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Craftsbury v. Hill et al.

case.

record. They testified that Stebbins had, by them, been admitted to the poor debtor's oath, and this was all that was important to the

It was of no particular importance, in this case, whether a certificate was lodged with the jailor or not, and we see no objection to the admission of the certificate lodged with the jailor, as a part of the transaction, although signed by only one of the commissioners. If the sheriff had been sued for an escape, by the creditor in the execution, the case would have been quite different.

We see no objection to the principles of the charge, and it wag fully warranted by the case of McGregor v. Balch, 17 Vt. 562.

Judgment affirmed with costs.

THE TOWN OF CRAFTSBURY 1. REUBEN W. HILL AND JOIN

Lock.

Arbitration.

The revocation of a submission is a breach of an agreement or condition in an

arbitration bond to abide by and perform the award.

Debt on an arbitration bond, executed by the defendants to the plaintiffs, the condition of which recited the submission of a suit pending in favor of the defendant Hill, against the plaintiffs, to certain referees named, and concluded as follows:

“Now, if the said Reuben W. Hill, his executors and administrators, on his and their part, shall and do, in and by all things, well and truly observe, perform and keep the award and determination which the said arbitrators shall make and publish of or in the premises, in writing, under their hands, on or before then this obligation is to be void, otherwise to be and remain in full force.”

The declaration, after setting forth the execution and condition of the bond, alleged a breach or forfeiture of it as follows:

“Yet the said Hill, by his instrument in writing, sealed with his seal on the 12th day of October, A. D 1855, revoked the power

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Craftsbury v. Hill et al.

of said arbitrators to make an award. “Now, the plaintiffs say that the said Hill hath not, in and by all things, well and truly observed, performed and kept the award and determination which the said arbitrators should make and publish of or in the premises, in writing, under their hands, on or before

as by the condition of his writing obligatory aforesaid he was bound to do, but by his revocation of his said agreement to submit the said matters in dispute to arbitration as aforesaid, hath occasioned the loss to the plaintiff of large sums of money expened in procuring counsel, securing the attendance of witnesses, and in preparing for the trial before the arbitrators, as aforesaid, to wit, the sum of one hundred dollars.”

To this declaration the defendants demurred. The county court, December Term, 1855,—POLAND, J., presiding, --adjudged the declaration sufficient, to which the defendants excepted.

for the defendants.

for the plaintiffs.

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

BENNETT, J. This is an action of debi upon a bond of submission to arbitration, and the condition is, " that said Hill, his executors, &c., shall and do, in and by all things, well and truly observe, perform and keep the award and the determination which the arbitrators shall make.” The breach of the condition set up in the declaration is a revocation of the submission, and the question raised on the demurrer, seems to be, whether that is a breach of the submission. We think this question is well settled by authority. See Vynior's case, 8 Coke 162, 3d resolution, and Warberton v. Storer, 4 B. & C. 103. By the revocation, Hill had deprived the arbitrators of the power to make an award, and consequently also himself of the power to observe, perform and keep it, and this, in legal effect, is a forfeiture of the bond, and a breach of the condtion. The condition of this bond seems to have been drawn according to modern precedents.

Judgment of the county court affirmed.

Heirs of Holmes v. Admr. of Holmes,

CHAUNCY WILSON AND WILLIAM Dow, apts. v. JACOB BATES,

Administrator of Harriet N. Holmes. Distribution of intestate feme covert's choses in action. Reducing

of them to possession by her husband. Allowance to administrator for expenditures in unsuccessful lawsuits.

The choses in action of a feme corert, in this state, who dies intestate and without

issue, which had not been reduced to possession by her husband, are to be distributed to her collateral heirs, to whom her real estate, if she had any, would descend;-and not to her husband.

The fact that such choses in action were all the property that the wife possessed, and

that she, before the marriage, so informed her husband, and that he, at her desire, procured her wedding dress and other wedding preparations, and was at the whole expense of furnishing the house, and that, after the marriage, she handed the notes to her husband, who took them and kept them with his other papers, do not constitute a reducing of them to the possession of the husband, or give him any valid lien upon them.

An administrator should be allowed for his expenditures in a law-suit in which he

was unsuccessful, if he acted in good faith, and with reasonable prudence;-and whether he did so or not, must ordinarily depend upon the facts in each particular case.

In the present case, the administrator allowed for such expenditures, it being found

that he acted in good faith, and under the advice of suitable counsel, believing he had the right of the case.

APPEAL from an order of the probate court allowing the account of the appellee, as administrator, in which account was included the account of George R. Holmes, a former administrator; and decreeing the residue of the estate, remaining after the allowance of said account, to the said George R. Holmes.

Upon trial in the county court, December Term, 1855,POLAND, J., presiding the following facts appeared.

The appellants were a brother and brother-in-law, and the said George R. Holmes was the husband of the intestate, Harriet N. Holmes, whose maiden name was Harriet N. Wilson. Prior to her marriage she held some notes against her brother, Chauncy Wilson, payable to herself, given for her share in her father's estate. These notes remained unpaid in the hands of her husband at the time of her decease. After her death, her brother and sister, (she having left no children,) applied to the probate court, in Orleans county, to appoint David M. Camp administrator, and opposed the appointment of Holmes, because he lived out of the state;

Heirs of Holmes v. Admr. of Holmes,

He ap

--but the probate court appointed IIolmes. He inventoried the above mentioned notes as the property of the estate, and, as administrator, commenced a suit upon them against said Wilson. While this suit was pending, the heirs applied to the probate court to remove him, as administrator, and the probate court did so. pealed from this order of the probate court to the county court, when the order was affirmed; and he then carried the case to the supreme court, on exceptions, and the judgment of the county court was affirmed.

That portion of the administrator's account which was objected to was for the costs and expenses, and counsel fees of the said Holmes, in litigating said appeal from the probate court. The court found that Holmes, in all said proceedings, acted under the advice of suitable counsel, and in good faith, believing himself legally entitled to administration. Bates was appointed administrator, upon the removal of Holmes, and prosecuted the suit commenced against Wilson, on said notes, to final judgment, and collected the amount;—and, the money thus collected, was the whole estate of Mrs. Holmes in the hands of the administrator. It was proved by said Holmes, though objected to by the heirs, that before his marriage, the said IIarriet N. informed him that her only means were these notes against her brother, who was not then ready to pay them; and that he, at her desire, procured her wedding dress, and other wedding preparations, and was at the whole expense of furnishing the house; and that, after their marriage, Mrs. Holmes handed the notes to her husband, and requested him to keep them, and he did keep them, with his other papers, till after her death, and until he was appointed administrator, as aforesaid, when he placed them in the hands of his attorney for collection. It was also proved that Mrs. Holmes was sick for some three months before her death, and that her husband was at a great deal of expense for nursing and medical attendance for her during that period.

Upon these facts the court adjudged that the decree of the probate court, allowing the administrator's account, be affirmed; but that the decree of the probate court ordering the residue of the estate in the hands of the administrator to be paid to the said George R. Holmes, be reversed, and that the same be decreed to

Heirs of Holmes v. Admr. of Ilolmes.

be distributed among the legal heirs of Mrs. Holmes. To this decision, as to the allowance of the administrator's account, the appellants excepted ;-and, as to the reversal of the residue of the decree of the probate court, the appellee excepted.

Cooper & Bartlett and T. P. Redfield for the appellee.

The husband is entitled to the choses in action of the wife on decease of the wife; 26 Vt. 336; Story on Promissory Notes 88; Whitaker v. Whitaker, 6 John. 116; 2 Kent's Com. 420; 1 Peere Williams 380-382; Comp. Stat. 365; Reeve's Dom. Rel. 22.

The husband will be deemed to have taken the choses in action by purchase, having made advances, at the wife's request, before marriage, and the notes passed into his hands in consideration thereof; see Reeve's D. R. p. 26.

The defendant's expenditures, as administrator, having been · made in good faith, and by the advice of counsel, his account was properly allowed; Woods, Admr. of Eame's Estate v. Creditors of Eame's Estate, 4 Vt. 256.

Peck & Colby for the appellants.

Under our statute of distributions, the property of intestates, leaving no issue, or father, goes to the mother, brothers and sisters. Comp. Stat. chap. 55, $ 1. Words denoting masculine gender extend to females. Comp. Stat. chap. 4, § 1. The statute undoubtedly applies to females intestate, as well as males, and leaves no room for doubt of the propriety of the decision of the court below.

The items of costs and expenses, counsel fees, &c., incurred by Holmes, after his removal from the office of administrator by the probate court, do not constitute a proper charge upon the estate. A large share of this expense accrued in consequence of an appeal taken by IIolmes, from the decree of the probate court, removing him as administrator. The county court decided against him, and likewise the supreme court, and that, too, upon the ground that the decree was not the subject of error, but was within the final jurisdiction of the probate court. In this decree, Holmes should have acquiesced, but he appealed for his own benefit, all the while claiming to own the estate. His argument in the supreme court, shows this to have been his claim ; Holmes v. Est. of Holmes, 26 Vt. 540.

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