A. Chesley York v. William W. Partridge's Estate

• Decision Date: 11 January 1926
• Citation: 132 A. 37,99 Vt. 329
• Parties: A. CHESLEY YORK v. WILLIAM W. PARTRIDGE'S ESTATE
• Court: Vermont Supreme Court

132 A. 37

99 Vt. 329

A. CHESLEY YORK v. WILLIAM W. PARTRIDGE'S ESTATE

Supreme Court of Vermont

January 11, 1926

November Term, 1925.

APPEAL from probate court for District of Hartford from disallowance of claim by commissioners on estate of William W. Partridge deceased. Trial by court at the June Term, 1923, Windsor County, Willcox, J. Judgment for claimant designated in opinion as plaintiff. The estate excepted. The opinion states the case.

Judgment affirmed. Let the result be certified to the Probate Court.

Roland E. Stevens and Robert R. Twitchell for the estate (defendant).

Fred Bicknell and John Devine (Boston, Mass.), for claimant (plaintiff).

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

On February 17, 1913, William W. Partridge and Florice S. Partridge, his wife, being then domiciled in the state of Massachusetts, entered into a separation agreement by the terms of which, Partridge agreed with A. Chesley York who was named as trustee of said Florice, to pay to York, for the support and benefit of Florice, the sum of fifty dollars per week as long as the Partridges remained husband and wife. This agreement was in writing, and was signed and sealed by all the parties hereinbefore named. Therein, York covenanted and agreed to collect the payments specified and pay them over to Mrs. Partridge, in accordance with the terms of the instrument.

Partridge defaulted the payments called for by the agreement. Mrs. Partridge obtained a divorce from him in Massachusetts, by a decree nisi dated March 17, 1917, which became absolute September 16, 1917. She afterwards married a man name Towle. Partridge died leaving property in this State, and administration on his estate was taken out in the district of Hartford. Commissioners were duly appointed, and the trustee aforesaid presented to them a claim for the sums Partridge owed under the separation agreement. This claim was disallowed, and the claimant appealed. The case was tried below by the court, and judgment was rendered for the claimant on facts found and filed. The estate brings the case here on exceptions.

For convenience, the appellant will be hereinafter referred to as the plaintiff, and the appellee, as the defendant. The latter will also be personified.

The record shows that the claim was presented to the commissioners in the name of "A. Chesley York, Trustee of Florice S. Partridge." But when the plaintiff filed his complaint as required by G. L. 3459, he entitled it "A. Chesley York v. Estate of William W. Partridge, and the Administrator of that Estate"; and he pleaded therein by way of the common counts in assumpsit as for a debt due him, individually. His specification and other papers are entitled as above. When, at the trial, the plaintiff offered the separation agreement in evidence, the defendant objected on the ground that the agreement was with York as trustee of Mrs. Partridge, while the party plaintiff in the case on trial was York as an individual. The objection was overruled, and the defendant excepted. Later in the trial, and before the defendant began putting in evidence, the plaintiff was allowed to amend his papers by adding to the plaintiff's name therein, the word "Trustee." To this, the defendant excepted.

It is now claimed that the agreement ought not to have been admitted because it was under seal, and that general assumpsit does not lie on a sealed instrument-- Myrick v. Slason, 19 Vt. 121, and McKay v. Darling, 65 Vt. 639, 27 A. 324, being cited. But this point was not made below and therefore cannot be urged here, and we are not called upon to consider how, if at all, the rule of the cases referred to is affected by the Practice Act.

That the trustee, as such, was the proper party to enforce the intestate's undertaking in proceedings at law, does not admit of denial. The promise was made to him; he agreed to enforce it; the legal title was in him; he, alone, could sue at law. Perry, Trusts, § 328; 1 Chitty, *2; Oatman v. Barney, 46 Vt. 594, 599. When one sues as a trustee, he must set out his representative character, since, in the eye of the law, the individual and the trustee are separate and distinct persons. 26 R. C. L. 1345. Though the sufficiency of the amendment here allowed is not questioned, we ought to say, lest our silence be taken as an approval thereof, that in such cases it is not enough to add the word "Trustee" to the plaintiff's name, for that is merely descriptio personae. Straw et al. v. Mower et al., 99 Vt. 56, 130 A. 687; Leonard v. Pierce, 182 N.Y. 431, 75 N.E. 313, 1 L.R.A. (N.S.) 161. The pleader must go further and show that the suit is brought for the benefit of a designated cestui que trust. Riley v. Fithian, 65 N.J.Eq. 399, 54 A. 143; Marion Bond Co. v. Mexican C. & R. Co., 160 Ind. 558, 65 N.E. 748. See Trask v. Karrick, 87 Vt. 451, 89 A. 472. This requirement is to enable the parties to take advantage of the judgment as a bar in subsequent suits. Sherman & Ellis, Inc. v. Indianapolis Castings Co (Ind.), 144 N.E. 17. The defendant practically admits that the allowance of such an amendment as was here permitted would ordinarily be within the discretion of the trial court, but insists that in the circumstances of this case, it was an abuse of discretion, because it took him by surprise. But even so, this will not avail him here. If, in fact, the action of the court in allowing the amendment put him to a disadvantage, due diligence and proper procedure required that the defendant apply for a continuance to enable him to prepare to meet the unexpected situation. Congdon v. Torrey, 95 Vt. 38, 112 A. 202. In this view of the matter the amendment rendered the error complained of in the admission of the agreement harmless and unavailing.

Both Mrs. Towle and York were witnesses improved by the plaintiff and gave testimony on the material issues in the case. No objection to their competency was made, but afterwards the defendant moved the court to strike out their testimony because they were incompetent on account of Partridge's decease. This motion was overruled, and the defendant excepted. The ruling was without error. By his silence, the defendant waived the question of the competency of the witnesses. Cowles v. Cowles' Estate, 81 Vt. 498, 71 A. 191; Cook v. Lane, 86 Vt. 253, 84 A. 864; Comstock's Admr. v. Jacobs, 89 Vt. 133, 94 A. 497.

Mrs. Towle was allowed to testify that at a certain interview in 1918, Partridge agreed to pay the overdue installments under the separation agreement. This was excepted to on the ground that such a promise would not toll the statute of limitations. A sufficient answer to this claim is that the evidence was not received for that purpose. It was admitted on the question of reconciliation, only. For this, it was admissible.

For discrediting purposes, the defendant sought to inquire of Mrs. Towle regarding various matters not directly relevant to the questions in issue. The court declined to allow it, and the...