Randall's Adm'r v. Randall

• Decision Date: 01 May 1892
• Citation: 24 A. 1011,64 Vt. 419
• Parties: JOEL RANDALL'S ADM'R v. MILO B. RANDALL, ET AL
• Court: Vermont Supreme Court

24 A. 1011

64 Vt. 419

JOEL RANDALL'S ADM'R v. MILO B. RANDALL, ET AL

Supreme Court of Vermont

May 1, 1892

FEBRUARY TERM, 1892

The pro forma decree reversed and cause remanded with mandate that there be a decree for the orator according to the prayer of the bill unless the defendants, within a time to be fixed by the Court of Chancery, pay to the orator the sum remaining due upon said note with costs.

Stewart & Wilds, for the orator.

OPINION

TYLER

The material allegations in the bill are that the intestate, Joel B. Randall, in January, 1878, became indebted to Abigail Andrus in the sum of $ 1000, which indebtedness was evidenced by his promissory note to her of that date that in January, 1882, he conveyed all his estate to his heirs for no other consideration than love and affection that the conveyances were made without making provision for the payment of this debt and were therefore void. The defendants in their answer admit that the $ 1000 debt was due from Randall to Mrs. Andrus at the time the conveyances were made, and aver that in September, 1882, the intestate made ample provision for its payment by placing $ 1000 in the hands of Taylor and taking from him the written obligation which is set out in the master's report, which was in substance a promise by Taylor to Randall that the former would pay the debt to Mrs. Andrus as she or her executor administrator or assigns should call for it, which promise was in consideration of Randall's loan of $ 1000 to him. The answer further avers that Mrs. Andrus had notice of the arrangement and assented to it, that Taylor personally promised that he would pay her the debt as she required it, and that he subsequently paid her several sums amounting to $ 110; that Randall's relation to the note after placing the funds in Taylor's hands was that of a surety, and that he was released as such surety by the omission of the administrator and representatives of Mrs. Andrus to proceed against Taylor for the collection of the note.

The issues made by the pleadings were whether or not the intestate disposed of his property without making ample provision for the payment of this debt, and if not, whether the debt was still subsisting. It is alleged in the bill that he made no such provision: the answer meets this allegation with the averment that Taylor was, by a tripartite agreement, substituted for the intestate as debtor to Mrs. Andrus, and that the...