Wilson v. Bates

28 Vt. 765 | Vt. | 1856

The opinion of the court was delivered, at the circuit session in September, by

Bennett, J.

The widow, Harriet N. Holmes, in this case, died without issue, and, upon the settlement of her estate in the probate office, a balance was found due the estate, in the hands of the administrator, and that balance was decreed by the probate court to be paid to George R. Holmes, .the surviving husband of the deceased wife; and, the first question is, who is entitled to that balance ? Does it go to the surviving husband, or to the collateral heirs of the wife ?

The statute, Comp. Stat. chap. 55, § 1, in relation to the descent of real estate, provides that, if the deceased person shall leave no issue, nor widow, nor father, his estate shall descend in equal proportions to his brothers and sisters, and to the legal representatives of any deceased brother and sister, and the mother, if living, shall have the same share. No question can arise but what this statute applies to a case where the deceased person was a female, as well as a male; and, indeed, our statute provides that every word importing the masculine gender only, shall be held to extend to females as well as males! The statute relating to the disposition of personal estate, provides that what shall remain for distribution shall be distributed to the same persons, and in the same proportions, as is prescribed for the descent and disposition of the real estate. In the present case, the property of the wife, at the time of her decease, consisted of dioses in action which had not been reduced to possession by the husband, in the life-timé of the wife; and, in such cases, the choses in action belong to her estate, and not to that of her husband, and go to her issue or kindred, after the payment of debts, and not to the husband. There is no ground to claim that the statute of the 29th of Charles II was ever in force in this state, which places husbands, who become administrators upon the property of the wife, in a different situation from other administrators. It is incompatible with our legislation on the subject; and our statute, like the statute of 22d Charles II, compels all administrators to distribute the estate of the'intestate to the legal representatives of the wife. The husband, though administrator of the wife, cannot retain to himself what, by. the statute of distribution, goes to the issue or collaterals of the wife. It cannot be claimed that the husband, in the life-time of the wife, reduced the notes to possession. All that that the case finds is, that soon after the marriage the wife delivered the notes to the husband and requested him to keep them, and he did keep them, with his other papers, until after her death. The fact that she told him. before they were married, that those notes were all her means, and that he purchased for her a wedding dress, and made other preparations for the wedding, at her request, and purchased the furniture, cannot have the effect to constitute .a reduction of the notes to possession, or to give the husband a valid lien upon the notes, though doubtless the wife contemplated the husband should have some benefit from the notes, if not the whole of them. We find from the case that th^ husband, in fact, inventoried those notes as the property of the estate, and commenced suits on them while he was administrator. We must, then, take the notes to be the choses in action of the wife at the time of her death ; and, it was rightfully held, by the county court, that the balance of wrhat remained of their avails, upon the settlement of the estate, should be decreed to the legal heirs of the wife.

A question is raised as to an item allowed the husband, in his administration account, for costs, expenses, and counsel fees, in litigating the appeal from the court of probate, (which vacated his letters of administration,) in the county and supreme courts. The county court found that Holmes, in all said proceedings, acted under the advice of suitable counsel, and in good faith, believing himself entitled to administration, and the county court allowed him that portion of his account. It is said in the case of the Admr. of Eames v. The Creditors of said Estate, 4 Vt. 256, fliat “ an administrator will be allowed his account for expenditures in a law suit, in which he fails, when he acts in good faith, and with reasonable prudence, but he may press on a suit with so little prudence, and so little prospect of recovery, that he ought not to be allowed his costs.” The test, then, seems to be, did the administrator act in, good faith, and with reasonable prudence in incurring the expenses ?' and, these are questions of fact.

The county court having allowed the administrator his account,, tipon the ground that he acted in good faith, and under the advice of suitable counsel, believing he had the right of the case, or, in other words, having acted reasonably, this court cannot, as matter of law, say that the court erred in allowing that part of the account. The law cannot fix a rule for not allowing to an administrator expenditures in litigation, upon the ground that they were unreason-, able. This must depend upon the facts in each particular case. In, the case in 4 Yt., the question came up upon the report of the commissioner, made directly to the supreme court, and not on exceptions. We think, then, the judgment of the county court, this particular, should be affirmed.

Judgment affirmed without costs, as both parties excepted.,