Bourne v. Bourne

• Decision Date: 31 January 1897
• Court: Vermont Supreme Court
• Parties: BOURNE v. BOURNE et al.

37 A. 1049

69 Vt. 251

BOURNE

v. BOURNE et al.

Supreme Court of Vermont. Rutland.

Jan. Term, 1897.

Appeal from chancery court, Rutland county; Taft, Chancellor.

Bill in chancery by Electa Bourne against Montraville A. Bourne, executor of Charles E. Bourne, deceased, and others. The case was heard on the report of a master, and decree rendered that defendants convey the Engrem premises to the oratrix, unless they elect to pay her the amount withdrawn from the savings bank by Charles E. Bourne, and that, in the event of such election, the Engrem mortgage should be revived and foreclosed for the enforcement of such payment. Defendant Ellen Bourne appeals. Reversed.

Butler & Maloney, for appellant.

Joel C. Baker, for appellees.

ROWELL, J. Before and on June 26, 1879, Edmund Bourne, the oratrix's husband, who died in July, 1879, owned a place in Danby. whereon they lived. On that day, by a warranty deed of that date in common form, they conveyed the same to the testator, Charles E Bourne, their son, for the expressed consideration of $1,000, and Charles gave them back a lease thereof "for and during the term of their natural lives, and the survivor of them." It is found from oral testimony, seasonably objected to by the defendant Ellen, who is the widow of Charles, that Charles paid nothing nor said deed at the time, and that it was not intended to evidence an absolute sale to him, but was only to secure him for what he had already done or might thereafter do for his father and mother; that it was expected she would continue to live on the place, and be supported principally by Charles, and that her support would, at least, equal the value of the place, which would belong to Charles when she was dead. This arrangement was known to the other members of the family, and acquiesced in by them. The objection to the admission of this oral testimony cannot be availed of here, as it does not appear that an exception to the report for that reason was filed in the court of chancery. V. S. § 942. The arrangement found therefrom must stand for what it is legally worth.

The oratrix continued to live on the place till some time in 1885, and was supported by her children, including Charles, who severally contributed what they saw fit. Whether Charles' contributions were regarded as a legal claim against her, any more than the contributions of her other children, does not appear unless it is shown by the conveyances and arrangement aforesaid. On January 6, 1886, the place was sold for $1,100, the oratrix joining in the deed. Charles had the money, and deposited it in a savings bank in his name. In 1887 he drew it from the bank, and paid most of it on a purchase-money mortgage that he had given on two lota in the village of Rutland, which he had previously bought of Engrem. On January 26, 1891, Charles borrowed $600 of his brother, the defendant Montraville, who is executor of Charles' will, and, with that and other money, paid the balance due on the Engrem mortgage, which was then discharged of record, and thereupon he gave Montraville a mortgage on said lots for $600, which is still a Hen thereon. After the place in Danby was sold, the oratrix lived a while with one of her daughters, and later with her son Montraville, who has supported her for several...