Barnes v. Dow
| Decision Date | 18 July 1887 |
| Citation | 10 A. 258,59 Vt. 530 |
| Parties | HANNAH BARNES AND JAMES J. WILSON v. L. B. DOW, HELEN DOW, SMITH HODGES, AND HENRY GIFFORD. Cross-Cause: SMITH HODGES v. L. B. AND HELEN DOW, HENRY GIFFORD, J. J. WILSON, AND HANNAH BARNES. Cross-Cause: HENRY GIFFORD, ADM'R OF J. E. MORSE'S ESTATE, v. L. B. AND H. DOW, SMITH HODGES AND J. J. WILSON, AND HANNAH BARNES. [IN CHANCERY.] |
| Court | Vermont Supreme Court |
[Copyrighted Material Omitted]
BILL IN CHANCERY. Heard on bill, cross-bills, answers replications, concessions, master's report and exceptions thereto, May Term, 1885, TAFT, Chancellor.
It was decreed that the original cause be dismissed as to Hodges with costs, and that the orator have decree against the defendants in accordance with the prayer of the bill. In the cross-cause of Hodges v. Dow and others, decree for the orator with costs. In the cross-cause of Gifford, Adm'r v. Dow and others, it was decreed that there was due from the estate of James Morse to Wilson, trustee, the sum shown by the master's report, and that the same be paid with costs. It was further adjudged that the said Hannah Barnes should have a lien upon the personal property belonging to the Barnes estate in the hands of Wilson as against the said Dow and wife in the sum of $ 389, named in the report, and interest thereon. The orators in the original cause, and Gifford in all the causes, appealed.
The bill, as originally drawn, was in favor of Hannah Barnes against Lewis B. Dow and wife and Smith Hodges, complaining that she had not been properly supported in accordance with the will of George Barnes, and asking for a foreclosure unless she was so supported.
After the case had been entered in court, Henry Gifford, as administrator of James Morse, entered as a party defendant and claimed that there was a large balance due Morse's estate as executor of the last will and testament of George Barnes, and filed his cross-bill to have the same paid out of the estate. James J. Wilson was appointed December 5, 1883 by the Probate Court a trustee under the provisions of the will in place of James Morse, deceased, and said Wilson asked and was granted leave to enter as co-orator. Dow and his wife, Helen Dow, answered that Hannah Barnes had been properly supported; but admitted that the facts as to giving the mortgage to Hodges were substantially as alleged by him in his cross-bill. Hodges also answered and filed a cross-bill setting forth that on the 17th day of August, 1878, he loaned $ 900, at the request of Morse and Dow and Hannah Barnes, upon a mortgage signed by Lewis B. Dow and Hannah Barnes; that said money was obtained from him by representations and assurances that it was to be used to pay debts due from the estate of said Barnes; that Hodges understood that he should have the first lien upon said real estate; that it was supposed that the note signed by Dow, and the mortgage signed by said Dow and Hannah Barnes, constituted the first lien and incumbrance upon said real estate; and further, that the money was used in paying claims allowed against said George Barnes' estate; and praying that the money so advanced by Hodges be declared the first lien upon said real estate, for foreclosure, and also for general relief.
It was agreed by all the parties before the master that any amendment, answer or cross-bill, might be filed at any time necessary to equitably adjust all matters between them, and that the court might hear and determine the same as if they were already filed. It appeared from the report of the special master that George Barnes deceased in the month of December, 1876, leaving a will disposing of his estate, both real and personal, as follows:
Said will was duly probated and allowed, and said Morse accepted said trust as executor. James E. Morse settled his administration account with the estate February 13, 1882, and died in the month following.
Henry T. Gifford was appointed administrator of the estate of said Morse. On the 5th of December, 1883, James J. Wilson was appointed trustee under said will.
On the 7th of April, 1885, Wilson, as trustee, petitioned the Probate Court for a re-hearing and correction of the account of Morse as executor of the Barnes estate.
The matter was heard in Probate Court, and judgment and decree rendered therein, from which Wilson appealed to the County Court, which appeal is now pending.
The special master reported that he found two subjects of contention before him. One in relation to the giving a mortgage by Lewis B. Dow and Hannah Barnes to Smith Hodges. In respect to this it appeared that a short time before the 17th of August, 1878, Morse, as executor, claimed to desire to raise $ 800 to pay claims allowed against the estate of George Barnes. He consulted with Dow touching the matter, and they concluded that the whole estate of George Barnes, after the payment of the debts, belonged to the said Dow, subject to the support of the said Hannah Barnes; and that the desired amount of money could be raised on a note given by Dow and secured by a mortgage on the farm owned by said Barnes at his death, and that the mortgage should be executed by said Dow and Hannah Barnes.
As a result of these negotiations, on the said 17th day of August, 1878, Hodges let Dow have $ 900, and received his note for that sum payable on the 16th day of August, 1882, with interest annually.
The said Dow and Hannah Barnes on that day executed a mortgage to said Hodges to secure the payment of this note. Morse was one of the witnesses to this mortgage.
Hannah Barnes was at first unwilling to sign said mortgage; but when told by Morse that it was to raise money to pay debts of George Barnes' estate, and that the real estate was charged with that burden, and that it would make no difference to her, she executed the mortgage. She was advised to the same effect by the town clerk. Morse wrote the mortgage. Hodges was not present when the mortgage was executed, and never had any talk with Hannah Barnes in relation thereto.
Of the money raised by this mortgage, $ 496 was handed to Morse by Dow. Out of the remainder Dow paid debts of the estate amounting to $ 176.63, and also $ 35 for a burial casket in which George Barnes was buried. The total amount of debts thus paid by Dow to Morse and on the claims amounted to $ 706.65. In addition to this sum paid by Dow, he paid to one N. M. Russ a bill of $ 69.50 on a store account which Russ had against him for goods furnished and used by Dow on his said farm and in his family while said Hannah was a member of it, and receiving her support from him under the will. Dow also paid to one Cross for work on the farm the same year the sum of $ 69.55.
The balance of the $ 900 raised by said mortgage was used by Dow to buy a pair of oxen which he used on the farm. No payment on the mortgage note has ever been made.
It appeared that Dow lived on this farm from and after the death of the said George Barnes and that Hannah Barnes lived with and was supported by him until trouble arose, and she left. The personal estate of the said George Barnes was inventoried at $ 2,305.85.
On the 4th day of November, 1878, Morse turned over to Dow of personal property belonging to the estate what was appraised at $ 814.87; and this amount of property was in Morse's hands at the time of the execution of the mortgage to Hodges.
On the 10th day of December, 1883, Wilson, as trustee, took an inventory of certain personal property on the farm amounting, according to his estimate to $ 394.
The farming tools on the farm at the death of Barnes are still there, and their value kept equal to what it then was, namely, $ 170.25. That the household goods are still there, and worth their appraised value, $ 46.07.
The debts were nearly or quite paid by the 4th of November, 1878, and after that time, and up to the time when Wilson was appointed trustee, Dow managed the farm as his own.
Dow had the use and possession of the farm and stock from the death of Barnes to the appointment of Wilson as trustee, and carried on the same, using the avails for the support of his family and Hannah Barnes, while she lived with them, hiring help and paying it, and disposed of the avails for his own use except what he let Morse have.
Morse had paid out for the estate and had charges against it to the amount of $ 1,238. He had, at the same time, received from the estate, in cash, about $ 1,185. This did not include the personal property, amounting to $ 814.84, which Morse afterward turned over to Dow.
Neither Hodges, Hannah Barnes, or Dow, knew how the account between Morse and the estate stood on the 17th day of August, 1878.
When the mortgage was executed said Hodges, Dow and Morse understood that Hodges was getting the first lien on the real estate. All that Hannah Barnes knew about it was what Morse and the town clerk had told her, which was that the mortgage would not affect her, if Morse's representations were true.
Another subject of contention before the special master was the account of Morse as executor.
The account, as examined and allowed by the Probate Court in February, 1882, showed a large balance due Morse from the Barnes estate. It was claimed by Wilson, and by Hannah Barnes and by Smith Hodges, that the account was erroneous, and if...
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