him lien. alleged specific performance, Where a material fact was bill for by plaintiff, verified and was not denied or alluded to de- answer, although fairly in his verified fendant fact could "WATKINSv. MERRIHEW’S making knowledge presumed when within his admitted, allegation answer, es- and thus stands oath to judicial admission. tablished on record as a *2 specific performance cotenant’s 4. Bill for of a deceased against brought land, adminis- sell his interest certain .to estate more than trator de non of cotenant’s bonis deceased 14% administrator, years held cotenant’s first after death of such pay- by brought, for law not time allowed well because the allega- expired, having undenied ment of estate and debts of property showing of estate all the tions of bill that such was necessarily administered, remaining it deceased cotenant estate interests followed that at time bill was real estate, by question were not owned deceased cotenant’s therein, but his administrator bonis non had no de property of heirs of said interests were the absolute cotenant. Agreement cotenants, that, any, providing if of such between nine property, of his interest cotenants should desire remaining had been cotenants should improvements, by such and in him in of upon payment and that of of should decease executors, administrators, heirs, be made to his held not fairly subject part decease of one of to construction convey- specified by owners, owners and as executors, heirs, by ance of deceased’s interest must be made administrators, they willing were or not. whether Appeal Chancery specific performance in proceeding for agreement facts pleadings between Heard on cotenants. by Term, 1923, March Chittenden chancellor, found after the dismissing County, Thompson, plain- From a decree Chancellor. opinion tiff’s states the ease. plaintiff appeals. The and remanded. Affirmed
H. Bailey plaintiff. A. for the
Charles F. Black for the defendant. by following "Watson. The Statement Chief Justice facts were found: WATKINS v. August 16, 1894, plaintiff, West,
About H. Samuel B. C. Burnham, McIntyre, Kendall, Moore, Jesse C. B. Samuel John Titeomb, purchased W. and Hiram H. Merrihew Bernard Porter, Ben Law Island of about ten twelve acres in Lake Champlain off by from the town Colchester, two deeds conveyed from Porter it was It purchased to them later. was purpose being occupied by club, purchasers as and a thereon, built, clubhouse was to be built which was later occupied by jointly. them August 16, 1894, agreement an up drawn was as to occupancy signed use the island and all purchasers except Titeomb, Mr. party but was a same and was its provisions. bound Said follows: Watkins, West, Burnham, “Whereas Ed. S. H.C. Samuel E. Jesse McIntyre, Kendall, C. B. Moore, Samuel W. Titeomb John and Hiram together Merrihew have purchased and now own the island known as Ben-laws island Champlain situated Lake in the town Colchester, County of Chittenden and State of *3 Vermont, agreed and expend to thereon certain of sums money for improvements buildings to island, said thereon and purposes may other mutually agreed as be upon by and between said parties, in now consideration promises of the mutual agreed hereinafter set forth it is any that should of the aforesaid parties desire dispose of his interest in said island and what- improvements ever have been made thereon that the parties him money him in the of said island making improvements interest, thereon'without upon said being amount 175.00 and Dollars, any the decease of of parties the above the said sum shall be paid to heirs, executors and administrators. And each of the parties hereby said agrees to and with others for his himself, the heirs, executors and administrators will that he not bargain, sell convey or property said improvements and any person other persons or any or in other manner than as above set forth —Save that it should eventually agreed be at all time between the parties who property hold said improvements the and sell dispose of the same may then and that case the said person persons sold to or whatsoever free from restrictions by anything condition Any herein contained. parties of may who may so desire with the consent the other parties of cottage above mentioned erect a private for use said land on v. MERRIHEW’S ESTATE. obligations sup- cottage of such a for after erection but the un- rights therein shall continue port clubhouse of the his interest said land changed if he shall of provided to the other as heretofore he improvements any compensation cottage the rented for not receive for private give compensa- unless other chose to the use In witness whereof the said have here- therefor. City unto hands and seals at 16th set their the of Rutland this day August A. D. 1894.” purchased the was a
After clubhouse was built by most purchasers. maintained thereon Hiram Merrihew paid anything never toward erection and maintenance of the clubhouse. was purchased,
At some time after the island Hiram Merri- hew, by agreement provisions August 16, virtue of the barn cottage, erected and icehouse on the southeast corner which occupied his death. until 6, 1922, Bailey, plaintiff’s attorney, October H. A. tendered the defendant Lincoln Merrihew, estate, which $322.00, sum was the amount $175.00 and interest same of Hiram date Merri- hew’s death to the date of the tender. Such tender refused by said Lincoln All Merrihew. exhibits are referred to findings. part made a opinion. appear Other facts found This O. J. specific performance Watson, set forth statement of case. ex-No ception was taken to the facts found the chancellor. A de- cree dismissing was rendered the bill with costs to the defend- ant. The case is the plaintiff’s appeal. here on The decree must for several affirmed reasons. Under the deeds from two Bernard grantees Porter the nine severally *4 took an undivided one-ninth Island, interest in Ben Law in tenants Merrihew, common. Hiram cotenants, one died July 18, intestate on 1907, Harvey and one ivas Merrihew appointed Harvey administrator of his estate. Merrihew died on May 8, 1922, 15, and on following, June Lincoln Merrihew was appointed administrator de bonis non of Hiram the estate Merrihew acted as such from that time. This served 13, 1922, on defendant October and it was 18th filed the of the same month. v.
298 death he owned the time of [1, At 2] an un interest one-ninth original undivided Burnham, another B. interest of Samuel one-fifth of the divided Hiram Merri findings state that original cotenants. The of the not interests. That this statement such now owns hew’s estate record beyond question law, appears nor in fact true in the interests intestate the death of the before us. the lien by descent, subject his heirs at vested once Bowen, Babbitt v. appointed. later when administrator 703; 86 A. D. Alexander Bailey, 219, 37 Vt. v. 437; 32 Austin Vt. 58 Co., L. C. R. R. Bridgman v. St. J. & 87; 50 Vt. Stewart, v. Taylor, 85 Vt. Coolidge 2 v. 467; Vt. Atl. as was of so much given only to the extent lien was such
But
of administration which
expenses
pay the debts
required to
estate of the decedent.
discharged
personal
from the
could not
10
Sinclear,
Dunbar,
472;
3 Vt.
Maeck v.
3367;
L.
Dunbar
G.
when the adminis
Camp,
[5] But the plaintiff’s case is beset with further and more difficulty. Adverting substantial to the into entered by common, the nine tenants in upon plaintiff which the bases ‘‘ right sought, to the relief here provision it contains that any should the aforesaid desire to in of his terest said and in improvements island have been remaining parties made thereon that to him what money paid by ever him the said making interest, and in improvements thereon without being said amount 175.00 Dollars upon the decease of of the above said paid heirs, sum executors By administrators.” provision virtue of this plaintiff Hiram claims that when Merrihew died the cotenants were buildings entitled to his interest the island and thereon, heirs, executors, to his $175.00 or adminis trators, and that plaintiff is entitled to that interest on the payment of the sum named to the administrator of Hiram Merri hew’s estate. claim is denied defendant, This and both administrators of the estate refused to sell or deed such interest plaintiff. to the provision
It to be noticed the said in the contract in specifies no that on the death of wise said conveyed his decease shall island at to the re- maining heirs, executors, co-owners administrators v. MERRIHEW’S ESTATE. person, thereupon and that sum shall be ‘‘and simply says administrators. It heirs, executors, or to such *6 said sum of the above upon the decease of The heirs, executors, and administrators.” to provision latter is to be understood construed with reference . goes to and in what before it the same connection with sentence, namely, of the aforesaid de- “that should ’’ etc., interest in said dispose sire of his named, provision to him the sum etc. The fairly subject nor does not mean is it construction part owners, heirs, executors, on the decease of one convey administrators should interest of the heirs, executors, or remaining owners, whether such adminis- trators desired of such interest or not. ques by reason of the fact that the Whether body (who is signed Titcomb named in the was not entering island and purchasers as one
thereof incomplete face, it was on its lacked agreement), into the or so equity specific mutuality, perform that a court of will not decree nor questions are not now considered determined. As ance, 189; necessity completeness, Collins, see Godwin v. Ch. Del. Kahn, Specif. Ch. Pom. Orenstein v. Del. mutuality, Specif. Perf., Pom. Perf., 147. As to see § § seq. el
Decree canse remanded. affirmed