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Heirs of Holmes v. Admr. of Holmes.

The suit was prosecuted by Holmes, without just cause ; Eames' Admr. v. Creditors, 4 Vt. 258; Comp. Stat. chap. 53, $ 14. The costs are not such as were paid out to the adverse party, the estate. as he has paid none, but the costs of his counsel, &c. The question cannot be settled in this form, as it only arises in the settlement of Holmes' account as administrator, not in settling the account of Bates, the present administrator; Comp. Stat. chap. 53, $ 14.

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 choses in action which had not been reduced to possession by the husband, in the life-time 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,

Heirs of Holmes o. Admr. of Holmes.

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 the 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 what 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, that “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

Heirs of Holmes v. Admr. of Holmes.

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, upon 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 unreasonable. This must depend upon the facts in each particular case. In the case in 4 Vt., 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, in this particular, should be affirmed.

Judgment affirmed without costs, as both parties excepted.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF VERMONT,

FOR THE

COUNTY OF ESSEX,

AT THE

APRIL TERM;

AND AT THE

Circuit SESSION, IN SEPTEMBER, 1856.

PRESENT,

Hon. ISAAC F. REDFIELD, CHIEF JUDGE.
Hon. PIERPOINT ISHAM,

ASSISTANT JUDGES. Hon. MILO L. BENNETT,

}

JAMES STEELE v. HERMAN TOWNE.

Statute of limitations. Statute of frauds. Bankruptcy.

A declaration of the defendant that, if he owed the plaintiff anything he was willing

to pay him, held sufficient, upon the indebtedness being proved, to prevent the operation of the statute of limitations, although the defendant, at the same time, claimed that he did not owe the plaintiff anything, and that it was his impression that he had paid the demand in question; the claim, in connection with the impression, evincing no unwillingness to remain liable, if the fact of payment should be found against him.

Steele v. Towne.

The defendant, at the request of S., carried certain papers to the plaintiff, and in

formed him that S. wished him to commence suits thereon. The plaintiff refused to do so unless the defendant would become responsible for certain advances of money which the plaintiff would be obliged to make, whereupon the defendant assured the plaintiff that S. was good for that, and, if not, that he (the defendant) was, and thereupon the plaintiff commenced the suits. Held, that the defendant's undertaking was collateral only, and, not being in writing, could not be enforced, though, in point of fact, S. was not responsible; it pot appearing that the defendant had acted in bad faith.

A subsequent promise of the defendant to pay the plaintiff, for which there was no

consideration, could not convert such collateral undertaking into an original one.

The fact that, after the accruing of an account in favor of the plaintiff, he went into

bankruptcy, under the late U. S. bankrupt law, and that the account was not included in the schedule of claims annexed to the petition of the defendant for the benefit of that law, will constitute no bar, in favor of the debtor, against the prosecution and collection, by the plaintiff, of such account.

Book Account. The plaintiff's account consisted of several charges for his services and expenditures as an attorney. The auditor reported that the services were performed as charged for in the first item of the account, and that they had never been paid for; but that the statute of limitations had run upon the charge, subject to the opinion of the court upon the following facts. The defendant had said on several occasions, since this action was commenced, and likewise so testified in the justice's court in which this suit was originally brought, that if he owed the plaintiff anything he was willing to pay him, but at the same time claimed that he did not owe him anything, and that it was his impression that he had paid said charge, but that he would not swear to it positively.

In regard to all the items of the account, from No. 2 to No. 23 inclusive, the auditor found and reported that the services were performed and the moneys advanced by the plaintiff as charged in his account, under the following circumstances, viz. In February, 1842, the defendant carried certain papers to the plaintiff, from one Arunah Spear, and told the plaintiff that said Spear wished him (the plaintiff) to bring two county court suits, in favor of said Spear, against the individuals mentioned in the items of the plaintiff's account. The plaintiff was not then acquainted with said Spear, and refused to bring said suits unless the defendant would become responsible to him for his advances of money in the same; the defendant assured the plaintiff that Spear was good for that, and, if not, that he (the defendant) was; and thereupon the

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