Bailey v. Bailey

Citation32 A. 470,67 Vt. 494
PartiesBAILEY et al. v. BAILEY et al.
Decision Date09 June 1895
CourtUnited States State Supreme Court of Vermont

Appeal in chancery, Orange county.

Bill by M. C. Bailey and others against Judith Bailey and another for an accounting of their management of the estate of a deceased person, of which, without legal authority, they assumed the control during the life of the deceased. From a decree sustaining a demurrer to the bill, orators appeal. Reversed.

R. M. Harvey, for orators.

John H. Watson and Smith & Sloane, for defendants.

TAFT, J. The question in this case is raised by demurrer to the bill. The orators are sons of Joseph Bailey, deceased, by his first wife. The defendant Judith is the widow of Joseph and the mother of his son Hale G., the other defendant The estate of Joseph is in process of settlement The defendant Judith is administratrix. Hale G. presented a demand against the estate of Joseph to the commissioners appointed to adjust claims against it, which was allowed, and an appeal taken, in the name of the administratrix, by one of the orators, which appeal is now pending in the county court The orators allege that the intestate was Insane for many years prior to his death, in 1890; that he was incapable of transacting business; that the two defendants took and had the management and disposal of his property and the income of his property, as though it was their own, and refused to allow the said Joseph to have any control or management of it; that the said Joseph had a large claim for the care and support of Mrs. Grow, the mother of Judith; that this claim was settled privately by the defendants, and the amount received by them never accounted for. They further allege that the defendants have always acted together in the management, control, and disposal of the moneys, lands, and income belonging to the estate of said Joseph, and that each acted with the knowledge and agreement of the other, and without any authority whatever, except what, if any, their relationship to him gave them, and entirely without any contract.

The prayer of the bill is that the defendants be ordered to account for all moneys and other property, including the income of the farm and the amount which they received upon the claim for the support of Mrs. Grow, and to pay over all that may be due from them to said estate. It is claimed in the answer that the bill is multifarious. The question is not argued in the brief; but, if insisted upon by the defendants, the point is not well taken. The orators are alike interested in all the matters and things set forth in the bill, and the claim is made against both defendants. The proceeding is not to compel an accounting by Judith's mother, in respect to her support, but it is an attempt to compel the defendants to account for whatever they have received from the property of Joseph,—the income and profits of his real and personal estate, including what they received from the mother of Judith upon said claim against her. The bill is not multifarious.

It is argued—and this is the real question in the case—that the orators have a complete and ample remedy at law, and that the matters in controversy can be adjudicated in the probate court The settlement of estates, under our statutes, is vested in that court; but equity has jurisdiction whenever its aid is required and the powers of the probate court are inadequate to deal with the question at issue. The proceedings cannot be sustained upon the ground of discovery; for, under Rev. Laws, § 2157, any person who is charged with having any property of an estate, or concealing it may be cited before the probate court, and examined in reference to it. It is argued that any claim against Hale G. may be presented in set-off to his claim in the proceeding now pending in the appellate court, and that the administratrix may be charged in the settlement of her account with all proper matters in favor of the estate against her, for which she is liable to account as administratrix. Under the allegations in the bill, the matter in controversy is a claim in favor of the estate against the two defendants jointly. To determine whether the probate court can adequately deal with this question, we must refer to the nature of the claim which is made by the bill. It is therein alleged that Joseph Bailey was insane, incapable of doing any business, and was in the care, custody, and control of the defendants. They intruded upon his estate, assumed control and management of it without any contract, and have had possession of the same for more than 20 years, without accounting for any of the rents, income, profits, or property. These are substantially the facts alleged in the bill, and admitted by the demurrer. Upon these facts, we must hold that the defendants made themselves trustees by construction, or guardians de son tort. It is immaterial which term is used in designating their character; for the terms, in this respect, are synonymous. There is a class of cases in which it frequently happens that courts of equity adjudge a trust has arisen from the contracts and dealings of parties, although a trust was not within the contemplation of either party, and when there was no fraud actual nor constructive,—in which respect chancery proceeds in a manner and upon principles entirely unknown to courts of law. The parties are called trustees by construction. For instances of this character, see 1 Perry, Trusts, c. 7. Among such instances, it has been held that persons may become trustees by intermeddling with and assuming the management of property without authority. They are held to be trustees de son tort in the same manner that persons who deal with a deceased person's estate without authority are administrators de son tort. If one enters upon the lands of an individual, and takes the rents, manages and carries on the property, he may be charged as a guardian, trustee, or bailiff, and so may one who takes personal property. The case of Wyllie v. Ellice, 6 Hare, 505, is a case of such holding, and the reasoning quite applicable to this. The defendant Ellice was charged as trustee, having unlawfully and without authority entered upon the plaintiff's estate, and held the same, receiving the rents and profits during the plaintiff's infancy; and it was held he became thereby accountable to the plaintiff as "bailiff, guardian, or trustee." The phrase "bailiff, guardian, or trustee," as used, was...

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27 cases
  • In Re Watkins' Estate.
    • United States
    • Vermont Supreme Court
    • February 6, 1945
    ...mistakes as well as of their intentional interferences in dealing with the property of the estate.’ Also see Bailey v. Bailey, 67 Vt. 494, 498, 32 A. 470, 48 Am.St.Rep. 826. From what we have said it is apparent that the estate has claims relating to the aforesaid sums taken by the Bank bas......
  • In re Estate of Harris R. Watkins
    • United States
    • Vermont Supreme Court
    • October 3, 1944
    ... ... of their intentional interferences in dealing with the ... property of the estate." ...          Also ... see Bailey v. Bailey , 67 Vt. 494, 498, 32 ... A. 470, 48 Am. St. Rep. 826 ...          From ... what we have said it is apparent that the estate ... ...
  • Abrams v. White
    • United States
    • Idaho Supreme Court
    • November 28, 1905
    ... ... (Trotter v. Mutual Reserve etc. Ins. Assn., 9 S ... Dak. 596, 62 Am. St. Rep. 887, 70 N.W. 843; Bailey v ... Bailey, 67 Vt. 494, 48 Am. St. Rep. 826, 32 A. 470; ... Deck v. Gerke, 12 Cal. 433, 73 Am. Dec. 555.) ... "When a bill in equity contains ... ...
  • In Re: Will of Gemma Prudenzano
    • United States
    • Vermont Supreme Court
    • October 4, 1949
    ... ... 50, 59; ... Mathews v. Drew, 106 Vt. 245, 247, 172 A ... 638. We add, parenthetically, that the statement to the ... contrary in Bailey et al v. Bailey et al, ... 67 Vt. 494, 501, 32 A. 470, 48 Am St Rep 826 should not be ... relied upon, and note that Robinson v ... Swift, supra, ... ...
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